PROPERTY A SLIDES

Friday April 10 Music (to Accompany Stoner v. Zucker): Scott Joplin, His Greatest Hits (Composed ) Richard Zimmerman, Piano (Recorded 2006) REDWOOD Critique of Review Problem 5H Due 10:00 a.m.

APPROACHING COURSE SELECTION

COURSE SELECTION: PREPARATION Become Familiar with Registration Procedures Especially Wait List (Ask Qs!!) Become Familiar with Graduation Requirements Read Course Descriptions Talk to People re Courses & Profs (including Me after class & in Office Hours)

COURSE SELECTION: 2L FALL SEMESTER Not Sophomore Year in College No Need to Get All “Basic Courses” Out of the Way Early No Need to Take Especially Heavy Load Some of You Won’t Get Everything You Want 3Ls Will Fill or Nearly Fill Some Classes Later 2L Slots Have Fewer Options Check in Advance & Prepare Alternatives

COURSE SELECTION: HOW TO CHOOSE 1.Becoming a Well-Rounded Lawyer 2.Resume Management 3.Taking Care of Yourself

Becoming a Well-Rounded Lawyer Administrative Law: Business Associations: Evidence: (also flexibility re Litigation Skills; Profs) Federal Income Tax I: Substantive Criminal Law: Trusts & Estates: U.S. Constitutional Law II: At Least One Comparative/International Course (E.g., European Union, International Law, Comparative Law, Doing Business in Latin America) Housing Discrimination At Least One Course Addressing a Complex Statute: (E.g., Bankruptcy, Commercial Law, Copyright, Environmental Law, Employment or Housing Discrimination, Immigration, Labor Law, Patent Law)

Becoming a Well-Rounded Lawyer The Bar Exam: Becoming a Practicing Lawyer Multiple Studies Here Find Essentially No Correlation Between Courses Taken and Bar Passage Bar Review Courses Will Give You Version You Need for Bar Probably Mildly Helpful to Have Had the Material Before Matters Less the Better You Are at Law School Exams

RESUME MANAGEMENT Preparing for a Specialty Area Not a College Major Check Lists On Registrar’s Page Talk to Faculty in Area Putting Yourself in the Best Light

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 During Semester Four or More Exams in December

TAKING CARE OF YOURSELF Balance in Course Selection # of Exams or Papers Likely Size of Classes One Subject You Really Want to Take Comfortable Daily/Weekly Schedule Choose Professors Rather Than Course Titles

FINAL POINT

NOT FINAL POINT: Registration is NOT a Crucial Turning Point in Your Life You are Picking One Set of Elective Classes Three More Opportunities to Fill in Gaps You’ve Done This Before Employers Care Much Less Than You’d Imagine

FINAL POINT: Registration is Not a Crucial Turning Point in Your Life You are Picking One Set of Elective Classes Three More Opportunities to Fill in Gaps You’ve Done This Before Employers Care Much Less Than You’d Imagine Not a Fork But a Spoon

Chapter 6: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements i. Positive Easements (continued) ii.Negative Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

Scope of Express Easements Change in Technology Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Carry Water  Water Pipes? Use Road on Foot/Horse  Automobiles? 

Scope of Express Easements: Change in Technology DQ6.03: Marcus Cable Majority Analysis (from yesterday) Language: “electric transmission or distribution line or system.” Majority: Cable TV not w/in Ordinary Meaning Distinguishes cases where “electric + telephone” Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility) Note majority doesn’t endorse these cases, just distinguishes

Scope of Express Easements: Change in Technology DQ6.03: Marcus Cable Analysis Language: “electric transmission or distribution line or system.” Majority: Cable TV not w/in Ordinary Meaning Dissent: w/in language in two ways Literally (as technical matter) As language has come to be understood w tech. changes

Scope of Express Easements: Change in Technology DQ6.03: Applying Blackletter Tests to Marcus Cable Facts “Evolutionary not revolutionary” changes allowed?  Couple more wires unlikely to be “revolutionary.” “Burden must not be significantly greater than that contemplated by parties”?  Probably trivial increase in burden. Probably Why Many Courts Agree with Dissent on this Issue. Qs on Marcus Cable?

