Non-Volitional "Natural" Interests in Land

Question 1

Nuisance

Answer 1

Use of property that UNREASONABLY INTERFERES with use and enjoyment of someone else’s property

Question 2

Distinguish Nuisance from Trespass

Answer 2

Nuisance: protects use and enjoyment; physical intrusion NOT REQ’D but may exist; harm to land REQ’D

Trespass: protects possession; REQ physical intrusion but NOT harm to land

Question 3

Harm from Nuisance can be…

Answer 3

Visual
Auditory
Smell
Physical

Question 4

The Nuisance “State of Mind”

Answer 4

No evil defendant
Generally NO FAULT req'd to hold defendant liable
- No Negligence req'd
- No bad intent
- No knowledge req'd

Question 5

Factors courts balance to determine Nuisance

5

Answer 5

1) Suitability of location of nuisance
2) Compliance with zoning laws
3) Priority
4) Social utility of activity
5) Cost to avoid harm

Question 6

Nuisance:

Suitability of Location

Answer 6

How appropriate is the use given its location?

ex: refinery next to a school

Question 7

Nuisance:

Compliance with Zoning Laws

Answer 7

If in compliance, helps prove not a nuisance but NOT conclusive proof

Question 8

Nuisance:

Priority of Offending Activity

Answer 8

Who was there first?
Usually whoever was there first will win
- Right to farm

Question 9

Nuisance:

Social Utility of Activity

Answer 9

The higher the social value of the nuisance, the less likely it will be ordered to stop

Question 10

Nuisance:

Cost of Avoiding Harm

Answer 10

Cost of plaintiff moving and cost of defendant abating

Question 11

Remedies for Nuisance

Answer 11

Injunction or Money damages (past and future harm compensation)

Question 12

Support of Land

Answer 12

Lateral support

Subjacent support

Question 13

Lateral Support of Land

Answer 13

Support on the side
General Rule: STRICT LIABILITY
- no duty to take affirmative protective steps
- if remove natural support and replace with artificial support, duty to maintain arises

Question 14

Subjacent Support of Land

Answer 14

Support underneath when sub-surface rights separated from surface rights
- mining but not drilling for oil

Question 15

Types of Water

3

Answer 15

Surface Water
Water in watercourses
Groundwater

Question 16

Surface Water

Answer 16

Free running water

• water which does not have a well-defined channel
• snow, rain

Question 17

Retaining Surface Water

Answer 17

Governed by Rule of Capture

• think of it like wild animals; if can catch it, you can keep it
• usually not an issue; homeowners typically not concerned with catching water; more concerned with how to get rid of it

Question 18

Getting Rid of Surface Water

Answer 18

Natural Servitude
Common Enemy Rule
Reasonable Use Rule

Question 19

Getting Rid of Surface Water:

Natural Servitude

Answer 19

Civil Law Rule/Natural Flow Rule
- natural right not to interfere with anything
- LO’s right: water to naturally flow away
- LO’s duty: permit water to flow away
No alteration of natural contour allowed

Question 20

Getting Rid of Surface Water:

Common Enemy Rule

Answer 20

CL
LO can take steps to:
- remove water
- prevent water from coming onto land
- anything within reason

Question 21

Getting Rid of Surface Water:

Reasonable Use Rule

Answer 21

ML

must be reasonable

Question 22

Getting Rid of Surface Water:

Which does TX follow?

Answer 22

Natural Servitude

Question 23

Water in Watercourses

Answer 23

Water which runs in a defined course

- rivers, streams

Question 24

Watercourse Systems

Answer 24

Riparian

Prior Appropriation System

Question 25

Riparian Land

Answer 25

Land that is physically adjacent to the watercourse AND in the same watershed as the watercourse

Question 26

If you own land physically adjacent to the watercourse that extends beyond the watershed divide, can you use the water from the watercourse on the part of land beyond the watershed divide?

Answer 26

No, cannot pipe the water over or use the water in any way on the land beyond the watershed

Question 27

Rights of the Riparian

Answer 27

Absolute Rights | Correlative Rights

Question 28

Absolute Rights of Riparian

Answer 28

No one can mess with these rights - Unlimited if no effect on flow (no restriction on use water) - Domestic use even if it affects flow (drink, cook, bathe)

Question 29

Correlative Rights of Riparian

Answer 29

``` Non-domestic use CL: Natural flow - water as a source of energy ML: Reasonable use - balance needs of upstream and downstream) ```

Question 30

Prior Appropriation System

Answer 30

Rights obtained by: - Prior use (CL) - Permits from gov't (ML)

Question 31

Doctrines of Prior Appropriation System | 2

Answer 31

Colorado Doctrine | California Doctrine

Question 32

Colorado Doctrine

Answer 32

Abolished all Riparian Rights

Question 33

California Doctrine

Answer 33

Coexistence; riparian rights and prior appropriation coexist | TX follows

Question 34

Public Rights in Water

Answer 34

Navigable | Tidal

Question 35

Many courts would stop the use of the water beyond the watershed divide even if the lower riparian is not damaged. Why?

Answer 35

Afraid that if allowed to continue, the upper riparian would gain prescriptive rights to water if Plaintiff eventually became damaged

Question 36

Changing size of Riparian Land Approaches | 2

Answer 36

Source of Title Unity of Title *use when Riparian land owner buys land adjacent to his current land

Question 37

Changing size of Riparian Land Approaches: | Source of Title

Answer 37

Cannot enlarge Riparian land by purchasing adjoining tracts of land - once parcel of land no longer borders watercourse, it becomes non-riparian permanently - could lead to underutilization of resources

Question 38

Changing size of Riparian Land Approaches: | Unity of Title

Answer 38

Adjoining tracts of land under common ownership becomes riparian - causes great uncertainty and fear in lower riparians

Question 39

Groundwater | 2

Answer 39

Percolating water | Underground stream

Question 40

Percolating Water

Answer 40

Water that filters down from the surface and goes into aquifers

Question 41

Underground Stream

Answer 41

Water that flows within defined channel under the ground

Question 42

Ownership of Percolating Water | 3

Answer 42

CL Rule American Rule Prior Appropriation

Question 43

CL Rule of Owning Percolating Water

Answer 43

Absolute Ownership Rule English Rule Rule of Capture - can withdraw unlimited amount but cannot be malicious or wasteful - movement of water is "secret, occult, and concealed

Question 44

American Rule of Owning Percolating Water

Answer 44

Reasonable Use Rule - off-land use usually unreasonable - key factor: will new rain/snow recharge aquifer to where it was before?

Question 45

Prior Appropriation of Percolating Water

Answer 45

Amount able to take out in the past is the amount able to take out now

Question 46

Oil and Gas Ownership while Still in the Ground

Answer 46

1) Not owned until extracted 2) Ownership in place (TX) 3) Owned by the gov't, not the surface owner

Question 47

Oil and Gas Ownership: | Ownership in Place

Answer 47

Oil and gas could be lost if flows beneath another's land TX Land is more valuable under this approach so the gov't can receive more tax

Question 48

Basic Process of Oil and Gas

Answer 48

``` Owner of land typically lacks financing Owner leases property to oil company (or grants easement with profit) - bonus - royalty Gov't regulates to prevent abuses ```

Question 49

Bonus

Answer 49

Owner is paid to enter into lease with oil company (even if land ends up dry)

Question 50

Royalty

Answer 50

Owner is paid percentage of what is produced by the oil company

Question 51

Airspace and Sunlight

Answer 51

General rule: can own the space you can use and occupy | CL: owned land to the center of the Earth to the stars