ARE 309Ted Feitshans 05-1

Unit 5 Common Law Solutions to Environmental Problems

• Lateral & subjacent support– Strict liability - unimproved– Negligence - improved

ARE 309Ted Feitshans 05-2

Water Rights

• Surface waters– Doctrine of riparian rights

• Reasonable use - NC rule• English rule

– No diminution in flow or quality– Except unlimited use for domestic purposes

• Navigable waters– May not obstruct navigation

ARE 309Ted Feitshans 05-3

Water Rights

• Runoff (surface water not in defined channels)– Reasonable use - NC– Common enemy rule (English)

• Subterranean waters in defined channels

ARE 309Ted Feitshans 05-4

Water Rights

• Percolating groundwater– Absolute ownership– Reasonable use - NC

ARE 309Ted Feitshans 05-5

Air and Light

ARE 309Ted Feitshans 05-6

Remedies in Tort

• Trespass– Intentional physical invasion of land of

another– Protects right of possession– Exemplary (punitive) damages– Distinguish from crime of trespass

ARE 309Ted Feitshans 05-7

Remedies in Tort

• Nuisance– Protects right to use and quiet enjoyment– Public vs. private– Class

• Intentional (theory of most actions)• Strict liability• Negligence

ARE 309Ted Feitshans 05-8

Elements of negligence

• Existence of a duty

• Breach of duty

• Proximate (legal) causation

• Actual damages

ARE 309Ted Feitshans 05-9

Relief in a nuisance action

• Abatement (injunctive relief)

• Damages (money)

• Both

• Balancing of hardships & benefits

ARE 309Ted Feitshans 05-10

Comments

• Economic impact of common law approach/externalities

• Problems of proving causation

• Lack of guidelines– Uncertainty