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Property I
University of Denver School of Law
Marsh, Lucy A.

Class: Property
Professor: Lucy Marsh
Date: Spring Semester 2017
School: University of Denver Sturm College of Law
Book: Concise Introduction to Property Law (2011), Callies, Hylton, Martinez, Mandelker
Community property states:
Louisiana, Texas, New Mexico, Arizona, Nevada, California, Washington, Idaho, Wisconsin, and sometimes Alask
Oil and Gas
Gerrity Oil and Gas Co v Magness
Severed mineral rights lack value unless they can be developed. The owner of a severed mineral estate or lessee is privileged to access the surface and “use that portion of the surface estate that is reasonably necessary to develop the severed mineral interest.”
The severed mineral owner’s right of access includes “rights on ingress, egress, exploration, and surface usage as are reasonably necessary to the successful exploitation of the mineral interest.
In the absence of statutes, regulations, or lease provisions to the contrary, unless the conduct of an operator in accessing, exploring, drilling, and using the surface is reasonable and necessary to the development of the mineral interest, the conduct is a trespass. In this sense, the right of access to the mineral estate is in the nature of an implied easement, since it entitles the holder to a limited right to use the land in order to reach and extract the minerals. In the absent of relevant lease provisions, “it has been held that such surface easements are implied as will permit the lessee or mineral owner to enjoy the interest conveyed.” As the owner of property subject to the easement, the surface owner “continues to enjoy all the rights and benefits of proprietorship consistent with the burden of the easement. The surface owner thus continues to enjoy the right to use the entire surface of the land as long as such use does not preclude exercise of the lessee’s privilege.
Because a mineral rights holder is legally privileged to make such use of the surface as is reasonable and necessary to develop underlying minerals, a trespass occurs at the point when the holder exceeds the scope of that implied easement and thereby exceeds the legal authorization permitting mineral development activities.
Because the scope of a mineral rights holder’s implied easement is defined in terms of reasonableness and necessity, the reasonableness of the holder’s conduct is not only relevant, but is essential to any resolution of a trespass claim.
Neither the owner of the surface nor the owner of the subjacent rights can lawfully destroy, interfere, or damage the right of the other. A mineral owner or lessee that violates this rule of reasonable surface use commits a trespass.
Trespass may only occur when the holder of the privilege acts unreasonably and unnecessarily.
In its necessary use of the surface, the lessee has a responsibility to exercise its privilege reasonably, in a manner designed to minimize intrusion and surface damages. When it fails in such a responsibility, it commits a trespass.
Seeco inc v. Holden
A defective mineral deed can ripen into good title. For that to occur, the holder of the defective deed must disseize the legal owner by adversely possessing the minerals for two years before the legal owner files suit.
A person holding land or a mineral estate by virtue of an invalid tax deed may nevertheless dispossess the legal owner and gain good title if he possesses the property adversely and continuously for two years before the legal owner files suit.
The adverse possession must be of such a character as to put the legal owner on notice that his rights are being challenged.
Coffin v. Left hand ditch
It is the duty of national and state governments to protect the right to water by priority of appropriation.
The common-law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado.
The first appropriator of water from a natural stream for a beneficial purpose has a prior right to the water.
The right to water acquired by priority of appropriation is not in any way dependent upon the location of its application to the beneficial use designed.
Evans v. Merriweather – 354-357
The test for reasonable use is whether it is to the injury of the other proprietors or not. There may be diminution in quantity, or a retardation or acceleration of the natural current, indispensable for the general and valuable use of the water, perfectly consistent with the use of the common right.
Where all have a right to participate in a common benefit and no one has exclusive enjoyment, there is no rule as to how much each can use without infringing upon the rights of others. That’s a jury question.
It falls within that principle which gives the owner of the soil all that lies beneath his surface; that the land immediately below is his property, that the person who owns the surface may dig therein, and apply all that there is beneath the land, if he intercepts or drains off the water collected from underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action.
Armstrong v. Francis Corporation
Surface waters are the common enemy. The common enemy rule emphasizes the possessor’s privilege to rid his lands of surface waters as he will. That rule I sin substance, that a possessor of land has an unlimited and unrestricted legal privilege to deal with the surface water on his land as he pleases, regardless of the harm he may thereby cause others.
The civil law rule emphasizes not the privileges of the possessor but the duties of the possessor to other landowners who are affected by his expulsion of surface waters from his land. That rule is to the effect “a person who interferes with then natural flow of surface waters to cause an invasion of another’s interests in the use and enjoyment of his land is subject to liability to the other.
The court ends up using a reasonable use rule. The rule of reasonableness is flexible. It’s a fact intensive analysis, including factors like amount of harm caused, foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant shit.
