Real Property - Lateral Support, Water Rts, Possessor's Rts, Emminent Domain, Zoning

Front 1

Lateral Support
(Negligence)

Back 1

- Negligence:
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if negligent.
- Strict liability:

Front 2

Lateral Support
(Strict Liability Duty Owed)

Back 2

Strict liability does not attach to the excavator’s actions unless P shows that, because of D’s actions, P’s improved land would have collapsed even in its natural state (improvements on P’s land did not contribute to the land’s collapse).

Front 3

Water Rights: Water Courses (streams, rivers, lakes)

(1) The Riparian Doctrine

Back 3

The Riparian Doctrine
1. The water belongs to those who own the land bordering the watercourse.
2. These people (riparians) share the right of reasonable use of the water.
3. One riparian will be liable if his use unreasonably interferes with others’ use

Front 4

Water Rights: Water Courses (streams, rivers, lakes)

(2) The Prior Appropriation Doctrine

Back 4

The Prior Appropriation Doctrine
1. The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual (for agriculture or any productive use), regardless of whether or not he is a riparian owner.
2. Rights are determined by priority of beneficial use. First in time, first in right. Person can acquire right to divert and use water from watercourse merely by being the first to do so.

Front 5

Water Rights: Water Courses (streams, rivers, lakes)

ACCRETION

Back 5

Increase of riparian land by the slow and imperceptible change in course of a river serving as a boundary.
- Any resulting deposit of soil belongs to the owner of the abutting (riparian) land.

Front 6

Water Rights: Groundwater (percolating water): Water beneath the surface of the earth that is not confined to a known channel.

Back 6

Surface owner entitled to make reasonable use of ground water, however the use must not be wasteful

Front 7

Water Rights: Surface Waters: Those which come from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.

Back 7

The common enemy rule: landowner may change drainage or make any other changes on his land to combat the flow of surface water, but many courts prohibit unnecessary harm to others’ land.

Front 8

The possessor of land has the right to be free from TRESPASS and NUISANCE.
- Trespass:

Back 8

(1) Trespass: invasion of land by tangible physical object. To remove trespasser, bring action in ejectment.

Front 9

The possessor of land has the right to be free from TRESPASS and NUISANCE.
- Nuisance:

Back 9

(2) Private nuisance: substantial and unreasonable interference with another’s use and enjoyment of the land (odors and noise could give rise to nuisance but not trespass).
- Hypersensitive P: deemed super specialized.

Front 10

Eminent Domain

Back 10

- Govt’s 5th A. power to take private property for public use in exchange for just compensation.
- Explicit takings: acts of gov condemnation (i.e. to make way for public highway).
- Implicit or regulatory takings: gov regulation that, although not intended to be a taking, has the same effect.
- Remedy:

Front 11

Eminent Domain
- Remedy

Back 11

Remedy:
Government must either (1) compensate owner, or (2) terminate the regulation and pay the owner for damages occurred while it was in effect.

Front 12

Zoning

Back 12

Pursuant to its police powers, gov may enact statutes to reasonably control land use. 3 types:
(1) The variance – principal means to achieve flexibility in zoning. Proponent must show:
i. Undue hardship and that the variance won’t decrease neighboring property values...

Front 13

Zoning (2)

Back 13

(2) The nonconforming use: a once lawful, existing use now deemed nonconforming by a new zoning ordinance cannot be eliminated all at once unless just compensation is paid (otherwise would be an unconstitutional taking)
(3) Unconstitutional exactions: those amenities that government seeks in exchange for granting permission to build. Must be reasonably related both in nature and scope to the impact of the proposed development. Inherently suspect.