Ownership of a piece of property gives the owner certain rights.
E 142.1 Bundle Of Rights
The property owner having FEE TITLE (total ownership) to property has what is referred to as a "Bundle Of Rights" that is guaranteed for as long as the same state of ownership is maintained. This Bundle Of Rights may be divided into RIGHTS ABOVE THE SURFACE, RIGHTS BELOW THE SURFACE, and WATER RIGHTS which may be above or below the surface.
E 142.11 Above the Surface
THE RIGHTS ABOVE THE SURFACE include the surface and the airspace above the surface. Having RIGHTS ABOVE THE SURFACE means that no one may trespass, encroach, or in any way damage or encumber the property without the consent of the property owner. Certain legal actions against the property by others such as involuntary liens for taxes or claims by adverse possession, etc., are exceptions.
Recent advances in technology have resulted in the public and private use of air-space above the surface. This use has clouded the heretofore accepted theory of ownership rights, which include an infinite distance above the surface. Present-day adjudication has not resolved this air-space issue beyond instituting certain regulations for the preservation of health and safety.
E 142.12 Below the Surface
The owner of the surface usually also owns the soils and mineral deposits to the center of the earth and no underground encroachments are permitted. The surface owner, although having mineral rights, is subject to certain extralateral rights of adjacent property owners.
In the case of oil and natural gas which are special forms of mineral, there is no fixed or certain ownership until they are actually extracted from the soil. If science advances to the point where developments beneath the earth's crust become feasible, the same uncertainty may develop for the property owner's rights beneath the surface as has developed for the air-space above.
E 142.13 Water Rights
Classification of WATER RIGHTS:
- Riparian rights refer to the rights of owners whose property contains or abuts surface waters. These rights entitle the riparian owners to the use of these waters. The quantities that may be used are limited by the doctrine of reasonable beneficial use in accordance with the custom of the particular location.
- Appropriated rights generally apply to the non riparian users who have appropriated the use of these waters either by prescriptive rights (adverse possession) or by prior use to that of the riparian owners. They too are limited by what is constituted as a reasonable beneficial use.
- Correlative rights generally pertain to the rights of the property owner of lands overlying a meandering, undefined, underground aquifer. Although each overlying owner is not governed by the laws of riparian rights, they are still limited to a reasonable use on their own land as well as to the diversion of these waters to non overlying lands.
Since a more comprehensive knowledge may be necessary to make intelligent design decisions, reference is made to Part G, Storm Drain Design, other appropriate texts and, where deemed necessary, the opinion of the City Attorney's legal staff.
E 142.2 Compensation For Loss Of Rights
No one may arbitrarily deprive a property owner of any of its property or accompanying rights. The legal means by which property and property rights may be acquired by the City, and the compensatory measures that must be taken, are covered in E 143 and E 145.
Inverse condemnation - See E 120, Definitions. This right of the property owner also has a special significance where the property owner wants to develop or improve its property. The City may not withhold or withdraw approval of the proposed development of property that is under imminent condemnation. The owner is entitled to compensation for making any reasonable improvements. However, the owner is not entitled to any compensation for improvements made at any time after being served a notice of condemnation. Certain public utility improvements may be exceptions.
E 142.3 Secondary Rights
In addition to the rights described in the preceding subsections, the property owner has certain others called "SECONDARY RIGHTS."
E 142.31 Prior Rights
There are two parties whose rights must be considered in discussing PRIOR RIGHTS in an easement (see E 144.23):
- The fee title holder (property owner)
- The legal user of the easement.
The legal user of the easement is said to have established PRIOR RIGHTS. However, despite this PRIOR RIGHT the user of the easement may not change the nature of its use nor subordinate nor otherwise negotiate with others over its use without the consent of the holder of the underlying fee (property owner).
The significance of the rights of both parties may be illustrated by the following example:
A public utility company with an existing facility located in an easement finds that the City, in the widening of a street, must include the easement within the street right of way. It is also found that the facility must be relocated. Since the utility company has PRIOR RIGHTS, the City may have to purchase the rights of the utility company. The consideration involved is usually in the form of payment by the City for the utility relocation.
In addition, the City must negotiate for and purchase the rights or the underlying fee from the property owner. For further discussion on moving public utilities see E 671.1, Public improvements within the Street or Alley.
E 142.32 Light And Air
It is often mistakenly assumed that the property owner, by common law in this State, is entitled to the right of uninterrupted flow of LIGHT OR AIR from adjoining land.
This is not so. However, this right or an easement for this purpose may be acquired from the adjoining property owner by grant, either express or implied. Consequently, the owner of adjoining land has the right to build in any manner, provided there is no malicious intent and that the zoning laws, building code, and other covenants are observed.
E 142.33 Lateral and Subjacent Support
Each adjoining owner is entitled to the right of lateral and subjacent support which the land receives from the abutting property. This is subject to the right of the adjacent owner to make reasonable excavations for construction or improvements as specified in the Civil and Municipal Codes.
E 142.34 Party Walls
A PARTY WALL is a common dividing wall between two buildings used jointly by adjoining owners. This wall should be distinguished from a partition wall serving as a division fence, attached to just one property. When once established as a PARTY WALL, its use becomes a right of each adjacent owner and may be in the form of an expressed or implied easement. A change or modification of this right may not be made without the consent of both adjoining owners
Consult with the City Attorney's Office regarding most recent case law or legal findings regarding use of airspace above the surface.
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