Objective - act as (behavior) as true owner, reasonable - majority rule Continous possession - must be continous as a reasonable (true) owner would be given the character, location and nature land Statutory period - statute of limitation for claim of adverse possession Tacking - adding the time period of possession with that of a prior adverse possessor to meet statutory requirement *privity- relationship that recognized from one owner to another which allows for adding of time between successive occupants ( under a claim of right, which separates them from a trespasser or wrongdoer) Inverse tacking - allowing disseisor to add up adverse possession (clock) even when a new true owner has title and sold to another true owner Tolling - clock is extended for recognized legal disabilities *minority *active military service (depends on jurisdiction) *imprisonment * true owner resides out of state (questionable) *legal insanity disabilities can not be tacked, death ends all disabilities Colorable title - error in title claim, thought/indicated you were true owner of land but actually not VI. Water Rights A. Riparian (flowing water on river, stream, lake, ocean) First come, first served (minority rule) Riparian landowner could use water on land for his own ordinary purpose irrespective of the effect on others *cannot be done w/malice Equal Rights All riparian owners have equal rights to use water & none can use to the extent of depriving others of an equal opportunity to use Natural Flow It is the right of every riparian proprietor to have the flow across his land maintained in its natural state, undiminished in quantity or impaired in quality * natural use- must be used on land w/o material harm “bathing, drinking, cooking, farm (limited)” Does not promote development of land (utilitarian)
Reasonable use (American rule) MAJORITY RULE (fair participation btw. owners) allows for the full use of a watercourse in any way that is beneficial to the riparian owner, provided it does not unreasonably interfere w/ the beneficial use of others B. Surface (water collected, puddles, floods, natural precipitation) Common enemy rule (17 jurisdictions) Landowners have the unlimited privilege to deal w/surface water on their land w/o regard to harm which they may cause to others (the enemy is the water) *w/o malice civil law (natural flow) 25 jurisdictions Higher elevation land has easement or servitude over lower tracks for all surface water that naturally flows down hill *does not promote development of land reasonable use doctrine (flexible standards) Each possessor is privileged to make reasonable use of his land even though the flow of surface waters may cause harm to others C. Underground (percolating waters, no defined stream/flow) English common law rule of capture (only Texas) Absent malice/ willful waste, landowners have the right to take all the water they capture under their land and do with it as they please, no liability unless negligently cause subsidence in nearby property RATIONALE - mysterious nature of underground water -want to further development -underground water an unreliable source Reasonable Use
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- Fall '08
- Future interest