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Water rights in rivers, lakes, streams, and other watercourses are allocated through two basic systems. The riparian system dominates in eastern states
Under the prior appropriation system, which prevails in western states
dominates in eastern states. Under this system, an owner whose land adjoins a watercourse may take water for all reasonable uses that do not unreasonably interfere with the uses of other riparian owners
the prior appropriation system
which prevails in western states, water rights are allocated to the first person to take water from a watercourse for a beneficial use—even if his land does not adjoin the watercourse.
Public Trust Doctrine
Under the traditional public trust doctrine, navigable waters and closely-related lands are held by the sovereign in trust for use by the public in such activities as commerce, fishing, and navigation. Most states have extended the doctrine to swimming, boating, and other recreational uses.
Right to Support
Each landowner has a common law right to lateral support: the right to have the land in its natural condition supported by adjoining parcels of land. An adjacent landowner who removes support (e.g., by excavation on his land) and thereby causes damage is strictly liable. Similarly, each owner is entitled to subjacent support: the right to have his land in its natural condition supported by the earth below.
Two common law rules address the issue of water boundaries that may move over time (e.g., creeks and rivers). Accretion occurs when the location of a water boundary moves slowly due to gradual buildup of soil; a property line shifts with accretion. However, if there is a sudden change in the location of such a water boundary—which is termed avulsion—the property line does not move.
The traditional rule was that the ownership of land included ownership of everything underneath the land surface down to the "center of the earth." Modern courts still protect the surface owner's absolute right to possession when third parties intrude into the subsurface, whether by mining, installing a pipeline, or otherwise. However, the surface owner does not necessarily own the subsurface oil and gas; in some states, for example, oil generally belongs to the first person to "capture" it through extraction.
Rights in Airspace: How High?
Common law courts proclaimed that each landowner owned "to the heavens." This position collapsed with the invention of the airplane. Today it is increasingly accepted that a landowner owns only the airspace that is reasonably necessary for the use or enjoyment of the land.
In order for a prescriptive easement to arise, the claimant's use must generally be (1) open and notorious, (2) adverse and under a claim of right, and (3) continuous and uninterrupted for the statutory period. Adverse possession principles are frequently used in interpreting these elements.
A license is an informal permission that allows the licensee to use the land of another for a narrow purpose (e.g., as a spectator at a football game). A license may be created orally, but may generally be revoked at any time.
Tenancy in Common
. In a tenancy in common, each co-owner holds an undivided fractional share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel. Today any devise to two or more unmarried persons is presumed to create a tenancy in common (e.g., "to A and B"). A tenancy in common interest is freely transferable during the holder's lifetime and at death.
The joint tenancy differs from the tenancy in common in that a joint tenant has a right of survivorship. If O conveys land "to A and B as joint tenants, with right of survivorship," and A dies first, then B holds fee simple absolute. English common law required four unities to create and continue a joint tenancy. The joint tenants had to acquire title at the same time; they had to acquire title by the same deed or will; each interest had to be identical in size; and each tenant had to have an equal right to possession. Today some states have eroded these requirements. A joint tenancy interest is inalienable
Tenancy by the Entirety
Tenancy by the Entirety
The tenancy by the entirety—now abolished in many states—can only be created in a husband and wife (e.g., "to A and B, as tenants by the entirety"). It requires the same four unities as the joint tenancy, plus the fifth unity of marriage. It can be terminated only by divorce, the death of one spouse, or mutual agreement of the spouses. This estate is controversial because in some states creditors of one spouse cannot levy on property held in tenancy by the entirety
Termination of Concurrent Estates
Any tenant in common or joint tenant may end the cotenancy by suing for partition; the court will grant partition automatically, with no need to show cause. The court will either grant partition in kind (physical division of the land) or partition by sale (division of proceeds from the judicial sale of the land). In addition, a cotenant can always end or sever the joint tenancy merely by conveying her interest to another person. For example, if A and B are joint tenants, and B conveys her interest to C, then A and C now have a tenancy in common, because the unities of time and title are missing.
Adverse Possession of Personal Property
Most courts hold that one whose possession of a chattel owned by another is actual, adverse, hostile, exclusive, open and notorious, and continuous for the requisite period obtains title to it through adverse possession, by analogy to the rules governing real property.
