1. PROPERTY D SLIDES 3-24-16 National Chocolate-Covered Raisin Day

2. Destiny’s Child: The Writing’s on the Wall (1999) Tuesday April 7: More Music to Accompany Chevy Chase Destiny’s Child: The Writing’s on the Wall (1999) NCAA Contest Entries Due by 4:30 Today Entries Due by 4:30 Today Can E-Mail or Hand In Hard Copy Can E-Mail or Hand In Hard Copy E-Version on Top of Course Page E-Version on Top of Course Page Hard Copy Forms on Front Table Hard Copy Forms on Front Table Watch Course Page this Weekend for Daily Standings Watch Course Page this Weekend for Daily Standings Future Important Dates FRI APR 1: Extendo-Class (7:55-9:45) Includes Course Selection Advice FRI APR 15: Extendo-Class (7:55-9:45) Closing Up Chapter 5 & Final Lecture SAT APR 16: Sample Exam Answer Due @ Noon (Optional: See Instructions on Course Page) TUE APR 19: Review Session @ Usual Class Time

3. Chapter 5: Easements 1.Introduction 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

4. Scope of Easement: RR Easement  Recreational Trail Common Transition with Decline of RRs Federal statute encourages and gives RRs authority to transfer rights-of-way BUT doesn’t purport to resolve state law issues re allowable scope after transfer We’ll compare Chevy Chase (MD) to Preseault (Fed. Cir. 1996) (P774-75 Note 2)

5. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (from Tuesday) – Start with Language of Grant (If no limits, presumption in favor of grantee’s desired use). – Is Proposed Use of “Same Quality”/Consistent w Purpose? – Check for Unreasonable Increase in Burden (“so substantial” that creates “a different servitude.”) Looks like slight variation on my three blackletter tests in same order.

6. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (from Tuesday) – Start with Language of Grant – Court reads very broad language to create no relevant limits (Pretty Clearly Correct) – Is Proposed Use of “Same Quality”/Consistent w Purpose? – Court says YES: “Forms of Transportation” (More Questionable)

7. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Preseault: “Use by Commercial Entity as Part of its Business” – Also a little questionable. – Unlikely to prohibit trains run by gov’t or charitable org. – Examples of things that fit into this category that – Could take place on a RR easement BUT – Seem unlikely to be approved by a court? + Nice Hales idea about delivery & other access to commercial properties

8. Scope of Express Easements RR Easement  Recreational Trail Preseault: “Use by Commercial Entity as Part of its Business” – Court: Here, Individual Recreation, So Too Different – Court: Hard to Believe w/in Contemplation of Parties – MAF: BUT often true in changing technology cases that parties didn’t/couldn’t imagine exact scenario. – If you want to use this idea on a test, make clear that it comes from Preseault and that many courts don’t agree.

9. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Preseault: “Use by Commercial Entity as Part of its Business” For You on Review Problem/Test Q: – Try out two or more ways to characterize. – Then discuss which characterization seems more convincing

10. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Unreasonable Increase in Burden Can’t be “so substantial” that creates “a different servitude.” Cf. “Burden must not be significantly greater than that contemplated by parties” Here: Trains  Hikers/Bikers

11. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Unreasonable Increase in Burden?: Chevy Chase says no: Says less burden than RR w/o specifying. Clearly big decrease in noise & safety concerns. Court: “Self-Evident” that change “imposes no new burdens” (You need to do better in 2 ways). Court: Plus new use adds benefit to servient tenements (trail access) Idea seems to be that you can offset some/all of burden with benefits Preseault and Marcus Cable courts seem unlikely to agree.

