Lexis Nexis A Practical Guide to Disputes Between Adjoining Landowners--Easements
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Provides expert substantive and procedural guidance for the entire range of disputes between landowners. Covers all the real property issues arising from proximity of property to neighbors or its use by others. Deals with easements; covenants running with the land; equitable servitudes; licenses; adverse possession; trespass; mines and mining; party walls; boundary disputes; nuisance; lateral and subjacent support; petroleum exploration, production, and storage; water rights; rights to airspace; landlord-tenant issues; public lands; and more. From overhanging apple trees to the right to connect a sewage system into a septic tank--it's covered here!
Each chapter follows a consistent format. After discussing the substantive legal issues, a chapter typically contains the following parts:
• Pleadings and proof: statute of limitations, burden of proof, presumptions, parties, and defenses.
• Remedies: self-help, injunctions, actions for damages, ejectment, and assumpsit.
• Practice aids: detailed checklists analyzing all aspects of the court actions available to a party in each type of dispute, and forms of agreements and pleadings--the checklists and forms are cross-referenced to the discussion in the earlier parts of each chapter!
• Bibliography
Citation to case and statutory authority is plentiful. Footnotes are arranged according to jurisdiction, so you can easily spot the cases most useful to you.
Includes an entire chapter devoted to alternative dispute resolution and a detailed index.
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Featured Authors
David A. Thomas
David A. Thomas is the Rex E. Lee Endowed Chair and Professor of Law Emeritus at Brigham Young University's J. Reuben Clark Law School, where he taught from 1974-2012. He was born in Los Angeles, California, in 1944, and was educated in Utah schools after 1950. He served a 30-month LDS mission in North Germany from 1963-;65.
He earned his B.A. and M.L.S. degrees at Brigham Young University (1967, 1977) and his J.D. at Duke University Law School (1972), after an interruption for military service in Vietnam. Following law school graduation, he completed a federal judicial clerkship and practiced law in Salt Lake City, before joining the new law school faculty at Brigham Young University. He received professor of the year awards in 1998, 2000, 2005, and 2010. As a teacher and author in both property and civil procedure areas, he has effectively combined theory and practice in conducting real property transactions, dispute resolution, and expert witness assignments. He proposed and drafted Utah's first statutory changes in common law easement rules, which were enacted as the state's enabling legislation for historic preservation easements; he also drafted Utah's long range highway corridor preservation legislation. Professor Thomas has been admitted to practice before the Utah Supreme Court, the U.S. District Court for the District of Utah, the U.S. Tenth Circuit Court of Appeals, and the United States Supreme Court. He has been a bar examiner for Utah and has prepared bar examination questions for Utah and several other states. He has also served on numerous law school accreditation site inspection teams. He was a member of the Real Property, Probate and Trust Law Section of the American Bar Association, where he held several leadership positions. He was also a founding member of the Real Estate Transactions Section of the Association of American Law Schools.
Professor Thomas has published extensively on real property, civil procedure and common law legal history topics, including over 60 books, chapters in several treatises, and articles in professional journals. He is the author of A Practical Guide to Disputes Between Adjoining Landowners--Easements (with James H. Backman), Utah Civil Procedure, Utah Civil Practice, and (with Backman) Utah Real Property Law. He is the editor-in-chief and principal author of the 15-volume treatise Thompson on Real Property, Thomas Editions (LexisNexis, 1994-to present), which has been cited in hundreds of state and federal cases. In 2013 he issued the 2-volume work History of American Land Law.
Brigham Daniels
Brigham Daniels is a professor of law at BYU Law School. He joined BYU Law in 2010. Prior to this, he was an assistant professor at the University of Houston Law Center and before that a lecturing fellow at Duke Law School. He earned a PhD from Duke University and received his juris doctorate from Stanford Law School. He was a recipient of the Harry S. Truman Scholarship, the National Science Foundation Graduate Research Fellowship, and the Stanford Public Interest Law Fellowship. His work has appeared in a number of law reviews, including George Washington Law Review and Notre Dame Law Review. More biographical information about him can be found at http://www.law2.byu.edu/faculty/profile_2016.php?id=155 and his LinkedIn profile can be found at https://www.linkedin.com/in/brighamdaniels/.
