Property II Outline
Professor Moore- Fall 2014
Licenses & Profits
A. Licenses
a. Defined
i. A license is permission to do something on the land of another;
ii. Without that authority, the act would be unlawful
b. Characteristics
i. Generally unassignable (personal)
ii. Revocable at the licensor’s will
iii. Not an interest in land
iv. Licensee may only enter the land for a particular purpose and may not expand that purpose
v. Licensee has no cause of action for interference from a 3rd party
1. Majority Exception: unless the license is irrevocable
2. Minority: a licensee may sue a 3rd party for interference w/ his license
c. Creation
i. No formal language is required
ii. Only necessary element is the licensor’s permission
iii. May be grated orally or in writing
iv. Licenses may be implied by the land owner’s conduct
1. Example: one has a license to enter Nordstrom to shop
v. One cannot obtain a license by prescription because the initial use is permissive
d. Scope
i. License must be limited to the authorized activities
ii. Licensee who exceeds the scope of the license may be treated as a trespasser
iii. Persons other than the licensee may use the license
e. Assignability
i. Majority:
1. Any attempted assignability of the license will be rejected
ii. Minority:
1. Any attempted assignment terminates the license
iii. A license may be transferred when the parties intend that it be transferable
f. Revocation
i. Generally revocable at licensor’s will
ii. No notice necessary even if consideration has been paid
iii. Licensor may revoke even though there is a contract
1. However, the licensor may be sued for DAS
iv. Licensor must give licensee notice and opportunity to leave the premises
1. Generally this is a short period of time.
B. Irrevocable Licenses
a. Circumstances Creating Irrevocable Licenses
i. When coupled w/ an interest, the licensee owns personal property on the servient land related to the purpose of the license
1. Ex) licensee uses licensor’s lot to store cars
2. Licensor cannot revoke the license until licensee has reasonable time to remove the personal property
ii. If the licensor has given a licensee an ownership interest in (a) crops, (b) timber, or (c) minerals on the land, licensor must give licensee time to remove the item (i.e. season’s end)
iii. If a licensee makes expenditures in reliance on the license, the licensee cannot be revoked at the licensor’s will
1. Expenditures may be in the form of money or labor
2. Must be reasonable reliance on the continued existence of the privilege to use
a. Based on estoppel or fraud
3. PP: it would be inequitable to allow the licensor to revoke when the licensee has changed its position in reliance on the license
b. Regarding Expenditures
i. Licensee must expend a substantial sum of money
ii. Expenditure must be w/ the licensor’s knowledge
iii. Minority (Texas): also requires that the expenditure must be partly for licensor’s benefit
c. Duration of Irrevocable Licenses
i. Irrevocable licenses are not perpetual
1. They only last for the period necessary to protect the interest
ii. A subsequent purchaser of land takes subject to an irrevocable license if purchase has notice
iii. Majority: courts reject irrevocable licenses
iv. PP: favors free use and enjoyment of land
v. Courts state that one can never rely on the license
vi. PP: free transferability of land
d. Termination
i. Transfer or sale of the property by the licensor automatically terminates the license
ii. Terminates upon the death of the licensee/licensor
iii. Terminates if the licensee abandons/surrenders the land
iv. Licenses for a specific purpose terminate when purpose is accomplished
v. A licensee for seasonal use is deemed for one season
1. Licensee must seek a renewal each season
2. Ex) grazing cattle
vi. Minority: attempted assignment terminates license
C. Profits
a. What is a Profit?
i. Defined: it is the right of one person to enter the land in possession of another and either take some part of the land itself or some product of the land
ii. Examples:
1. Sand
2. Oil
3. Gravel
4. Marble
5. Timber
6. Shrubbery
7. Fish
8. Gas
9. Minerals
10. Water (though this is questionable b/c it belongs to nature)
11. Game
iii. The key owner of the profit may use the land to the extent necessary to enjoy himself
b. It is different from an easement b/c the easement gives its owner only the right to use the land of another
i. An easement does not give one the right to take anything from the land
c. A profit holder has 2 rights:
i. Right to access the land
ii. Right to take from the land
d. Courts often have problems determining if one has a license or a profit
e. With water, fish, or game: if the item is not part of the property involved, one cannot grant a profit
f. Timber & Fruit
i. Neither fit squarely into the CL definition of profits
ii. Fructus Naturales- plants that are relatively permanent and grow without human assistance (real property)
iii. Fructus Industriales- annual crops that a land owner plants, nurtures, and regularly harvests (personal property)
iv. The right to remove fructus naturales is a profit
v. The right to remove fructus industrials is only a contract right accounting to a license
g. Profits may last indefinitely.
i. If appurtenant, they are freely transferable w/ benefitted land
ii. If in gross, they are still freely alienable and inheritable
Water Rights
A. Kinds of Water
a. Surface Water (Diffused Water)
i. Rain, snow, etc.
