4-13-17 NATIONAL PEACH COBBLER DAY PROPERTY A SLIDES 4-13-17 NATIONAL PEACH COBBLER DAY

Music to Accompany Petersen Ricky Nelson (Self-Titled 1958) I Will Post on Course Page after DF Today: New Version of Info Memo #4 (Ch. 4) (w Write-Up of 4J) Initial Version of Info Memo #5 (Chapter 5) Including Student Qs & My Answers re Express Easements Write-Ups for Rev. Probs. 5A-5C & 5E Updates on Comments/Best Answers for: 2014 Exam (including Problem IIc = Rev. Problem 5F ) Sample Lawyering Qs (including Q 1Sb = Rev. Prob. 4L)

Chapter 5: Easements Interpreting Language: Scope of Express Easements Introduction Interpreting Language: Scope of Express Easements Positive Easements (Cont’d) NegativeEasements Implied Easements By Estoppel By Implication and/or Necessity By Prescription

Interpreting Language: Scope of Express Easements “Scope” is the Central Testable Issue for Express Easements Is new/additional use proposed by dominant tenement-holder allowed? Legal dispute often arises with changed circumstances. Generally interpret scope issues like contracts 3 Relevant Considerations (Blackletter Tests/Chevy Chase) Language of Grant Continuity of Purpose Ev/Rev or Chevy Chase ”Quality” Characterization Q (“transportation” v. “commercial business” purpose) Increase in Burden on Servient Estate (Can’t be Significant)

Scope of Express Easements RR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) Unreasonable Increase in Burden? Hard Q: Primary Burdens Decrease Lots of New Smaller Ones Arise Hard to Weigh; Might Suggest Preseault is Correct That Should Fail “Same Quality” Test In determining “reasonableness” of burden, a generous court might also choose to weigh strong public policy behind hiker/biker trails against harms to servient owners. Qs on Chevy Chase?

Scope of Express Easements Change in Technology Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Carry Water  Water Pipes? Use Road on Foot/Horse  Automobiles? 

Scope of Express Easements: Change in Technology Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Marcus Cable (2002 @ P776) & Cases Cited on P778: Growth/ Development of Cable TV & Desire to Use Existing Easements for Electrical or Telephone Wires to Place New Cable Wires. What’s at Stake: Much Cheaper and Easier for Cable Co. to Negotiate One Deal with Telephone or Electric Co. Than to Negotiate New Easements Over Each Parcel Wires Might Cross.

Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis Start with language of grant Give undefined terms ordinary meaning Determine purposes of grant from language Use can change to accommodate technological development, but must fall within original purposes as determined from terms of grant Again, not necessary that proposed use was contemplated at time of grant

Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis Overlap with Blackletter Tests? “Use must be reasonable considering the terms of the grant” (Court employs) “Evolutionary not revolutionary” changes allowed. (Maybe OK IF w/in purposes as defined by language). “Burden must not be significantly greater than that contemplated by parties” No burden analysis in Marcus Cable. BUT court’s policy arguments re protecting servient owner suggest increase in burden should be relevant.

Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis Language: “electric transmission or distribution line or system.” Majority: Cable TV not w/in Ordinary Meaning (so neither covered literally nor within stated purpose). Distinguishes cases where “electric + telephone” Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility) Note Marcus majority doesn’t endorse these cases, just distinguishes

Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Analysis Language: “electric transmission or distribution line or system.” Majority: Cable TV not w/in Ordinary Meaning Dissent: w/in language in two ways Literally (as technical matter) W/in ordinary meaning as language has come to be understood w tech. changes

Scope of Express Easements: Change in Technology DQ5.03: Applying Blackletter Tests to Marcus Cable Facts “Evolutionary not revolutionary” changes allowed? Couple more wires unlikely to be “revolutionary.” “Burden must not be significantly greater than that contemplated by parties”? Probably trivial increase in burden. Probably why most courts agree with Dissent that ok to include cable wires in electric/telephone easements. Qs on Marcus Cable?

Scope of Express Easements: What’s at Stake? Policy Considerations Relevant to Deciding Disputed Scope Qs

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement. Changing circumstances make change desirable (at least for one party). Parties always could bargain for new agreement, but administrative costs may be very high, especially when large number of parcels affected by similar easements as in both cases we’re looking at.

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement. If dispute occurs relatively soon after original agreement (like 5A: Santa v. Elves), can look at surrounding circumstances to supplement language as way to get at meaning of agreement: Was desire for proposed use known or reasonably foreseeable? Who drafted language? Does price seem to reflect a broader or narrower view of easement? (nice Monteiro idea)

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement. If dispute occurs relatively soon after original agreement (like 5A: Santa v. Elves), can look at surrounding circumstances: As decades pass, those circumstances matter less and less: Often precise proposed use not really foreseeable. When RRs expanding, hard to predict extent of eventual decline. Rapid spread of telephone & electric wires predates TV (let alone cable). Successors on both sides rely increasingly on language.

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Helps protect their property value. Marcus Cable majority position. Usually will have knowledge of terms of easement from land records/title search (part of purchase process)

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change better meets dominant owners’ needs & expectations Helps maximize property value (for dominant parcels), e.g., by allowing continuation of services/access with new technology Can limit (to protect Servient Os) by saying, e.g., Use must be similar No great increase in burden

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs In close cases, might consider supporting important new technology or innovative land use that may provide significant public benefits. Like early internet no-tax subsidy E.g., Getting Cable TV to rural areas E.g., arguably Chevy Chase: Promoting hiker/biker trails

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs Might wish to support valuable technology/land use. Questions?

