Land Use..This lecture is about how owners can protect.their real property from harm; whether it.is from the harm caused by a neighbor or the.harm caused by the government..Thus, we will be discussing:.Nuisance, which is an interference with the.use and enjoyment of land,.Lateral Support, which has to do with the.damage caused by neighboring construction,.Water Law, which has to do with the ownership.of water rights,.Eminent Domain, which is when the government.takes away someone’s real property, and.Zoning, which are set of local government.rules..Nuisance..Nuisance technically falls under the law of.torts..However, it also serves as a bridge into property.law because the concept of nuisance is at.the heart of most land use laws..This is why the subtopic of nuisance is discussed.first..Note however that nuisance will only be discussed.in enough detail so as to ensure an understanding.that relates to property law..Comprehensive and detailed material on nuisance.will be covered in a different lecture on.torts..It is typically easier to learn new material.when there are clearly defined lines or when.the concepts are not too closely related..Unfortunately, the line separating the concept.of nuisance and the concept of trespass is.somewhat blurred..While this may initially seem like a setback,.the concepts can still be easily learned..Nuisance and trespass are both an interference.with the use and enjoyment of land, however.trespass is typically described as an interference.with the right to possession, where the right.to possession includes the right to use and.enjoyment..Since, both nuisance and trespass involve.an interference with the use and enjoyment.of land, they are very similar and even sometimes.overlap..In fact, when they overlap, the plaintiff.may sue and have both a nuisance cause of.action and a trespass cause of action..While nuisance is defined as a substantial.and unreasonable interference with the use.and enjoyment of land, Trespass is the physical.invasion of land..This does not mean that a nuisance cannot.also be a physical invasion..All that is meant is that a trespass MUST.be a physical invasion of land and a nuisance.COULD be a physical invasion of land..The difference between the two is that a nuisance.typically has an indirect effect on real property.and a trespass typically has a direct effect.on real property..This is why nuisance is usually caused indirectly.by noise, vibrations, odor, and other pollution..And, trespass is usually caused directly by.a person or tangible thing..Further, a nuisance plaintiff must prove injury.but a trespass plaintiff does not..This is because trespass describes a type.of conduct that is forbidden; as opposed to.nuisance which describes a type of harm that.is suffered..To reiterate:.Nuisance is a substantial and unreasonable.interference with the use and enjoyment of.land..Trespass is a physical invasion of land; which.means that it is an interference to the right.of possession which makes it also an interference.with the use and enjoyment of land..Thus, both are an interference with the use.and enjoyment of land..A nuisance CAN be a physical invasion but.trespass MUST be a physical invasion..A nuisance plaintiff must show:.An injury, and.Substantial and Unreasonable Interference..A trespass plaintiff must only show a physical.invasion; he does not have to show an injury..Finally, it is possible for a plaintiff to.sue for both a nuisance and a trespass cause.of action at the same time..Lateral Support.The laws of lateral support have to do with.moving dirt around..When two pieces of land are adjacent to each.other (i.e. they are next to each other) and.one owner engages in construction activity,.there is usually some kind of process of moving.or removing dirt..When a substantial amount of dirt is removed.from one area, the surrounding dirt loses.some support..While the surrounding dirt may not lose vertical.support since the dirt that it is sitting.on top of has not moved, it may lose horizontal.support; in law we call this lateral support..A simple physics example with the use of sand.will make this clear..When sand is poured out onto a flat surface,.it naturally forms the shape of a cone standing.upright..However, when sand is poured into a cup, it.takes the form of the cup..This is because the walls of the cup provide.lateral support..If the walls of the cup were removed, then.the sand would take the natural form of a.cone standing upright..Normally, in rural areas, lateral support.is not an issue because plots of land are.big so that the point at which dirt is removed.is sufficiently far away that it will not.disturb neighboring land or a building on.neighboring land..However, in more urban areas, plots of land.are small and close together and therefore.buildings are close together, and thus when.dirt is removed, lateral support can be a.big issue..Now that the physical concept of lateral support.is clear, the legal concepts are easy to learn..And an example is the best way to learn the.legal concepts..A and B are neighbors..A begins construction on his own land..If A’s construction causes subsidence, i.e..causes B’s land to collapse or cave in,.then A will be strictly liable for the damage.to B’s land..However, the term land means land and only.land and does not include buildings and other.structures that