Estate

Easement

Restrictive Covenant

1. potentially infinite duration

2. Fully alienable

Life Estate

(describe)

1. Estate exists for the duration of someone's life

2. Can be sold to others for the duration of one's life (though this would not be a good deal since the measuring life could end suddenly)

3. Modern law permits a provision that terminates the lfie estate if the life tenant attempts ot convey it to someone else

"To A for life"

can also be implied: "to A after the death of Lady Bird"

"measured by the life of another"

e.g. "to Jane for the life of Tarzan"

Life tenant has a responsibility to maintain his estate

maintain means to continue the normal use of the land

voluntary waste

permissive waste

ameliorative waste

any affirmative action that causes harm to the premises

depletion of natural resources is waste unless consumption of such resources constitutes the noraml use of the land, as in the case of a life estate in a coal mine or a granite quary

sale of harvestable crops is not waste

If tenant fails to: 

1. complete ordinary repairs (not replacements)

2. pay all taxes on the property

3. pay interest on any mortgage indebtedness on the property (but not principal payments)

[all of these resonsibilities are limited to the amount of rents and profits received from the land; or reasonable rental value of land if the tenant is using the land]

when the life tenant alters the property substantially but it increases the value of the land

If changed conditions have made the property relatively worthless, then the life tenant can alter the proeprty without incurring liability to the holder of future interest

reversion

possibliity of reverter

right of entry

reamainder

executory interest

Whenever he conveys less than the full durational estate that he had. 

e.g. life estate

an FSD terminates automatically on the occurrence of some event

telltale language:

"so long as"

"while"

"during"

"until"

e.g. "to A and his heirs for so long as no liquor is consumed on the premises"

Magic words:

"provided, however . . . "

"but if"

"on condition that"

e.g. "to A and his heirs, provided, however, that if liquor is ever consumed ont he premises then O or O's heirs shall have the right to re-enter and take the premises"

*Grantor must expressly reserve the right to reenter and take the property

If nothing stands in the way of its becoming possessory on the natural expiration of the preceding estate

e.g. to A for life and then on A's death to B and heirs

(at the moment this conveyance is made, B takes a vested remainder in fee simple)

there is a condition that must be satisfied before the remainder interest will become possessory

e.g. "to A for life, then to B and his heirs if  B survives A"

what is a vested remainder subject to open?

(also known as a class gift)

the remainder interest is conveyed to a class of unnamed persons whose members are not yet fully known

the class remains open to allow for future persons who qualify as class members by satisfying the class description (e.g. children of A)

a class closes for a class gift whenever any class member is entitled to a distribution

e.g. Testator's will devises Blackacre "to A's children"

children born after the testator dies will not be part of this class unless they were in gestation at the time of the death, since the living children will be entitled to distribution at the death of the testator

contingent remainder

if the grantee is not in existence a the time the conveyance takes effect, then the remainder is contingent on the grantee being born and therefore ascertainable

contingent remainder

the widow is not identifiable until Harry dies

It operates to cut short the estate that comes before it.

e.g. "To A so long as the property is used for residential purposes, and if the property is ever used for other than residential purposes, then to B and heirs"

Magic words: " but if, then to"

fee simple determinable

fee simple subject to condition subsequent

fee simple subject to executory interest

The interest is void.  Cross out any language related to that interest.

e.g. "To and A and his heirs so long as no liquor is consumed on the premises; and if liquor is ever consumed on the premises, title shall go to B and his heirs."

Yes. 

Would any interest vest 21 years after the death of some life in being  at the creation of the interest?

Use A.  Suppose she has a child then dies immediately.  The child's interest would vest more than 21 years after the death a life in being at the creation of the interest.

For the purposes of the Rule Against Perpetuities, you are presumed capable of bearing children until your death regardless of your age. 

e.g. "to Mary for life, then to such of Mary's children as reach age 30." Mary is now 87 and has three children all in their 60s.  --> They get nothing, since Mary could have a child whose interest would vest more than 21 years after the life of some being in existence at the time the interest was created.