A bailment is the rightful possession of a chattel by someone other than the owner, e.g., where A borrows B's book. In most states, the bailee's duty of care for the chattel is governed by the ordinary negligence standard. However, a bailee who delivers the chattel to the wrong person is usually held strictly liable
Bona Fide Purchasers
As a general rule, a seller of personal property cannot pass on better title than he possesses, even to a bona fide purchaser. However, there are several exceptions that protect the title of a bona fide purchaser under limited circumstances
The distinction between the three freehold estates is based on duration. Fee simple is a freehold estate whose duration is potentially infinite. It roughly corresponds to the layperson's understanding of "ownership." The most common form is fee simple absolute, the largest aggregation of property rights recognized under American law. At one time, it was necessary to use special language to create a fee simple (e.g., "to A and his heirs"), but today informal language such as "to A" will suffice in most states.
The fee tail is a largely-obsolete freehold estate whose duration is measured by the lives of the lineal descendants of a designated person. For example, if O granted Greenacre "to A and the heirs of his body," this created an estate that would endure as long as A's bloodline continued.
The life estate is a freehold estate whose duration is measured by the lives of one or more specified persons. For example, a grant "to A for A's life" creates a life estate in A for as long as he lives. Alternatively, the duration may be measured by the life of a person other than the grantee (e.g., "to A for B's life"); this is called a life estate pur autre vie.
Restriction on Use: Waste
A person who holds an estate subject to a future interest may not commit waste
occurs when the voluntary acts of the present estate owner significantly reduce the value of the property (e.g., destroying a valuable house)
stems from inaction: the failure of the estate owner to exercise reasonable care to protect the estate (e.g., failing to fix a leaky roof).
Rights and Duties of Cotenants
In theory, each cotenant has an equal right to possession and enjoyment of the whole property, regardless of the share of his fractional interest. Thus, under the majority view, even a cotenant in exclusive possession of the property is not liable to the other cotenants for rent, absent an ouster. However, each cotenant is entitled to a pro rata share of (1) rents paid by third persons and (2) profits from the land. While all cotenants are obligated to pay their share of mortgage payments, taxes, and related assessments, they are not individually liable in most states for the cost of repairs or improvements, absent special circumstances.
The Rule Against Perpetuities: At Common Law
The common law version of the Rule is: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." To comply with the Rule, it must be logically provable that within the specified period a covered contingent interest will either vest (that is, change into a vested interest or present estate) or forever fail to vest (that is, never vest after the period ends), based only on facts existing when the future interest becomes effective.
Application of the RAP
For example, assume O conveys "to A for life, then to the first child of A to reach age 30." Assume that A is alive when the conveyance takes effect, but that A has never had children. A potential unborn child (A's first child to reach age 30) receives a contingent remainder under this language, which is a type of interest subject to the Rule. It cannot be logically proven that this interest is valid. For instance, A might have a child, B, one year after the conveyance; suppose O and A then die. Twenty-nine years later, if B survives, her contingent remainder will "vest" by becoming a present estate. B's interest is deemed invalid under the Rule—at the time of O's conveyance—because such vesting would come too late (more than 21 years after O and A, the lives in being, died).
The Doctrine of Worthier Title
Traditionally, if an owner transferred real property to one party, and by the same instrument transferred the following remainder or executory interest to the owner's heirs, then, under this doctrine, the owner received a reversion and the "heirs" received nothing. Today the doctrine is virtually obsolete in the United States.
The Rule in Shelley's Case
Under this rule, if a deed or will (1) created a life estate or fee tail in real property in one person and (2) also created a remainder in fee simple in that person's heirs, and (3) the estate and remainder were both legal or both equitable, then the future interest belonged to that person, not the person's "heirs." This rule has been abolished in all but two states.
The Destructibility of Contingent Remainders
At common law, a legal contingent remainder in real property was extinguished if it failed to vest when the preceding freehold estate ended. Today almost all states have abandoned this doctrine.
Term of Years Tenancy
Term of Years Tenancy
The term of years tenancy endures for a designated period that is either fixed in advance (e.g., five years) or computed using a formula that is agreed upon in advance. This tenancy automatically expires when the agreed period ends, without any notice of termination.
The periodic tenancy lasts for an initial fixed period (e.g., one month) and then automatically continues for additional equal periods until either the landlord or the tenant terminates the tenancy by giving advance notice. The classic example is the "month-to-month" residential lease.
Tenancy at Will
The tenancy at will has no fixed duration and endures only so long as both the landlord and the tenant desire. Today most tenancies at will arise from implication, not from an express agreement
Tenancy at Sufferance
The tenancy at sufferance arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends. Most authorities agree that this is not technically an estate in land, but rather a convenient label. The landlord is free to evict the "tenant" at any time.