are on top of the land..Note: B does not have to wait until subsidence.actually occurs in order to sue A. Thus, B.can sue A when subsidence is threatening..Now imagine that A’s construction causes.damage to B’s structures which are on top.of the land..This is where the law gets a little bit confusing..When a structure on top of the land is damaged,.it is important to know whether the structure’s.weight contributed to the collapse of the.land..If B can show that the weight of his structures.DID NOT contribute to the collapse of the.land, then liability depends on which rule.the jurisdiction follows..If the English rule is applied, then A is.strictly liable for the land and he is strictly.liable for the structure..If the American rule is applied, then A is.strictly liable for the land and he is only.liable for the structure if he was negligent.(i.e..A is only liable for the structure if B can.prove that A was negligent)..But, if B’s structures DID contribute to.the collapse of the land, then A will only.be held liable if he was negligent (i.e..A is only liable if B can prove that A was.negligent)..Let’s review the legal concepts one more.time..If A does something on his land which damages.B’s land, then A is strictly liable for.B’s land..Remember, the term land just means land and.does not include buildings or structures..If A does something on his land which damages.the structures which are on top of B’s land,.then liability depends on whether the structure’s.weight contributed to the collapse of the.land..If the existence of B’s structures DID NOT.contribute to the collapse, then A’s liability.depends on which rule is applied..If the English rule is applied, A is strictly.liable for the land and strictly liable for.the structures..If the American rule is applied, A is strictly.liable for the land but only liable for the.structures if he was negligent (i.e..A is only liable for the structure if B can.prove that A was negligent)..If the existence of B’s structures DID contribute.to the collapse, then A will be held liable.if he was negligent (i.e..A is only liable if B can prove that A was.negligent)..Water Law..Water is plentiful in the eastern states and.sparse in the western states..Not only is there less water in the west but.rain and snow are not consistent; instead.they are highly variable..Thus, the legal doctrines that were developed.in the east accounted for plentiful water.and the legal doctrines that developed in.the west accounted for sparse water..Variations of these doctrines and sometimes.hybrid doctrines were developed in some midwest.states where water abundance was somewhere.in-between being plentiful and sparse..While there have been several different water.law doctrines, one particular doctrine stands.out the most; it is the Reasonable Use Doctrine.(a.k.a. American Rule)..Almost all states have adopted the reasonable.use doctrine or have gravitated to some close.variation of the reasonable use doctrine..In other words, where the reasonable use doctrine.has not been adopted, the law has been modified.or added to by the courts and now closely.resembles the reasonable use doctrine..Water law has to do with bodies of water which.are big enough to create a legal or physical.conflict..Thus, the water at issue is usually a river,.stream, lake, groundwater, etc..These sources of water can be organized into.three types:.Watercourses, which can be a river, stream,.and lake..Groundwater, which is non-flowing water below.the ground, and.Surface Water, which is water that collects.on top of the ground, e.g. rain water or snow..Note: While water law is created by statute.and case law, it may also be created by contract,.i.e. when someone transfers his water rights.to someone else..Watercourses are governed by two major doctrines..This is because, as we mentioned earlier,.water is plentiful in the eastern part of.the country and sparse in the west..Not only is there less water in the west but.rain and snow are not consistent; instead.they are highly variable..Where watercourses are plentiful, the law.developed so that water rights came with the.land and so that water rights were equal among.the owners whose land touched the watercourse..Where watercourses were sparse, the law developed.into a seniority system where priority was.determined by whoever first put the water.to a beneficial use; which meant that it wasn’t.a requirement to own land along the watercourse..These two doctrines are the Riparian Doctrine.and the Prior Appropriation Doctrine..Here are the details of each..Under the riparian doctrine, an owner of land.along a watercourse is called a riparian..Each riparian owner has an equal right to.use the watercourse..Further, every state which follows the riparian.doctrine has extended this right by adding.the principle of the Reasonable Use Doctrine.which is that each owner may make any reasonable.use of the watercourse as long as it does.not unreasonably interfere with other owners..Therefore, the Riparian Doctrine is now defined.as the following: Riparian owners have equal.rights to reasonably use the watercourse as.long as it does not unreasonably interfere.with other riparian owners..This right cannot be lost even if the riparian.owner does not actually use his right..However, the right is limited to use and not.ownership..In other words, a riparian