Real Property - Misc.
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- If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liabile only if negligent (multi-state).
- Strict liability does not attach to the excavator's actions unless plaintiff shows that, b/c of D's actions, his improved land would have collapsed even in its natural state.
- For strict liability to apply, P must show that the improvements on his land (shrubs, fountaing, structures) did not contribute to his land's collapse (very difficult showing).
- VA has no strict liability here.
- water belongs to those who own the land bordering the water course
- these people are known as riparians
- they share the right of reasonable use of the water
- one riparian will be liable if his or her use unreasonably interferes w/ others' use
Prior Appropriation Doctrine
- water belongs to state but the right ot divert it and use it can be acquired by individuals regardless of whether or not he happens to be a riparian owner
- rights are determined by priority of beneficial use
- first in time, first in right
- any productive or beneficial use of the water, including use of agriculture is sufficient to create the appropriation right
- aka percolating water
- water beneath the surface of the earth that is not confined to a known channel
- the surface owner is entitled to make reasonable use but the use must NOT be wasteful
- come from rain, srpings or melting snow, and which have not yet reached a natural watercourse or basin
- common enemy rules: surface water is considered a common enemy
- a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts (including VA) have modified the common enemy rule to prohibit unnecessary harm to others' land
- The possessor of land has the right to be free from trespass and nuisance
- Trespass: invasion of land by tangible, physical object to remove - action for ejectment
- Private nuisance: substantial and unreasonable interference w/ another's use and enjoyment of land. does NOT require tangible/physical invastion. So odors and noise could give rise to a nuisance but not a trespass.
- Nuisance does not apply to the hypersensitive P or P's specialized use.
- Government's 5th Amendment power to take private property for public use in exchange for just compensation
- Explicit takings: acts of governmental condemnation (eg, highway)
- Implicit or regulatory takings: a governmental regulation that, although not intended to be a taking, has the same effect. Economic wipe out of interest.
- Remedy: either 1) compensate owner or 2) terminate regulation and pay for damages occuring while in effect
- pursuant to police powers, govt may enact statutes to reasonably control land use
- Variance: principal means to achieve flexibility in zoning
- proponent must show 1) undue harship and 2) won't work detrimenet to neighboring property values
- Granted or denied by administrative action (zoning board)
- Nonconforming use: once lawful , existing use now deemed nonconforming by a new zoning ordinance. It cannot be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking.
- Unconstitutional exactions: amenities govt seeks in exchange for granting permission to build, must be reasonably related both in nature and scope to the impacet of the proposed development.
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