Land Use (Nuisance, Lateral Support, Water Law, Eminent Domain, Zoning)


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.

10 comments

  • Thanks again USLawReview! I understand the legal concepts so well in your lectures, makes deciphering what my law professor has been tip toeing around the entire year much clearer. Taking notes on your lectures and remembering the creative cartoon characters like Variance "PUS" really help during exam time. I sound crazy when I explain concepts using your characters to my classmates but, they make so much sense in my mind and help me pass the exams! hahaha Thank you for all the hard work you put into these productions, especially on a complex area of law like Real Property. I'm always lost in class while the professor throws all these foreign words and concepts at us causing me to shut down but, you always help me piece everything together before exams. The Servitudes and this Land Use lecture were extremely helpful. Thank you!!!!

  • Thanks this is great!

  • This is so fantastic! I grasp these concepts so much better after watching these videos. Thank you for making these. I feel so much more confident in taking my Property final.

  • Thanku for this public service.

  • I have to say whoever is responsible for putting these video together. Thank you !

  • Please add more topics as soon a possible!!! These videos, HANDS DOWN, are the BEST that make the most complicated subject in law = easy to understand!

  • Please release more videos before the Feb. Bar.

  • great, keep up the good work

  • great video. Executive summary level, and great refresher

  • I wanna weep right now. I have a property law final tomorrow and I was struggling to understand. God bless you for these videos.

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