TTIP

Unity of Time (all joint tenants must vest simultaneously)

Unity of Title (the same instrument)

Unity of Interest (same kind and amount of interest)

Unity of Possession (identical rights of possession)

"as joint tenants with right of survivorship,"

or

"in joint tenancy with right of survivorship"

Severance aka involuntary termination of the joint tenancy

e.g. In 1971 Ringo conveys his 1/4 interest in the joint tenancy (shared with John Paul and George) to Zorro by deed.  Effect: the unities are disturbed and Zorro will be a tenant-in-common, though John Paul and George retain their status at joint tenants.  On the death of any one of them, the other two will have rights of survivorship.

In a lien theory state (majority rule, NV), there is no severance because when a mortgage is executed, a lien attaches to the title, but title is not transferred.

In a title theory state (minority rule), title passes for mortgagor to mortgagee, even though title goes back to the mortgagor when the mortgage is satisfied.

Yes.  On the day that contract for sale is entered into, not on closing day. 

e.g. Ringo enters a contract to sell on January 1, closing on April 1.  Joint tenancy is severed on January 1st.  (This is the doctrine of equitable conversion)

Yes. 

e.g. Ringo has some business reversals and a creditor seeks to reach his interest in joint tenancy.  Severance occurs when the judicial sale actually takes place. 

BUT if Ringo dies before the sale, the title passes to the surviving joint tenants and the creditor has no recourse against them.

No.

e.g.  John, Paul, George and Ringo each own 1/4 of a  property as tenants in common. At the moment John dies, John's estate now owns a 1/4 interest along with Paul, George and Ringo.

The 4 unities plus marriage.

1. death

2. mutual agreement in writing

3. divorce (making the parties tenants in common)

4. execution by a joint creditor

No.

Four exceptions:

1. Ouster (if one co-tenant is keeping another off the property or claiming right of exclusive posession)

2. Agreement to share

3. Lease of the property by a co-tenant to a third party

4. depletion of natural resources

No. 

But, any money expended for improvements (or any non-necessary repairs) may be recouped later at the time of sale of the property or on a partitioning of the property.

1. Estate for Years (or tenancy for years)

2. Periodic Tenancy

3. Tenancy at Will

4. Tenancy at Sufferance

Any estate measured by a fixed period of time -- no matter how short -- is a tenancy for years.

Has a definite beginning and end date.

Yes, but only a one year tenancy. 

Any tenancy for years over 1 year is subject to the statute of frauds and must be in writing. 

Express, Implied, or by Operation of Law

Implied:

If the lease does not specify how long the tenancy is to last, then it is presumed to be a periodic tenancy measured by the rent payment

e.g. month to month periodic tenancy arises if the rent is to be paid monthly

Notice satisfying two criteria: 

Enough time: an amount of time equla to the length of the period except int eh case of a year-to-year tenancy, whcih generally requires only 6 months notice. 

Effective date: the effective date specified in the lease must be at the end of the period.

Impose a new periodic tenancy:

If the old, expired tenancy was for less than a year, the new tenancy will be measured by the period covered by the rent payment.

In a lease for commercial property, if the old expired tenancy was for a year or more, the new period tenancy the landlord may impose will be for year-to-year.

1. death of either party

2. waste by the tenant

3. assignment by the tenant

4. transer of title by the landlord

5. Lease by th landlord to a third party

1. duty to pay rent

2. duty to maintain the premises

1. Must not commit waste, even if the lease is silent on the matter

[if the leased premises are destroyed without tenant's fault, the tenant generally will be given the option to terminate the lease]

2. Lease including covenant to repair:

An express covenant by a tenant to repair and maintain the leased property makes the tenant an absolute insurer of the property (common law -- not responsible for ordinary wear & tear; modern rule -- responsible for everything including ordinary wear & tear). 

Note that under the modern rule, if leased premises are destroyed without the tenant's fault, the tenant generally will not be required to rebuild the structure, unless the lease expressly includes this type of repair.

Common law: landlord can sue for damages, but is allowed to collect only the amount in arrears and can't terminate teh lease. 

Modern rule: landlord can ue for damages and terminate the lease, thereby evicting the tenant from the property.

1. Accept and retake the premises, thereby terminating the lease (tenant has no further rent obligations)

2. Relet premises, holding the tenant liable for deficiency:

common law, NV -- landlord is under no duty to mitigate tenant's damages (can leave the propoerty vacant and hold the tenant liable for rent)

modern rule -- landlord must make a reasonable effort to relet the property in order to mitigate the tenant's damages.  Tenant is liable for deficiency.

