1. 4-10-19 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY
PROPERTY B SLIDES
NATIONAL SIBLING DAY
NATIONAL FARM ANIMALS DAY

2. Music to Accompany Devins & DQ4
Music to Accompany Devins & DQ4.22 (Covered Friday): Bette Midler, Experience the Divine (1993) featuring “From a Distance” Grammy for Best Adult Contemporary Recrd
2D SAMPLE SUBMISSION WINDOW OPEN
Last Few DF Sessions:
Rev Prob 4F (Exclusive) 9:40 (Lauren)
Review Problem 4M (Lauren: AP Lawyering): This Fri & Wed 4/17
Review Problem 5G (Brendan: Short Easement Prob) Mon 4/15 & Fri 4/19
Fri. Assmts (Sorry for Posting Delays)
I’ll Finish State of Mind & Misc Issues
Sequoia (A-K) Boundary Disputes & 2.22a
Rest of DQ2.22 Badlands/ Olympic/ Everglades (See Course Page for Details)
Finish Intro to Chapter 5
Scope of Easement Cases: SEQUOIA L-Z

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

4. Chapter 5: Easements Introduction Terminology
Overview of Chapter 5 (+ Comparison to Others)
(I’ll Do Friday)
Interpreting Language
Easement v. Fee (NOTIO in 2019)
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription (NOTIO in 2019)

5. 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

6. Chapter 5: Easements Interpreting Language Easement v. Fee
Introduction
Interpreting Language
Easement v. Fee
(NOTIO in 2019; BUT Useful to Work Through)
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription (NOTIO in 2019)

7. 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

8. 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 of the parties should bear a 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

9. Interpreting Language: Scope of Express Easements (Coverage)
Sample Blackletter Tests (S141)
“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: Scope of Positive Easements
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)

10. 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 (

11. ACADIA: Rev Prob 5A
Acadia Sunrise

12. Intro to Scope of Easements ACADIA: 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).

13. ACADIA: 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

14. Scope of Express Easements Generally
Sample Blackletter Tests (S141)
(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

15. ACADIA: 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”

16. Scope of Express Easements Generally
Sample Blackletter Tests (S141)
(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 Similar Property

17. Scope of Express Easements Generally
Sample Blackletter Tests (S141)
(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.

18. 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”

19. 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.

20. BADLANDS: Review Problem 4C
NORBECK PASS

21. BADLANDS for Monday: Review Problem 4C
Opinion Dissent Q from Spring 2016
What Should O&N Rule Be for Underground AP?
Lower Courts Identify 3 Possible Rules/Tests:
Be Prepared to Argue Pros & Cons of Your Rule
Assume Test Must Be Met for Whole AP Period
Assignments by Last Name
A-E: Traditional O&N
F-PI: Sensory Traces on Surface (Duty to Inquire for Reasonable OO)
PO-Z: Marengo Rule

22. BADLANDS: Review Problem 4C
Opinion Dissent Q from Spring 2016
What Should O&N Rule Be for Underground AP?
Lower Courts Identify 3 Possible Rules: BADLANDS Groups each to Argue Pros & Cons of One Rule
Procedural Posture of Case Means No Need to Apply Rules to Facts/Allegations in Case
Primary Task is Identifying and Defending Choice of Rule
Can Use Story as Example of Why Rules are Good or Bad

23. BADLANDS: Rev. Prob.4C: Pros & Cons of Specific Rules
Rule from Marengo Caves :
Claimant of Underground Property Must Show that, for the Entire AP Period, OO had Actual Knowledge of Claimant’s Use of the Property. (Not Alleged in Case)
Pros ?
Cons (Generally or Compared to Other Options)?
(Last Names PO-Z)

24. BADLANDS : Rev. Prob.4C: Pros & Cons of Specific Rules
Ordinary O&N Rule
Claimant of Underground Property Must Show that, for the Entire AP Period, an OO Standing in the Claimed Area Should Be Made Aware of Claimant’s Use of the Property. (Alleged and Presumably Easily Met in Case)
Pros?
Cons (Generally or Compared to Other Options)?
(Last Names A-E)

25. BADLANDS : Rev. Prob.4C: Pros & Cons of Specific Rules
Concurrence’s Sensory Traces Rule
Claimant of Underground Property Must Show, for Entire AP Period:
Either Actual Knowledge by the OO (Not Alleged)
OR that the underground possession created traces such as noise, smoke, smells, light or vibrations
that could be sensed by humans on the surface of the OO’s lot
sufficient to create a duty to inquire in a “reasonably prudent person.”
(Roughly Alleged in Complaint)
Pros & Cons? (Last Names F-PI)

26. BADLANDS : Rev. Prob.4C: Pros & Cons of Specific Rules
Concurrence’s Sensory Traces Rule
Claimant of Underground Property Must Show, for Entire AP Period:
Either Actual Knowledge by the OO (Not Alleged)
OR that the underground possession created traces such as noise, smoke, smells, light or vibrations that could be sensed by humans on the surface of the OO’s lot sufficient to create a duty to inquire in a “reasonably prudent person.” (Roughly Alleged in Complaint)
Pros?
Cons (Generally or Compared to Other Options)?
(Last Names F-PI)

27. OLYMPIC: Rev Prob 4I
EEL GLACIER

28. Review Problem 4I: “Continuous” Element OLYMPIC Last Names KO-Z (for APor M) Last Names A-KL (for OO)
M Resided in House with Color of Title for Most of 10Y Statutory Period
Absent 5 Mos. Undergoing Rehab for Physical Injury
While M Away:
Utilities & Mail Service Stopped
M’s Friend David watered plants every 2-3 weeks
M asked David to Feed Cat at M’s House; Instead David Took Cat to Own Home

29. Olympic: Review Problem 4H Last Names KO-Z (for APor M) Last Names A-KL (for OO)
Arguments/Missing Facts
[Quick Aside: Exam Note re Different Types of Issues]
Should the Five-Month Interruption for Medical Emergency in Problem Break Continuity? (Why or Why Not?)
Assuming Five Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the Five Months M Was Away to Retain Continuity? (Ray Analysis)
What is the Legal Significance of D not doing what M asked? (i.e., should M get credit for what she asked D to do or only for what he actually did?)