PROPERTY A SLIDES 4-17-17 NATIONAL BAT APPRECIATION DAY NATIONAL HAIKU POETRY DAY Appreciate bats? I can do so quite deeply … When they are elsewhere.

CORRECTION: Chevy Chase @ P771 CORRECTION: Stoner @ P789 Music to Accompany Stoner: Scott Joplin, His Greatest Hits (Composed 1895-1917) Richard Zimmerman, Piano (Recorded 2006) CORRECTION: Chevy Chase @ P771 6th Line from Bottom: “dominant” should be “servient” CORRECTION: Stoner @ P789 Last Paragraph Line 5: “licensor” should be “licensee”

Fun with the English Language: Animals & Prepositions PROPERTY A: 4/17 MONday Pop Culture Moment Fun with the English Language: Animals & Prepositions

Animals & Prepositions HORSES are Very Different from MONKEYS … PROPERTY A: 4/17 MONday Pop Culture Moment Animals & Prepositions HORSES are Very Different from MONKEYS …

MONday Pop Culture Moment Animals & Prepositions PROPERTY A: 4/17 MONday Pop Culture Moment Animals & Prepositions So Why Is HORSING AROUND the Same as MONKEYING AROUND?

MONday Pop Culture Moment Animals & Prepositions PROPERTY A: 4/17 MONday Pop Culture Moment Animals & Prepositions And why is WOLFING DOWN the same as PIGGING OUT?

MONday Pop Culture Moment Animals & Prepositions: OUT-Takes PROPERTY A: 4/17 MONday Pop Culture Moment Animals & Prepositions: OUT-Takes The STOOL PIGEON Was Going to RAT OUT His Boss, BUT He …

PROPERTY A: 4/17 MONday Pop Culture Moment Animals & Prepositions: OUT-Takes The STOOL PIGEON Was Going to RAT OUT His Boss, BUT He CHICKENED OUT. WORMED OUT of it. BUGGED OUT. WEASELED OUT of it.

PROPERTY A: 4/17 Finally, The Goldilocks Proposition MONday Pop Culture Moment Animals & Prepositions Finally, The Goldilocks Proposition (Advice for the Home Stretch): A Careful Study of Human Nature…

PROPERTY A: 4/17 BEARS OUT That Sometimes The Only Way To BEAR UP MONday Pop Culture Moment Animals & Prepositions The Goldilocks Proposition: A Careful Study of Human Nature… BEARS OUT That Sometimes The Only Way To BEAR UP Is To BEAR DOWN

LOGISTICS No Office Hours Today I’ll Make Additional Time Available This Week; E-Mail for Appointments Friday Make-Up Class Usual Time & Place; We’ll Do Review Problems & Course Evaluations Second Window for Submitting Optional Sample Answers Open By End of Class Today, You’ll Have Material Needed for All Four Adverse Possession Options & Rev. Probs. 5G & 5J. All Submissions Due by Sunday @ 2 p.m. Preliminary Deadline for Feedback Before Classes End = Wednesday @ 11p.m. Look at Old Model Answers Before You Start If You Run Over Suggested Time, Note on Answer Where You Were at that Point

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

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

Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Easement-by Estoppel (2) Easement-by-Implication (3) Easement-by-Necessity (4) Easement-by-Prescription Helpful Ways to Think About Parties generally not trying to create implied easements. Can view each type as an after-the-fact legal result/remedy reached by a court after review of relevant facts. Similar situations may yield different type if facts change a bit. In rare cases, same facts will give rise to more than one type.

Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Easement-by Estoppel (2) Easement-by-Implication (3) Easement-by-Necessity (4) Easement-by-Prescription Helpful Ways to Think About Common Student Complaint: Hard to Keep Four Types Distinct No good way to present these but together in sequence Your job to organize info in a way that allows you to distinguish We’ll Do Recurring Sewage Pipe Hypothetical as Way to Compare All Four Types

Implied Easements: Sewage Pipe Hypothetical Developer builds line of houses. Same set of pipes connect all houses in line to city sewer system. Sewage from houses further from the city sewer passes under all houses in line that are closer to the sewer.

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer 

Implied Easements: Sewage Pipe Hypothetical Developer builds line of houses Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. Developer sells all houses in line, but creates no easements to allow flow of sewage along the line. Connected nature of sewage pipes not referenced in deeds and no notice provided orally.

