1. National Garlic Day & National Amaretto Day National North Dakota Day
PROPERTY B SLIDES
National Garlic Day & National Amaretto Day
National North Dakota Day ??
It Needs
A Little Something… ??

2. Music to Accompany Dupont: Jewel: Spirit (1998) featuring “Deep Water”
Last Two DF Sessions
Today in This Room
10: Problem 4M (AP Lawyering)
12:30: Problem 5G (Short Easement Prob)
2d Window for Submitting Sample Exam Answers
Final Deadline: Noon
For first few I get in today or tomorrow, I could meet w you Sunday or Tuesday afternoon.

3. TODAY: LOGISTICS COURSE EVALUATIONS & FULL MOON MONDAY:
Rev Prob 5D (BADL/SEQ)
Rev Prob 5N (ACAD/GLADES)
Rev Prob 5P (OLYMPIC)
What is Property?
Reading Period Logistics
Songs & Closing Out 1L Year
TODAY:
COURSE
EVALUATIONS
&
FULL MOON

4. Thank You, Brendan & Lauren!!

5. Review Problem 5C (cont’d) EVERGLADES BADLANDS (Arguments for R) (Arguments for J)
EGRET IN MANGROVE SWAMP NORBECK PASS

6. Review Problem 5C (S145) (Recap) Everglades for R Badlands 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?

7. Rev. Prob. 5C: Everglades for R Badlands for J Can R (owner of Rhodes-acre) prevent J from riding horse on E-mt?
Arguments/Missing Facts re Burden

8. Arguments/Missing Facts re Burden
Rev. Prob. 5C: Everglades for R Badlands for J Can R (owner of Rhodes-acre) prevent J from riding horse on E-mt?
Arguments/Missing Facts re Burden
Possible Relevance of Type of Driveway Surface?
Possible Relevance of Local Weather?
Possible Relevance of Ways R’s Household Uses Driveway?
Trainability/Limitations on the Horse? (Nice Klubok point about NY-style horse “diapers.”

9. Rev. Prob. 5C: 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” even if pretty clearly fits purposes?
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, ….

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

11. Easement-by-Implication & Easement-by-Necessity: Recap
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
E-by-N: Split Creates Landlocked Parcel Needing Access

12. 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 the other resulting parcel (alone or in combination with parcels owned by 3d parties).
At time parcels split, access necessary to enjoyment of landlocked parcel
Q to think about (Barash issue): Suppose landlock is for part of year only (e.g., cut off in one direction by snow)

13. Easement-by-Implication & Easement-by-Necessity: NOTICE (of existence of easement)
All Implied Easements: Need Notice to Subsequent Purchasers
E-by-I Only: Need Notice at Time of Split
E-by N: At Time of Split Shouldn’t Arise b/c Parties Should Be Aware that Newly Created Parcel is Landlocked

14. Easement-by-Implication & Easement-by-Necessity: Termination
Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S142)
E-by-N: Ends if the necessity ends b/c created as a matter of policy to address necessity (See Note 4 P802)
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

15. Dupont & Easements-by-Necessity (& A Quick Look at Other Implied Easements)

16. Dupont & Easement-by-Necessity
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 so Whiteheads could build.
Dispute as to whether Duponts said this access was permanent or temporary.

17. Easement-by-Necessity 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 in 1981)

18. Easement-by-Necessity 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 in 1981)
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”

19. Easement-by-Necessity Necessity in Dupont = Tricky in 1980
Lot as a whole was not landlocked at split b/c road to Lower Portion of lot existed.

20. Easement-by-Necessity Necessity in Dupont = Tricky in 1980
Lot as a whole not landlocked at split; road to Lower Portion existed.
Access to house on Riverfront not necessary for enjoyment of lot at time of split b/c house built later.

21. Easement-by-Necessity Necessity in Dupont = Tricky in 1980
Lot as a whole not landlocked at split; road to Lower Portion existed.
Access to house on Riverfront not necessary for enjoyment of lot at split; house built later.
Wetlands Regulations greatly raise cost of road, but no evidence if Regs existed at split (probably not in 1980).

22. Easement-by-Necessity Necessity in Dupont = Tricky in 1980
Lot as a whole not landlocked at split; road to Lower Portion existed.
Access to house on Riverfront not necessary for enjoyment of lot at split; house built later.
Wetlands Regs greatly raise cost of road, but no evidence if Regs existed at split (probably not).
To get E-by-N for Riverfront, need to treat large parcel as two separate lots divided by water with no access between them (cf. Dissent re “no bridge”)

23. Easement-by-Necessity Dupont: Necessity Confusing in FL
Fl. Stats. on Easement-by-Necessity
§704.01(1): “reasonably necessary”; “reasonable & practicable”
§704.03: “practicable” means w/o use of “bridge, ferry, turnpike road, embankment or substantial fill.”
Tortoise Island (Fla SCt reading statute): “absolute necessity”
Hunter (1st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”
[THANKS A BUNCH!]

24. Dupont & Easement-by-Necessity
Possible Implied Easements?
Easement-by-Necessity: Turns on Necessity
Easement-by-Implication: Why Not? (Look to Elements)
Easement-by-Prescription:
Easement-by Estoppel:

25. 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 states treat 4 & 5 as separate elements; some treat as evidence of intent

26. DuPont & Easement-by-Necessity
Possible Implied Easements?
Easement-by-Necessity: Turns on Necessity
Easement-by-Implication: No Prior Use
Easement-by-Prescription: Why Not?
Think re AP Elements
Permission Defeats AP/Emt by P
Easement-by Estoppel:

27. Dupont & Easement-by-Necessity
Possible Implied Easements?
Easement-by-Necessity: Turns on Necessity
Easement-by-Implication: No Prior Use
Easement-by-Prescription: Clear Permission
Easement-by Estoppel: Was there Reliance that was Reasonable & Detrimental (Under Claimants’ View of Facts) ?

