4-10-19 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY PROPERTY B SLIDES 4-10-19 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY

Music to Accompany Devins & DQ4 Music to Accompany Devins & DQ4.22 (Covered Friday): Bette Midler, Experience the Divine (1993) featuring “From a Distance” 1991 Grammy for Best Adult Contemporary Recrd 2D SAMPLE SUBMISSION WINDOW OPEN Last Few DF Sessions: Rev Prob 4F (Exclusive) Today @ 9:40 (Lauren) Review Problem 4M (Lauren: AP Lawyering): This Fri & Wed 4/17 Review Problem 5G (Brendan: Short Easement Prob) Mon 4/15 & Fri 4/19 Fri. Assmts (Sorry for Posting Delays) I’ll Finish State of Mind & Misc Issues Sequoia (A-K) Boundary Disputes & 2.22a Rest of DQ2.22 Badlands/ Olympic/ Everglades (See Course Page for Details) Finish Intro to Chapter 5 Scope of Easement Cases: SEQUOIA L-Z

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

Chapter 5: Easements Introduction Terminology Overview of Chapter 5 (+ Comparison to Others) (I’ll Do Friday) Interpreting Language Easement v. Fee (NOTIO in 2019) Scope of Express Easements Implied Easements By Estoppel By Implication and/or Necessity By Prescription (NOTIO in 2019)

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 5: Easements Interpreting Language Easement v. Fee Introduction Interpreting Language Easement v. Fee (NOTIO in 2019; BUT Useful to Work Through) Scope of Express Easements Implied Easements By Estoppel By Implication and/or Necessity By Prescription (NOTIO in 2019)

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 of the parties should bear a 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 (S141) “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: Scope of Positive Easements 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 (

ACADIA: Rev Prob 5A Acadia Sunrise

Intro to Scope of Easements ACADIA: 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).

ACADIA: 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 (S141) (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

ACADIA: 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 (S141) (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 Similar Property

Scope of Express Easements Generally Sample Blackletter Tests (S141) (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.

BADLANDS: Review Problem 4C NORBECK PASS

BADLANDS for Monday: Review Problem 4C Opinion Dissent Q from Spring 2016 What Should O&N Rule Be for Underground AP? Lower Courts Identify 3 Possible Rules/Tests: Be Prepared to Argue Pros & Cons of Your Rule Assume Test Must Be Met for Whole AP Period Assignments by Last Name A-E: Traditional O&N F-PI: Sensory Traces on Surface (Duty to Inquire for Reasonable OO) PO-Z: Marengo Rule

BADLANDS: Review Problem 4C Opinion Dissent Q from Spring 2016 What Should O&N Rule Be for Underground AP? Lower Courts Identify 3 Possible Rules: BADLANDS Groups each to Argue Pros & Cons of One Rule Procedural Posture of Case Means No Need to Apply Rules to Facts/Allegations in Case Primary Task is Identifying and Defending Choice of Rule Can Use Story as Example of Why Rules are Good or Bad

BADLANDS: Rev. Prob.4C: Pros & Cons of Specific Rules Rule from Marengo Caves : Claimant of Underground Property Must Show that, for the Entire AP Period, OO had Actual Knowledge of Claimant’s Use of the Property. (Not Alleged in Case) Pros ? Cons (Generally or Compared to Other Options)? (Last Names PO-Z)

BADLANDS : Rev. Prob.4C: Pros & Cons of Specific Rules Ordinary O&N Rule Claimant of Underground Property Must Show that, for the Entire AP Period, an OO Standing in the Claimed Area Should Be Made Aware of Claimant’s Use of the Property. (Alleged and Presumably Easily Met in Case) Pros? Cons (Generally or Compared to Other Options)? (Last Names A-E)

BADLANDS : Rev. Prob.4C: Pros & Cons of Specific Rules Concurrence’s Sensory Traces Rule Claimant of Underground Property Must Show, for Entire AP Period: Either Actual Knowledge by the OO (Not Alleged) OR that the underground possession created traces such as noise, smoke, smells, light or vibrations that could be sensed by humans on the surface of the OO’s lot sufficient to create a duty to inquire in a “reasonably prudent person.” (Roughly Alleged in Complaint) Pros & Cons? (Last Names F-PI)

BADLANDS : Rev. Prob.4C: Pros & Cons of Specific Rules Concurrence’s Sensory Traces Rule Claimant of Underground Property Must Show, for Entire AP Period: Either Actual Knowledge by the OO (Not Alleged) OR that the underground possession created traces such as noise, smoke, smells, light or vibrations that could be sensed by humans on the surface of the OO’s lot sufficient to create a duty to inquire in a “reasonably prudent person.” (Roughly Alleged in Complaint) Pros? Cons (Generally or Compared to Other Options)? (Last Names F-PI)

OLYMPIC: Rev Prob 4I EEL GLACIER

Review Problem 4I: “Continuous” Element OLYMPIC Last Names KO-Z (for APor M) Last Names A-KL (for OO) M Resided in House with Color of Title for Most of 10Y Statutory Period Absent 5 Mos. Undergoing Rehab for Physical Injury While M Away: Utilities & Mail Service Stopped M’s Friend David watered plants every 2-3 weeks M asked David to Feed Cat at M’s House; Instead David Took Cat to Own Home

Olympic: Review Problem 4H Last Names KO-Z (for APor M) Last Names A-KL (for OO) Arguments/Missing Facts [Quick Aside: Exam Note re Different Types of Issues] Should the Five-Month Interruption for Medical Emergency in Problem Break Continuity? (Why or Why Not?) Assuming Five Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the Five Months M Was Away to Retain Continuity? (Ray Analysis) What is the Legal Significance of D not doing what M asked? (i.e., should M get credit for what she asked D to do or only for what he actually did?)