Property Rights Lecture 3

What are Rights?

Claims that a government is obligated to enforce/protect
- Non-revocable
- They are not, however, unlimited
For example, they are subject to a state’s regulatory authority and “police” power
- In most cases, they are Enduring

Surface Rights
the right to possess, use, enjoy the benefits of, profit from, and dispose of the surface of the
land.

Fixtures - Personal property that is now a part of the real property

Fixture status is determined by the nature of the property and manner of its attachment to
the real property or to other improvements

Subsurface Rights
the right to use or extract that which lies below the surface of the land

Air Rights
The right to use the airspace above the surface
Restrictions on air rights:
- Governmental restrictions
- Zoning codes, development codes, and other land use restrictions
- Capital View Corridor

Avigation Easement - An easement that transfers certain property rights from a property
owner to an airport owner. (e.g. Dallas Love Field)

Privately Imposed Restrictions:

- Restrictive Covenant
- Voluntarily limit the use of the airspace above your property

Aerial easement: for the exclusive use of constructing and maintaining above-ground
utilities within its confines. (e.g. Hunter College Skybridge – Manhattan)

Aerial encroachments - an encroachment that is located at least 300 millimetres (12 inches)
above the surface of public lands (e.g. Balcony over sidewalk, trees over property line)

Mineral Rights
Ownership rights as to the minerals – materials of economic value below the surface which
can be mined or otherwise extracted
(Oil, sand, uranium, nickels, gravel, iron, copper, gold)
Dominant Estate | Servient Estate
Mineral Estate is the Dominant Estate - Mineral owner has right to use the surface of the
property as reasonably necessary to extract the minerals.

Therefore, the owner of the surface holds the Servient Estate – the owner’s rights are
subject to (subservient to) the rights of the owner of the mineral estate

Water Rights
Surface Water in Texas generally belongs to the state- landowners may only use surface
water for domestic and livestock purposes – otherwise must obtain the state’s permission

*Stock Tank Exception*- Landowner may create small pond or lake (up to 200 acre feet of
water) to provide water for livestock and wildlife

There are 3 types of Groundwater

1) Percolating Water
2) Artesian Water – Barton Springs
3) Subterranean Rivers & Streams – Devils River State, Natural Area

Rule of Capture - Groundwater is governed by the rule of capture, which grants landowners

the right to capture the water beneath their property. The landowners do not own the
water but have a right only to pump and capture whatever water is available, regardless of
the effects of that pumping on neighbouring wells.

Limitations:
- Rule of capture does not apply to subterranean rivers and streams
- Pumping water for the purpose of maliciously harming an adjoining neighbor.
- Pumping water for a wasteful purpose.
- Causing land subsidence (sinking) on adjoining land from negligent pumping; and,
- Drilling a slant well that crosses the adjoining property line.
- Governmental entities & control
Local groundwater conservation districts
- Barton Springs Edwards Aquifer Conservation District