12. ACADIA: DQ5.02 Sunrise

13. Scope of Express Easements (For Thursday) RR Easement  Recreational Trail IMAGINATION EXERCISE (~5.02) Possible Increases in Burden? Everyone (but ACADIA First)

14. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) Possible Increases in Burden? Preseault: No limits on location, number, frequency of users No schedule (at whim of many individuals) Trains stay on tracks; hiker/bikers might wander off trail & trespass Other: privacy; litter; total time easement in use; crime Possible increase in insurance rates (Weisz) Possible overnighters/tent people (Hoffman) If a back wall, maybe graffiti (Writing’s on the Wall) or posted ads (Bills, Bills, Bills)

15. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) Unreasonable Increase in Burden? Hard Q: Primary Burdens Decrease Lots of New Smaller Ones Arise Hard to Weigh; Might Suggest Preseault is Correct That Should Fail “Same Quality” Test In determining “reasonableness” of burden, a generous court might also choose to weigh strong public policy behind hiker/biker trails against harms to servient owners. Qs on Chevy Chase?

16. 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? 

17. Scope of Express Easements: Change in Technology Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Marcus Cable (P776) & Cases Cited on P778: Development of Cable TV & Use of Easements for Electrical or Telephone Wires. What’s at Stake: Much Cheaper and Easier for Cable Co. to Negotiate One Deal with Telephone or Electric Co. Than to Negotiate New Easements Over Each Parcel Wires Might Cross.

18. Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis Start with language of grant o Give undefined terms ordinary meaning o Determine purposes of grant from language o Use can change to accommodate technological development, but must fall within original purposes as determined from terms of grant o Again, not necessary that proposed use was contemplated at time of grant

19. Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis Overlap with Blackletter Tests? i.“Use must be reasonable considering the terms of the grant” (Court employs) ii.“Evolutionary not revolutionary” changes allowed. (Maybe OK if w/in purposes as defined by language) iii.“Burden must not be significantly greater than that contemplated by parties” (No burden analysis in Marcus Cable, but court’s policy arguments suggest it might be relevant if burden increases.)

20. Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis 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

21. Scope of Express Easements: Change in Technology DQ5.03: 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

22. Scope of Express Easements: Change in Technology DQ5.03: 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?

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

24. 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.

25. 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.

26. 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 (but for dominant parcels) Can limit (to protect Servient Os) by saying, e.g., Use must be similar No great increase in burden

27. 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

28. 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?

29. Chapter 5: 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

30. 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

31. 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

32. Scope of Express Easements: Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View Vocabulary: “mesne conveyances” = intermediate transactions

33. BADLANDS: DQs 5.04-5.05 NORBECK PASS

34. Scope of Express Easements: Negative Easements DQ5.04 (Badlands): 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.D: Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

35. Scope of Express Easements: Negative Easements DQ5.04 (Badlands): D’s Arguments in Petersen 1.No view easement in California 2.D: 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)

36. Scope of Express Easements: Negative Easements DQ5.04: D’s Arguments in Petersen Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

37. Scope of Express Easements: Negative Easements DQ5.04 (Badlands): D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.D: Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s Response (& Evidence Supporting)?

38. Scope of Express Easements: Negative Easements DQ5.04 (Badlands): D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.D: 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

39. Scope of Express Easements: Negative Easements DQ5.04 (Badlands): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?

40. Scope of Express Easements: Negative Easements DQ5.04 (Badlands): 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)

41. Scope of Express Easements: Negative Easements DQ5.04: 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 Before Much TV News) If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One-on-One = Much Easier Than in Chevy Chase or Marcus Cable)

42. Scope of Express Easements: Negative Easements DQ5.05 (Badlands) : Why easier to determine the scope of a negative easement than that of a positive easement?

43. Scope of Express Easements: Negative Easements DQ5.05 (Badlands) : Why easier to determine the scope of a negative easement than that of a positive easement? Few line-drawing problems Negative: Bans anything that interferes w light or view v. Positive: Open to interpretation about allowable uses where language is broad or where technology changes Qs on Negative Easements

44. EVERGLADES: Review Problem 5C EGRET IN MANGROVE SWAMP

45. Review Problem 5C (S100) 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.

46. Review Problem 5C (S100) Everglades 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?

47. Rev. Prob. 5C (Everglades): 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 E-mt? For J: Dornfeld; Connor; Vaccaro (Alt: J.Roberts) For R: San Roman, Knox, Campa (Alt: Lindemann) Arguments/Missing Facts? 1.Re Language 2.Re Burden 3.Re “Quality” or Evolution/Revolution