4-18-17 NATIONAL ANIMAL CRACKERS DAY PROPERTY A SLIDES 4-18-17 NATIONAL ANIMAL CRACKERS DAY

Music to Accompany Dupont: Jewel: Spirit (1998) featuring “Deep Water” 2d Window for Optional Sample Answers Open By End of Class Today, We’ll Have Covered Material Needed for All Eight Options All Submissions Due by Sunday @ 2 p.m. Preliminary Deadline for Feedback Before Classes End = Tomorrow @ 11p.m. (I will review later submissions with you in the three days after the CrimPro exam.)

Thank You, Daniel!!

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

Questions on Williams Island? Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes One parcel is split in two (Undisputed) Prior Use (Undisputed) Intent to continue prior use: (Unusually Good Evidence) Apparent, visible or reas. discoverable: (Good Evidence) Reasonable necessity: (Court finds test met; you could dispute) Notice to Subseq. Purchasers: (Unusually Good Evidence) Pretty Easy Case if You Accept Court’s Necessity Analysis Dependent on Use as Golf Course in Present Configuration Might be Different if Strict Necessity Required Questions on Williams Island?

BADLANDS: DuPont v. Whiteside NORBECK PASS

Dupont & Easement-by-Necessity (Badlands) Duponts sell Three-Part Lot to Whitesides “Riverfront” where W’s want to build house “Lower Portion”: accessible from public road “Wetlands” in between Undisputed that, prior to sale, Duponts built road across their own land providing access to so Whiteheads could build. Dispute as to whether Duponts said this access was permanent or temporary.

Easement-by-Necessity (Badlands) Necessity in Dupont Opinions Duponts sell Three-Part Lot to Whitesides “Riverfront” where W’s want to build house “Lower Portion”: accessible from public road “Wetlands” in between Court Resolves Easement-by-Necessity on Necessity Element Majority: Not Strict Necessity: WHY? Dissent: Meets Strict Necessity

Easement-by-Necessity (Badlands) Necessity in Dupont Opinions Duponts sell Three-Part Lot to Whitesides “Riverfront” where W’s want to build house “Lower Portion”: accessible from public road “Wetlands” in between Majority: Not Strict Necessity: Access available to Lower Portion Possibility of road across Wetlands (though expert said $40,000-50,000 in 1981) Dissent: Meets Strict Necessity: Why?

Easement-by-Necessity (Badlands) Necessity in Dupont Opinions Duponts sell Three-Part Lot to Whitesides “Riverfront” where W’s want to build house “Lower Portion”: accessible from public road “Wetlands” in between Majority: Not Strict Necessity: Access available to Lower Portion Possibility of road across Wetlands (though expert said $40,000-50,000 in 1981 (CHECK)) Dissent: Meets Strict Necessity: Getting road built across Wetlands costs time, $$, and conservation easement (giving up use of some of land). “Might be easier to traverse a river by walking across the surface”

Easement-by-Necessity (Badlands) Necessity in Dupont Opinions Duponts sell Three-Part Lot to Whitesides “Riverfront” where W’s want to build house “Lower Portion”: accessible from public road “Wetlands” in between Majority: Not Strict Necessity (Has to Be Met Both at Split & Currently): Access available to Lower Portion Possibility of road across Wetlands (though expert said $40,000-50,000 at time of trial) Dissent: Meets Strict Necessity: Why?

Easement-by-Necessity (Badlands) Necessity in Dupont Opinions Duponts sell Three-Part Lot to Whitesides “Riverfront” where W’s want to build house “Lower Portion”: accessible from public road “Wetlands” in between Majority: Not Strict Necessity: Access available to Lower Portion Possibility of road across Wetlands (though expert said $40,000-50,000 at time of trial) Dissent: Meets Strict Necessity: Getting road built across Wetlands costs time, $$, and conservation easement (giving up use of some of land). “Might be easier to traverse a river by walking across the surface”

Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980 Lot as a whole was not landlocked at split b/c road to Lower Portion of lot existed.

Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980 Lot as a whole not landlocked at split; road to Lower Portion existed. Access to house on Riverfront not necessary for enjoyment of lot at time of split b/c house built later.

Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980 Lot as a whole not landlocked at split; road to Lower Portion existed. Access to house on Riverfront not necessary for enjoyment of lot at split; house built later. Wetlands Regulations greatly raise cost of road, but no evidence if Regs existed at split (probably not in 1980).

Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980 Lot as a whole not landlocked at split; road to Lower Portion existed. Access to house on Riverfront not necessary for enjoyment of lot at split; house built later. Wetlands Regs greatly raise cost of road, but no evidence if Regs existed at split (probably not). To get E-by-N for Riverfront, need to treat large parcel as two separate lots divided by water with no access between them (cf. Dissent re “no bridge”)

Easement-by-Necessity (Badlands) Dupont: Necessity Confusing in FL Fl. Stats. on Easement-by-Necessity §704.01(1): “reasonably necessary”; “reasonable & practicable” §704.03: “practicable” means w/o use of “bridge, ferry, turnpike road, embankment or substantial fill.” Tortoise Island (Fla SCt reading statute): “absolute necessity” Hunter (1st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property” [THANKS A BUNCH!]

Dupont & Easement-by-Necessity (Badlands) Possible Implied Easements? Easement-by-Necessity: Turns on Necessity Easement-by-Implication: Why Not? (Look to Elements) Easement-by-Prescription: Easement-by Estoppel:

Easement-by-Implication Elements: States Vary on Formulation One parcel is split in two Prior Use (“Quasi-Easement”) Intent to continue prior use *Apparent, visible or reasonably discoverable *Some degree of necessity * Some states treat 4 & 5 as separate elements; some treat as evidence of intent

DuPont & Easement-by-Necessity (Badlands) Possible Implied Easements? Easement-by-Necessity: Turns on Necessity Easement-by-Implication: No Prior Use Easement-by-Prescription: Why Not? (Look at Elements) Easement-by Estoppel:

Easement-by-Prescription Elements [Actual] Use of Pathway Open & Notorious Continuous (14 years; Florida SoL = 7) Adverse/Hostile (Most states Don’t Require Exclusive)

Dupont & Easement-by-Necessity (Badlands) Possible Implied Easements? Easement-by-Necessity: Turns on Necessity Easement-by-Implication: No Prior Use Easement-by-Prescription: Clear Permission Easement-by Estoppel: Was there Reliance that was Reasonable & Detrimental (Under Claimants’ View of Facts) ?

Dupont & Easement-by-Necessity (Badlands) Easement-by Estoppel: (“Irrevokable License”) Good Case for Reliance under Ws’ Version of Facts Detrimental: Bought lot & spent $240K in 1981 to build house Reasonable: Probably, since road built before purchase as inducement Under Ds’ version of facts? Reasonable: If D’s Say “Temporary” & Ws Spend $$? Note that Ds Not Very Sympathetic: License Revoked After 14 Years for No Apparent Reason Court Remands for Determination of this claim. Questions on Dupont?

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  E-by-I Raised: Pipes in Use Before O Sells Separate Units. E-by-N Raised: Split Creates “Landlocked” Lot b/c Sewage Disposal Must Cross Anther Lot

E-by-I & E-by-N: Sewage Pipe Hypothetical Notice Issues What constitutes notice of underground pipes? Actual Knowledge (always sufficient but may be hard to prove) Courts tend to be generous re Inquiry Notice Sometimes: From any visible element (pipe ends; manhole covers) (See Kirma cited in Williams Island @ P795) Sometimes: From need for utility service + no visible access

E-by-I & E-by-N: Sewage Pipe Hypothetical Necessity Issues Is utilities access “Necessary”?: Cases split: Lot not worthless or landlocked (re physical access); usually possible to get utility service at some expense. BUT can’t use for many purposes without new expensive utility connection. One Approach: Restatement on Necessity & Utilities in Note 3 (P802)

E-by-I & E-by-N: Sewage Pipe Hypothetical Necessity Issues Is utilities access “Necessary”?: Cases split Assuming some access to utilities is necessary, how expensive must alternatives be to meet tests? Drill through mountain ridge? Policy: Very inefficient to reroute utility service if existing pipes or wires (cf. Marcus Cable). Rev. Probs. 5K & 5M: We’ll Return to Sewage Pipe Hypo & Implied Easements

ACADIA Thursday: Review Problem 5K (S135) Servient O Stephanie Sued to Enjoin Further Use of Her Pipes She Concedes Split of Original Parcel and Prior Use of the Pipes Be Prepared to Discuss re Easement-by-Implication Strongest Arguments for Your Client (at Time of Split) re Evidence of intent to continue prior use Apparent, visible or reasonably discoverable Some degree of necessity Last Names A-N: Representing S (Servient O) Last Names O-Z: Representing Ws (Dominant O)

