1. 3-29-16 National Lemon Chiffon Cake Day
PROPERTY D SLIDES
National Lemon Chiffon Cake Day

2. NCAA Contest: Possible Winners
Tuesday March 29 Music (to Accompany Williams Island): Pat Benatar: Best Shots (1989) featuring “Hit Me with Your Best Shot”
CHAPTER 4 TEST IS GRADED
NCAA Contest: Possible Winners
Get Individual Results from my Asst. Tina Sutton After Class
Blind Grading = Do NOT Tell Me (or Even Hint) How Well You Did
Answers & Explanations Memo on Course Page; if Qs
Score = Number Correct Divided by 2 (Up to 12 Points added to up to 60 points from Final Exam)
Florio: If Syracuse defeats UNC.
Estrella: If UNC defeats Syracuse and Villanova defeats Oklahoma
DeGiovanni: If UNC defeats Oklahoma in Finals
D.Roberts: If Oklahoma defeats UNC in finals.

3. Previously in Property D
Easements
Introduction & Key Terminology
Fee v. Easements (Chevy Chase & Manhattan Beach)
Determining Scope of Positive Easements
Blackletter Tests
RR Easements: Chevy Chase & Presault
Technological Change & Marcus Cable
Review Problems 5A, 5B, 5C
[Thursday: Review Problem 5D]
[DF Friday & Next Tuesday Rev. Probs. 5F & 5H]

4. Previously in Property D
Easements
Introduction & Key Terminology
Fee v. Easements (Chevy Chase & Manhattan Beach)
Determining Scope of Positive Easements
Negative Easements
Implied Easements
Introduction
Easements by Estoppel
Arising from Detrimental Reliance
Recognized in about Half the States

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

6. Easement-by-Estoppel General Rule
An owner may be estopped from barring a 2d party access to the owner’s property where
The owner apparently allows 2d party to use the property (Apparent License)
2d party reasonably and detrimentally relies on this acquiescence

7. Easement-by-Estoppel Duration/Termination
N.4 (P793): How Long Does an E-by-E Last?
Stoner: “For so long a time as the nature of it calls for.” Means?

8. Easement-by-Estoppel Duration/Termination
N.4 (P793): How Long Does an E-by-E Last?
Stoner: For so long a time as the nature of it calls for.
Easy Case:
House Built in Reliance on Access Through Neighbor’s Driveway  E-by-E
New Public Road Built Adjoining Dominant Tenement Creates Alternate Access
Use of House No Longer Relies on Driveway; E-by-E Ends

9. Easement-by-Estoppel Duration/Termination
N.4 (P793): How Long Does an E-by-E Last?
Stoner: For so long a time as the nature of it calls for.
What does this mean for an irrigation ditch?
So long as irrigation remains useful to Dominant Tenement?
So long as no relatively cheap alternatives?

10. Easement-by-Estoppel Duration/Termination
N.4 (P793): How Long Does an E-by-E Last?
Stoner: For so long a time as the nature of it calls for.
What does this mean for hypo in Note 4:
House built in reliance on E-by-E burns down.
Can owner rebuild?

11. Easement-by-Estoppel Duration/Termination
N.4 (P793): How Long Does an E-by-E Last?
House built in reliance on E-by-E burns down. Can owner rebuild?
See quote from Rerick in Stoner (bottom P790):
“The right to rebuild [a mill] in the case of destruction or dilapidation and to continue the business on its original footing may have been in fact as necessary to his safety, and may have been an inducement of the particular investment in the first instance.”

12. Easement-by-Estoppel Duration/Termination
N.4 (P793): How Long Does an E-by-E Last?
House built in reliance on E-by-E burns down. Can owner rebuild?
See quote from Rerick in Stoner (middle P849):
Could read to allow absolute right to rebuild
BUT may turn on evidence of nature of reliance
Connection between safety and dilapidation
Return on investment possible w/o rebuilding? (insurance $)
QUESTIONS?

13. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1
To City Sewer 
Danny buys Lot #2 from Owner of Lot #1
(No House on #2 but Sewage Pipe in Place)

14. Easement-by-Estoppel Sewage Pipe Hypothetical
Danny buys Lot #2 from Owner of Lot #1
No House on #2 but Sewage Pipe in Place
D makes clear he intends to build house on Lot #2
Owner of Lot #1 doesn’t object to use of sewer line until after house on #2 is complete & connected. Assume no other easy way to connect to sewer.
Is D’s Reliance on O’s Silence while House is Constructed Reasonable?
If so, will yield E-by-E in states that allow

15. Review Problem 5J (S104): Friday 4/1 Opinion/Dissent Q: Assume Facts Sufficient for E-by-E For Class: Ignore Possibility of Payment Acadia: Range of [Policy] Arguments for Adopting Easement by Estoppel Badlands: Range of [Policy] Arguments for Rejecting Easement by Estoppel Everglades: Critique

16. Easement-by-Estoppel Some Relevant Policy Considerations
Policies Underlying Statute of Frauds & Reasonableness of Reliance w/o Writing
Equitable Considerations re Both Parties
How Do We Think Neighbors Should Behave (cf. Adv. Poss. Border Disputes)
Can Add Your Own

17. Distinct Tasks in Your Post-Brief World
Oral Arguments
Critiques
Exams

18. Chapter 5: Easements Implied Easements Intoduction
Interpreting Language
Easement v. Fee
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription

19. Easement-by-Implication & Easement-by-Necessity: Overview
Both Arise from Split of Larger Parcel
Different Requirements
Sometimes Same Facts Can Give Rise to Both.

20. Easement-by-Implication & Easement-by-Necessity: Overview
Both Arise from Split of Larger Parcel; Different Requirements but Sometimes Same Facts Can Give Rise to Both
E-by-I: Parties Intend that Prior Existing Use Should Continue
Look for Objective Evidence of Intent; Not Secret Subjective Belief
Default Rule: Clear statement that not intended precludes E-by-I .

21. Easement-by-Implication & Easement-by-Necessity: Overview
Both Arise from Split of Larger Parcel; Different Requirements But Sometimes Same Facts Can Give Rise to Both
E-by-I: Parties Intend that Prior Existing Use Should Continue
Look for Objective Evidence of Intent; Not Secret Subjective Belief
Default Rule: Clear statement that not intended precludes E-by-I .
E-by-N: Split Creates Landlocked Parcel Needing Access
Dispute as to Whether Based in Public Policy or (Very Generous Notion of) Intent
Resolution of this dispute determines whether E-by-N is default rule or universal policy (See Rev Prob 5L).

22. Easement-by-Implication Elements: States Vary on Formulation
One parcel is split in two
Prior Use (“Quasi-Easement”)
Intent to continue prior use
*Apparent, visible or reasonably discoverable
*Some degree of necessity
* Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

23. Easement-by-Necessity Elements
One parcel is split in two
Landlock: One resulting parcel is cut off from key access (e.g. to roads or sewer system) by other parcel (alone or in combination with parcels owned by 3d parties).
At time parcels split, access necessary to enjoyment of landlocked parcel

24. Implied-by-Grant v. Implied-by-Reservation
Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons
Implied-by-Grant v. Implied-by-Reservation
Degree of Necessity
Notice (of Existence of Eassement)
Termination

25. Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v
Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation
Parcel split into Eastacre and Westacre. Prior Use = Driveway from House on Eastacre across Westacre to main road.
Original owner sells East, retains West = by Grant (Claim in Dupont)
Original owner sells West, retains East = by Reservation (Claim in Williams Island)
Original Owner Simultaneously Sells Both to Different People = by Grant

26. Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v
Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation
FL & Majority Rule (in Williams Island): No Difference
Some states treat some elements of E-by-I or E-by-N more favorably if “by grant” than “by reservation”
Implied-by-Reservation seen as shady: “When I sold you the lot next door, I forgot to mention that I was going to keep using the path to the lake. Oops!”

27. Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons
Implied-by-Grant v. Implied-by-Reservation
Degree of Necessity
Notice (of Existence of Eassement)
Termination

28. Easement-by-Implication & Easement-by-Necessity: Degree of Necessity
EASEMENTS BY IMPLICATION:
Some states: Evidence of intent, but not required.
Most states: Reasonable necessity required.
Some states (not FL): Strict necessity required if implied by reservation.
EASEMENTS BY NECESSITY:
Most states: Strict necessity
Some Legal Tests/Examples for Reasonable & Strict Necessity
in Cases and Note 3 (P801-02)

29. Notice (of Existence of Easement)
Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons
Implied-by-Grant v. Implied-by-Reservation
Degree of Necessity
Notice (of Existence of Easement)
To Subsequent Purchasers
At Time of Split (E-by-I Only)
Termination

30. Easement-by-Implication: Notice
Subsequent purchasers of servient tenement only bound to continue easement if notice of its existence at time of purchase
Actual Notice/Knowledge (Fact Q): Did buyer know about easement?
Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? (cf. Common Tests for Open & Notorious)
Often Sufficient: Path/road going to property line
Courts sometimes stretch to find inquiry notice: should have been aware that pipes underground might connect, etc.
Usually won’t be notice from public land records b/c documents unlikely to refer to implied easement.

