1. 4-13-17 NATIONAL PEACH COBBLER DAY
PROPERTY A SLIDES
NATIONAL PEACH COBBLER DAY

2. Music to Accompany Petersen Ricky Nelson (Self-Titled 1958)
I Will Post on Course Page after DF Today:
New Version of Info Memo #4 (Ch. 4) (w Write-Up of 4J)
Initial Version of Info Memo #5 (Chapter 5) Including
Student Qs & My Answers re Express Easements
Write-Ups for Rev. Probs. 5A-5C & 5E
Updates on Comments/Best Answers for:
2014 Exam (including Problem IIc = Rev. Problem 5F )
Sample Lawyering Qs (including Q 1Sb = Rev. Prob. 4L)

3. Chapter 5: Easements Interpreting Language: Scope of Express Easements
Introduction
Interpreting Language: Scope of Express Easements
Positive Easements (Cont’d)
NegativeEasements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription

4. Interpreting Language: Scope of Express Easements
“Scope” is the Central Testable Issue for Express Easements
Is new/additional use proposed by dominant tenement-holder allowed?
Legal dispute often arises with changed circumstances.
Generally interpret scope issues like contracts
3 Relevant Considerations (Blackletter Tests/Chevy Chase)
Language of Grant
Continuity of Purpose
Ev/Rev or Chevy Chase ”Quality”
Characterization Q (“transportation” v. “commercial business” purpose)
Increase in Burden on Servient Estate (Can’t be Significant)

5. Scope of Express Easements RR Easement  Recreational Trail (Burden)
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?

6. 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? 

7. 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: Growth/ Development of Cable TV & Desire to Use Existing Easements for Electrical or Telephone Wires to Place New Cable 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.

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

9. Scope of Express Easements: Change in Technology
DQ5.03: Marcus Cable Majority Analysis
Overlap with Blackletter Tests?
“Use must be reasonable considering the terms of the grant” (Court employs)
“Evolutionary not revolutionary” changes allowed. (Maybe OK IF w/in purposes as defined by language).
“Burden must not be significantly greater than that contemplated by parties”
No burden analysis in Marcus Cable.
BUT court’s policy arguments re protecting servient owner suggest increase in burden should be relevant.

10. 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 (so neither covered literally nor within stated purpose).
Distinguishes cases where “electric + telephone”
Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility)
Note Marcus majority doesn’t endorse these cases, just distinguishes

11. 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)
W/in ordinary meaning as language has come to be understood w tech. changes

12. 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 most courts agree with Dissent that ok to include cable wires in electric/telephone easements.
Qs on Marcus Cable?

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

14. 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.

15. Scope of Express Easements: What’s at Stake?
Parties in long term relationship governed by terms of original agreement.
If dispute occurs relatively soon after original agreement (like 5A: Santa v. Elves), can look at surrounding circumstances to supplement language as way to get at meaning of agreement:
Was desire for proposed use known or reasonably foreseeable?
Who drafted language?
Does price seem to reflect a broader or narrower view of easement? (nice Monteiro idea)

16. Scope of Express Easements: What’s at Stake?
Parties in long term relationship governed by terms of original agreement.
If dispute occurs relatively soon after original agreement (like 5A: Santa v. Elves), can look at surrounding circumstances:
As decades pass, those circumstances matter less and less:
Often precise proposed use not really foreseeable.
When RRs expanding, hard to predict extent of eventual decline.
Rapid spread of telephone & electric wires predates TV (let alone cable).
Successors on both sides rely increasingly on language.

17. 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.
Usually will have knowledge of terms of easement from land records/title search (part of purchase process)

18. 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
Helps maximize property value (for dominant parcels), e.g., by allowing continuation of services/access with new technology
Can limit (to protect Servient Os) by saying, e.g.,
Use must be similar
No great increase in burden

19. 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
In close cases, might consider supporting important new technology or innovative land use that may provide significant public benefits.
Like early internet no-tax subsidy
E.g., Getting Cable TV to rural areas
E.g., arguably Chevy Chase: Promoting hiker/biker trails

20. 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 support valuable technology/land use.
Questions?

21. Review Problem 5C EVERGLADES SEQUOIA (Arguments for R) (Arguments for J)
EGRET IN MANGROVE SWAMP SEQUOIAS

22. 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.

23. Review Problem 5C (S100) Everglades for R Sequoia for J
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?

24. Arguments/Missing Facts re Burden
Rev. Prob. 5C: Everglades for R Sequoia for J 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?
Arguments re Language
Arguments/Missing Facts re Burden

25. Quick Notes re Purpose/Quaity/Ev-Rev
Rev. Prob. 5C: 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?
Quick Notes re Purpose/Quaity/Ev-Rev
Under Marcus Cable, can look to purpose if based on language (access to Hwy; exercise).
Should a court reject using bicycle b/c not “in” bike or “on foot”?
Heart of Problem: Inverting Normal Change in Technology
Indication of how I create exam Qs; twist I hadn’t done before
Helpful to address directly: Changes from horse to auto have been approved, ….

26. Scope of Positive Express Easements: Additional Work/Exam Prep
DF Next Week: Rev Prob 5H & 2016 XQIV(c)
Rev Prob 5D in Class Next Week after We Finish Layout of Implied Easements
Posted Today: Write-Ups of Student Qs, 5A-5C. 5E (Info Memo #5) & 5F (2014 Exam QIIC)
You Now Have Enough Info to Do Rev Prob 5G as Sample Exam Q for 2d Window

27. Chapter 5: Easements Interpreting Language: Scope of Express Easements
Introduction
Interpreting Language: Scope of Express Easements
Positive Easements
NegativeEasements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription

28. 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

29. 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

30. 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

31. ACADIA: DQ
Sunrise

32. Scope of Express Easements: Negative Easements
DQ5.04 (ACADIA ): D’s Arguments in Petersen
D may have argued, “No such thing as a view E-mt in Calif.”
Court says weight of authority supports existence of view easements.
Lawyering Note: Need to check in each state for list of recognized negative easements.
D: Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

33. Scope of Express Easements: Negative Easements
DQ5.04 (ACADIA): D’s Arguments in Petersen
No view easement in California
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)

34. 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

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

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

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

38. Scope of Express Easements: Negative Easements
DQ5.04 (Acadia): 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)

39. 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 (But Ricky Nelson as Cultural Indicator)
If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One-on-One = Much Easier Than in Chevy Chase or Marcus Cable)

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

41. Scope of Express Easements: Negative Easements
DQ5.05 (Acadia) : 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?

42. Chapter 5: Easements Implied Easements (Overview) Introduction
Interpreting Language
Easement v. Fee
Scope of Express Easements
Implied Easements (Overview)
By Estoppel
By Implication and/or Necessity
By Prescription

43. Implied Easements: Overview
Easements are both contracts & conveyances (land transfers)
How do you achieve contracts and conveyances without express agreement?
Four Theories…

44. Implied Easements: Overview
Contract/Conveyance w/o Express Agreement:
Four Theories
Promissory Estoppel (Detrimental Reliance)
Implied-in-Fact Contract (Parties’ Intent)
Implied-in-Law Contract (Public Policy)
Adverse Possession

45. Implied Easements: Overview
4 Theories  4 Types of Implied Easement
(1) Promissory Estoppel (Detrimental Reliance) ≈
Easement-by Estoppel
(2) Implied-in-Fact Contract (Parties’ Intent) ≈
Easement-by-Implication
(3) Implied-in-Law Contract (Public Policy) ≈
Easement-by-Necessity
(4) Adverse Possession ≈
Easement-by-Prescription