Misc. Topics

Question 1

What is lateral support?

Answer 1

If excavation causes collapse of buildings on adjacent land: liability only for negligence, unless π can show that excavation would have caused collapse even on unimproved land (i.e. in its natural state), then strict liability

Question 2

What are the major systems for determining the allocation of water in watercourses (i.e. streams, rivers, and lakes)?

Answer 2

1) Riparian doctrine: the water belongs to ALL those who own the land bordering the watercourse (i.e. riparians)
- They share the right of reasonable use of the water
- A riparian will be liable if his use unreasonably interferes with others’ use
- Natural uses of the water (consumption, gardening, etc) PREVAIL over artifical uses (irrigation, manufacturing, etc) in scarcity situations

2) Prior appropriation doctrine: right to divert can be ACQUIRED from state
- Riparian ownership doesn’t matter
- Priority is based on first in time, first in right
- An appropriative right can be lost by abandonment

Question 3

What are are surface owner’s rights to ground (percolating) water?

Answer 3

The surface owner is entitled to make REASONABLE use of ground water

** Being WASTEFUL is never reasonable

Question 4

What is the common enemy rule?

Answer 4

Common enemy rule = landowner can change drainage/other improvements to combat the surface water flow

BUT…no unnecessary harm to another’s land (as modified in many jurisdictions)

Question 5

What are the key possessor rights?

Answer 5

1) Freedom from trespass. Remedy is ejectment action.

2) Freedom from private nuisance. Possessor is entitled to be free from substantial/unreasonable interference
- hypersensitivities and special uses excluded

Question 6

What iseminent domain?

Answer 6

The government’s 5A power to take private property for PUBLIC USE in exchange for JUST COMPENSATION

Explicit takings = acts of government condemnation

Implicit/regulatory takings = a government regulation that is so onerous as to WIPEOUT the economic benefit from the land

Remedy =

(i) compensate the owner; OR 
(ii) terminate the regulation and pay owner damages while the regulation was in effect

Question 7

What iszoning?

Answer 7

Pursuant to its police powers, the government may enact statutes to reasonably control land use

Land owner can get around zoning law by seeking a VARIANCE (an administrative action) from zoning board. Proponent must show:

- Undue hardship; AND
- That the variance won't decrease neighboring property values

A once lawful, existing use now deemed nonconforming by a new zoning ordinance cannot be eliminated all at once unless just compensation is paid

Question 8

What isan exaction?

Answer 8

Exactions are those ammenities that the government seeks in exchange for granting permission to build

To be constitutional, must be reasonably related both in nature and scope to the impact of the proposed development