§ 31.01 Attributes of Ownership [495-496]

 

The common law doctrines governing surface, subsurface, and airspace rights all tended to favor “natural” uses of land, and were thus hostile to new development.  Over the last two centuries, these doctrines have been slowly replaced by more flexible standards that consider the needs of third parties and society at large.

 

§ 31.02 Water Rights [496-500]

 

                        [A]       Watercourses

 

Water rights in rivers, lakes, streams, and other watercourses are allocated through two basic systems.  The riparian system dominates in eastern states.  Under this system, an owner whose land adjoins a watercourse may take water for all reasonable uses that do not unreasonably interfere with the uses of other riparian owners.  Under the prior appropriation system, which prevails in western states, water rights are allocated to the first person to take water from a watercourse for a beneficial use—even if his land does not adjoin the watercourse.

 

                        [B]       Diffused Surface Water

 

All surface water that is not confined in rivers or other watercourses is known as diffused surface water.  The law in this area focuses on the problem of too much water.  In most jurisdictions, an owner may make reasonable use of his land (e.g., by building a home) even though this alters the flow of diffused surface water in a manner that harms others.

 

§ 31.03 Public Trust Doctrine [500-501]

 

Under the traditional public trust doctrine, navigable waters and closely-related lands are held by the sovereign in trust for use by the public in such activities as commerce, fishing, and navigation.  Most states have extended the doctrine to swimming, boating, and other recreational uses. 

 

§ 31.04 Right to Support [501-502]

 

Each landowner has a common law right to lateral support: the right to have the land in its natural condition supported by adjoining parcels of land.  An adjacent landowner who removes support (e.g., by excavation on his land) and thereby causes damage is strictly liable. Similarly, each owner is entitled to subjacent support: the right to have his land in its natural condition supported by the earth below. 

 

§ 31.05 Boundary Line Doctrines [502-504]

 

                        [A]       Land Boundaries

 

The common law developed four doctrines that may establish a land boundary line in a different location from that specified in the deed: agreed boundary line; acquiescence; estoppel; and adverse possession.  For example, estoppel applies when one owner misleads a neighbor about the true location of the common boundary line, and the neighbor relies on the misrepresentation to his detriment (e.g., by building a new barn over the boundary line).

 

                        [B]       Water Boundaries

 

Two common law rules address the issue of water boundaries that may move over time (e.g., creeks and rivers).  Accretion occurs when the location of a water boundary moves slowly due to gradual buildup of soil; a property line shifts with accretion.  However, if there is a sudden change in the location of such a water boundary—which is termed avulsion—the property line does not move.

 

§ 31.06 Subsurface Rights [504-506]

 

The traditional rule was that the ownership of land included ownership of everything underneath the land surface down to the “center of the earth.”  Modern courts still protect the surface owner’s absolute right to possession when third parties intrude into the subsurface, whether by mining, installing a pipeline, or otherwise.  However, the surface owner does not necessarily own the subsurface oil and gas; in some states, for example, oil generally belongs to the first person to “capture” it through extraction.

 

§ 31.07 Rights in Airspace: How High? [506]

 

Common law courts proclaimed that each landowner owned “to the heavens.”  This position collapsed with the invention of the airplane.  Today it is increasingly accepted that a landowner owns only the airspace that is reasonably necessary for the use or enjoyment of the land.