does not own the.watercourse or the water itself; instead a.riparian has the right to use the water..Note: Natural use of the water supersedes.unnatural use..For example, if there is a dispute between.two riparian owners, the water rights of the.riparian owner who is using the water for.his land are superior to a riparian owner.who is using the water somewhere off of his.land..Under the prior appropriation doctrine, water.rights are on a seniority system..This system is often described as having a.first come, first serve basis..The order of seniority is determined on when.the watercourse is put to beneficial use..Thus, the first person to put the water to.some beneficial use has the first right to.use the water..As you might imagine, it is almost always.the local government who holds the most senior.water right..A consequence of this system is that a junior.water right holder is limited to the water.available after the use of a senior water.right holder..In this system water rights could be held.by anyone and not just a riparian, i.e. someone.whose land touches the watercourse..And, unlike the riparian who does not have.to renew his water rights, under the prior.appropriation doctrine an owner of water rights.must continually make use of his water rights..Groundwater is non-flowing water which is.below the surface of the ground..Note, if the water is flowing, then it is.not considered groundwater and is instead.considered a watercourse, and it is subject.to the applicable watercourse laws..The majority of states follow some form of.the Reasonable Use Doctrine where each property.owner may reasonably use the groundwater below.his property as long as the use does not unreasonably.interfere with neighboring property owners..Surface water is water that collects on top.of the ground in places that are not watercourses..It is typically the result of drainage from.rain or melting snow..Conflicts regarding ownership of surface water.are rare because the law is simple; the owner.of the land upon which the water sits is the.owner of the water..However, conflicts arise when an owner diverts.or drains his surface water onto his land.neighbor’s.These conflicts are resolved by three very.different doctrines..And the states are split on which doctrine.that they follow..At the strictest end of the spectrum is the.Natural Flow Doctrine; which states that an.owner may not divert the natural flow of water.at all..At the other end of the spectrum, an owner.may take any action to divert the water; even.if it is harmful to other owners..The reasoning being, that if surface water.is harmful, then it is considered harmful.to all owners and so it is a common enemy.to all owners..Thus this doctrine is called the Common Enemy.Doctrine..As you probably guessed, there is a doctrine.which is less extreme and more reasonable.than the Natural Flow Doctrine and the Common.Enemy Doctrine..It is the Reasonable Use Doctrine which we.have already covered in the watercourse and.groundwater sections above..Under the Reasonable Use Doctrine an owner.may reasonably divert water as long as it.does not cause an unreasonable interference..Note, some interference is allowed..As long as it is not unreasonable interference..Therefore, even when an owner obeys the reasonable.use doctrine, it is still possible to cause.harm to others..In order to ensure our understanding of water.law, let’s review some of the major points..It is important to remember that the dominant.doctrine which extends across all water law.is the Reasonable Use Doctrine; which is,.“A water right owner may reasonably use.the water as long as it does not unreasonably.interfere with the use of other water right owners.\".Watercourses are governed by the Riparian.Doctrine, the Prior Appropriation Doctrine,.or the combination of the two..Remember that today the Riparian Doctrine.incorporates the Reasonable Use Doctrine..A Riparian is an owner of land which is next.to a watercourse..Riparian owners have equal rights to reasonably.use the watercourse as long as it does not.unreasonably interfere with other riparian.owners..This right cannot be lost even if the riparian.does not exercise use of the right..And, natural use of the watercourse supersedes.unnatural use..The Prior Appropriation Doctrine is a seniority.system..The seniority of each water rights holder.is determined on when the watercourse is put.to beneficial use..In this system water rights can be held by.anyone and not just a riparian..And, unlike the riparian who does not have.to renew his water rights, under the prior.appropriation doctrine an owner of water rights.must continually make use of his water rights..Groundwater is non-flowing water which is.below the surface of the ground..The majority of states follow some form of.the Reasonable Use Doctrine where each property.owner may reasonably use the groundwater below.his property as long as the use does not unreasonably.interfere with neighboring property owners..Surface water has to do with draining water.which has collected on top of the ground in.places that are not watercourses..Under the Natural Flow Doctrine, an owner.may not divert the natural flow of water at.all..Under the Common Enemy Doctrine, an owner.may take any action to divert surface water.even if it is harmful to other owners..And, under the Reasonable Use