Table of contents
Volume 1
CHAPTER 1 EXPRESS EASEMENTS
§ 1.01 Introduction to Express Easements
§ 1.02 Express Creation of Easements
§ 1.03 Extent or Scope of the Easement
§ 1.04 Transfer of Easements
§ 1.05 Termination of Easements
§ 1.06 Pleadings and Proof in Actions to Establish or Protect an Express Easement
§ 1.07 Remedies in Easement Actions
§ 1.08 Practice Aids
§ 1.09 Bibliography
CHAPTER 2 IMPLIED AND PRESCRIPTIVE EASEMENTS
§ 2.01 Scope of Chapter
§ 2.02 Implied Easements
§ 2.03 Easements by Prescription
§ 2.04 Pleadings and Proof in Actions to Establish Implied and Prescriptive Easements
§ 2.05 Remedies Available in Easement Actions
§ 2.06 Practice Aids
§ 2.07 Bibliography
CHAPTER 3 REAL COVENANTS AND EQUITABLE SERVITUDES
§ 3.01 Covenants Running with the Land
§ 3.02 Equitable Servitudes
§ 3.03 Pleadings and Proof in Real Covenant and Equitable Servitude Actions
§ 3.04 Remedies
§ 3.05 Practice Aids
§ 3.06 Bibliography
CHAPTER 4 A UNIFIED APPROACH TO THE CONCEPT OF SERVITUDES
§ 4.01 Introduction and Scope of the Chapter
§ 4.02 Historical Development of the Separate Servitude Categories
§ 4.03 Required Elements for the Unified Concept of Servitudes
§ 4.04 Proposed Expansion of Doctrines to All of the Historical Servitude Categories
§ 4.05 Modern Trend Away from Enforcement as Real Covenant
§ 4.06 Summary of a Unified Approach to Servitudes
§ 4.07 Bibliography
CHAPTER 5 LICENSES AFFECTING REAL PROPERTY
§ 5.01 Introduction and Scope of the Chapter
§ 5.02 Definition of a License
§ 5.03 Creation of a License
§ 5.04 Procedural Rules in License Actions
§ 5.05 Licensee’s Remedies
§ 5.06 Licensor’s Remedies
§ 5.07 Practice Aids
§ 5.08 Bibliography
CHAPTER 6 PARTY WALLS
§ 6.01 Definition, Historical Background and Scope of Chapter
§ 6.02 Property Rights and Interests Associated with a Party Wall
§ 6.03 Creating a Party Wall
§ 6.04 Common Characteristics of a Party Wall
§ 6.05 Contributing to the Cost of a Party Wall
§ 6.06 Repair, Removal, Replacement and Modification of a Party Wall
§ 6.07 Liability for Personal Injury and Property Damage Associated with a Party Wall
§ 6.08 Procedural Rules for Party Wall Actions
§ 6.09 Remedies Associated with Party Walls
§ 6.10 Practice Aids
§ 6.11 Bibliography
CHAPTER 7 ADVERSE POSSESSION
§ 7.01 Introduction and Scope of the Chapter
§ 7.02 Effect of Adverse Possession
§ 7.03 Required Elements for Title by Adverse Possession
§ 7.04 Procedural Aspects of Adverse Possession
§ 7.05 Remedies Available in Adverse Possession Disputes
§ 7.06 Practice Aids
§ 7.07 Bibliography
CHAPTER 8 BOUNDARY DISPUTES
§ 8.01 Introduction and Chapter Overview
§ 8.02 Rules of Construction for Ambiguous Descriptions
§ 8.03 Fences
§ 8.04 Boundary by Agreement
§ 8.05 Boundary by Acquiescence
§ 8.06 Boundary by Estoppel
§ 8.07 Procedural Rules in Boundary Disputes
§ 8.08 Remedies Available in Boundary Disputes
§ 8.09 Practice Aids
§ 8.10 Bibliography
CHAPTER 8A LANDOWNER DISPUTES ARISING OUT OF PUBLIC NUISANCE
§ 8A.01 Historical Development of Nuisance in General and Public Nuisance in Particular
§ 8A.02 Definitions of Public Nuisance
§ 8A.03 Public Nuisance and Private Nuisance Distinguished
§ 8A.04 Public Nuisance and Attractive Nuisance Distinguished
§ 8A.05 Nuisances That Are Both Public and Private
