4-10-17 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY PROPERTY A SLIDES 4-10-17 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY

Music to Accompany Chevy Chase Carlos Santana, Supernatural (1999) NO CLASS TOMORROW DF AT USUAL TIME NO OFFICE HOURS TUESDAY OR WEDNESDAY Second Window for Submitting Sample Answers Open We’ve Covered Material Needed for All Four Adverse Possession Options

PROPERTY A: 4/10 Monday Pop Culture Moment 70 Years Ago This Week in Brooklyn: 1st Night of Passover Why is This Night Different …? Monday Pop Culture Moment

PROPERTY A: 4/10 Monday Pop Culture Moment Why is This Night Different …? A Brief Tribute to Jackie Robinson & Branch Rickey

Why is This Night Different …? … Back in Brooklyn!!! PROPERTY A: 4/10 Monday Pop Culture Moment Why is This Night Different …? … Back in Brooklyn!!!

Chapter 5: Bearing Other People’s Crosses: Easements Express & Implied

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

Chapter 5: Easements Terminology Key Vocabulary: Easement = Property Right to Use Land Owned by Someone Else for Specific Purpose Most Commonly: Right of Way = Roads/Paths Across Others’ Land So Graphics = Yellow Brick Road Key Vocabulary: Express v. Implied Easements Positive v. Negative Easements Appurtenant v. In Gross Dominant Tenement (= Holding) v. Servient Tenement

Chapter in Perspective Chapter 5: Easements Chapter in Perspective Paradigm Conflicts: Chapter 3 (& Some of 2): Present Rights v. Future and/or Conditional Rights Chapters 1 & 4: Legal Owners v. Others Who Wish to Use (Implied Easements Similar) Chapter 2: Express Division in Property Rights Created by Contract (Express Easements Similar  Let’s Compare)

Easements Landlord-Tenant Divided Rights in the Same Piece of Land: Two Sets of Property Rights to Consider Easements Holder of Easement Owner of Underlying Land (Servient Tenement) Landlord-Tenant Leaseholder (Term of Years) Landlord (Holds Reversion)

Written Document Creating Express Easement Divided Rights in the Same Piece of Land: Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Parties’ Intent -- Reasonable Understanding under All the Circumstances Easements Written Document Creating Express Easement Landlord-Tenant Written Lease

Implied & Statutory Terms Divided Rights in the Same Piece of Land: Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights Easements Written Document Creating Express Easement  Implied Easements Landlord-Tenant Written Lease  Implied & Statutory Terms

Working with Statutory Provisions Divided Rights in the Same Piece of Land Different Primary Skills Focus for Each Easements Using Stated & Unstated Facts to Work with Legal Rules/Standards Landlord-Tenant Working with Statutory Provisions

Chapter 5: Easements Interpreting Language Introduction Interpreting Language Easement v. Fee (Skipping in 2017) Scope of Express Easements Implied Easements By Estoppel By Implication and/or Necessity By Prescription

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

Interpreting Language: Scope of Express Easements “Scope” is the Central Testable Issue for Express Easements Q is whether new/additional use proposed by dominant tenement- holder allowed. Legal dispute often arises with changed circumstances: which party should bear different burden? Generally interpret scope issues like contracts Objective indications/manifestations of whether proposed use might be covered by parties’ original understanding Secret intent of one party NOT relevant (if not apparent from agmt) Don’t need to show parties specifically contemplated proposed use

Interpreting Language: Scope of Express Easements (Coverage) Sample Blackletter Tests (S124) “Use must be reasonable considering the terms of the grant” “Evolutionary not revolutionary” changes allowed. “Burden must not be significantly greater than that contemplated by parties” Sample Cases Chevy Chase (& Preseault): Common Transition from RR Rights of Way to Recreation Trails Marcus Cable: Common Problem of Improved Technology Lot of Review Problems: 5A-5H plus 2016 QIV(c)

Common Scope of Easement Issues Proposed Use Seems to be w/in Literal Language, but Arguably Significant Change in Purpose or Burden Chevy Chase; Rev. Probs 5A & 5D-G Change in Technology; Might be Outside Literal Language, but Arguably Not Significant Change in Purpose or Burden Marcus Cable; Review Problem 5B

Intro to Scope of Easements Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage  Toy factory (7x garbage).

Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage  Toy factory (7x garbage). We’ll Apply Blackletter Tests & Consider Missing or Ambiguous Facts

Scope of Express Easements Generally Sample Blackletter Tests (S124) (1) “Use Must Be Reasonable Considering the Terms of the Grant” Initial focus on literal language Then check if proposed use is reasonable in light of language c. Can use ordinary contract interpretation principles e.g., Interpret ambiguities against drafter

Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage  Toy factory (7x garbage). “Use Must Be Reasonable Considering the Terms of the Grant”

Scope of Express Easements Generally Sample Blackletter Tests (S124) (2) “Evolutionary not Revolutionary” Changes Allowed. Focus on nature of change Is proposed use similar in method or purpose (water pails  pipes) Not really about speed of change (pails don’t morph into pipes) Q of Characterization: Fair to View as “Evolution”? Compare to Other Characterization Issues: FL Ldld-Tnt Statutes: Right to Cure List v. Immediate Evict List Use Like Ordinary nOwner of Simiular Property

Scope of Express Easements Generally Sample Blackletter Tests (S124) (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties” Look for change in burden on servient renement. Compare to what parties appear to have reasonably intended. Burden must be “significantly” greater to fail test.

Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage  Toy factory (7x garbage). (2) “Evolutionary not Revolutionary” Changes Allowed. (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”

Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = Big lot w small cottage  Toy factory (7x garbage). Other Relevant Concerns? 1. Want precision in language: Could punish S-acre for not making limits clear 2. Want people to disclose intent: Could punish elves if didn’t make plans clear 3. Check unequal bargaining power: a. Santa, Inc. v. little elves b. Keebler Elfin Toys & Cookies Intl v. poor old man 4. Check who drafted.

Review Problem 5C: Thursday EVERGLADES SEQUOIA (Arguments for R) (Arguments for J) Prepare Arguments Based on Three Blackletter Tests Noting Missing Facts Look for Additional Arguments from Cases

Scope of Easement: RR Easement  Recreational Trail Common Transition with Decline of RRs Federal statute encourages and gives RRs authority to transfer rights-of- way (no longer used for operating trains) to state/local govts for use as recreational trails. BUT fed’l stastute doesn’t purport to resolve whether these trails are allowable use of these rights-of-way (state law scope issue). We’ll compare Chevy Chase (MD 1999) to Preseault (Fed. Cir. 1996) (See P774-75 Note 2)

Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (DQ5.02) Start with Language of Grant (If no limits, presumption in favor of grantee’s desired use). Is Proposed Use of “Same Quality”/Consistent w Purpose? Check for Unreasonable Increase in Burden (“so substantial” that creates “a different servitude.”) Looks like slight variation on my three blackletter tests in same order.

Scope of Express Easements RR Easement  Recreational Trail (Language) Chevy Chase: Tests for Scope (Application to RR Easement) Start with Language of Grant “Primary Consideration” If no limits, presumption in favor of grantee’s desired use. Cf. “Use must be reasonable considering the terms of the grant”

Scope of Express Easements RR Easement  Recreational Trail (Language) Chevy Chase: Tests for Scope (Application to RR Easement) Start with Language: To RR, “its successors & assigns, a free and perpetual right of way.” Court’s Reading: No express limits (e.g., only to “RRs” or “freight RRs”) “Free & Perpetual” suggests “few, if any” limits contemplated; can change w evolving circumstances “Successors & Assigns” Means Transferability (Not Ltd. to RRs) Also suggests possibility of changing use.

Chevy Chase: Tests for Scope (Application to RR Easement) Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) Is Proposed Use of “Same Quality” (= Character or Nature) Consistent w Purpose & Reasonable Expectations? cf. “Evolution, not Revolution” Again, no need to show use specifically contemplated by parties NOTE: Common Distinction between “Purpose” and “Intent” Depends on Characterization of Purpose Lawyering Task/Game How do you Generalize from RR’s Normal Use?

Chevy Chase: Tests for Scope (Application to RR Easement) Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Hiking/Biking = Transport, so OK (+ Onomatopoeia ) Relies on Cases Broadly Reading Grants for “Public Highway” to Include New Types of Transport Analogy Seems Suspect: Could You Change RR Easement into Highway for Cars?

Chevy Chase: Tests for Scope (Application to RR Easement) Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Preseault: “Use by Commercial Entity as Part of its Business” Also a little questionable. Why prohibit trains run by gov’t or charitable org.? Examples of things that fit into this category that Could take place on a RR easement BUT Seem unlikely to be approved by a court?

Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose) Preseault: “Use by Comm’l Entity as Part of its Business” Court: Here, Individual Recreation, So Too Different Court: Hard to Believe w/in Contemplation of Parties MAF: BUT often true in changing technology cases that parties didn’t/couldn’t imagine exact scenario. Neither Chevy Chase nor Marcus Cable require this kind of foresight. If you want to use this idea on a test, make clear that it comes from Preseault and that many courts don’t agree.

Chevy Chase: Tests for Scope (Application to RR Easement) Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Preseault: “Use by Commercial Entity as Part of its Business” For You on Review Problem/Test Q: Try out two or more ways to characterize. Then discuss which characterization seems more convincing (& why)

Scope of Express Easements RR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) Unreasonable Increase in Burden Can’t be “so substantial” that creates “a different servitude.” Cf. “Burden must not be significantly greater than that contemplated by parties” Here: Trains  Hikers/Bikers

Scope of Express Easements RR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) Unreasonable Increase in Burden?: Chevy Chase says no: Says less burden than RR w/o specifying. Clearly big decrease in (i) noise & (ii) safety concerns. Court: “Self-Evident” that change “imposes no new burdens” (You need to do better on test in 2 ways). Court: Plus new use adds benefit to servient tenements (trail access) Idea seems to be that you can offset some/all of burden with benefits Preseault and Marcus Cable courts seem unlikely to agree.

Scope of Express Easements RR Easement  Recreational Trail (Burden) IMAGINATION EXERCISE (~5.02) Possible Increases in Burden? Everyone (but BADLANDS First)

Scope of Express Easements RR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) Possible Increases in Burden? Preseault: No limits on location, number, frequency of users No schedule (at whim of many individuals) Trains stay on tracks; hiker/bikers might wander off trail & trespass Other: privacy; litter; total time easement in use; crime Possible increase in insurance rates Possible overnighters/tent people If a back wall, maybe graffiti or posted ads

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?