LOGISTICS & SCHEDULE Thursday: Final Class (No Slides; May Run Long) Friday: No Class – Info Memo on Chapter 7 Posted – Office Hours 2-6 Saturday Apr 27 – Office Hours 2-6 – Optional Sample Exam Answers 9pm Thursday May 2: Office Hours 2-6 Thursday May 2: Office Hours 2-6 Tuesday May 7: Tuesday May 7: – Office Hours 2-6 – Review 7pm Room F309 (Will Be Taped)

Chapter 7: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

Easement-by-Prescription Generally 1.Easement Created by Particular Use of Another’s Land for Adverse Possession Period 2.Need to Show Adverse Possession Elements (with Some Variations in Some States) 3.We’ll Look at Elements Individually

[Actual] Use Easement-by-Prescription [Actual] Use 1.Not listed as separate element in MacDonald but there must be some kind of use 2.Usually Straightforward; Use of, e.g., Path or Driveway 3.MacDonald (DQ115): Golf Shots & Retrieval 4.Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger Adv. Poss. Claim Instead of E-by-P (See Note 3 P876-77)

Easement-by-Prescription Continuous (See P877) 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 (DQ115): Golf Course in Use Through Whole Period & Steady # of Users End Up on Land in Q

Easement-by-Prescription Open & Notorious & DQ116 (See P877) 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 Some States: Need Actual Notice

SEWAGE PIPE HYPOTHETICAL: E-by-P Raised: Use of Pipes by More Distant Users for Adv. Poss. Period; Likely Qs re Open & Notorious, Exclusive

Easement-by-Prescription Open & Notorious & DQ116 (See P877) Some States: Traditional Definition of O&N Some States: Require that Servient Owner Have Actual Notice (e.g., MacDonald) – Policy Concerns Similar to Border Disputes; Don’t Necessarily Need O in Possession to Monitor Closely – Evidence of Actual Notice in MacDonald (DQ115): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

Easement-by-Prescription Exclusive (See P877-78) Many Jurisdictions Don’t Require – Sensible: Nature of Easement is Non-Exclusive Use – MacDonald doesn’t list as element Some: Means Exclusive of Everyone but Owner Some (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 1.General Difficulty: If O in Possession & Use is Open & Notorious, Reasonable to Assume Permission? 2.Presumptions frequently decide cases because 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 Policy Q: What do you do with case like MacDonald or Dupont where use continues for a long time and then servient owner says no? (plausible to say permissive) Could create hybrid of prescription & estoppel: if use goes on long enough, can’t change your mind.

Easement-by-Prescription Policy Questions DQ114. To what extent do the rationales for Adv. Poss. also support E-by-P? Clearly protect people and the legal system from being burdened with “stale” claims For you to consider & use to help decide close Qs: (a) reward beneficial use of land (b) punish sleeping owners (c) recognize psychic connection to the land

Review Problems 7A-7B GLACIER: For Santa & Mike OLYMPIC: For Elves & Debbie

Review Problem 7A: Glacier for Santa; Olympic for Elves “E’s owners shall have the right to cross S 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 7A: Glacier for Santa; Olympic for Elves “E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump” Cottage on E  Toy Factory (7x Garbage) Reasonable considering terms of grant?

Review Problem 7A: Glacier for Santa; Olympic for Elves “E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump” Cottage on E  Toy Factory (7x Garbage) Missing/Ambiguous Facts re: Extent of Burden on S Evolution v. Revolution

Review Problem 7A: Glacier for Santa; Olympic for Elves “E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump” Cottage on E  Toy Factory (7x Garbage) Missing/Ambiguous Facts re: Circumstances Surrounding Transaction

Review Problem 7B: Glacier for Mike; Olympic for Debbie “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow [TV] reception for that property.” Time of Grant (1962): – Mike gets poor TV reception b/c of valley location – Debbie owns neighboring ranch above M’s land – Antenna installed; reception still not good; no cable TV 2007: Can M replace antenna w satellite dish?

Review Problem 7B: Glacier for Mike; Olympic for Debbie 1962: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow [TV] reception for that property.” 2007: Can M replace antenna w satellite dish? Arguments from Marcus Cable?

Review Problem 7B: Glacier for Mike; Olympic for Debbie 1962: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow [TV] reception for that property.” 2007: Can M replace antenna w satellite dish? Arguments underChevy Chase? (Missing/Ambiguous Facts?)

Common Scope of Easement Issues Arguably w/in Very Broad Language, but Significant Change (7A & Chevy Chase) Arguably Not w/in Language, but Trivial Increase in Burden (7B & Marcus Cable)

YOSEMITE: Rev. Prob. 7E HALF DOME

YOSEMITE: Rev. Prob. 7E Express Easement in force that allows oil workers to cross roads on your client’s land to access oil wells on neighboring ranch. Used in past to service wells that have since stopped producing. Factual & Legal Research Needed to See if Use re Newly Discovered Well is Within Scope of Easement?