§ 8A.06 Examples of Different Types of Conduct Held to Be Public Nuisance
§ 8A.07 The Judicial Procedure of Public Nuisance Prosecutions
§ 8A.08 Bibliography
CHAPTER 9 PRIVATE NUISANCE
§ 9.01 Introduction
§ 9.02 Defining Private Nuisance
§ 9.03 Substantive Principles of Private Nuisance Law
§ 9.04 Procedural Rules for Private Nuisance Actions
§ 9.05 Pleadings and Proof in Private Nuisance Actions
§ 9.06 Remedies for Private Nuisance Actions
§ 9.07 Practice Aids
§ 9.08 Appendix I: Land Uses Charged as Nuisances in Fact
§ 9.09 Appendix II: Kentucky Statutory Law of Nuisance
§ 9.10 Bibliography
Volume 2
CHAPTER 10 TRESPASS TO REALTY BETWEEN NEIGHBORING AND ADJOINING LANDOWNERS
10.01 Introduction
10.02 Elements of Trespass to Real Property
10.03 Encroachment by Structures
10.04 Encroachment by Vegetation
10.05 Encroachment by Objects Coming onto the Land
10.06 Proper Parties in a Trespass Action Between Neighboring Landowners
10.07 Procedural Rules for Trespass Actions
10.08 Practice Aids
10.09 Bibliography
CHAPTER 11 LATERAL AND SUBJACENT SUPPORT
11.01 Introduction
11.02 Lateral Support as a Natural Right
11.03 Lateral Support for Buildings as a Created Right
11.04 Liability for Loss of Lateral Support
11.05 Right to Subjacent Support
11.06 Procedural Rules for Lateral and Subjacent Support Actions
11.07 Practice Aids
11.08 Bibliography
CHAPTER 12 DISPUTES ARISING FROM PETROLEUM EXPLORATION, PRODUCTION AND STORAGE
12.01 Introduction
12.02 Salt Water and Other Pollutants Flowing over Land
12.03 Pollution of Flowing Surface Waters
12.04 Pollution of Wells, Ponds and Subsurface Strata
12.05 Nuisance Damage from Fumes
12.06 Dried—Up Water Wells
12.07 Damage Caused by Blowouts and Fires
12.08 Damage Caused by Vibrations and Explosions
12.09 Damage Caused by Secondary Recovery Operations
12.09A Damages from Hydraulic Fracturing
12.10 Procedural Considerations
12.11 Remedies
12.12 The Role of Public Regulation in Dispute Resolution
12.13 Neighboring Landowner Disputes Between Parties to Petroleum Leases
12.14 Practice Aids
12.15 Bibliography
CHAPTER 13 DISPUTES OVER WATER-RELATED PROPERTY RIGHTS
13.01 Introduction
13.02 Distinguishing Between Public and Private Water-Related Property Rights
13.03 Disputes Over Water-Related Property Rights Regarding Surface Waters
13.04 Neighboring Landowner Disputes Arising From Uncontrolled Surface Waters on Private Property
13.05 Disputes Between Neighboring and Adjoining Landowners Over Rights to Subsurface Waters
13.06 Disputes Between Neighboring and Adjoining Landowners Over Property Rights Resulting from Accretion, Reliction, Erosion and Avulsion
13.07 Disputes Between Neighboring and Adjoining Landowners Over Property Rights in Submerged Lands
13.08 Procedural Considerations
13.09 Practice Aids
13.10 Bibliography
CHAPTER 14 DISPUTES RELATED TO MINES AND MINING
14.01 Introduction
14.02 Regulation of Boundaries
14.03 Surface and Subsurface Rights
14.04 Trespass
14.05 Loss of Lateral and Subjacent Support
14.06 Nuisance
14.07 Extrahazardous Activities
14.08 Interference with Water
14.09 Mining Operations in Federally Protected Areas
14.10 Procedural Considerations
14.11 Practice Aids
14.12 Bibliography
CHAPTER 15 DISPUTES BETWEEN RESIDENTS IN COMMON INTEREST COMMUNITIES: CONDOMINIUMS, COOPERATIVES AND HOMEOWNER ASSOCIATION DEVELOPMENTS