Doctrine, an.owner may reasonably divert water as long.as it does not cause an unreasonable interference..Eminent Domain.The federal government has the power to take.someone’s real property..Similarly, each state can take real property.from within its own state lines..This power is called eminent domain..To use the power of eminent domain, two requirements.must be met:.The purpose must be for public use, and fair.compensation must be paid to the owner..The interpretation of public use is extremely.broad..Public use does not mean that the public must.be allowed to use the property (i.e. it does.not have to be a park or a road)..All that public use means is that the public.is benefitted in some way; even if it is in.some indirect way, for example economic reasons..So long as the government’s purpose is for.some kind of public use, the power of eminent.domain can even be given to a person or a.private corporation (e.g. public utility companies)..Since the interpretation of public use is.so extremely broad it is not a surprise that.some legal scholars think that the interpretation.of public use is so broad that it no longer.has any justification..However, it is still important to know what.the actual legal standard is for public use..The legal standard for public use is that.the government must show that the taking is.rationally related to a conceivable public.purpose..Fair compensation is considered the market.value of the real property..Since fair compensation is only considered.the market value, it does not take into consideration.the owner’s relocation costs, sentimental.value, and the fact that the owner was not.interested in selling his property in the.first place..With the power of eminent domain the government.can take property in two ways: Physical Taking.and Regulatory Taking..Usually when the government takes real property.it is obvious because they physically take it..This is called condemnation..Condemnation begins as a law suit where the.government must show that it has the authority.to take the real property..However, a government taking may also come.in the form of a regulation which limits the.use of someone’s land..While the government may not intend to take.real property, the effect can be the same.as a taking..And if it is, it is called a regulatory taking..To show that that there is a regulatory taking,.the land owner must show that he is being.denied all economic use of his land..Thus, it is not enough to show that the regulation.only impairs the value or the utility of the.land..If the land owner can show that the regulation.is preventing all economic use of his land,.then there exists a regulatory taking and.the land owner can sue the government..If the landowner is successful in his lawsuit.and proves that there is a regulatory taking,.then the government has two options:.The first option is one that we have already.mentioned, the government can pay the land.owner fair compensation..The second option is that the government can.pay the land owner fair compensation for the.time that the regulation is in effect..As we mentioned earlier, regulations are not.considered a taking when they do not prevent.all economic use but instead only impair the.value or utility of the land..The classic examples of these types of regulations.are zoning laws..Zoning laws are local government rules that.determine how land can be used..For example a city may designate a certain.zone for only residential buildings, another.zone for only commercial buildings, another.zone for only industrial, and so on..The local government’s authority to create.zoning laws (a.k.a. ordinances) is derived.from the state..And the state’s power to grant this authority.to the local governments is derived from the.police powers of the tenth amendment..It is important to note that there are exceptions.to zoning laws: The non-conforming use (a.k.a..Grandfathered in), the special exception,.and the variance..If someone’s use of their property was initially.legal and only became a violation because.of a new zoning law, then that use is exempt.from the new zoning law and it is called a.lawful prior non-conforming use (or non-conforming.use, for short)..Most people recognize this exception as being.“grandfathered” or “grandfathered in”..In addition, most local governments have a.department or zoning board which can be asked.to make an exception..The exception can take on two forms: the special.exception and the variance..A zoning board may grant a special exception.if it maintains harmony with the ordinance’s.general purpose and intent..A zoning board will grant a variance if the.applicant demonstrates that he is a PUS:.That the variance would not be inconsistent.with the public interest,.That without the variance the applicant would.have unnecessary hardship, and.That the problem is specific to the applicant’s.real property..As a final note, remember that regulation.of land use based on the police power (i.e. Zoning).is different from the regulation of.land use based on the power of eminent domain.(i.e. Regulatory Taking)..If the regulation of land use is based on.the police power, the real property owner.is not entitled to compensation..But if the regulation is based off the power.of eminent domain where all economic use of.the property is prevented, the real property.owner is entitled to compensation..
