Real Property#4, Rights Incident To Possession

Front 1

Elements of Adverse Possession

Back 1

Actual
Exclusive
Hostile
Open + notorius
Continuous for statutory period
Color of title (Min)

Front 2

Adverse possession--hostile element under claim of right

Back 2

1. Maj--hostility judged objectively
2. Min--possessor believes in good faith land is his
3. few states require bad faith

Front 3

Adverse possessor's burden of proof

Back 3

Must show all elements by a preponderance of evidence

Front 4

Limitation of adverse possessor's claim

Back 4

cannot get larger estate than claim
cannot claim less than freehold estate

Front 5

Tacking

Back 5

to reach statutory period, the time of one possessor can be tacked on to another when there is privity between them.

Front 6

Disability of the original owner

Back 6

Tolls the running of the statute
If multiple, owner can take advantage of disability lasting longest
Only disability of owner at time cause of action arose is considered. "supervening disability" does not count

Front 7

Color of title

Back 7

Written instrument or other doc that appears to give title but does not do so

Front 8

Constructive adverse possession

Back 8

Adverse possessor who believes he is true owner under color of title. Need not actually possess whole prop to gain title.

Front 9

Recording + adverse possession

Back 9

Recording statutes have no application to title, but some states require recording of the instrument if claim based on color of title. If rightfully gained through adverse possession, it will hold up against BFP.

Front 10

quiet title action + adverse possession

Back 10

proceeding compelling adverse claimant to establish title to property or forever be barred from doing so. Quiet title action necessary before title gained thru adverse possession is marketable.

Front 11

Is land owned by govt subj to adverse possession?

Back 11

no

Front 12

Right of lateral support

Back 12

right of owner to have land supported laterally by neighboring land

Front 13

Right to lateral support + natural condition

Back 13

one who w/draws lateral support from his neighbor's land is ABSOLUTELY + STRICTLY LIABLE.

Front 14

Right to lateral support + artificial structures

Back 14

1. English rule--Maj--owner can recover for damage to both land + structures
2. American rule--Min--recovery limited to land in natural condition
3. Both rules, if excavator is neg, wrongdoer liable for all damage

Front 15

Right to subjacent support

Back 15

right of landowner of support from underneath the surface of his land. right usually arises when land owner has granted right to mine on land to 3rd party

Front 16

Right to subjacent support re: natural + artificial conditions

Back 16

Landowner has ABSOLUTE RIGHT to subjacent support of NATURAL + ARTIFICIAL CONDITIONS when right to mine granted

Front 17

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

Back 17

NO. Whether based ons trict liability or neg, an action for failure of lateral or subjacent support REQUIRES PROOF OF SUBSTANTIAL DAMAGES.

Front 18

Interference w/ underground waters

Back 18

If one who excavates causes releases of semi fluid or semi solid material which cause neighbor's land to sink, there IS liability but NO liability for interfering with underground percolating waters.

Front 19

Navigable water

Back 19

used for commerce

Front 20

Water rights to non-navigable streams

Back 20

is the abutting prop owner
extends to center of stream, lake

Front 21

Classification of waters (3)

Back 21

Lakes + streams on surface
Underground or percolating
Surface Waters

Front 22

Riparian rights

Back 22

right of landowner whose prop borders on a body of water

Front 23

2 theories of riparian rights

Back 23

1. natural flow
2. reasonable use

Front 24

Rights to navigable waters

Back 24

held by state thru which stream flows or where lake is

Front 25

Riparian rights--natural flow theory

Back 25

Each riparian has right to have stream or lake remain in its natural state free from diminution in quantity and free from any unreasonable pollution in quality. Lower riparian owners have a cause of action against upper riparians if decrease in quantity or quality even if no injury. Rule has benefit of being relatively certain.

Front 26

Reasonable use theory

Back 26

Each riparian has right to make the maximum use of the water provided such use does not unreasonably interfere with the like use by other riparian owners. Lower riparians do not have cause of action unless they can show unreasonable use. Theory has benefit of giving each riparian owner right to make max use. Modern courts favor.

Front 27

Natural v. artificial use of water

Back 27

MAJ. Natural (daily sustenance, gardening, household use) has priority over artificial (irrigation, mining, industry)

Front 28

Prior appropriation doctrine

Back 28

17 Western states--"Rocky Mountain view" First in time is first in right
No distinction between natural + artificial use.

Front 29

Prior appropriation theory--3 requirements for prior appropriator

Back 29

1. intent to appropriate water
2. act to diver water
3. act to put such water to beneficial use

Front 30

Percolating waters

Back 30

water under surface--diffuse--no definite path

Front 31

CL percolating water rights

Back 31

Percolating water is under absolute control + ownership of the surface owners--no liable if w/dral affects neighboring landowner.

Front 32

American Rule--reasonable use Doctrine re: percolating water rights

Back 32

owner of surface may w/draw percolating water and make REASONABLE USE

Front 33

Underground streams

Back 33

water flowing underwater in defined path.

Front 34

How do courts allot water rights to underground streams

Back 34

apply riparian and appropriation doctrines--i.e. natural flow, reasonable use + prior appropriation doctrines

Front 35

Surface waters

Back 35

floods, melting snow, rainfall

Front 36

Common Enemy Rule

Back 36

MAJ: Landowner has unlimited discretion in dealing w/ surface waters regardless of effect on others.

Front 37

Civil law rule

Back 37

Each landowner has a right to natural flow of surface waters + a corresponding duty not to interfere. A landowner may not divert water so as to damage neighboring lands

Front 38

Reasonable use rule re: surface waters

Back 38

MIN require landowner's conduct w/ surface waters to be reasonable--use balancing test

Front 39

Emblements

Back 39

Growing crop produced by labor as opposed to naturally growing crop--frustus industrialis

Front 40

Fructus naturales

Back 40

1. crops which come from nature's bounty w/o aid of men. trees, grasses + shrubs considered part of the land until severed.
2. If on property line, adjoining owners own them as tenants in common.
3. SoF applies to sale unless immediate severance is to be made by either vendor or vendee

Front 41

Frustus Industriales classified by Doctrine of Embellments are

Back 41

Annual growing crops produced by labor--usually are classified as personal property. (i.e. sale from proceeds pass to life tenant's heirs)
A tenant has irrevocable license to care for + harvest crops planted during his tenancy,

Front 42

Are they included in scope of mortgage or lease?

Back 42

Yes unless expressly stated otherwise