Misc

Front 1

What is the right to lateral support?

Back 1

It is the landowner's property right to have his land be supported in its natural condition by adjacent land. Thus, adjoining landowners cannot excavate or mine is such a way as to diminish support for property in its natural state.

NOTE: A closely related concept, subjacent support, refers to the support from the underlying earth. (This arises when one person occupies the land and another owns the mineral rights beneath the land.) The mineral rights owner is strictly liable for any subsidence of land and damage caused by the mining- he must support the land and buildings. Furthermore, the mineral rights owner is liable if he negligently damages springs and wells (however, he isn't liable for interfering with percolating ground water).

Front 2

Is it possible to recover nominal damages for subsidence of land?

Back 2

No. Whether based on strict liability or negligence, an action for failure of lateral or subjacent support requires proof of substantial damages.

Front 3

There is one theory of water rights that modern courts favor over any other. What is it?

Back 3

The Reasonable Use Doctrine- a property owner can use, take, or repel water, as long as his use is not unreasonable and does not interfere with others' rights.

Front 4

What is a trespass to land?

Back 4

It is:

1. the substantial interference,

2. with a right of possession in land,

3. by a tangible, physical object.

Front 5

What is a private nuisance?

Back 5

It is conduct by a defendant that creates an unreasonable, substantial interference with plaintiff's use or enjoyment of property. It is considered personal to plaintiff.

NATURE OF CONDUCT REQUIRED: It must be either: 1. intentional and unreasonable (unreasonableness is determined by a balancing test); or 2. negligent, reckless or unusually hazardous.

EXAMPLES: Loud noise, noxious odors.

DAMAGES RECOVERABLE: All harm resulting proximately from the nuisance, both personal (including diseases caught from inhaling fumes) and property.

INTEREST PROTECTED: Right to use and enjoy one's land.

NOTE: Plaintiff need not own the property affected, but he must be an occupant of it

DISTINGUISH: Public nuisance. Look at the scope of the injury, which is wider for public nuisance. A public nuisance affects the community at large through an act or condition that unreasonably interferes with the health, safety, or convenience of the general public (e.g., blocking a public highway, operating a brothel).

Front 6

What is the difference between a trespass and a private nuisance?

Back 6

Physical invasion. Because trespass requires interference with a landholder's exclusive possession, there must be a physical invasion (e.g. building an overhang over plaintiff's property); on the other hand, private nuisance is interference with plaintiff's use and enjoyment of his land, regardless of physical nuisance, but not trespass.

NOTE: The same conduct can constitute both a trespass and a private nuisance (e.g. air pollution).

Front 7

Can one act constitute both a trespass and a private nuisance?

Back 7

Yes; it can tangibly, physically interfere with the use of property (trespass), and it can disturb the property owner's use and enjoyment of his property (nuisance).

Front 8

What is the balancing test used to determine whether in a private nuisance suit the defendant's use of her property is "unreasonable"?

Back 8

The burden on the plaintiff's enjoyment and use of his land versus the utility and necessity of the defendant's use.

NOTE: A reasonable fear of harm is a significant factor in favor of unreasonableness.