BADLANDS: Thursday  Friday Review Problem 5L (Opinion/Dissent Q @ S135-36) Last Names A-N: Range of [Policy] Arguments for Allowing Knowing Waiver of Easement by Necessity Last Names O-Z: Range of [Policy] Arguments for Prohibiting Waivers of Easement by Necessity Assume Facts Sufficient to Show Both E-by-N & Knowing Waiver Helpful To Look At Some Old Q3s & Answers Online Helpful to Think about Similar Waiver Issues from Chapter 2

E-by-I & E-by-N: Additional Work/Exam Prep From Last Two Slides: Rev Prob 5K (ACADIA) in class Thursday Rev Prob 5L (BADLANDS) in class Thursday  Friday Qs testing two or more types of Implied E-mts together: In class Friday  Monday: Rev Prob. 5M (OLYMPIC/SEQUOIA) For 2d Window: Rev. Prob. 5N & Sample Issue-Spotter 4Z On Your Own: 2016 QI(b); Sample Lawyering Qs 1J & 1M

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

EVERGLADES: Easements-by-Prescription & DQs 5.08-5.11 EGRET IN MANGROVE SWAMP

Easement-by-Prescription Generally Easement Created by Particular Use of Another’s Land for Adverse Possession Period Need to Show Adverse Possession Elements (with Some Variations in Some States) We’ll Look at Elements Individually

Easement-by-Prescription Elements [Actual] Use of Pathway Open & Notorious Continuous Exclusive (Some States) Adverse/Hostile

Easement-by-Prescription Everglades: [Actual] Use Not listed as separate element in MacDonald but claimant clearly must show some kind of use. Usually Straightforward: Use of, e.g., Path or Driveway Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P817) MacDonald (DQ5.09): What Meets?

Easement-by-Prescription Everglades: : [Actual] Use Not listed as separate element in MacDonald but there must be some kind of use Usually Straightforward; Use of, e.g., Path or Driveway Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P817) MacDonald (DQ5.09): Golf Shots & Retrieval (Very Atypical!!!)

Easement-by-Prescription Everglades: : Open & Notorious & DQ5 Easement-by-Prescription Everglades: : Open & Notorious & DQ5.10 (See P817) Some States: Traditional Definition of O&N Use of Path or Driveway Almost Certainly Meets Underground Utilities (Sewage Pipe Hypo) Hard to Meet O&N (Like Marengo Caves) Could Analyze Like Notice for E-by-I or E-by-N

Easement-by-Prescription Everglades: : Open & Notorious & DQ5 Easement-by-Prescription Everglades: : Open & Notorious & DQ5.10 (See P817) Some States: Traditional Definition of O&N Some States: Require that Servient Owner Have Actual Knowledge (e.g., MacDonald) Policy Concerns Similar to Border Disputes; Don’t Necessarily Need O in Possession to Monitor Closely Evidence of Actual Knowledge in MacDonald (DQ5.10): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

Easement-by-Prescription Everglades: : Continuous (See P817) Obviously Doesn’t Need to be 24/7 for Whole SoL Period Could Just Be Use “Throughout” Period Might Ask re Normal Utilization of That Type of Easement Can be Seasonal Use like Adv. Possession in Ray or Howard Evidence in MacDonald (DQ5.09)?

Easement-by-Prescription Everglades: : Continuous (See P817) Obviously Doesn’t Need to be 24/7 for Whole Statutory Period Could just be use “throughout” period Might Ask re Normal Utilization of That Type of Easement Can be Seasonal Use like Adverse Possession in Ray Evidence in MacDonald (DQ5.09): Golf Course in Use Through Whole Period & Steady # of Users End Up on Land in Q

Easement-by-Prescription Everglades: : Exclusive (See P818) Many States Don’t Require Sensible: Nature of Easement is Non-Exclusive Use MacDonald doesn’t list as element Some States: Means Exclusive of Everyone but Owner Some States (e.g., TX): Shared w Owner  Presumption of Permissive Hard to overcome: Need evidence that O didn’t give permission but didn’t interfere.

Easement-by-Prescription Adverse/Hostile & Presumptions Gen’l Difficulty: Seems Reasonable to Assume Permission If: O in Possession of Servient Estate AND Use is Open & Notorious.

