July 2015

Regulatory taking of water rights

In a prior post, I explained the holding of a Texas Supreme Court opinion that held that regulation of water rights might constitute a regulatory taking. The text of that post is at the end of this one. A subsequent case involving similar facts actually held that limits on withdrawal of groundwater designed to preserve water for drinking purposes actually took the property rights of water rights owners who had received permits to use the water to irrigate their pecan crops. That case is...

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Express easement is permanent even if created out of necessity and the necessity ends

The Montana Supreme Court has affirmed a traditional rule of property law that express easements are presumed to be permanent even if they are created for reasons that later cease to exist. In this case, the easement was originally necessary to link the property to a public road. When such easements are not created expressly, courts imply them over remaining land of the grantor to ensure that properties do not become landlocked. Such easements traditionally last as long as the necessity lasts. Express...

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Nuisance claim against nuclear weapons plant proceeds

The Tenth Circuit is allowing a nuisance claim to proceed against a nuclear power plant, finding it not to be preempted by the Price-Anderson Act, 42 U.S.C. §2014, a federal regulatory statute. Cook v. Rockwell Intl Corp., 2015 WL 3853593 (10th Cir. 2015). Property owners claimed damage from the nuclear weapons manufacturing plant causes by releases of plutonium and other hazardous substances from the plant.