28. Dupont & Easement-by-Necessity
Emt-by Estoppel: (Case calls it “Irrevokable License”)
Good Case for Reliance under Ws’ Version of Facts
Detrimental: Bought lot & spent $240K in 1981 to build house
Reasonable: Probably, since road built before purchase as inducement
Under Ds’ version of facts?
Reasonable: If D’s Say “Temporary” & Ws Spend $$?
Note that Ds Not Very Sympathetic: License Revoked After 14 Years for No Apparent Reason
Court Remands for Determination of this cClaim.
Questions on Dupont or Emts by Necessity?

29. Chapter 5: Easements Implied Easements Introduction
Interpreting Language
Easement v. Fee
Scope of Express Easements
Implied Easements
By Estoppel (NOTIO)
By Implication
By Necessity
Easement-by-Prescription (NOTIO)

30. Easement-by-Prescription Generally
Easement Created by Particular Use of Another’s Land for Adverse Possession Period
Need to Show Adverse Possession Elements (with Some Variations in Some States)
Sample Concerns in Translation from AP:
ACTUAL: Use of Easement rather than Possession
EXCLUSIVE: OK if sharing use w OO (e.g., driveway)?

31. Review Problem 5M (S153) SEQUOIA OLYMPIC (for BC = No E-by-I) (For SA = E-by-I)

32. Review Problem 5M (S153) (Overview): Olympic = SA (EbyI)
Review Problem 5M (S153) (Overview): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Until 2015, Abbey (SA) was10-acre parcel with
Buildings used by Catholic Church as school, chapel & convent
Glinda Pond few hundred yards north of the buildings.
Yellow brick path runs from buildings to, and encircling, pond
SA Annual Easter tradition (nuns, students, community members)
Gather at chapel at dawn, & walk together to Glinda Pond.
Congregation spreads out on the bricks around pond for the service.

33. Review Problem 5M (S153) (Overview): Olympic = SA (EbyI)
Review Problem 5M (S153) (Overview): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Early 2015 SA sold N’ern 3 acres (NA) w pond to CC
“very generous price”
Sale dox don’t mention Easter service or use by abbey of Pond
a month later CC fell into a coma from which he never recovered.
Easter 2015 & 2016, SA service held as before
Dec 2016, CC died; NA sold to BC, a real estate developer.
Easter 17: BC surprised/unhappy when SA did service at pond

34. 5M: Easement-by-Implication Elements: States Vary on Formulation
One parcel is split in two (Easy Yes)
Prior Use (“Quasi-Easement”) (Easy Yes)
Intent to continue prior use? (General Evidence: 3d)
*Apparent, visible or reasonably discoverable? & Notice to Purchaser? (We’ll Do 1st)
*Some degree of necessity? (Second)
* Some states treat 4 & 5 as separate elements; some treat as part of evidence of intent

35. Rev Prob 5M (Notice: Actual or Inquiry): Olympic = SA (EbyI)
Rev Prob 5M (Notice: Actual or Inquiry): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Evidence of CC Actual Knowledge? (for Creation)
Evidence of BC Actual Knowledge? (for Transfer)
Evidence of Inquiry Notice? (for Either)

36. Rev Prob 5M (Notice: Actual or Inquiry): Olympic = SA (EbyI)
Rev Prob 5M (Notice: Actual or Inquiry): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Evidence of CC Actual Knowledge? (for Creation)
Former Student v. Elderly (Maybe Before Tradition?)
Evidence of BC Actual Knowledge? (for Transfer)
“Surprised”
Evidence of Inquiry Notice? (for Either)
Pathway crossing property line BUT very odd easement
Tradition not acted out at time BC buying

37. Rev Prob 5M (Necessity): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Reasonable or Strict?
Most states reasonable for E by I
Some Don’t Treat as Separate Reqmt
Some: Strict b/c E-mt by Reservation
Evidence re Necessity?

38. Rev Prob 5M (Necessity): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Evidence re Necessity?
Very unlikely “disproportionate effort & expense” to do service in chapel or elsewhere on grounds (7 acres, school)
Very unlikely to have significant effect on ability to attract students or nuns or congregation.
Very generous court might look to importance of tradition to congregation but even WI says “reasonably necessary” to operation of site as 18-hole golf course

39. Rev Prob 5M (Gen’l Evidence of Intent): Olympic = SA (EbyI)
Rev Prob 5M (Gen’l Evidence of Intent): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Significance of Facts?
NOTE: I put CC in coma because intent would be easy if he participated in Easter Service 2015, but we have no clear evidence thathe would have.
“Very generous price”?

40. Rev Prob 5M (Gen’l Evidence of Intent): Olympic = SA (EbyI)
Rev Prob 5M (Gen’l Evidence of Intent): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Significance of Facts?
“Very generous price” = ambiguous. If CC knew of services,
If generous to CC, might show intent to continue b/c discount for E-mt
If generous to SA, probably charitable semi-gift to SA by CC, so may not count ag SA b/c of charitable intent.
MM (SA Rep) to CC at sale: “Thank you for helping the continuation of the good which we do here.” ?

41. Rev Prob 5M (Gen’l Evidence of Intent): Olympic = SA (EbyI)
Rev Prob 5M (Gen’l Evidence of Intent): Olympic = SA (EbyI). Sequoia = BC (No EbyI).
Significance of Facts?
“MM (SA Rep) to CC at sale: “Thank you for helping the continuation of the good which we do here.” ?
Might refer, in part, to Easter Service
Might also simply reference help w shaky finances of SA.
Nice point from Baker & Chirinos about significance of “here” and her location by pond or on SA property.