as it discused

Q6. Hatfield owned a farm on which is located the entrance to a cave. The cave extends to a depth of 350 feet beneath the surface of neighboring property owned by McCoy. McCoy now seeks to enjoin Hatfield from entering the sections of the cave owned by McCoy. Should McCoy prevail? Why?

A6. In a similar case the court held that McCoy could enjoin Hatfield from trespassing on his property. See Edwards v. Sims, 24 S.W.2d 619 (1929). However, this case has been criticized by commentators who feel that McCoy has no cause for complaint since the trespass did not affect his use of the property. “Since it is quite apparent that he had no slightest practical possibility of access to the cave, either now or in the future, the decision is dog-in-the-manger law and can only be characterized as a very bad one.” W. Keeton et al., Prosser and Keeton on the Law of Torts 82 (5th ed. 1984).

Q7. Henry owns a farm adjoining Black River and withdraws water from the river for domestic purposes. Deep Pockets, Inc. (DP), a manufacturing company, owns real estate downstream from Henry and uses all of the water from Black River for manufacturing purposes. DP began using the water before Henry purchased the farm. Recently DP purchased real estate upstream from Henry and transports all of the Black River water from that real estate to a new plant twenty miles away. As a result, Henry has no water and he sues to stop DP from interfering with his water rights. If Henry lives in a riparian rights state, will he win? Why?

A7. Henry will win in a riparian rights state. If the state follows the natural flow theory, Henry will win because DP has materially changed the flow of the water for an artificial purpose. If the state follows the reasonable use theory, Henry will probably win because his use of the water for domestic purposes is favored and because the company is using the water on non-riparian land. See C. Smith & R. Boyer, Survey of the Law of Property 190, 191 (2nd ed. 1971).

Q9. You are the foreman for a large construction company. Your company is in the process of excavating a parcel of real estate in preparation for the construction of a large skyscraper. It now appears that your excavation might cause a loss of support in neighboring lots and buildings. In analyzing your potential legal liability, what are the key legal questions that must be answered?

A9. The following questions are especially important:

a. Does your state have a statute governing lateral support? If so, your liability will be governed by the provisions of the statute. Assuming there is no statute the remaining questions are important.

b. Have you been negligent? If so, your company is liable under traditional tort principles. The remaining questions assume that you have not been negligent.

c. Is the neighboring land subsiding because of the weight of buildings thereon? If so, your company is not liable.

d. Assuming that the land would have subsided without the weight of the buildings, in your state are you nevertheless liable for damage to the buildings? Under the majority rule, the company would be liable for both land and buildings, but several states would limit liability to damages for the land.

1-Amy and Carrie own adjoining lots. They plan to build identical buildings on the lot and, in order to save space and money, enter into a written agreement whereby they agree to construct a common wall between the two buildings. The buildings and the wall are later built. Assume that the wall is four feet thick, straddles the lot line and provides support for the floors and the roof of each building.

1-Amy now wants to destroy her building, including her half of the party wall. She seems to remember something about lateral support and other problems from a real estate law class she once took and thinks legal problems might arise if she destroys her half of the wall. She comes to you, an old friend, and asks for advice. May Amy destroy her own half of the wall? Why?

2-In Question 1, would the result be different if the agreement between Amy and Carrie had been oral? Why?

1. The result would be the same. Carrie would still have an easement, but one created by estoppel. She relied on their oral agreement to her detriment in making the expenditures necessary to construct the building.

3- Hooper granted to the city of Cambridge the right to lay water pipes on his land that were to be used to convey water from a pond to the city reservoir. After installing and using the pipes for this purpose, the city decided to use the pipes to distribute the water to consumers from a new city reservoir. Should this use be allowed? Why?

2. The new use should not be allowed. The easement was created by an express grant which unambiguously limited the easement to one specific use. SeeĀ Gray v. Cambridge, 76 N.E. 195 (1905).

4-Smith owned a two-acre parcel of real estate, on which was located a tavern. Jones, Smith’s neighbor to the east, owned an easement to use Smith’s driveway to gain access to a farm that Jones owned to the west of Smith’s property. Smith’s customers now park their cars on the driveway at night and Jones, who is disturbed by the lights and noise of the cars, sues Smith claiming that the customers cannot use the easement. Is Jones correct? Why?

3. Jones is not correct. This case arose when I was in private practice and I represented “Smith.” The court held that Smith, the owner of the servient estate, could use the easement so long as the use did not interfere with the use of the easement owner. Here, the cars parked on the easement did not interfere with Jones’ use of the easement–he did not use it at night–but interfered instead only with his sleep.