MUSIC: The Dinah Washington Story (Disc Two: Recordings ) Fleetwood Mac Critiques: Put Hard Copy on Front Table (if not already ed to me) Corrections to Textbook P830 line 9: “dominant” should be “servient” P848 2d para. line 4: “licensor” should be “licensee”

SCOPE OF EASEMENT ISSUE Parties in long term relationship governed by terms of original agreement. Changing circumstances make change desirable (parties always can bargain) Strict adherence to original terms yields certainty for servient owners Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs & expectations (especially re maximizing property value)

DQ103: Marcus Cable and the Blackletter Tests 1.Reasonable Considering Terms of Grant: Case essentially uses 2.Evolution Not Revolution: A couple of additional wires probably OK. 3.Burden Not Greater Than Parties Contemplated: Increase in burden probably trivial Focus on #1 = choosing certainty for servient owner over flexibility & maximizing value of dominant estate

DQ104: Relocation Inverse of usual scope problem: Changing circumstances make servient owner want to shift the location of the easement. Could disallow because inconsistent with specific description of location (certainty for dominant owner) Could treat flexibly and allow if no significant harm to dominant owner (minimize economic harm to servient estate)

NEGATIVE EASEMENTS Agreement not to use servient estate in any way that causes specific type of harm to dominant estate Limited # of harms can be protected this way. –Access to Light & Air –Access to View –Unimpeded flow of artificial stream –Extra lateral or subjacent support Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate

Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View FLEETWOOD MAC

DQ105: P’s Arguments 1.P may have argued no such thing as a view easement in California. Court says weight of authority supports existence of view easements Need to check in each jurisdiction for list of recognized negative easements

DQ105: P’s Arguments 1.No view easement in California. 2.Parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

DQ105: P’s Arguments 1.No view easement in California. 2.Parties could not have intended to ban TV antennas 3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s response?

DQ105: P’s Arguments 1.No view easement in California. 2.Parties could not have intended to ban TV antennas 3.Antenna doesn’t block light & view. 4.Potential argument: Burden much greater than contemplated by parties. Can you elaborate?

DQ105: P’s Arguments 1.No view easement in California. 2.Parties could not have intended to ban TV antennas 3.Antenna doesn’t block light & view. 4.Potential argument: Burden much greater than contemplated by parties. Court’s likely response?

DQ106. Why is it easier to determine the scope of a negative easement than that of a positive easement?

PREP POINTS FOR WED. 4/11 Review Problem A (Santa & Elves) –Led Zeppelin Argument/Beatles Critique –Judges from Other Panels –Focus on 3 Blackletter Tests Review Problem B (Satellite Dish) –Supremes Argument/Grateful Dead Critique –Judges from Other Panels –Focus on Chevy Chase, Marcus Cable & Note Cases as Persuasive Authority Recording Acts: DQ113 ALL

Easements by Estoppel An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property 2.2d party reasonably and detrimentally relies on this acquiescence

Easements by Estoppel An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property 2.2d party reasonably and detrimentally relies on this acquiescence Was the D’s reliance on the oral promise in Stoner reasonable? Was it detrimental?

Policy Arguments re Easements by Estoppel Common Concerns include Doctrine undermines the Statute of Frauds Claimants should make sure of legal rights before relying on mere license. Neighbors don’t typically commit all arrangements to signed writings.

Policy Arguments re Easements by Estoppel DQ108 & Note 2: Should states allow Easements by Estoppel …? Whenever there’s reasonable and detrimental reliance; Only after compensation paid; –OR– Never

Policy Arguments re Easements by Estoppel Note 3: Nelson v. AT&T: Stronger or weaker case than Stoner for granting Easement by Estoppel?

Note 4: How Long Does an Easement by Estoppel Last? Stoner: “For so long a time as the nature of it calls for.” What does this mean … For an irrigation ditch?

Note 4: How Long Does an Easement by Estoppel Last? Stoner: “For so long a time as the nature of it calls for.” What does this mean … In the hypo in Note 4: House built in reliance on use of right of way, which created EbyE. House burns down. Can it be rebuilt using that right of way?

EASEMENTS BY IMPLICATION & NECESSITY featuring EAGLES

EASEMENTS BY IMPLICATION: 1.One parcel is split in two 2.Prior use of of one part of parcel for benefit of another part (Quasi-Easement) 3.Circumstances suggest parties intended to continue the use of the prior pathway after the split –Williams Island: Permanent Use Intended –Restatement: Long list of relevant considerations including terms of conveyance, consideration paid, etc.

EASEMENTS BY IMPLICATION: 1.One parcel is split in two 2.Prior use 3.Intent to continue prior use 4.*Apparent, visible or reasonably discoverable at severence 5.*Some degree of necessity at severence Usually reasonable necessity Some states: strict necessity if implied by reservation 6.Need notice to bind subsequent purchasers * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

EASEMENTS BY NECESSITY: 1.One parcel is split in two 2.One of the resulting parcels is cut off from key access (e.g. to roads) by the other parcel or by the other parcel in combination with parcels owned by 3d parties. 3.At the time the parcels are split, the access is necessary to the enjoyment of the landlocked parcel (most jurisdictions require strict necessity)

Questions on Necessity Note 3: Was there reasonable necessity in Williams Island? Alternatives (from note 1 on P853): –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

Questions on Necessity Note 3: Should lack of access to utilities meet the strict necessity test?

Questions on Necessity Is the majority’s analysis of necessity in Dupont more convincing than that of the dissent?

A Little More Doctrine Easements by Necessity end when the necessity ends; Easements by Implication do not (because based entirely in intent) Courts almost always hold that negative easements can’t be implied by implication or by necessity. Penn case cited in Note 4 is very rare in even considering. Some states have private condemnation statutes like those described in Note 8.

Last Eagles Q: Note 8 Suppose a state uses its eminent domain power to condemn easements to provide access to landlocked parcels and has the owner of the landlocked parcel pay for the easement. Does this use of Eminent Domain meet the public use requirement?

EASEMENTS BY PRESCRIPTION featuring TEMPTATIONS

EASEMENTS BY PRESCRIPTION 109. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements? (a) reward beneficial use of land (b) punish sleeping owners (c) recognize psychic connection to the land (d) protect people and the legal system from being burdened with “stale” claims

COURSE ADVICE 1.Becoming a Well-Rounded Lawyer 2.Resume Management 3.Taking Care of Yourself

Becoming a Well-Rounded Lawyer Administrative Law: Business Associations: Evidence: Federal Income Tax I: Substantive Criminal Law: Trusts & Estates: U.S. Constitutional Law II: At Least One Comparative/International Course (E.g., International Law, Comparative Law and International Business Transactions) At Least One Course Addressing a Complex Statute: (E.g., Commercial Law, Bankruptcy and Environmental Law)

Becoming a Well-Rounded Lawyer The Bar Exam: Becoming a Practicing Lawyer

RESUME MANAGEMENT Preparing for a Specialty Area Putting Yourself in the Best Light –Alternate Forms of Evaluation Writing Papers Lawyering Skills –Schedules That Facilitate Your Doing Well

TAKING CARE OF YOURSELF Balance in Course Selection Comfortable Daily/Weekly Schedule Choose Professors Rather Than Course Titles