(8) Land Rights Incidental To Ownership

Lateral & Subjacent Support

Lateral Support - ownership of land includes the right to have land supported in its naturals state by adjoining land; landowners can be liable for excavations that cause damage to adjacent lands

• P can bring claims under TWO TYPES of LIABILITY:

1) Negligence - if adjacent landowner's excavation causes damage to developed

land, excavating owner is ONLY LIABLE if he acted NEGLIGENTLY.

2) Strict Liability - P must show his land WOULD HAVE COLLAPSED even IN

its NATURAL STATE , due to D's excavations

Subjacent Support - underground (subjacent) structures MUST support surface structures existing when the subjacent estate was created

• Subjacent structures include - parking garages, tunnels, mines, etc.
• Liability:

1) Strict Liability - subjacent owners are strictly liable for failure to

support surface land and pre-existing surface structures

2) Negligence - subjacent owners are negligent for failure to

support subsequently constructed buildings

Water Rights in Watercourses

Water

Rights in Watercourses

Land bordering watercourses (natural or artificial bodies of water

(e.g., lakes and rivers) is governed by either the riparian doctrine or

the prior appropriation doctrine

Riparian Doctrine - water belongs to those who OWN the land BORDERING the watercourse. TWO THEORIES:

1) Reasonable Use Theory (MAJORITY) - riparian owners share rights to reasonable

use and are liable to tother owners if their use unreasonably interferes with other

owners' use.

• balance utility of use vs. gravity of harm

2) Natural Flow Theory (MINORITY) - riparian owners may be enjoined for any use

resulting in a substantial or material reduction in others' water quantity or quality.

Prior Appropriation Doctrine - water rights are originally

acquired by ACTUAL USE

• Priority of beneficial use determines rights to water
• e.g., FIRST individual to make a BENEFICIAL USE of the water

(i.e., productive use) has SUPERIOR legal RIGHT to its use.

Water Rights in

Groundwater & Surface Water

Water Rights in Groundwater & Surface Water

Groundwater - water beneath the surface not confined to a known channel (e.g., water in wells)

• Surface owner is entittled to make reasonable use of the groundwater but MUST NOT be WASTEFUL.

Surface Water - water from rain, springs, or other runoff that has not yet reached a natural watercourse

• landowners can generally use surface water as they please, but may be liable for interrupting its flow
• Liability depends on which theory applies:
• Natural Flow Theory - owners cannot unreasonably alter natural drainage
• Common Enemy Theory - owners can do anything to change

drainage or combat flow unless it causes unnecessary damage

to others land.

• Reasonable Use Theory - utility of use is balanced

against the gravity of harm from that use.