Landlord has waived his right to terminate the lease.

Modern exception, NV: rent payment does not result in waiver so long as (1) the landlord clearly and timely expresses his intent to terminate the lease AND (2) the tenant continues to possess the leased land

1. Deliver possession of the leased premises.

2. Warranty of habitability (modern)

3. Implied covenant of quiet enjoyment

No - only residential property (majority rule)

1. move out and end the lease

2. stay on property and sue for damages

3. make reasonable repairs and deduct this cost from furture rent payments (residential only)

Total eviction

Partial eviction

Constructive eviction

landlord physically excludes tenant from only some portion of the leased property (tenant can stay for free)

OR

third party who holds paramount title retakes the property and physcially excludes the tenant from that portion of the leased premises (rent is reduced to reflect amount taken)

1. landlord fails to provide some service (not 3rd party's failure)

2. there is a substantial interference with the tenant's quiet enjoyment of the property

3. tenant must abandon within a reasonable time

Tenant transfers all of the remaining interest to another tenant. 

e.g. Tenant leases property for 1 year starting Jan. 1.  In April, he transfers the remaining interest (April - December) to another tenant.

Tenant transfers part of his remaining interest to another tenant. 

e.g. tenant leases property for 1 year starting on Jan. 1.  In may, he transfers the three summer months (June, July, August) to tenant two.

When it touches and concerns the land

When performance of the covenant makes the land more valuable or more useful

e.g. promise to repair the fence

BUT NOT promise to pick up landlord's mail (personal to the grantee)

NB: covenant to pay rent always runs with the land

Whenever there is privity of contract (the landlord expressly assumes obligation by agreeing to be bound by the terms of the lease)

or

privity of estate and the lease covenant runs with the land

Yes, but they are strictly construed.

Non-assignment clauses will not prohibit a sublease and vice-versa.

No.  Tenant must pay full rent. 

But, tenant will get an amount of the condemnation award equal to the rent that was to be paid over the remainder of the lease term for that portion of the property that was condemned.

No.  The tenant is excused. 

Tenant can only share in the condemnation award to the extent that the fair rental value of the property exceeds the amount of rent due under the lease.

e.g. the fair rental value for a comparable property is $3,000/month and the rent due under the parties' lease agreement was $1,000 per month.  Tenant's condemnation award = $2,000 x number of months remaining on lease.

Generally, the landlord is not liable.  Five exceptions:

1. Latent defects: landlord must disclose latent defects he knows of or has reason to know of, but has no duty to repair

2. Short term lese of a furnished dwelling - 3 months or less: landlord is liable for defects whether or not he knows of them or has reason to know of them

3. Common passageways under landlord's control/dominion: landlord is liable if he fails to exercise reasonable care

4. Negligent repairs undertaken by landlord

5. Public use: Landlord must know (or should know) of major defects, must know (or should know) tenant will not fix, must know (or should know) that the public will be using the premises

Express intent: there is an agreement between the parties that controls.

No Agreement? Four factors to determine the intent of the installer:

1. Degree of attachment.  The more that has to be done to attach the item, the more likely it is a fixture

2. General custom.  Is this the type of thing that sellers or tenants normally take with them when they leave?

3. Degree of harm to premises on removal.  If it can be removed without substantial damage to the prpoerty, then the inference is no intent for the item to become a fixture

4. Trade fixtures (used in a trade or business).  Not fixtures. E.g. power saw in a lumber mill.

Tenants must remove items before vacating at the end of the lease.

Seller must remove item before closing.

directly benefits the use and enjoyment of a specific  parcel of land

(burdened property is the "servient estate," benefited property is the "dominant estate)

one parcel of land is burdened by the easement (no dominant estate)

e.g. utility easement

express grant

 implied easement

 easement by prescription

1. owner of property expressly grants the easement to someone else

2. easement is expressly reserved when the land is sold

Requirements:

(a) must be in writing,*

(b) signed by the holder of the servient estate, and

(c) satisfy all deed formalities

*Easements of a year or leass do not have to be in writing.