Review Problem 5C EVERGLADES SEQUOIA (Arguments for R) (Arguments for J) EGRET IN MANGROVE SWAMP SEQUOIAS

Review Problem 5C (S100) Those living on Carr-acre can use the driveway across the western edge of Rhodes- acre in vehicles or on foot for access to and from Hungerford Highway and for exercise.

Review Problem 5C (S100) Everglades for R Sequoia for J Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. Originally used for jogging & automobile access to Highway. J moves onto Carr-Acre with her horse DD Rides horse on easement every morning Sometimes rides horse to Highway to run errands in nearest village Can R (owner of Rhodes-acre) prevent J from riding horse on easement?

Arguments/Missing Facts re Burden Rev. Prob. 5C: Everglades for R Sequoia for J Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. Can R (owner of Rhodes-acre) prevent J from riding horse on E-mt? Arguments re Language Arguments/Missing Facts re Burden

Quick Notes re Purpose/Quaity/Ev-Rev Rev. Prob. 5C: Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. Can R (owner of Rhodes-acre) prevent J from riding horse on E-mt? Quick Notes re Purpose/Quaity/Ev-Rev Under Marcus Cable, can look to purpose if based on language (access to Hwy; exercise). Should a court reject using bicycle b/c not “in” bike or “on foot”? Heart of Problem: Inverting Normal Change in Technology Indication of how I create exam Qs; twist I hadn’t done before Helpful to address directly: Changes from horse to auto have been approved, ….

Scope of Positive Express Easements: Additional Work/Exam Prep DF Next Week: Rev Prob 5H & 2016 XQIV(c) Rev Prob 5D in Class Next Week after We Finish Layout of Implied Easements Posted Today: Write-Ups of Student Qs, 5A-5C. 5E (Info Memo #5) & 5F (2014 Exam QIIC) You Now Have Enough Info to Do Rev Prob 5G as Sample Exam Q for 2d Window

Chapter 5: Easements Interpreting Language: Scope of Express Easements Introduction Interpreting Language: Scope of Express Easements Positive Easements NegativeEasements Implied Easements By Estoppel By Implication and/or Necessity By Prescription

Scope of Express Easements: Negative Easements Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate. Limited # of harms can be protected this way. E.g., Access to Light & Air; Access to View; Unimpeded Flow of Artificial Stream States Vary on Which They Allow

Scope of Express Easements: Negative Easements Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate Limited # of harms can be protected this way. Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate

Scope of Express Easements: Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View Vocabulary: “mesne conveyances” = intermediate transactions

ACADIA: DQ5.04-5.05 Sunrise

Scope of Express Easements: Negative Easements DQ5.04 (ACADIA ): D’s Arguments in Petersen D may have argued, “No such thing as a view E-mt in Calif.” Court says weight of authority supports existence of view easements. Lawyering Note: Need to check in each state for list of recognized negative easements. D: Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

Scope of Express Easements: Negative Easements DQ5.04 (ACADIA): D’s Arguments in Petersen No view easement in California D: Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown) Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View Cf. 16 Foot Tall Statue of Jackie Robinson (in 1942 also still unknown)

Scope of Express Easements: Negative Easements DQ5.04: D’s Arguments in Petersen Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

Scope of Express Easements: Negative Easements DQ5.04 (ACADIA): D’s Arguments in Petersen No view easement in California Parties could not have intended to ban antennas D: Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s Response (& Evidence Supporting)?

Scope of Express Easements: Negative Easements DQ5.04 (Acadia): D’s Arguments in Petersen No view easement in California Parties could not have intended to ban antennas D: Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court: Fact Q implicitly decided below Reviewing Injunction, so Defer to Trial Court Supporting Evidence: Size & nature of obstruction; Lesser rental value b/c of antenna

Scope of Express Easements: Negative Easements DQ5.04 (Acadia): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?

Scope of Express Easements: Negative Easements DQ5.04 (Acadia): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden Pre-Cable TV Reception in SF Not Good Relative Importance of TV (Public Policy re Access to Information)

Scope of Express Easements: Negative Easements DQ5.04: D’s Arguments in Petersen Burden on D Greater than Contemplated? Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden Court’s Likely Responses TV Not That Important, Especially in 1958 Before Much TV News (But Ricky Nelson as Cultural Indicator) If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One-on-One = Much Easier Than in Chevy Chase or Marcus Cable)

Scope of Express Easements: Negative Easements DQ5.05 (Acadia) : Why easier to determine the scope of a negative easement than that of a positive easement?

Scope of Express Easements: Negative Easements DQ5.05 (Acadia) : Why easier to determine the scope of a negative easement than that of a positive easement? Few line-drawing problems Negative: Bans anything that interferes w light or view v. Positive: Open to interpretation about allowable uses where language is broad or where technology changes Qs on Negative Easements?

Chapter 5: Easements Implied Easements (Overview) Introduction Interpreting Language Easement v. Fee Scope of Express Easements Implied Easements (Overview) By Estoppel By Implication and/or Necessity By Prescription

Implied Easements: Overview Easements are both contracts & conveyances (land transfers) How do you achieve contracts and conveyances without express agreement? Four Theories…

Implied Easements: Overview Contract/Conveyance w/o Express Agreement: Four Theories Promissory Estoppel (Detrimental Reliance) Implied-in-Fact Contract (Parties’ Intent) Implied-in-Law Contract (Public Policy) Adverse Possession

Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Promissory Estoppel (Detrimental Reliance) ≈ Easement-by Estoppel (2) Implied-in-Fact Contract (Parties’ Intent) ≈ Easement-by-Implication (3) Implied-in-Law Contract (Public Policy) ≈ Easement-by-Necessity (4) Adverse Possession ≈ Easement-by-Prescription