ii. Lakes, rivers, streams
iii. Navigable waters- the means through which commerce is done
b. Groundwater
i. Underground aquifers
B. Surface Water
a. Introduction:
i. Where a majority of water battles occur
ii. Drainage water that emanates from rain or melting snow can sometimes create a standing marsh that does not turn into a stream
1. Which is more of an annoyance than a benefit
b. Water Law & Nuisance Law
i. If someone does something detrimental to your property that relates to water, it can be a nuisance
c. Two Primary Systems of Surface Water Rights
i. Riparianism
1. What is Riparianism?
a. Land-based system
b. Developed in water-plentiful Eastern states
c. The owner of land bordering on or straddling a body of water (such as a lake, stream, river) known as riparian land, has a right to “reasonable use” of water flowing past or through his or her property
d. Owner’s rights are correlative or reciprocal, all owners have co-equal rights to the water
e. Owners do not lose their rights to use or divert water if they fail or cease to use them
i. Rights accompany land ownership
ii. Water rights are considered appurtenant to the land
2. Rights are Never Absolute
a. Right for the body of water to remain in the same amount and quality
b. Right to use the water from the body
c. Right to limit access to the water
d. Right to accretion and reelection
3. Use of Water:
a. Historically required to use the water on the riparian land and could not divert it to other, non-riparian land or to use it outside of the watershed
b. Modern times: off-tract or out-of-watershed uses have been allowed if consistent with the public interest or in co-riparians could not prove actual injury from the use
c. Some states have abandoned the on-tract requirement entirely
4. Common Law System
a. Works as a tort-law system
b. Π must prove both
i. Unreasonableness of the competing use
ii. Injury to his or her riparian rights
c. From the unreasonable use
5. “Natural Flow”
a. Historically riparian landowners were entitled to the “natural flow” of the surface waters flowing by or through their lands
i. Made sense when most water uses were few and on-stream
b. Reasonable Use Doctrine: natural flow has given way to the dominance of the reasonable use doctrine to accommodate economic development and population growth
6. Regulated R
to permit the privilege of generally working on your property to an extent that if you grade the property in a way to run the water off of more property and not onto another’s
1. Some Jurisdictions:
a. Reasonableness: in terms of the change you made in your property
b. No reasonableness —> liability
b. Civil Law Doctrine
i. Any owner who interferes w/ the natural flow of the water is strictly liable for DAS done
1. Look at Strict Liability
ii. You CANNOT alter the natural flow of the water, it’s a promise you make to other landowners
iii. Problems w/ this doctrine:
1. Restricts landowners ability to freely use the property in the way they wish
2. PP says that landowners should have the ability to freely use the property as they would like, which includes altering the land
iv. Some Jurisdictions:
1. Balancing Test- (would be done in urban lands)
a. Not a big difference with the Common enemy Doctrine, argue that under common enemy doctrine one could actually change the water course whereas in CL Doctrine you could not unless they jur allows a balancing test
2. Outcome is predictable
c. Reasonable Use Theory
i. Landowner has a right to make are reasonable uses of his property
1. Aka envisions the right of one to alter his property
ii. Altering drainage can be done to the extent that it does not unreasonably interfere with the neighbor’s land
iii. Outcome is not predictable, either favor or disfavor the ∆
iv. FACTORS-Court consider: all equally weighted
1. Whether landowner acted w/ due care
2. Whether or not this was the best method (other feasible methods)
3. Degree of harm to the neighbor
D. Groundwater (Diffused Water)
a. Introduction:
i. Problems are often caused by commercial users taking water from non commercial users
ii. Defined Stream:
1. Most underground water does not flow in a defined stream, it is diffused or percolating water
2. Presumption favors percolating water and the one that thinks it is a stream had the burden of proving that fact
3. If underground water flows in a stream, the riparian system and appropriation system applies
b. Five Common Law Doctrines Governing Usage
i. English Rule (Absolute Ownership, Rule of Capture)
1. The owner of land overlying a groundwater source may pump as much as he or she wishes from the source w/o liability to any neighboring or nearby landowners who also own land over the source
2. The Rule of Capture- arguably only applied in Texas
a. It incentivizes a race among landowners to pump the most water as quickly as possible and to use high-capacity wells, eventually to the degradation of the groundwater source
ii. American Reasonable Use
1. Owner of land overlying a groundwater source has the right to pump as much groundwater as he or she can put to a reasonable use on the overlying tract
iii. Correlative Rights
1. All landowners share rights to the available water from a groundwater source over which they own land on an equitable basis
a. Ex) pro rate according to acreage overlying groundwater
iv. Prior Appropriation
1. Rights to pump and use groundwater have relative superiority and therefore protecting in accordance w/ the time at which the pumping and use first began
2. Senior appropriators generally do not have the right to prevent all new wells that might affect their rights in any way
v. Restatement 2d of Torts § 858: Reasonable Use
1. Does not require or prefer that water be used on-tract
c. Permitting Systems
i. Basic Problems of Groundwater Management Today:
1. Conflicts between two or more nearby wells due to effects of one another
a. Pressure
b. Rates of pumping
c. Well depth
2. Groundwater mining
a. Collective pumping of water that exceeds recharge
3. Surface land uses that introduce pollutants into groundwater or impede filtration of precipitation into soils
4. The effects of surface water uses and groundwater uses on one another and barriers to integrated management of the two systems
