Property II: Shelby Moore
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Riparian Rights System
a. Riparian Owner: You own land that is surrounded by water
i. Water must remain in same basic quality and quantity
ii. Limit use and consumption
iii. Limit Access
iv. Lucrecian Reliption: water adds dirt to your land at times; other time water recedes. Either of these allow your land to be extended
c. RR are not absolute: generally because others own it, everyone is competing
d. Three theories of RR
i. English: adopted by early American cases. This is the natural flow theory: each land owner may use, but you may not reduce it to ownership. You can use as much as you want for domestic purposes. There may be reasonable art. and community use, but you cannot significantly deplete quality or quantity (can’t change)
1. PP: This was abandoned in the US because it promotes slight use of water. It did not allow for irrigation. The industrial revolution changed the way we use water.
2. Favors lower land owners to upper land owners.
ii. Reasonable Use: (MAJORITY) not a bright line. Must look at the facts and circumstances. The Riparian owner may have all the reasonable use of the water he wants as long as he does not interfere with the rights of others..
1. PP: Water is to be used, even if totally, to serve human endeavors. Not first in time, but first in right.
2. Factors for the Court
a. Purpose of the use of the water
b. Economic value of the use of the water to the community
c. Social value
d. Extent to which your use infringes on another’s rights
e. How app. from nature of body of water that you draw from
f. Cost and practicality of adjusting users: domestic users are given priority
iii. Appropriation System: (TEXAS) The first person to make use of water in a beneficial way may continue to do so, even if not a riparian owner.
1. Colorado Doctrine: exclusive system of taxing water. Arid states use this. (Nevada, Arizona, UT, WY, NM, etc). If you take the water first, you have the right to it.
2. California Doctrine: (TEXAS) Reasonable use component.
a. PP: Supports anyone who puts the water to best use.
b. If you gain the right early, you keep the right
c. TEXAS: Every bit of the water belongs to TEXAS. You must use it correctly.
d. Water should be viewed as a property right- you will be compensated.
e. ACCOMIDATIONL try to accommodate all (appropriations)
Limits on Riparian Water Rights
e. Navigable Water Theory
i. Water on which commerce is conducted.
ii. Most scholars will say there is a navigable servitude on the property
iii. Where the federal government hasn’t acted, the states are free to act
iv. We will regulate land, traffic thru land, but otherwise do what you want
f. Right to Underground Water
i. Considered valuable- collects under property in rocks, basins, reservoirs, rain water
ii. If you are the surface owner, you can take the water
iii. PROBLEM: If you take all you can, you can lesson the “water table” of others
iv. TO ASK: Does the water flow in a deferrable underground stream? (usually it does not)
v. If not (percolating)(diffused), there is a presumption that the water is percolating
vi. If you say the water flows in a stream, you must prove it.
1. hear a boring- driving of water- making the whole
3. vegetation on surface (whatever can survive underground, no moss)
4. surface sounds (flowing)
5. stream that appears and disappear into the earth.
vii. If you can show these, the riparian theory applies, and appropriations law applies.
viii. If you cannot show this (that the water is flowing) then other theories apply
1. Absolute Ownership Doctrine (TEXAS): one can draw all the water he wants for anything. Neighbor cannot go to court for relief EXCEPT water cannot be drawn maliciously. If it results in harm (but is not malicious) it is okay.
2. Reasonable Use Theory: American Doctrine (MAJORITY): Any use upon land is deemed reasonable, even if you deplete your neighbor. You just cannot take the water off the land. Seems to have a malicious requirement of its own. It is probably okay if you need it and it is reasonable.
3. Adoption of Correlative Rights (sometimes seen together): each land owner has an equal right to the water. Equal uyse on land. DOES NOT allow owner to diminish the water table. It does not talk about malice. You cannot deplete to the detriment of the neighbor (“California Theory”). You can only transport off land of and only if all neighbors are supplied.
a. Moore likes this one the best- respect for rights of each of the parties.
g. THE BOTTOM LINE is that there is no absolute right
Riparian Limits on Riparian
English Appropriation Reasonable Use Navigable Water Underground
Colorado California Percolating Flowing
Absolute Reasonable ACR Riparian
a. Most tenuous interest in property law.
b. Gives permission for one person to do something on the land of another. If not for the license, the activity would be unlawful.
an irrevocable license will take the land subject to the IL if he had notice of it. Notice can be constructive..
v. Most jurisdictions reject IL on the PP basis that it restricts the free use and enjoyment of land since it is such a tenuous interest the lic’e has no reason to rely on the license.
i. Transfer or sale of the land by the lic’r
j. Death of lic’e or lic’r
k. Abandonment or surrender by either
l. License if for a particular purpose and that purpose has been accomplished
m. The license of for a season and that season has ended.
n. If lic’r transfers land
Profits: Not tenuous interests
The right of one person to enter the land is possession of another and to take some part of the land itself or some product of the land. (Ex- right to remove sand, oil, grave, timber, stone, shrubbery). Fish and water are questionable because they are a part of nature and a person cannot “give” nature. A profit is different from an easement because and easement only gives you a right to use the property, not to take anything from it.
A profit holder has two rights
a. The right to access the land
b. The right to take from the land
Two things do not fit squarely into the common law definition
c. Fructus naturals- considered to be real property. Plants that are relatively permanent and grow without human assistance. The right to remove FN is a profit
d. Frustus Industriales- annual crops that a land owner plants and harvests that are considered personal property. The right to remove FI is a license, a contract matter amounting to a license.
Profits can last indefinitely- perpetual. They are freely transferable and alienable (if appurtenant). Even if in gross, it is freely transferable and inheritable.
Licenses vs. Profits
Licenses vs. Profits
Express Irrevocable tenuous Fructis Naturales Frustus Industriales
w/interest w/ownership w/expenditure Can be perpetual Real Property Personal Property
no I in land
transferable Treated as Treated as