Scope of Express Easements: What’s at Stake? Policy Considerations Relevant to Deciding Disputed Scope Qs

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement. Changing circumstances make change desirable (at least for one party). Parties always could bargain for new agreement, but administrative costs may be very high, especially when large number of parcels affected by similar easements as in both cases we’re looking at.

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Helps protect their property value. Marcus Cable majority position.

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change better meets dominant owners’ needs & expectations Again, helps maximize property value Can limit (to protect Servient Os) by saying, e.g., Use must be similar No great increase in burden

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs Might consider desire to promote valuable new technology. E.g., Cable TV to rural areas Like early internet no-tax subsidy Arguably similar: Promoting hiker/biker trails

Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs Might wish to promote valuable new technology. Questions?

Review Problem 6B (S147): Tuesday April 14 Redwood: In-Class Arguments for P Mike Biscayne: In-Class Arguments for D Debbie Critique: Yellowstone Arguments/Missing Facts? 1.If Marcus Cable is Binding Precedent 2.If Chevy Chase is Binding Precedent

Review Problem 6D (S148): Thursday April 16 Redwood: In-Class Arguments for P Andy Yellowstone: In-Class Arguments for D Gudridge Academy Biscayne: Critique Arguments/Missing Facts Using the Three Blackletter Tests

DF Sessions: Today and Tuesday Review Problem 6F (2014 Short Scope Problem) & Review Problem 6G (Lawyering Scope Problem)

YELLOWSTONE: Review Problem 6C GIANT GEYSER

Review Problem 6C (S148) Yellowstone Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. Originally used for jogging & automobile access to Highway. J moves onto Carr-Acre with her horse DD Rides horse on easement every morning Sometimes rides horse to Highway to run errands in nearest village Can R (owner of Rhodes-acre) prevent J from riding horse on easement?

Rev. Prob. 6C (Yellowstone): Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. Can R (owner of Rhodes-acre) prevent J from riding horse on easement? For J: McGee; Gross; Garcia (Alt: Gillum) For R: Manimalethu, Kim, Stone (Alt: Ortega) Arguments/Missing Facts? 1.Re Language 2.Re Burden 3.Re “Quality” or Evolution/Revolution

Chapter 6: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements i.Positive Easements ii.Negative Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

Scope of Express Easements: Negative Easements Negative Easement = 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. E.g., Access to Light & Air; Access to View; Unimpeded Flow of Artificial Stream States Vary on Which They Allow

Scope of Express Easements: Negative Easements Negative Easement = 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. Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate

Scope of Express Easements: Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View Cf. Ricky Nelson & New Roles of Television

REDWOOD: DQs REDWOODS & FERNS

Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.D may have argued, “No such thing as a view easement in Calif.” Court says weight of authority supports existence of view easements. Note for You: Need to check in each jurisdiction for list of recognized negative easements. 2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.No view easement in California 2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown) Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View Cf. 16 Foot Tall Statue of Jackie Robinson (in 1942 also still unknown)

Scope of Express Easements: Negative Easements DQ6.04: D’s Arguments in Petersen Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s Response (& Evidence Supporting)?

Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court: Fact Q implicitly decided below Reviewing Injunction, so Defer to Trial Court Supporting Evidence: Size & nature of obstruction; Lesser rental value b/c of antenna

Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?

Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden Pre-Cable TV Reception in SF Not Good Relative Importance of TV (Public Policy re Access to Information)

Scope of Express Easements: Negative Easements DQ6.04: D’s Arguments in Petersen Burden on D Greater than Contemplated? Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden Court’s Likely Responses TV Not That Important (Especially in 1958) If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One- on-One = Much Easier Than Chevy Chase or Marcus Cable)

Scope of Express Easements: Negative Easements DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement?

Scope of Express Easements: Negative Easements DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement? Few line-drawing problems Bans anything that interferes w light or view v. Open to interpretation about allowable uses where language is broad or where technology changes Qs on Negative Easements