1. 4-10-17 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY
PROPERTY A SLIDES
NATIONAL SIBLING DAY
NATIONAL FARM ANIMALS DAY

2. Music to Accompany Chevy Chase Carlos Santana, Supernatural (1999)
NO CLASS TOMORROW DF AT USUAL TIME NO OFFICE HOURS TUESDAY OR WEDNESDAY
Second Window for Submitting Sample Answers Open
We’ve Covered Material Needed for All Four Adverse Possession Options

3. PROPERTY A: 4/10 Monday Pop Culture Moment
70 Years Ago This Week in Brooklyn:
1st Night of Passover
Why is This Night Different …?
Monday Pop Culture Moment

4. PROPERTY A: 4/10 Monday Pop Culture Moment
Why is This Night Different …?
A Brief Tribute to Jackie Robinson
& Branch Rickey

5. Why is This Night Different …? … Back in Brooklyn!!!
PROPERTY A: 4/10
Monday Pop Culture Moment
Why is This Night Different …?
… Back in Brooklyn!!!

6. Chapter 5: Bearing Other People’s Crosses: Easements Express & Implied

7. Chapter 5: Easements Introduction Terminology
Overview of Chapter 5 (+ Comparison to Others)
Interpreting Language
Easement v. Fee
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription

8. Chapter 5: Easements Terminology Key Vocabulary:
Easement = Property Right to Use Land Owned by Someone Else for Specific Purpose
Most Commonly: Right of Way = Roads/Paths Across Others’ Land
So Graphics = Yellow Brick Road
Key Vocabulary:
Express v. Implied Easements
Positive v. Negative Easements
Appurtenant v. In Gross
Dominant Tenement (= Holding) v. Servient Tenement

9. Chapter in Perspective
Chapter 5: Easements
Chapter in Perspective
Paradigm Conflicts:
Chapter 3 (& Some of 2): Present Rights v. Future and/or Conditional Rights
Chapters 1 & 4: Legal Owners v. Others Who Wish to Use (Implied Easements Similar)
Chapter 2: Express Division in Property Rights Created by Contract (Express Easements Similar  Let’s Compare)

10. Easements Landlord-Tenant
Divided Rights in the Same Piece of Land: Two Sets of Property Rights to Consider
Easements
Holder of Easement
Owner of Underlying Land (Servient Tenement)
Landlord-Tenant
Leaseholder (Term of Years)
Landlord (Holds Reversion)

11. Written Document Creating Express Easement
Divided Rights in the Same Piece of Land: Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Parties’ Intent -- Reasonable Understanding under All the Circumstances
Easements
Written Document Creating Express Easement
Landlord-Tenant
Written Lease

12. Implied & Statutory Terms
Divided Rights in the Same Piece of Land: Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights
Easements
Written Document Creating Express Easement 
Implied Easements
Landlord-Tenant
Written Lease 
Implied & Statutory Terms

13. Working with Statutory Provisions
Divided Rights in the Same Piece of Land Different Primary Skills Focus for Each
Easements
Using Stated & Unstated Facts to Work with Legal Rules/Standards
Landlord-Tenant
Working with Statutory Provisions

14. Chapter 5: Easements Interpreting Language
Introduction
Interpreting Language
Easement v. Fee (Skipping in 2017)
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription

15. 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

16. Interpreting Language: Scope of Express Easements
“Scope” is the Central Testable Issue for Express Easements
Q is whether new/additional use proposed by dominant tenement- holder allowed.
Legal dispute often arises with changed circumstances: which party should bear different burden?
Generally interpret scope issues like contracts
Objective indications/manifestations of whether proposed use might be covered by parties’ original understanding
Secret intent of one party NOT relevant (if not apparent from agmt)
Don’t need to show parties specifically contemplated proposed use

17. Interpreting Language: Scope of Express Easements (Coverage)
Sample Blackletter Tests (S124)
“Use must be reasonable considering the terms of the grant”
“Evolutionary not revolutionary” changes allowed.
“Burden must not be significantly greater than that contemplated by parties”
Sample Cases
Chevy Chase (& Preseault): Common Transition from RR Rights of Way to Recreation Trails
Marcus Cable: Common Problem of Improved Technology
Lot of Review Problems: 5A-5H plus 2016 QIV(c)

18. Common Scope of Easement Issues
Proposed Use Seems to be w/in Literal Language, but Arguably Significant Change in Purpose or Burden
Chevy Chase; Rev. Probs 5A & 5D-G
Change in Technology; Might be Outside Literal Language, but Arguably Not Significant Change in Purpose or Burden
Marcus Cable; Review Problem 5B

19. Intro to Scope of Easements Review Problem 5A: Elf-Acre & Santa-Acre
“E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump”
Santa-acre = next to garbage dump.
Elf-Acre =
Time of Grant: Big lot w small cottage.
Later: Cottage  Toy factory (7x garbage).

