PROPERTY A SLIDES

Friday April 17 Music (to Accompany MacDonald): Eagles, Hotel California (1976) featuring “The Last Resort” Today: Extendo-Class (7:55-9:45) Biscayne Critique of Rev. Prob. 6D Due 10am Second Sample Exam Q (Optional) Due Noon

PROPERTY A: 4/17 Fun with the English Language: Animals & Prepositions

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

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

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

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

PROPERTY A: 4/17 Animals & Prepositions: OUT-Takes The STOOL PIGEON Was Going to RAT OUT His Boss, BUT He a.CHICKENED OUT. b.WORMED OUT of it. c.BUGGED OUT. d.WEASELED OUT of it.

PROPERTY A: 4/17 Animals & Prepositions Finally, The Goldilocks Proposition: A Careful Study of Human Nature…

PROPERTY A: 4/17 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

Chapter 6: 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 (cont’d) c.By Prescription

SEWAGE PIPE HYPOTHETICAL: E-by-I Raised : Pipes in Use Before O Sells Separate Units. E-by-N Raised : Split Creates “Landlocked” Lot b/c Sewage Disposal Must Cross Anther Lot

Sewage Pipe Hypothetical Easement-by-Implication & Easement-by-Necessity: Sewage Pipe Hypothetical Notice Issues What constitutes notice of underground pipes? Actual Knowledge Courts tend to be generous re Inquiry Notice From any visible element (pipe ends; manhole covers) ( See Kirma cited in Williams P795) From need for utility service + no visible access

Sewage Pipe Hypothetical Easement-by-Implication & Easement-by-Necessity: Sewage Pipe Hypothetical Necessity Issues Is utilities access “Necessary”?: Cases split: Lot not worthless or landlocked (re physical access); usually possible to get utility service at some expense. BUT can’t use for many purposes without new expensive utility connection

Easement-by-Implication & Easement-by-Necessity: Sewage Pipe Hypothetical Necessity Issues Is utilities access “Necessary”?: Cases split Assuming some access to utilities is necessary, how expensive must alternatives be to meet tests? Drill through mountain ridge? Policy: Very inefficient to reroute utility service if existing pipes or wires (cf. Marcus Cable) Rev. Prob. 6I: We’ll Return to Sewage Pipe Hypo & Easements-by-Implication

Chapter 6: 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

SHENANDOAH: Easements-by- Prescription & DQ APPALACHIAN TRAIL

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

Elements Easement-by-Prescription Elements 1.[Actual] Use of Pathway 2.Open & Notorious 3.Continuous 4.Exclusive (Some Jurisdictions) 5.Adverse/Hostile

Redwood: [Actual] Use Easement-by-Prescription Redwood: [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.Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P817) 4.MacDonald (DQ6.09): What Meets?

Redwood: [Actual] Use Easement-by-Prescription Redwood: [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.Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P817) 4.MacDonald (DQ6.09): Golf Shots & Retrieval (Very Atypical!!!)

Redwood: Easement-by-Prescription Redwood: Open & Notorious & DQ6.10 (See P817) 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

Shenandoah: Easement-by-Prescription Shenandoah: Open & Notorious & DQ6.10 (See P817) Some States: Traditional Definition of O&N Some States: Require that Servient Owner Have Actual Knowledge (e.g., MacDonald) Policy Concerns Similar to Border Disputes; Don’t Necessarily Need O in Possession to Monitor Closely Evidence of Actual Knowledge in MacDonald (DQ6.10): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

Shenandoah: Easement-by-Prescription Shenandoah: Continuous (See P817) Obviously Doesn’t Need to be 24/7 for Whole SoL 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 (DQ6.09)? Evidence in MacDonald (DQ6.09)?

Shenandoah: Easement-by-Prescription Shenandoah: Continuous (See P817) 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 (DQ6.09): Evidence in MacDonald (DQ6.09): Golf Course in Use Through Whole Period & Golf Course in Use Through Whole Period & Steady # of Users End Up on Land in Q Steady # of Users End Up on Land in Q

Shenandoah: Easement-by-Prescription Shenandoah: Exclusive (See P818) 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: Reasonable to Assume Permission If: O in Possession of Servient Estate AND Use is Open & Notorious?

Easement-by-Prescription Adverse/Hostile & Presumptions 1.General Difficulty: Reasonable to Assume Permission If: O in Possession of Servient Estate AND Use is Open & Notorious? 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 3. Policy Q: What do you do with case like MacDonald or Dupont where visible use continues for a long time and then servient owner suddenly says no? Plausible to say permissive. Could create hybrid of prescription & estoppel: if use goes on long enough, servient owner can’t change mind.

