Water Rights Property One

Front 1

Standards that constitute a Private Nuisance

Back 1

- Unreasonable interference with the use and enjoyment of land

Front 2

When is noise an actionable private nusiance

Back 2

1. there is injury to the health and comfort of ordinary people in the vicinity
2. Unreasonableness of that injury under all the circumstances

Front 3

Rule- what factors are relevant in determining whether the annoyance materially interferes with the ordinary comfort of human existance?
Dont talk very fast like Cartman

Back 3

Dont Talk Very Fast Like Cartman
Duration, time, velocity, frequency, locality, Character
WINDMILL CASE

Front 4

Support of land case rules 3

Back 4

1. obligation to support his neighbors property in natural condition, if the land slips in natural condition- liable for land and buildings
2. No obligation to support the added weight of buildings that the land cannot naturally support

Front 5

Drainage case rules(surface water)

Back 5

Rule- If damages are forseable from castin surface waters to anothers land- liable for resulting damages

Front 6

Common enemy rule

Back 6

possessor is allowed to get rid of surface water as he wants

Front 7

Civil Law rule

Back 7

possessor has a duty to other landowners who are effected by his draining of surface waters

Front 8

Reasonable Use Test

Back 8

factors determine if liable including - forseability- purpose- amount of harm caused

Front 9

what is riparianism

Back 9

form of property law that recognizes water rights as an attribute of ownership of land bordering a waterway

Front 10

Acquisition

Back 10

Land abutting a watercourse

Riparian system: only the owners of land abutting a water- course are entiltled to use the water

Front 11

Prior Appropriation system

Back 11

Early Appropriate Rights- acquired by simply using water beneficially
Current- obtain a permit from a state agency
- free
-limited duration
-transferable

Front 12

The dam case- where the plaintiff went to explode defendants dam.... Which legal rule where

Back 12

doctrine of prior appropreation= western states and mississippi(earlier use of water the right to water before later users

Doctrine of Riperian rights- elsewhere equal rights between riparian users

Front 13

great spring waters of america case

Back 13

capture rule- landowner may pump as much groundwater as he chooses without liability to neighbors for drying up wells

Front 14

Edwards aquifer case- court only wanted to give defendant 14 ft of water

Back 14

groundwater from a well became state water when it flowed into a lake. so use of water from the lake by landowners was not a beneficial use of groundwater for IRP purposes

Common law- each owner of land owns seperate, distinctly, and exclusively all groundwater under his land

Front 15

Chicken Case-

Back 15

Takings- making property less valuable

Easement- right to use

Front 16

Farmers argument in air case?

Back 16

His property from heaven to hell

Front 17

Governments argument in air case?

Back 17

Not takings because they are not physically threatened/ invasion

Front 18

Takings claim

Back 18

some folks think that in order to have a taking claim all the value of the property has to be destroyed

Front 19

Solar energy case rule

Back 19

when P is using solar energy only- the making of a building that blocks sunlight is a private nuisance

Dissent- there is no invasion which is required in private nuisance

Front 20

how to determine nuisance

Back 20

compare the benefit and detriment of the parties

Front 21

sunlight argument

Back 21

prior appropriation- I was first in time

Front 22

Public Trust Doctrine

Back 22

title in trust for the people of the state, they may enjoy the navigation of the waters- fish, commerce

Front 23

Bundle of rights

Back 23

if private owner obtains title to public trust land, his ability to use land is restricted by the trust

Title did not include the right to violate teh public trust

Front 24

Endangered Species act

Back 24

no person "take" an endangered or threatened species--
Act includes "harass, harm, pursue, wound, kill"

includes significant habitat modification= "HARM"

Front 25

Threshold question in preivate and public interests in water

Back 25

whether the watercourse is considered navigable- owners cannot prohibit free access to navigable watercourses

Front 26

exclusive dominion rule

Back 26

"common law rule" Exclusive dominion- owner can only enjoy the portion of water he owns

Front 27

free access rule

Back 27

Civil law rule- owner may enjoy the entire body of water

Front 28

Public trust doctrine and the state

Back 28

state has an affirmative duty to take into account the public trust in the planning and allocation of water resources and to protect the public trust however they can

Front 29

three aspects of the public trust doctrine

Back 29

1. purpose of the trust
2. scope of the trust
3. powers and duties

Front 30

what is public trust

Back 30

State has the duty to protect the peoples common heritage of streams, lakes, marshlands and tidelands

Front 31

natural flow theory

Back 31

riparian owner- may not substantially or materially diminish its quantity, quality or velocity

Front 32

Reasonable use theory

Back 32

riparian owners- all riparian owners share the right of reasonable use

Front 33

Natrual vs. artificial use

Back 33

water can be "natural or artificial"- natural necessary for the daily sustenance of human beings

Front 34

notes for bar exam

Back 34

1. appropriate rights were originally determined simply by priority of beneficial use
2. if there is a decrease in stream flow, priority is accorded interms of time appropreation
3. in many states an appropriative right can be severed from the land it serviced when acquired and transferred