20. Review Problem 5A: Elf-Acre & Santa-Acre
“E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump”
Santa-acre = next to garbage dump.
Elf-Acre =
Time of Grant: Big lot w small cottage.
Later: Cottage  Toy factory (7x garbage).
We’ll Apply Blackletter Tests &
Consider Missing or Ambiguous Facts

21. Scope of Express Easements Generally
Sample Blackletter Tests (S124)
(1) “Use Must Be Reasonable Considering the Terms of the Grant”
Initial focus on literal language
Then check if proposed use is
reasonable in light of language
c. Can use ordinary contract interpretation principles
e.g., Interpret ambiguities against
drafter

22. Review Problem 5A: Elf-Acre & Santa-Acre
“E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump”
Santa-acre = next to garbage dump.
Elf-Acre =
Time of Grant: Big lot w small cottage.
Later: Cottage  Toy factory (7x garbage).
“Use Must Be Reasonable Considering
the Terms of the Grant”

23. Scope of Express Easements Generally
Sample Blackletter Tests (S124)
(2) “Evolutionary not Revolutionary” Changes Allowed.
Focus on nature of change
Is proposed use similar in method or purpose (water pails  pipes)
Not really about speed of change (pails don’t morph into pipes)
Q of Characterization: Fair to View as “Evolution”?
Compare to Other Characterization Issues:
FL Ldld-Tnt Statutes: Right to Cure List v. Immediate Evict List
Use Like Ordinary nOwner of Simiular Property

24. Scope of Express Easements Generally
Sample Blackletter Tests (S124)
(3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”
Look for change in burden on servient renement.
Compare to what parties appear to have reasonably intended.
Burden must be “significantly” greater to fail test.

25. Review Problem 5A: Elf-Acre & Santa-Acre
“E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump”
Santa-acre = next to garbage dump.
Elf-Acre =
Time of Grant: Big lot w small cottage.
Later: Cottage  Toy factory (7x garbage).
(2) “Evolutionary not Revolutionary” Changes Allowed.
(3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”

26. Review Problem 5A: Elf-Acre & Santa-Acre
“E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump”
Santa-acre = next to garbage dump.
Elf-Acre = Big lot w small cottage  Toy factory (7x garbage).
Other Relevant Concerns?
1. Want precision in language: Could punish S-acre for not making limits clear
2. Want people to disclose intent: Could punish elves if didn’t make plans clear
3. Check unequal bargaining power:
a. Santa, Inc. v. little elves
b. Keebler Elfin Toys & Cookies Intl v. poor old man
4. Check who drafted.

27. Review Problem 5C: Thursday EVERGLADES SEQUOIA (Arguments for R) (Arguments for J)
Prepare Arguments Based on Three Blackletter Tests Noting Missing Facts
Look for Additional Arguments from Cases

28. 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 (no longer used for operating trains) to state/local govts for use as recreational trails.
BUT fed’l stastute doesn’t purport to resolve whether these trails are allowable use of these rights-of-way (state law scope issue).
We’ll compare Chevy Chase (MD 1999) to Preseault (Fed. Cir. 1996) (See P Note 2)

29. Scope of Express Easements RR Easement  Recreational Trail
Chevy Chase: Tests for Scope (DQ5.02)
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.

30. Scope of Express Easements RR Easement  Recreational Trail (Language)
Chevy Chase: Tests for Scope (Application to RR Easement)
Start with Language of Grant
“Primary Consideration”
If no limits, presumption in favor of grantee’s desired use.
Cf. “Use must be reasonable considering the terms of the grant”

31. Scope of Express Easements RR Easement  Recreational Trail (Language)
Chevy Chase: Tests for Scope (Application to RR Easement)
Start with Language: To RR, “its successors & assigns, a free and perpetual right of way.” Court’s Reading:
No express limits (e.g., only to “RRs” or “freight RRs”)
“Free & Perpetual” suggests “few, if any” limits contemplated; can change w evolving circumstances
“Successors & Assigns”
Means Transferability (Not Ltd. to RRs)
Also suggests possibility of changing use.

32. Chevy Chase: Tests for Scope (Application to RR Easement)
Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose)
Chevy Chase: Tests for Scope (Application to RR Easement)
Is Proposed Use of “Same Quality” (= Character or Nature)
Consistent w Purpose & Reasonable Expectations?
cf. “Evolution, not Revolution”
Again, no need to show use specifically contemplated by parties
NOTE: Common Distinction between “Purpose” and “Intent”
Depends on Characterization of Purpose
Lawyering Task/Game
How do you Generalize from RR’s Normal Use?

33. Chevy Chase: Tests for Scope (Application to RR Easement)
Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose)
Chevy Chase: Tests for Scope (Application to RR Easement)
Is Proposed Use of “Same Quality?
Chevy Chase: “Forms of Transportation”
Hiking/Biking = Transport, so OK (+ Onomatopoeia )
Relies on Cases Broadly Reading Grants for “Public Highway” to Include New Types of Transport
Analogy Seems Suspect: Could You Change RR Easement into Highway for Cars?

34. Chevy Chase: Tests for Scope (Application to RR Easement)
Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose)
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.
Why 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?

35. Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose)
Preseault: “Use by Comm’l 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.
Neither Chevy Chase nor Marcus Cable require this kind of foresight.
If you want to use this idea on a test, make clear that it comes from Preseault and that many courts don’t agree.

36. Chevy Chase: Tests for Scope (Application to RR Easement)
Scope of Express Easements RR Easement  Recreational Trail (Quality/Purpose)
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 (& why)

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

38. Scope of Express Easements RR Easement  Recreational Trail (Burden)
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 (i) noise & (ii) safety concerns.
Court: “Self-Evident” that change “imposes no new burdens” (You need to do better on test 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.

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

40. Scope of Express Easements RR Easement  Recreational Trail (Burden)
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
Possible overnighters/tent people
If a back wall, maybe graffiti or posted ads

41. 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?