1. previous use by a common grantor

requirements: 

(a) continuous use

(b) apparent

(c) reasonably necessary

2. absolute right of access

no other way to reach property but across someone else's property (landlocked) - owner of servient estate chooses a reasonable location for easement

1. Use must be adverse to the true owner (trespass on title)

2. Use must be continuous and must last for 20 years (5 years in NV) - can be satisfied by seasonal use if appropriate

3. Use is visible and notorious or made with the owner's knowledge

4. Use is without the owner's permission (oral permission is enough to destroy hostility)

Yes.  All who subsequently succeed to the title to the dominant estate become entitled to the benefit of the easement appurtenant. 

But can't be transferred separately from the dominant estate.

Commercial easements --> Yes

(e.g. easement ot run railroad tracks across property)

Personal easements --> No

(e.g. owner's friend has an easement to fish in a lake on the property)

Yes, provided the subsequent holder had notice of the easement, even if it is not specifically mentioned in the deed

Notice:

(1) actual knowledge, 

(2) contructive knowledge (document creating easement is duly recorded in the buyer's direct chain of title), or

(3) inquiry notice (buyer physically inspects the land and the visible appearance of the easement, or inspects public records contained in buyer's direct chain of title)

reasonable development of the dominant estate

that development which would likely have been contemplated by the parties at the time the easement was granted

NB: an easement can only be used to benefit the dominant estate (not third parties)

the holder of the benefit of an easement (the dominant estate) is repsonsible for making any necessary repairs;

he can go on the servient estate to repair the easement, even if the terms of the easement do not so provide

he must make a reasonable restoration of the servient estate after making the repairs

1. doctrine of merger (when dominant and servient estates come together in the same owner)

2. deed of release (must be in writing and comply with all deed formalities)

3. abandonment by action (intent to abandon must be manifested by the holder of the dominant estate by taking some physical action)

4. termination by estoppel (representation of reliquishment by holder of dominant estate  + servient estate makes a change in his position in reliance)

5. termination by prescription (owner of servient estate stops the use of the easement for a period of time required by the applicable statute)

6. termination of easements created by necessity (once the necessity that gave rise to an implied easement ceases to exist, then the implied easement automatically terminates)

A contract conferring a limited privilege to use land in the possession of the licensor.

e.g. a ticket to Sea World

a license

if money is spent on the property in furtherance of an oral license, then it becomes irrevocable under principles of estoppel

A profit gives the right to go on the land of another and take away a natural resource, e.g. timber, coal, etc.

A profit gives you an implied easement to go on land and remove the natural resource

1. The parties must intend that the successors in interest to the covenantor bound by the terms of the covenant

2. Subsequent purchaser for value must have had notice  of the arrangment at the time of purchase (actual, constructive - duly recorded in the buyer's direct chain of title, or inquiry)

3. Touch and concern the land (does the covenant make the land more valuable or more useful?)

4. Vertical and Horizontal Privity:

vertical privity: successor in interest must take the full estate held by predecessor

horizontal privity: conveyance of the property between the original parties

Created by covenants contained in a writing that satisfies the statute of frauds.

Exception: negative equitable servitudes may be implied from a common scheme for development of a residential subdivision

Usually enforced by injunction.

1. Intent that the successors in interest to the covenantee  be able to enforce the covenant

2. Touch and concern

3. Vertical privity

1. If the covenanting parties intended that the servitude be enforceable by and against assignees

2. the sucessor of the promisor has actual, constructive or inquiry notice of the servitude

3. The covenant touches and concerns the land

1. the original parties so intended

2. the servitude touches and concerns the benefited property

Equitable defenses:

1. unclean hands

2. the benefited party acquiesced in a violation of the servitude by one burdened party

3. a benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned (estoppel)

4. the benefited party fails to bring suit against the violator within a reasonable time (laches)

5. the neighborhood has changed so significantly that the enforcement would be inequitable (for subdivision, must show that all lots are affected)

1. written release from the benefit holders

2. merger of the benefitted and burdened estates

3. condemnation of the burdened property

1. Intent to impose a servitude (restriction n use) on ALL land in the sudivision - reflected in the common building plan

2. Notice - just need constructive notice (record notice) or inquiry notice

HELUVA

1. Hostile (X is on the land with no right to be there)

2. Exclusive (X must be excluding others from possessing the property)

3. Lasting (for the statutory period)

4. Uninterrupted (continuous use that the ordinary owner would make)

5. Visible (out of in the open)

6. Actual (actually have to possess the land)

If all the requirements of adverse possion are met, but you possess only a portion of the property to which you claim title, constructive adverse possession will permit you to make claim to the full extent so long as:

(1) the amount of land that is actually possessed bears a reasonable relation to the whole

(2) the property must be unitary, whcih means the parcel o land must be one seamless whole

Yes, but once that life estate terminates, adverse possession is not effective against the remainder interest. 