Easement-by-Prescription Adverse/Hostile & Presumptions General Difficulty: Seems Reasonable to Assume Permission If: O in Possession of Servient Estate AND Use is Open & Notorious Presumptions frequently decide cases b/c hard to disprove. Shared use with the owner (e.g., of a driveway) presumed permissive (Texas). How do you disprove? Continuous use for AP Period presumed adverse (MacDonald). How do you disprove?

Easement-by-Prescription Adverse/Hostile & Presumptions 3. Policy Q: What do you do with case like MacDonald or Dupont where visible use continues for a long time and then servient owner suddenly says no? Plausible to say permissive. Could create hybrid of prescription & estoppel: if use goes on long enough, servient owner can’t change mind (if no change in burden/ circumstances).

Easement-by-Prescription Everglades: Policy Questions (DQ5.08) To what extent do the rationales for AP also support E-by-P? Clearly protect people and the legal system from being burdened with “stale” claims. Ideas re Rest: (a) Punish sleeping owners? (b) Reward beneficial use of land? (c) Recognize/protect psychic connection/investment? For you to consider & use to help decide close Qs. Questions re E-by-P?

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  E-by-P Raised: Use of Pipes by More Distant Users for Adv. Poss. Period; Likely Qs re Open & Notorious, Exclusive

Easement-by-Prescription: Additional Work/Exam Prep Rev Prob 5O (Lawyering/EVERGLADES) in class Friday Qs testing two or more types of Implied E-mts together: In class Friday  Monday: Rev Prob. 5M (OLYMPIC/SEQUOIA) For 2d Window: Rev. Prob. 5N & Sample Issue-Spotter 4Z On Your Own: 2016 QI(b); Sample Lawyering Qs 1J & 1M

Chapter 5: Easements End-of-Chapter Review Problems (Opportunity to Test Yourselves & Get Feedback) 5D: Short Problem: Scope of Easement (OLYMPIC/SEQUOIA) 5K: Short Problem: Easement-by-Implication (ACADIA) 5L: Opinion/Dissent: Easement-by-Necessity/Waivability (BADLANDS) 5O: Lawyering: Easement-by-Prescription (EVERGLADES) 5M: Lawyering: Implied Easements Generally (OLYMPIC/SEQUOIA)

Review Problem 5D (S128) SEQUOIA OLYMPIC

Review Problem 5D (S128): Sequoia = P Andy/Serv Review Problem 5D (S128): Sequoia = P Andy/Serv. Olympic = D Gudridge Academy/Dom. S-acre = Large wooded lot between public road & private beach. Dawson Inst. = Former art school for college-aged students Got as gift from GF an easement to use the private beach and the driveway during daylight hours. DI students used driveway & beach to sketch or paint. Gudridge Academy buys Dawson Inst. Runs post-high school “transition schools” for troubled teens. Uses easement for student athletic activities like running /swimming

Review Problem 5D (S128): Sequoia = P Andy/Serv Review Problem 5D (S128): Sequoia = P Andy/Serv. Olympic = D Gudridge Academy/Dom. Dawson Inst. (DI) = Former art school for college-aged students DI students used easement (driveway & beach) to sketch or paint. GA buys DI to run post-high school “transition school” Uses easement for student athletic activities like running /swimming Looking for Arguments/Missing or Ambiguous Facts Blackletter Tests as Starting Points for the Relevant Concerns: Language Burden Purpose/Quality

Use must be reasonable considering the terms of the grant Review Problem 5D: LANGUAGE Sequoia= P Andy/Serv. OLYMPIC = D Gudr. Acad./Dom. Use must be reasonable considering the terms of the grant “The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway connecting the beach to the county road.”

Review Problem 5D: LANGUAGE = Easy Q! “The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway connecting the beach to the county road.” NOTHING in language inconsistent with what you know of GA use. IF GA acts outside stated limits (after dark; off driveway; invites parents or other schools), can enjoin particular violations, but shouldn’t prevent continued use w/in language unless pretty clear that these violations are unavoidable.

Review Problem 5D: BURDENS on SERRVENT O SEQUOIA= P Andy/Serv Review Problem 5D: BURDENS on SERRVENT O SEQUOIA= P Andy/Serv. OLYMPIC = D Gudr. Acad./Dom. “Burden must not be significantly greater than that contemplated by parties” Arguments (incl. Missing/Ambiguous Facts)? Possible Increased Burdens? Increases Likely to Be Significant?