15.01 Introduction and Scope of Chapter
15.02 Condominiums, Cooperatives and Planned Community Homeowner Associations Defined and Distinguished
15.03 The Rise of Common Interest Community Legislation
15.04 Financial Relationships as a Source of Disputes
15.05 Management of Common Areas as a Source of Disputes
15.06 Regulation of Use of Premises as a Source of Disputes
15.07 Transfer of Interest as a Source of Disputes
15.08 Rights Among owners when the Premises Are Damaged
15.09 Partition Rights Among Condominium Owners
15.10 Reference and Practice Materials
15.11 Bibliography
CHAPTER 16 REAL PROPERTY DISPUTES BETWEEN LANDLORDS AND TENANTS AS NEIGHBORING "LANDOWNERS"
16.01 Introduction
16.02 Landlord Duties and Liabilities Regarding Common Areas
16.03 Exceptions and Defenses to Landlord Liability for Common Areas
16.04 Landlord Duties and Liabilities Regarding Other Areas in Landlord Control
16.05 Landlord Duties and Liabilities to Tenant Regarding Areas Leased to Other Tenants
16.06 Landlord Duties and Liabilities to Tenant Regarding Acts of Nontenant Third Persons
16.07 Division of Eminent Domain Awards
16.08 Procedural Considerations
16.09 Practice Aids
16.10 Bibliography
CHAPTER 17 DISPUTES OVER RIGHTS TO AIRSPACE
17.01 Introduction
17.02 Solar Access
17.03 Wind Access
17.04 Weather Modification
17.05 Aesthetic Nuisance
17.06 Interference with Radio and Television Reception
17.07 Drones
17.08 Disputes Involving Airspace of Adjoining Landowners
17.09 Practice Aids
17.10 Bibliography
CHAPTER 18 ZONING AND LAND USE REGULATION
18.01 Introduction and Scope of Chapter
18.02 The Zoning Process-Opportunities for Neighbor Involvement
18.03 Limitations on Zoning Regulation Powers
18.04 Specific Zoning Proceedings
18.05 Procedural Aspects of Judicial Actions Concerning Zoning
18.06 Judicial Remedies Available in Zoning Disputes
18.07 Practice Aids
18.08 Bibliography
CHAPTER 19 DISPUTES OVER RIGHTS IN FEDERAL PUBLIC LANDS AND RESOURCES
19.01 Introduction
19.02 Principal Categories of Federal Public Lands
19.03 Landowners Near Public Lands
19.04 Principal Statutes Affecting Federal Public Lands and Resources
19.05 Disputes Over Access Rights
19.06 Disputes Over Rangeland for Grazing
19.07 Disputes Over Wildlife
19.08 Disputes Over Water
19.09 Disputes Over Hard Rock Minerals
19.10 Disputes Over Oil and Gas and Other Leasable Minerals
19.11 Disputes Over Timber Extraction
19.12 Remedial Procedures in Public Lands Adjoining Landowner Disputes
19.13 Practice Aids
19.14 Bibliography
CHAPTER 19A ADJOINING LANDOWNER LITIGATION BASED ON ENVIRONMENTAL LAW
19A.01 Introduction
19A.02 Private Litigation Under the Clean Water Act
19A.03 Private Litigation Under the Clean Air Act
19A.04 Private Litigation over Solid Waste Under the Resource Conservation and Recovery Act
19A.05 Practice Aids
19A.06 Bibliography
CHAPTER 20 ALTERNATIVE DISPUTE RESOLUTION
20.01 Introduction
20.02 Arbitration
20.03 Negotiation and Mediation
20.04 Conciliation
20.05 Consensual References; Factfinders
20.06 Ombudsman
20.07 Mini-Trial; Summary Jury Trial
20.08 Committing Alternative Dispute Resolution Agreements to Writing
20.09 Other Devices for Settling Claims or Shortening Litigation
20.10 Bibliography
TABLE OF CHECKLISTS
INDEX