31. Easement-by-Implication: Notice
Notice to Parties of Existence of Easement
at Time of Split
Legal Test Often Version of “Apparent, visible or reasonably discoverable”
Some states treat as requirement
Some states treat as evidence of intent
Same kinds of evidence relevant as with notice to subsequent purchasers

32. Easement-by-Necessity: Notice
Subsequent Purchasers of Servient Estate
In theory, also need notice to bind.
Court finding the easement necessary for dominant estate to operate probably will be hesitant to find lack of notice.
At Time of Split: Doesn’t Arise b/c Parties Should Be Aware that Newly Created Parcel is Landlocked

33. Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons
Implied-by-Grant v. Implied-by-Reservation
Degree of Necessity
Notice (of Existence of Easement)
Termination

34. Easement-by-Implication & Easement-by-Necessity: Termination
Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S197)
E-by-N: Ends if the necessity ends b/c created as a matter of policy to address necessity
E-by-I: Does not end if the necessity ends.
Created Based on Intent of Parties
Necessity Often Just Evidence of Intent
So Comparable to Express Easement; Change in Necessity Doesn’t Undo Express Agreement

35. ACADIA: Williams Island
Sunrise

36. Easement-by-Implication (Acadia) Williams Island
Use of Path Across Servient Tenement to Connect Two Holes of Golf Course
One parcel Split in Two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: Evidence?

37. Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use (Unusually Good Evidence)
Testimony: Intent of original parties & that when Williams purchased golf course, it was told that original owner of servient estate had agreed to easement
References to “Easements” in Deed (but Not Specified)
Overall Circumstances (incl. continual use)
4. Apparent, visible or reas. discoverable at time of split: Evidence?

38. Apparent, visible or reas. discoverable:
Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable:
Paved; 9 feet wide; “in constant use” + references in deed

39. Easement-by-Implication (Acadia) Williams Island: Necessity
Legal Standard
Case requires Reasonable Necessity
Some states would require Strict b/c by-Reservation
Ct. (top P794): “No practical or safe alternative route.” Evidence?

40. Easement-by-Implication (Acadia) Williams Island: Necessity
Legal Standard
Case requires Reasonable Necessity
Some states would require Strict b/c by-Reservation
Ct. (P794): “No practical or safe alternative route.” Alternatives considered (P794 fn 1):
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
Note: No discussion of possible renumbering or reconfiguration of course

41. Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable: (Good Evidence)
Reasonable necessity: (Court finds)
Notice to Subsequent Purchasers: Evidence?

42. Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable: (Good Evidence)
Reasonable necessity: (Court finds)
Notice to Subsequent Purchasers: Evidence?
Actual: Buyer’s Rep Told 4 mos. Before Closing
Inquiry: Established Regular Use

43. Questions on Williams Island?
Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable: (Good Evidence)
Reasonable necessity: (Court finds)
Notice to Subseq. Purchasers: (Unusually Good Evidence)
Pretty Easy Case if You Accept Court’s Necessity Analysis
Dependent on Use as Golf Course in Present Configuration
Might be Different if Strict Necessity Required
Questions on Williams Island?

44. Review Problem 5K (S107): Tuesday 4/5 Stephanie Sued to Enjoin Further Use of Her Pipes She Concedes Split of Original Parcel and Prior Use of the Pipes Be Prepared to Disc uss re Easement-by-Implication Intent to continue prior use Apparent, visible or reasonably discoverable Some degree of necessity Sequoia for P Stephanie *** Acadia for D Webers Olympic: Critique

45. BADLANDS: DuPont v. Whiteside
NORBECK PASS

46. Dupont & Easement-by-Necessity (Badlands)
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Undisputed that, prior to sale, Duponts built road across their own land providing access to Riverfront so Whiteheads could build.
Dispute as to whether Duponts said this access was permanent or temporary.

47. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Court Resolves Easement-by-Necessity on Necessity Element
Majority: Not Strict Necessity: WHY?
Dissent: Meets Strict Necessity

48. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Majority: Not Strict Necessity:
Access available to Lower Portion
Possibility of road across Wetlands (though expert said $40,000-50,000)
Dissent: Meets Strict Necessity: Why?

49. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Majority: Not Strict Necessity:
Access available to Lower Portion
Possibility of road across Wetlands (though expert said $40,000-50,000)
Dissent: Meets Strict Necessity:
Getting road built across Wetlands costs time, $$, and conservation easement (giving up use of some of land)
“Might be easier to traverse a river by walking across the surface”