SEWAGE PIPE HYPOTHETICAL: Example of Possible Issue: 6 5 4 3 2 1 To City Sewer  Lot #3 Being “Used” by Lots #4-6 to Dispose of Sewage. Use Discovered When Leak at #3 Yields Unexpected Quantity. Lot #3 Wants to Enjoin Use; #4-6 Claim Implied E-Mt.

Implied Easements: Sewage Pipe Hypothetical Developer builds line of houses Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. Developer sells all houses in line; creates no easements and provides no written or oral notice of connected nature of pipes. When can owners of houses further from sewer claim one or more types of implied easement? Particular variations on the facts will give rise to each type. For each type, we’ll revisit hypo to see similarities & differences in operation.

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

Easement-by-Estoppel Background: Licenses (Note 1 P791) LICENSE = Permission by owner for third party to use owner’s property. E.g., … Right to enter theater or ballpark with ticket. Come over & swim in my pool. Store your things in my house while your house is tented.

Easement-by-Estoppel Background: Licenses (Note 1 P791) LICENSE = Permission by owner for 3d party to use O’s land. License generally revocable by owner unless: Combined w Another Interest (E.g., Right to Pick Fruit = “Profit”) (See Note 5 P793) -OR- Easement-by-Estoppel (Some States but Not All)

Easement-by-Estoppel General Rule+ An owner may be estopped from barring a 2d party access to the owner’s property where The owner apparently allows 2d party to use the property (Apparent License) 2d party reasonably and detrimentally relies on this acquiescence

Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where The owner apparently allows 2d party to use the property (Apparent License) 2d party reasonably and detrimentally relies on this acquiescence Effect in States that Allow Easements-by-Estoppel is that License Becomes Unrevocable (See DuPont: “Unrevocable License”) Usually little debate about “Apparent License,” so existence of E- by-E usually turns on Reliance.

Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where The owner apparently allows 2d party to use the property (Apparent License) 2d party reasonably and detrimentally relies on this acquiescence This is a Default Rule because a clear statement by servient owner that E-by-E not intended precludes reasonable reliance.

OLYMPIC: DQs 5.06-5.07 EEL GLACIER

Oral Permission to Build Ditch Easement-by-Estoppel (Olympic) DQ5.06: Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch Reasonable?

Stoner: Reliance on Oral Permission to Build Ditch Easement-by-Estoppel (Olympic) DQ5.06: Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch Reasonable? P Presumably Aware of D’s Expenditures BUT Should D Get it in Writing Before Spending $$? Might explore more facts (nature of promise; extent of awareness of reliance; parties’ relationship, relative sophistication, etc.) Detrimental?

Stoner: Reliance on Oral Permission to Build Ditch Easement-by-Estoppel (Olympic) DQ5.06: Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch Detrimental? (Easier) DEFINITELY: $7000 in 19th Century money to construct ditch. MAYBE: Other missed opportunities (e.g., alternate forms of irrigation now more expensive to install).

Easement-by-Estoppel Reasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P792-93) Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Compare to Stoner re Reliance: AT&T: Clearer that parties intended easement rather than license b/c Explicitly in writing; AND Problems w deed arose only after Dominant O signed BUT AT&T = sophisticated party; should’ve known that deed was invalid & fixed (rather than relyuing on invalid document)

Easement-by-Estoppel Reasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P851) Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Mass SCt: No easement; AT&T should have known easement not properly created meaning they had a “mere license.” Essentially holds reliance by a sophisticated player was not reasonable under these circumstances.

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: “For so long a time as the nature of it calls for.” Means?

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: “For so long a time as the nature of it calls for.” Means? Restatement: Ends when reliance ends

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. Restatement: Ends when reliance ends . Easy Case: House Built in Reliance on Access Through Neighbor’s Driveway  E-by-E New Public Road Built Adjoining Dominant Tenement Creates Alternate Access Use of House No Longer Relies on Driveway; E-by-E Ends

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. Restatement: Ends when reliance ends . What might this mean for an irrigation ditch?

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for an irrigation ditch? So long as irrigation remains useful to Dominant Tenement? So long as no relatively cheap alternatives?

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for hypo in Note 4? House built in reliance on E-by-E burns down. Can owner rebuild?

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? House built in reliance on E-by-E burns down. Can O rebuild? See quote from Rerick in Stoner (bottom P790): “The right to rebuild [a mill] in the case of destruction or dilapidation and to continue the business on its original footing may have been in fact as necessary to his safety, and may have been an inducement of the particular investment in the first instance.”

Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick in Stoner (bottom P790). Could read to allow right to rebuild so long as mill is profitable Note that Stoner allows upkeep/maintenance of ditch BUT may turn on evidence of nature of reliance: Connection between safety and dilapidation Return on investment possible w/o rebuilding? (Check insurance $!!) QUESTIONS?

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  Danny buys Lot #2 from Stephen, Owner of Lot #1 (No House on #2 but Sewage Pipe in Place)

Easement-by-Estoppel Sewage Pipe Hypothetical Danny buys Lot #2 from Stephen, Owner of Lot #1 No House on #2 but Sewage Pipe in Place D makes clear he intends to build house on Lot #2 S doesn’t object to use of sewer line until after house on #2 is complete & connected. Assume no other easy way to connect to sewer. Is D’s Reliance on S’s Silence while House is Constructed Reasonable? If so, will yield E-by-E in states that allow

E-by-E (States Split on Allowing) DQ5 E-by-E (States Split on Allowing) DQ5.07: Some Relevant Policy Considerations E-by-E Gives Dominant Owner Property Rt of Indefinite Length w/o Signed Writing, So Raises… Policies Underlying Statute of Frauds Reasonableness of Reliance w/o Writing Equitable Considerations re Both Parties Fair for Servient O’s Failure to Object Yield Permanent Easement? BUT Fair to Stop Dominant O if Reasonable/Detrimental Reliance?

E-by-E (States Split on Allowing) DQ5 E-by-E (States Split on Allowing) DQ5.07: Some Relevant Policy Considerations How Should Neighbors Behave? (cf. Adv. Poss. Border Disputes) “Friend’s Word Shd Be Enough” (Don’t Normally Write Everything Down) v. “Get it in Writing” (Before You Spend $$) Should We Allow Only if Dominant O Pays Market Value (& Other Reqmts Met)? Would Be Forced Sale Like Eminent Domain No State Currently Does This Can Consider for Rev. Prob. 5J I won’t test on Bershader “Negative” E-by-E (P792 Note 2)

E-mts by Estoppel: Additional Work/Exam Prep You Now Can Do Rev Prob 5J as Sample Exam Q for 2d Window. Rev Prob 5I is sample only (never given, so no comments/best answers). Can do and bring me Qs. Qs testing two or more types of implied easements 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 NOTE: A short problem or section of an issue-spotter might test both Was there sufficient reliance to create E-by-E initially; AND If so, whether E-by-E terminated by changed circumstances.

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

Easement-by-Implication & Easement-by-Necessity: Overview Both Arise from Split of Larger Parcel Different Requirements Sometimes Same Facts Can Give Rise to Both.

Easement-by-Implication & Easement-by-Necessity: Overview Both Arise from Split of Larger Parcel; Different Requirements but Sometimes Same Facts Can Give Rise to Both E-by-I: Parties Intend that Prior Existing Use Should Continue (Textbook: “Easement Implied from Prior Use”) Look for Objective Evidence of Intent; Not Secret Subjective Belief (Like Scope Qs) Always Default Rule: Clear statement that it’s not intended precludes E-by-I .

Easement-by-Implication & Easement-by-Necessity: Overview Both Arise from Split of Larger Parcel; Different Requirements But Sometimes Same Facts Can Give Rise to Both E-by-I: Parties Intend that Prior Existing Use Should Continue Look for Objective Evidence of Intent; Not Secret Subjective Belief Default Rule: Clear statement that not intended precludes E-by-I . E-by-N: Split Creates Landlocked Parcel Needing Access Dispute among states/profs re whether based in public policy or (very generous notion of) intent (See Note 2 P800-01) Resolution of this dispute determines whether E-by-N is default rule or universal policy (See Rev Prob 5L).

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 part of evidence of intent

Easement-by-Necessity Elements One parcel is split in two Landlock: One resulting parcel is cut off from key access (e.g. to roads or sewer system) by the other resulting parcel (alone or in combination with parcels owned by 3d parties). At time parcels split, access necessary to enjoyment of landlocked parcel

Implied-by-Grant v. Implied-by-Reservation (See Note 5 P803) Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons Implied-by-Grant v. Implied-by-Reservation (See Note 5 P803) Degree of Necessity Notice (of Existence of Eassement) Termination

E-by-I & E-by-N: Implied-by-Grant v. Implied-by-Reservation Parcel split into Eastacre and Westacre. Prior Use = Driveway from House on Eastacre across Westacre to main road. Original owner sells East, retains West = by Grant (Claim in Dupont) Original owner sells West, retains East = by Reservation (Claim in Williams Island) Original Owner Simultaneously Sells Both to Different People = by Grant

E-by-I & E-by-N: Implied-by-Grant v. Implied-by-Reservation FL & Majority Rule (noted in Williams Island): No Difference Some states treat some elements of E-by-I or E- by-N more favorably if “by grant” than if “by reservation” Implied-by-Reservation seen as shady: “When I sold you the lot next door, I forgot to mention that I was going to keep using the path to the lake. Oops!”

Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons Implied-by-Grant v. Implied-by-Reservation Degree of Necessity Notice (of Existence of Eassement) Termination

E-by-I & E-by-N: Degree of Necessity EASEMENTS BY IMPLICATION: Some states: Evidence of intent, but not required. Most states: Reasonable necessity required. Some states (not FL): Strict necessity required if implied by reservation. EASEMENTS BY NECESSITY: Most states: Strict necessity Some Legal Tests/Examples for Reasonable & Strict Necessity in Cases and Note 3 (P801-02)

Notice (of Existence of Easement) Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons Implied-by-Grant v. Implied-by-Reservation Degree of Necessity Notice (of Existence of Easement) To Subsequent Purchasers (See Note 7 P804) At Time of Split (E-by-I Only) Termination

Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to continue easement if notice of its existence at time of purchase True for any Type of Implied Easement. Can be either Actual or Inquiry Notice. (Unlike Express Easements,) Usually won’t be notice from public land records b/c documents unlikely to refer to implied easement (but see Williams Island).

Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to continue easement if notice of its existence at time of purchase Actual Notice/Knowledge (Fact Q): Did buyer know about easement? Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? (cf. Common Tests for Open & Notorious) Often Sufficient: Path/road going to property line Courts sometimes stretch to find inquiry notice: Buyer should have been aware that pipes underground might connect, etc.

Easement-by-Implication: Notice Notice to Parties of Existence of Easement at Time of Split Legal Test Often Version of “Apparent, visible or reasonably discoverable” Some states treat as requirement Some states treat as evidence of intent Same kinds of evidence relevant as with notice to subsequent purchasers

Easement-by-Necessity: Notice Subsequent Purchasers of Servient Estate In theory, also need notice to bind. BUT Court finding the easement necessary for dominant estate to operate likely to be hesitant to find lack of notice. At Time of Split: Doesn’t Arise b/c Parties Should Be Aware that Newly Created Parcel is Landlocked

Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons Implied-by-Grant v. Implied-by-Reservation Degree of Necessity Notice (of Existence of Easement) Termination

Easement-by-Implication & Easement-by-Necessity: Termination Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S125) E-by-N: Ends if the necessity ends b/c created as a matter of policy to address necessity (See Note 4 P802) E-by-I: Does not end if the necessity ends. Created Based on Intent of Parties Necessity Often Just Evidence of Intent So Comparable to Express Easement; Change in Necessity Doesn’t Undo Express Agreement

ACADIA: Williams Island Sunrise

Easement-by-Implication (Acadia) Williams Island Use of Path Across Servient Tenement to Connect Two Holes of Golf Course One parcel Split in Two (Undisputed) Prior Use (Undisputed) Intent to continue prior use: Evidence?

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) Testimony: Intent of original parties & that when Williams purchased golf course, it was told that original owner of servient estate had agreed to easement References to “Easements” in Deed (but Not Specified) Overall Circumstances (incl. continual use) 4. Apparent, visible or reas. discoverable at time of split: Evidence?

Apparent, visible or reas. discoverable: 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: Paved; 9 feet wide; “in constant use” + references in deed

Easement-by-Implication (Acadia) Williams Island: Necessity Legal Standard Case requires Reasonable Necessity Some states would require Strict b/c by-Reservation Ct. (top P794): “No practical or safe alternative route.” Evidence?

Easement-by-Implication (Acadia) Williams Island: Necessity Legal Standard Case requires Reasonable Necessity Some states would require Strict b/c by-Reservation Ct. (P794): “No practical or safe alternative route.” Alternatives considered (P794 fn 1): Cross highway, travel 200 feet on sidewalk, cross highway again Backtrack along a substantial portion of the golf course to get around defendant’s tract Note: No discussion of possible renumbering or reconfiguration of course

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) Notice to Subsequent Purchasers: Evidence?

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) Notice to Subsequent Purchasers: Evidence? Actual: Buyer’s Rep Told 4 mos. Before Closing Inquiry: Well-Established Regular Use

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; 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?