The requirements of adverse possession would have to be met as to the remainderman as well to be effective against him.

Infancy

Incarceration

Insanity

No. 

1. contract of sale (governed by contract principles)

2. closing (real property principles)

Yes. 

1. Must be in writing

2. signed by the one party who is being sued

3. must include a description fo the property, names of the parties and price

An exception to the statute of frauds.  Must meet two requirements:

1. The oral contract must be certain and clear; and

2. The acts of partial performance must clearly prove up the existence of a contract:

Look for buyer to take possession of the property AND 

(i) buyer paid full (or close to full) purchase price; or

(ii) buyer built improvements on the property; or

(iii) took some other further action that demonstrates that there was a contract

Common law: the buyer bears the risk of loss because once the contract is signed, equity treats the land as his. 

Uniform Vendor and Purchaser Risk Act, NV: Seller bears the risk of loss till closing.

Generally no.  If seller dies, seller's estate closes.  If buyer dies, buyer's estate closes. 

Seller's interest is in personal property, while buyer's interest is in real property.

1. Proof of title - give buyer some tangible evidence of title

2. Title free of encumbrances - seller must give buyer title free of encumbrances (no easements, restrictive covenants, mortgages, options, that have not been previously disclosed)

Recission

Damages

Specific Peformance

Generally no.  Performance rendered within a reasonable time (2 months) is acceptable. 

However, if a contract says that time is of the essence, failure to perform on time is a total breach.

Common law: No.  Caveat Emptor. Though seller cannot actively conceal defects.

Modern Rule: Seller has a duty to disclose to a prospective buyer serious defects in the property that the seller knows of and which are not obvious to the buyer.

1. execution

2. delivery

Yes.

Must be a writing signed by the seller, and

Must describe the land with sufficient accuracy

No.  So long as the grantor had the necessary intent to pass title, physical transfer is unnecessary.

Parol evidence is permissible for this purpose, and recording a deed raises a presumption of delivery even if the grantee knows nothing of it.

Deed that includes the six traditional forms of covenant for title. 

3 present covenants:

covenant of seisin

covenant of right to convey

covenant against encumbrances

3 future covenants:

covenant of quiet enjoyment

covenant of warranty

covenant of further assurances

If a devised property is subject to a mortgage or other lien, the devisee is entitled to have the lien paid off from the testator's residuary estate. 

(the growing trend is to have this doctrine abolished, so that the devisee takes the property subject to the mortgage)

if the beneficiary dies before the testator, the gift is void (common law)

many states have adopted anti-lapse statutes so that the beneficiary's relatives are able to take the gift

1. Intervivos by deed, or

2. By a will at death

2 steps:

1. court clear files a copy of the deed in a book (or on microfilm), then notes the volume and page number where the copy of this deed can be found

2. The clerk then indexes the information by grantor and by grantee

1. notice

2. race

3. race-notice

A purchaser for value who takes without notice of any earlier transaction.

Value: any consideration that is out of pocket (i.e. more than a mere peppercorn) is enought to be considered value.

Notice: Actual, Record (deed must be recorded in the buyer's direct chain of title), or Inquiry (examine the land and make inquiry as to any unexplained uses or possessions)

NB: one who purports to take the property as an heir, devisee or donee cannot be a BFP

Yes.

Except:

You can qualify as a BFP without inquiry notice if, as subsequent purchaser, you make a physical inspection of the property and investigate any unexplained possessions or unexplained uses of the property

A device used to secure a loan on the property. 

The loan is reflected in a promissory note given by the borrower and the security interest is reflected in a separate written instrument. 

There are 3 types:

1. mortgage

2. deed of trust

3. land sale contract

An absolute deed with separate promise of reconveyance.

Courts treat as a mortgage.

Landowner sells his estate to the lender, leases it back with the option to repurchase it at the end of the lease.  The lease payments are about what you would expect mortgage payments to be in amount, and the repurchase price is nominal.

Courts treat this as a mortgage.

