Week 5 Flashcards
No channel + surface =
surface water
Types of water= channel + surface =
watercourse
Channel + underground =
underground river
No channel + underground =
percolating waters
Basis of water rights is ___
state law
Water is similar to oil/gas in that it is ___ but unlike those it is __
fugacious, subject to hydrological cycle
Riparian rights apply when ___
appurtenant to land, land use and surface stream use same package
English natural flow theory
upstream owner can’t divert water in any way that hurts the downstream owner (they get a veto)
Problems with English flow theory
(1) hard to measure amount of water
(2) bilateral monopoly
(3) hard to enforce
____ is the goal of English natural flow
negotiation
American reasonable use theory
consider purpose of use, sustainability, econ/social values, harm, ability to bear loss etc
American law usually finds not reasonable to ____ since it hurts the ___
divert surface water outside of watershed, downstream owner since water not replenished
Evans says that _____ but if ____ then jury decides
natural use trumps artificial, two artificial use
What is a beneficial use of water
productive/econ uses
In Illinois natural uses include ___
drinking/household needs/cattle watering
Statutes favoring ___ sometimes overrode default of Evans
mining/ag/mills
Irrigation is likely a natural use in a ____ but in Evans it is ___
arid area, artificial
Appropriation theory of water rights
1st gets priority whether upstream or downstream
Appropriation theory influenced by ___
mining camp customs
Evans facts
East coast steam mills, abnormal water shortage
Evans implies if only enough water for ___
one to survive upstream gets it all
Evans says the water diversion upstream is ___
little injury to those below + valuable benefit to himsef
Coffin facts
water diverted outside watershed, both want for irrigation
Coffin says that in Colorado the ____ as long as ___
first appropriator can take all of the water in the stream, use is beneficial
In Coffin, the water diversion right is not ____ and lasts as long as ___
pure property right, using the resource
In Coffin, to divert water you must ____ but don’t need to ____
have land, be riparian owner or have land in the same watershed
Conditions in CO that support first appropriator
(1) arid soil + mining require water from a distance
(2) land near water not necessarily worth using it on
(3) scale of use too large to split amongst all riparians
Like _____, it is _____ beneficial use
reasonable use, hard to define
Tulare says that ____ is not beneficial
flooding off gophers
Now appropriation system comes with ____ that is less tolerant of ___ and helps with __
elaborate regulatory scheme, diversion outside watershed, measurement issues
More recently, western states have been amending their water rights to provide for ___
rights for instream users (rafting)
What is common enemy doctrine
diffuse surface water undesirable so each LO absolute right to use self-help to repel inflows of surface water even if causes damaging flooding to other LOs
More recently, common enemy doctrine has been modified to include ___
reasonableness
Higday says the overlying owner’s right to use the groundwater is ___
incidental to the beneficial enjoyment of the land from which it was taken
Higday holding
farmer injunction denied despite unreasonable use
Higday says that the city is required to ___
compensate farmers if lower water table
Higday implies that the city should ___
use eminent domain
The city in Higday is using the Acton rule meaning ___
slant drilling rule so extract as much as they can
Problems with using Acton rule in Higday
(1) water adds value to use of land in way oil/gas doesn’t
(2) diverting outside watershed
Generally can use Acton rule for groundwater but ____
reasonable use/watershed as limits
How does Higday define unreasonable
waste/maliciousness/selling (especially outside watershed)
Higday rejects a ____ system because __
correlative rights (proportionate withdrawal) like in CA, too complicated (which surface owners) + egalitarian rigidity
What is the valuation issue with water
not conventional property right
Public trust not used a lot with water but it was for ___
Mono Lake in CA, and for groundwater in Hawaii to protect native practices
Criminal trespass to real property has _____ criminal penalties
minimal
Criminal larceny initial emphasis on ____ to a more general emphasis ___
preventing violence, owner’s interest in security of property
For civil trespass usually can’t get ___ but ____
injunction, exceptions (repeated trespass)
Ejectment means
action to remove another in wrongful possession
FED statutes are ____
forcible entry and detainer
FED Statues are mostly ___
used in L/T relationship, often only lawful means to evict tenant
FED is like ejectment but ___
more streamlined procedure
Nuisance only applies ___
to real property
Nuisance must be ___ and __
substantial, unreasonable
Conversion is when ___
sue to get damages (forced sale)
Replevin is __
action to get something back
Arson and burglary apply when ___
threat to persons
Trespass to chattels __
protects personal property from damage
Hamdi says that harm ___
must be proven if not only self-help available
Unlike trespass to land, trespass to chattels ___
requires injury
Hamdi says ____ don’t qualify as injury
intrusion by electrons, disruption to business, expense of trying to bypass emails
Hamdi says injury must be ___
physical to the chattels
Why no nuisance to chattels
nuisance is a spatial tort tied to lost value of land
Hamdi dissent and majority both agree that ___
Intel had a right to try to prevent Hamidi
Hamidi implicates a similar to INS, whether ___
SoP Q about creating new rights in intangible property
Hamidi decision was driven by ____ of the time which was __
internet ideology, it was a coop space that didn’t need regulation
Internet theology at time of Hamidi
(1) more the merrier
(2) coop culture not requiring legal intervention
(3) tech optimism for solving problems
Hamidi dissent argues that harm should be __
characterized differently and points out self help ineffective
Other early internet law commentators favored ___ analogy for the internet
real estate
School of Visual Arts case focuses on ____ over the ___
physical impediment (#bytes slowing down the system), character of the messages
Nominal trespass damages may be about _____ so not the same issues with chattels
title in real property
what is offensive self help
recover possession that has been lost to another person
Offensive self help example
run after pickpocket and threaten to punch him
Offensive self help is viewed as more -__
problematic than defensive self help
Offensive self help was allowed in ____ but not ___
Williams, Berg
Katco says _____ not allowed
lethal defensive self help
Examples of defensive self help
Intel spam filters, locks, video cameras
Berg says landlords must ___
use judicial process to remove tenant in possession (never self help)
Berg is about __
Landlord that changed locks
Berg says Wiley’s retaking was ___
not peaceable
Court says Berg may be different if ___
rent payments had stopped (evidence of abandonment)
Berg is focused on ___
preventing violence
What if Wiley threw all of Berg’s stuff on the street?
likely still problematic because most forceful residential evictions done by the sheriff
If the tenant in Berg had ____, the L could re-enter without the judicial process
in fact abandoned the property
Maybe _____ part of Berg decision
speedy FED process
Unclear if Berg would be same result if ___
mobile home
Williams is about
repossessing car in the middle of the night
Williams says that ___ is lawful under the UCC
peaceful self help
Williams says that conversion is only satisfied when ___
force/threats of force or risk of involving violence
Williams says it is important to allow holders of security interest ___ because ___
easy method for gaining possession of collateral on default, prevents breaches of the peace and expands access to credit
Why no due process problem in Williams
no court involvement under the UCC
Why Williams different outcome than Berg
not real property, often key to livelihood
Williams seems to favor owners that are ____
physically threatening (absurd result)
If people in Williams recovering under replevin statute then ___
might be due process issues because state action AND likely more protection to owners