Constructive eviction occurs when wrongful conduct of the landlord substantially interferes with the tenant's use and enjoyment of the leased premises. For example, if a Minnesota law requires the landlord to supply heat to a rented dwelling during the winter, then his failure to do is wrongful conduct which renders the dwelling unusable. If the landlord fails to fix the problem within a reasonable time after receiving notice, then the tenant may vacate the premises without further rent liability under the lease. Alternatively, most states allow the tenant to remain in possession and sue for damages, while continuing to pay rent.
Traditionally, any chattel permanently affixed to the premises by the tenant was a fixture, and thus became the property of the landlord. In order for a chattel to become a fixture today, the tenant must intend for it to become a permanent part of the premises.
consists of rights in things other than land. There are two main types of personal property: chattels (tangible, visible personal property such as jewelry, livestock, cars, and books) and intangible personal property (invisible, intangible things such as stocks, bonds, patents, debts, and other contract rights).
consists of rights in land and anything attached to the land (e.g., buildings, signs, fences, or trees)
Property as a "Bundle of Rights"
It is common to describe property as a "bundle of rights" in relation to things. The most important rights in this metaphorical bundle are: (1) the right to exclude; (2) the right to transfer; and (3) the right to use and possess.
The Capture Rule in General
Basic Rule No one owns wild animals in their natural habitats. Under the common law capture rule, property rights in such animals are acquired only through physical possession. The first person to kill or capture a wild animal acquires title to it
Defining "Capture:" Pierson v. Post
The leading case interpreting the capture rule is Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805). Post, a hunter, found and pursued a fox over vacant land. Pierson, fully aware that Post was chasing the fox, killed it himself. When Post sued Pierson for the value of the fox, the court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been.
Release or Escape After Capture
In general, ownership rights end when a wild animal escapes or is released into the wild. However, if a captured wild animal is tamed such that it has the habit of returning from the wild to its captor, it is still owned by the captor.
Rights of Landowners in wild animals
English law held that the owner of land was in constructive possession of the wild animals on the land. American courts reject this view; here, a landowner owns no rights in wild animals on her land. However, because an owner may bar hunters and others from trespassing on her land, this gives an American landowner the exclusive opportunity to capture wild animals on the land, subject of course to hunting laws.
Finders as Owners
The law of finders is more complicated than the pithy rules that courts often espouse. Three factors dominate the analysis of finders' rights: (1) the presumed intent of the original owner; (2) the identity of the competing claimants; and (3) the location where the item is found.
Who is a "Finder"?
The first person to take possession of lost or unclaimed personal property is a finder. Possession requires both (1) an intent to control the property and (2) an act of control
Four Traditional Categories
The rights of a finder and other claimants turn in large part on which of the four traditional categories the "found" object fits into: abandoned property, lost property, mislaid property, or treasure trove.
Property is abandoned when the owner intentionally and voluntarily relinquishes all right, title, and interest in it.
Property is deemed lost when the owner unintentionally and involuntarily parts with it through neglect or inadvertence and does not know where it is.
Property is considered mislaid when the owner voluntarily puts it in a particular place, intending to retain ownership, but then fails to reclaim it or forgets where it is.
Finally, English law recognized a category called treasure trove, consisting of gold, silver, currency, or the like intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location
Rights of Finder Against Original Owner
As a general rule, an owner retains title to lost or mislaid property found by another. In contrast, the first person who takes possession of abandoned property acquires title that is valid against the world, including the prior owner.
Rights of Finder Against Third Persons Generally
The finder acquires title to lost property that is superior to the claims of all other persons, except (1) the true owner and (2) sometimes the landowner. For example, in Amory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), a "chimney sweeper's boy" found a jewel and took it to a goldsmith, who refused to return it; the court concluded that the boy had title to the jewel, not the goldsmith.
Rights to Objects Found on Private Land
Lost objects found either within a house or embedded in the soil are generally awarded to the landowner, not the finder. The status of the finder is sometimes relevant here. A long-term tenant who finds an object will often prevail over the landowner, while a finder who is merely the landowner's employee will not.
Rights to Treasure Trove
American courts differ on how to handle treasure trove. Although some older courts award title to the finder, the modern view is to award it to the landowner.
Rights to Objects Found in Public Places
A valuable object left in a public place is considered mislaid property and awarded to the owner or occupant of the premises, not the finder.
