Property: Natural Rights

General Natural Rights

An owner of real property has the exclusive right to use and possess the surface, the airspace, and the soil of the property

Lateral Support

Ownership of land includes the right to have the land supported in its natural state by adjoining land

Support of Land in Natural State

A landowner is held strictly liable if their excavation causes adjacent land to subside

Support of Land with Buildings

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. However, strict liability will apply if the plaintiff shows that the improved land would have collapsed even in its natural state as a result of the defendant’s actions.

Subjacent Support

An underground occupant of land (usually a mining company) must support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequently erected buildings requires negligence. Strict liability applies to preexisting buildings.

Two major systems for determining water allocation

Riparian doctrine and prior appropriation doctrine

Change in Water Boundary Line

Boundary lines can be affected by accretion and avulsion

Riparian Doctrine

The water belongs to those who own the land bordering the watercourse. Riparian rights attach to to all contiguous tracts held by the same owner as long as one tract abuts the water. Riparian owners can use water only in connection with the riparian parcel

Riparian Natural Flow Theory

Under this theory, the riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity

Riparian Reasonable Use Theory

Under this theory, which is the most common, all riparians share the right of reasonable use of the water. One owner’s use is not enjoinable unless it substantially interferes with the use of other owners.

Factors for Riparian Reasonable Use

The court will examine: (1) alteration of the flow; (2) the purpose of the use; (3) pollution; (4) extent of the use; (5) the destination of the diverted water; and (6) miscellaneous conduct that may give rise to litigation

Riparian Natural and Artificial Use

Under both natural flow and reasonable use theory, natural uses (human uses such as consumption and gardening) prevail over artificial uses (such as irrigation and manufacturing)

Prior Appropriation Doctrine

The water initially belongs to the state, but the right to divert the water can be acquired by an individual through their actual use regardless of whether they happen to be a riparian owner. Appropriative rights are determined by priority of beneficial use. Allocation is usually first in time, first in right. A person can acquire the right to divert and use water by being the first to do so. Any productive or beneficial use of the water, even for agriculture, is sufficient. An appropriative right can be lost by abandonment

5 doctrines of Groundwater rights

(1) absolute ownership; (2) reasonable use; (3) correlative rights; (4) appropriative rights; and (5) the Restatement Approach

Absolute Ownership Groundwater Doctrine

Only a few states follow this. The owner of overlying land can take all the water they wish for any purpose, including export

Reasonable Use Groundwater Doctrine

Many eastern states follow this. It is similar to absolute ownership but exporting is allowed only if it does not harm the other owners who have rights in the same aquifer

Correlative Rights Groundwater Doctrine

In some states, owners of overlying land own the underground water basin as joint tenants and each is allowed a reasonable amount for his own use

Appropriative Rights Groundwater doctrine

Followed in many western states. Priority of use, not ownership of overlying land, is determinative

Restatement Approach to Groundwater

A few states follow the restatement approach, under which a surface owner may pump groundwater unless it: (1) unreasonably harms neighboring landowners; (2) exceeds the pumper’s reasonable share; or (3) directly and substantially affects surface waters and unreasonably harms surface water users

Surface Waters

Surface water is water without a channel that passes over land, such as rainwater, springs, and meltwater, which has not yet reached a natural watercourse or basin. A landowner can use surface water within their boundaries for any purpose they desire. Liability depends on which theory a state follows

Natural Flow Surface Water Theory

Under this theory, followed by many states, owners cannot alter natural drainage patterns. Some states have softened this to allow “reasonable changes”

Common Enemy Surface Water Theory

Under this theory, followed by many states, an owner can take any protective measures to get rid of the water or combat its flow, such as dikes or drainage changes. This rule has been modified by many courts to prohibit unnecessary damage to others’ lands

Reasonable Use Surface Water Theory

A growing number of states apply this theory, which balances the utility of the use against the gravity of its harm

Rights in Airspace

The right to airspace above a parcel is not exclusive, but the owner is entitled to freedom from excessive noise

Right to Exclude: Remedies of Possessor

The possessor of real property has the right to exclude others. Their remedies include: (1) trespass for land invaded by tangible physical objects; (2) private nuisance for land invaded by intangibles such as odor or noise; (3) continuing trespass when a land is repeatedly invaded by a trespasser; and (4) ejectment or unlawful detainer to remove a trespasser or tenant. This can be joined with a demand for money damages.