Shenandoah: Easement-by-Prescription Shenandoah: Policy Questions DQ6.08. To what extent do the rationales for AP also support E-by-P? Clearly protect people and the legal system from being burdened with “stale” claims Ideas re Rest? (a) reward beneficial use of land (b) punish sleeping owners (c) recognize psychic connection to the land For you to consider & use to help decide close Qs.

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

Shenandoah: DQ6.11 Implied Easements Generally Shenandoah: DQ6.11 “The best justifications for granting an implied easement are reliance and need. Thus, if claimants cannot meet the elements of an Easement by Estoppel or of an Easement by Necessity, they should not be able to get a Prescriptive Easement unless they pay market value for it.” For you to think about. (Good-Bye to Shenandoahs)

YELLOWSTONE (DQ6.07) GIANT GEYSER

Policy Considerations (DQ6.07) Easement-by-Estoppel Policy Considerations (DQ6.07) Positive Easement-by-Estoppel as in Stoner or Dupont Yellowstones (& ALL): Last Names A-K: Allow Emt-by-Estoppel Last Names L-Z: Disallow Emt-by-Estoppel (or Allow Only if Compensation Paid)

Policy Considerations (DQ6.07) Easement-by-Estoppel Policy Considerations (DQ6.07) Negative Easement-by-Estoppel as in Berchamer (birders purchase house after assurance that neighboring lot would stay undeveloped) Yellowstones (& ALL): Last Names A-K: Allow Emt-by-Estoppel Last Names L-Z: Disallow Emt-by-Estoppel (or Allow Only if Compensation Paid) (Good-Bye to Yellowstones)

LOGISTICS: My Priorities Today  Last Class Note on Evaluations Post Today’s Slides & Info Memos on Chapters 3 and 5 Complete Feedback on 1 st Set of Sample Exam Answers I’ll You When Complete with Possible Times for Pick-Up Draft Exam Feedback on Second Set of Critiques (A Little Less Thorough) Start Feedback on 2d Set of Sample Exam Answers I’ll Update Status-of-Feedback at Top of Course Page as I Progress

BISCAYNE: Rev. Prob. 6I SUNRISE AT ADAMS KEY

Review Problem 6I (BISCAYNE) Easement-by-Implication Review Problem 6I (BISCAYNE) Quick Summary of Facts Webers own lot with 4 guest cottages connected to one set of pipes running one mile west, then across edge of lot to connect to municipal water & sewer lines. S purchases western part of lot including westernmost guest cottage. After the purchase, pipes from other 3 cottages (and connecting to S’s cottage and municipal water/sewer) continue to run under S’s part of lot.

SEWAGE PIPE HYPOTHETICAL  REV. PROB. 6I GC GC GC WsS GC E-by-I Raised : Pipes in Use Before Ws Sell Western Part to S

Review Problem 6I (BISCAYNE) Easement-by-Implication Review Problem 6I (BISCAYNE) Prepare Arguments for Each Party re 1.One parcel is split in two: YES 2.Prior Use (“Quasi-Easement”): YES 3.Intent to continue prior use? 4.*Apparent, visible or reasonably discoverable? 5.*Some degree of necessity? We’ll Do in Reverse Order

Review Problem 6I (BISCAYNE) Easement-by-Implication Review Problem 6I (BISCAYNE) Sufficient Necessity Extent of Necessity at Time of Split? Relevant Considerations? Sufficient to Meet Relevant Test? Arguments If “Reasonable Necessity”? Arguments If “Strict Necessity”? Why Might This Be Test?

Review Problem 6I (BISCAYNE) Easement-by-Implication Review Problem 6I (BISCAYNE) Apparent, Visible or Reasonably Discoverable (Notice) Actual Knowledge by S: Evidence/Arguments? Inquiry Notice to S: Evidence/Arguments?

Review Problem 6I (BISCAYNE) Easement-by-Implication Review Problem 6I (BISCAYNE) Intent to Continue Prior Use (at Time of Split) If both aware of pipes, probably intended (or atty S likely would have addressed before sale) If Webers aware but no notice to S, Maybe punish Ws by saying no Ws might claim they reasonably believed S knew If neither party aware? Hard to say intent as a factual matter BUT Court might be reluctant to punish Ws for mutual mistake. (Good-Bye to Biscaynes)

Review Problem 6L Review Problem 6L Implied Easements Generally B gets Prince-Acre in Great-Aunt K’s will; unmonitored for years HARM Law Firm Claims to have sold Prince-Acre to K’s Husband with Understanding that Could Continue to Use Existing Roads from Building across Prince-Acre to main streets.

Review Problem 6L (Redwood) Review Problem 6L (Redwood) Easement-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 (Apparent License) 2.2d party reasonably and detrimentally relies on this acquiescence