It is a proper consideration in these cases whether the utility of the possessor’s use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters.
Board of city comm of the county of park v. Park county sportsman ranch
Artificial recharge activities involving the movement of underground water into, from, or through aquifers underlying surface lands of the Landowners would not constitute a trespass
Defendant has no right to occupy the space beneath the lands of the Ps to store water or other substances on or below the surface of the lands. Any such placement or storage of water on or below the surface constitutes a trespass for which the D may be liable for damages.
The absolute ownership of air rights is a doctrine which has no place in the modern world to apply as well to ownership of subsurface rights.
The water court can issue a conditional decree for storage of water in underground aquifers if the applicant can and will lawfully capture, possess, and control water for beneficial use which it then artificially recharges the aquifer.
The right to store water of a natural stream is a right of appropriation in order of priority.
Underground aquifers can be used for storage of water that the applicant artificially recharges into the aquifer pursuant to a decreed right.
A person who captures possesses and controls water must then artificially recharge it into the aquifer for storage and subsequent use pursuant to a decreed water right.
A natural stream consists of all underflow and tributary waters
All waters of the natural stream are subject to appropriation, adjudication, and administration in the order of their decreed priority
The policy of the state is to integrate the appropriation, use, and administration of underground water tributary to a stream with the use of surface water in such a way as to maximize the beneficial use of all the waters of the state
Conjunctive use of ground and surface water shall be recognized fully, subject to the preservation of other existing vested rights in accordance with the law.
The applicant bears the burden of demonstrating that the aquifer is capable of being utilized for the recharge and storage of the applicant’s water without impairment to the decreed water rights of senior surface or ground water users who depend on the aquifer for supply.
Colorado doctrine, arising from imperative necessity in the western region
Water is a public resource, dedicated to the beneficial use of public agencies and private persons whenever they might make beneficial use of the water under use rights established as prescribed by law.
The right of water use includes the right to cross the lands of others to place water into, occupy and convey water through, and withdraw water from the natural water bearing formations within the state in the exercise of a water use right
The natural water bearing formations may be used for the transport and r

e of each reservation, and it is superior to the rights of future appropriators as of the date of the reservation of the land.
The primary-secondary purposes test doesn’t apply to Indian lands.
The essential purpose of Indian reservations is to provide NA people with a “permanent home and abiding place “that is a “livable” environment.
Deciding how much water is required to meet a reservation’s minimal need is a fact intensive inquiry, made on a reservation-by-reservation basis.
Master land use plans are effective means of demonstrating water requirements, tribes can present evidence to the trial court in a different manner. A tribe’s history matters. The tribal culture also matters. Topography, geography, and groundwater availability matters. Tribe’s economic base matters. Past water use also matters.  And any proposed projects should be practical and economical. Also, present and future projected population matters.
Gifts and Lost/Found
Newman v. Bost
To constitute a donato causa mortis, two things are necessary: intention and delivery. Without both of those requisites, no gift causa mortis.
Law of delivery is same inter vivos and causa mortis. Absolute manual delivery isn’t required, can have constructive delivery when intention to make a gift and when the things being given aren’t present, or when present, aren’t capable of manual delivery from their size or weight.
Gift causa mortis applies only to personal, not real, property, it requires intent, acceptance by the grantee, and delivery.
Hocks v. Jeremiah
Proof of a gift requires showing that the donor delivered the property to the done by transfer of possession and absolute dominion over the property, accompanied by a manifested intention to make a present gift.
If no present interest is created at the time of the delivery, there is only a gratuitous promise to make a gift in the future. If no interest is created until after the donor’s death, the transaction is testamentary and ineffective, unless it is executed with the formalities required for a will.
Benjamin v. Lindner aviation
Under the common law, there are four categories of found property:
Abandoned property: property is abandoned when the owner no longer wants to possess it. Abandonment is show by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title, and interest in the property. Abandoned property belongs to the finder of the property, against all others, including the former owner.
Lost property – when the owner unintentionally and involuntarily parts w/ it possession and doesn’t know where the fuck it is. Stolen property found by someone who didn’t participate in the theft is lost property. Lost property becomes the property of the finder once the statutory procedures are followed and the owner makes no claim within 12 months.
Mislaid property – when property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is, it differs from lost property in that the owner voluntarily and intentionally places mislaid property in the location where it is eventually found by another, in contrast, property is not considered lost until the owner parts with involuntarily. The finder of the mislaid property acquires no rights to the property, the right of possession belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.
Treasure trove – coins or currency concealed by the owner. Includes an element of antiquity. Must be hidden or concealed for a length of time such that the owner is probably dead or undiscoverable. It belongs to the finder as against all but the true owner.