Given by the debtor to a third party trustee, who holds the deed of trust until the loan is paid in full. 

If the loan is not paid, the trustee can do one of the following:

1. the trustee can obtain a court order for a foreclosure sale of the property; or

2. the trustee can sell the property by himself or herself at auction

Yes, the debtor may redeem at any time right up until the moment of the foreclosure sale. 

Unless, the mortgage includes an acceleration clause.

clogging the quity of redemption

[this is prohibited]

First in time, first in right.  Unless,

1. the order is changed by the terms of the applicable recording statute (evaluate just like deeds -- race, race notice, notice)

2. priorities are changes by contract (voluntary subordination)

3. a purchase money mortgage receives priority over any other mortgages executed at about the same time, even if the other mortgages are recorded first. 

4. if a mortgagor dose anything to increase a senior mortgage, then that senior mortgage loses its priority over junior mortgages -- but only to the extent of the change

Does foreclosure wipe out all junior interests?

(includes liens, easements, leases, junior mortgages)

Yes.  Although they will be paid off if there is enough money received in the foreclosure sale.

NB: Junior interests have the right to pay off any mortgage being foreclosed on in order to keep their interests from being wiped out.  Thus, junior interests are a necessary party to any foreclosure proceeding.

If they are not made party to any foreclosure, then their interests are not elminated by the foreclosure. 

1. pay the costs of the foreclosure

2. pay off the mortgage that was foreclosed on

3. pay off junior interests in order of priority

4. pay any remaining balance to the mortgagor

There may be only one action:

1. for the recovery of any debt; or

2. for the enforcement of any right secured by a mortgage or a deed of trust on real property

Generally, the holder of the secured note must proceed against the real estate first, by foreclosing on the security interest (before seeking to impose personal liability on the debtor)

If a debtor misses a payment the seller can cancel the contract, keep all the money paid to date, and retake the property.

[for bar purposes, these are enforceable; it will limit seller to that remedy, however, and seller cannot also botain damages or specific performance]

Yes. But the grantee will not be personally liable on the mortgage unless the grantee specifically assumed the mortgage. 

NB: any modification fo the obligation by the creditor/mortgagee and the grantee will release the original borrower/mortgagor of all liability.

1. the note must be negotiable (which means that it must be either (a) payable to bearer or (b) payable to the order of a named payee)

2. the original note must be endorsed by the named payee

3. the original note must be dleivered to the transferee

4. the transferee must take the note in good faith and must pay value for it

If the mortgagor transfers the property without the mortgagee's consent, the full amount of the loan becomes immediately due and payable. 

[these are enforceable]

Seller may remove the fixture without regard to the priority of an earlier mortgage on the property. 

If seller is not timely with the filing, then his security interest in the fixture is subordinate to the earlier mortgage on the property.

Yes.  Strict liabillity will result if the land is not supported.

Caveat: if improvements on the land collapse into unsupported land as a result of some action taken by adjoining landowner, adjoining landowner will only be liable for the damage to the improvements if the land would have collapsed anwyay even without the buidlings on it.  

Do surface owners have a right to have their land supported from the bottom?

e.g. mineral rights have been legally severed from the surface rights.

Yes.  Strict liability will result if the land is not supported, and this right extends to the land and the improvements that were existing on the land as of the day the mineral rights were severed from the fee simple. 

NV: requires mine operators to undertake reclamation activity simultaneously with their mining operations to the extent practicable.

Rights belonging to owners of property bordering on a lake or stream:

Riparian owners may use all the water needed for domestic purposes, and limited to reasonable use for non-domestic purposes (commerical, industrial)

Minority rule (NV): The first person who makes beneficial use of water from a lake or stream has that right protected against those who come later so long as the use continues (forfeit after 5 years of non-use, but can be cured after th expiration as long as no claim or proceeding of forfeiture has been commenced). 

In these jurisdictions, water rights are freely alienable without regard to the land to which the water rights are appurtenant. 

NB: When holder of water rights trasnfers title to land, if the water rights are not expressly reserved by the seller at time conveyance is made, the water rights accompany the land.

1. natural flow: landowners may use reasonable means to deal with surface waters (despite the orthodox rule that landowner not make any changes at all int he flow of the flood water as it rushes across land)

2. common enemy: landowner can do anything he wants with floodwater, whether reasonable or not