A deed is not effective until it is delivered. In order to deliver a deed, the grantor must manifest by words or actions an intent that the deed be immediately effective to transfer an interest in land to the grantee. The typical grantor delivers a deed through the act of physically handing it to the grantee, with words indicating the required intent. Yet, as an early English judge observed, "As a deed may be delivered to a party without words, so may a deed be delivered by words without any act of delivery."
The quitclaim deed contains no title covenants. By its use, the grantor does not warrant that she owns the property or—if she has any title—that her title is good. This type of deed merely conveys whatever right, title, or interest the grantor may have in the land.
Requirements for Adverse Possession
Adverse possession is a blend of statutory and case law. All states recognize a statute of limitations for recovering possession of land from a wrongful occupant. In a majority of states, however, the other requirements stem from case law. In some states, statutes specify all of the acts necessary for adverse possession. A few states also require the adverse possessor to pay property taxes. OCEAN-H
The adverse possessor must take actual possession of the land. Under the majority view, this means that the claimant must physically use the particular parcel of land in the same manner that a reasonable owner would, given its nature, character, and location.
The claimant must hold exclusive possession. His possession must not be shared with either the true owner or the general public, but must be as exclusive as would characterize an owner's normal use for such land.
Open and Notorious Possession
The claimant's acts of possession must be open and notorious—so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim.
Adverse or Hostile Possession Under Claim of Right
In most states, the requirement of adverse or hostile possession under a claim of right is met if the claimant merely uses the land as a reasonable owner would—without permission from the true owner. In a minority of states, however, the claimant must believe in good faith that he owns title to the land.
The requirement of continuous possession means that the claimant's acts of possession must be as continuous as those of a reasonable owner, given the nature, location, and character of the land. However, successive periods of adverse possession by persons in privity can be combined to satisfy the statutory duration requirement; this process is known as tacking.
Special Restrictions on Adverse Possession
The limitations period for adverse possession is extended or tolled when the owner is unable to protect his rights due to a disability such as infancy, mental illness, or sometimes imprisonment. Adverse possession is not available against land owned by the federal government or many state governments.
What Is a Private Nuisance?
The Restatement (Second) of Torts defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." This definition is overbroad, however, because not all such invasions are private nuisances. The traditional distinction between nuisance and trespass hinges on the nature of the intrusion. If there is a physical entry onto the land of another, the case is evaluated as a potential trespass. However, cases involving fumes, smoke, light or other nontrespassory conduct are governed by nuisance principles.
Elements of Private Nuisance
Intentional Interference,Nontrespassory Interference, Unreasonable Interference, Substantial Interference, Interference with Use and Enjoyment of Land
A public nuisance is "an unreasonable interference with a right common to the general public." Restatement (Second) of Torts, § 821B(1). Almost any intentional conduct that unreasonably interferes with the public health, safety, welfare, or morals may constitute a public nuisance. Examples include keeping diseased cattle, detonating explosives on a residential street, and operating an unlicensed casino. Usually a public nuisance action is brought by a city or other governmental entity. A private party may sue only if he has suffered special injury.
Good Faith Improvers
Most states provide relief to the good faith improver—one who improves land owned by another under the mistaken but good faith belief that he owns it. For example, many states allow the good faith improver to either (1) remove the improvements or (2) receive compensation equal to the amount by which the improvements increase the market value of the land.
Diffused Surface Water
All surface water that is not confined in rivers or other watercourses is known as diffused surface water. The law in this area focuses on the problem of too much water. In most jurisdictions, an owner may make reasonable use of his land (e.g., by building a home) even though this alters the flow of diffused surface water in a manner that harms others.
Same as permission requirements, but called ouster. Notice must be given or other acts must be performed
Where boundary is fixed by agreement of boundaries but is later discovered not to be true line the courts will rely on the agreed boundary if:
There was uncertainty as to the true line.
The agreed line was established.
If enough time has passed w/o objection, agreement is implied
AND where there was a lengthy acquiescence in the agreed line.
Agreed Boundary Doctrine does not apply when legal evidence of boundary is readily available because the goal is to reduce litigation and ABD would not do this. Some states say that this only works where there is no agreement and boundary can be determined.
Statute of Anne
Occupying cotenant owes no rents to non-occupying
Don't pay for use of land
Do pay share of 3rd party rents
Can't waste it, pay for permanent depletion of land
As a consequence, cotenants are in fiduciary relationship, others
Are primary interests
Misleading, you have responsibilities but they depend on circumstances—partners v. nonpartners
No duty to disclose transfers or conveyances
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