1. Property II Professor Donald J. Kochan Spring 2009 Class 38 11 February 2009

2. Today’s Material Introduction to Servitudes Introduction to Servitudes Easements Easements Pages 667-715 Pages 667-715

3. Hovenkamp & Kurtz Suggested Non-Required but Recommended Supplemental Material: The H&K hornbook (see your Syllabus) is extremely helpful on these (and other) topics See http://west.thomson.com/productdetail/128860/22048674/productdetail.aspx http://west.thomson.com/productdetail/128860/22048674/productdetail.aspx (The Fifth Edition is just as good if you can find it used.)

4. Servitides Three Principal Types: Easements Easements Real Covenants Real Covenants Equitable Servitudes Equitable Servitudes

5. Servitudes and Dominant and Servient Estates Definitional Terms that you must understand Definitional Terms that you must understand Very generally: Dominant is the person or property benefited by the use, disuse, or other burden on another’s property Dominant is the person or property benefited by the use, disuse, or other burden on another’s property Servient is the person or property that is burdened by giving up a stick to another – they must either do something or refrain from doing something for the benefit of another or must allow another to do something on their property Servient is the person or property that is burdened by giving up a stick to another – they must either do something or refrain from doing something for the benefit of another or must allow another to do something on their property

6. Historical Background of Easements Medieval Period Medieval Period Communal System v. Private Property Communal System v. Private Property Agricultural basis Agricultural basis Profits Profits From common fields and shared pastures to fenced fields and consolidated farms From common fields and shared pastures to fenced fields and consolidated farms Affirmative and Negative Easements – Understand the difference Affirmative and Negative Easements – Understand the difference

7. Easements Generally This provides some useful information as a supplemental introduction: This provides some useful information as a supplemental introduction: http://legal- dictionary.thefreedictionary.com/easement http://legal- dictionary.thefreedictionary.com/easement

8. Restatement (Third) of Property: Servitudes “§ 1.2 Easement And Profit Defined (1) An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement. (2) A profit à prendre is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another. It is referred to as a “profit” in this Restatement. (3) The burden of an easement or profit is always appurtenant. The benefit may be either appurtenant or in gross. (4) As used in this Restatement, the term “ easement” includes an irrevocable license to enter and use land in the possession of another and excludes a negative easement. A negative easement is included in the term “restrictive covenant”

9. From Westlaw and Black’s Law Dictionary Definitions “Easement (eez-m >nt). An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land. The primary recognized easements are (1) a right-of-way, (2) a right of entry for any purpose relating to the dominant estate, (3) a right to the support of land and buildings, (4) a right of light and air, (5) a right to water, (6) a right to do some act that would otherwise amount to a nuisance, and (7) a right to place or keep something on the servient estate. See SERVITUDE (1). Cf. PROFIT A PRENDRE. -- Also termed private right-of-way. [Cases: Easements 1. C.J.S. Easements §§ 2-8, 13-14, 21-22, 24, 53-55, 57-58, 89.]” “Easement (eez-m >nt). An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land. The primary recognized easements are (1) a right-of-way, (2) a right of entry for any purpose relating to the dominant estate, (3) a right to the support of land and buildings, (4) a right of light and air, (5) a right to water, (6) a right to do some act that would otherwise amount to a nuisance, and (7) a right to place or keep something on the servient estate. See SERVITUDE (1). Cf. PROFIT A PRENDRE. -- Also termed private right-of-way. [Cases: Easements 1. C.J.S. Easements §§ 2-8, 13-14, 21-22, 24, 53-55, 57-58, 89.]”C.J.S. Easements §§ 2813142122245355575889C.J.S. Easements §§ 2813142122245355575889

10. From Westlaw and Black’s Law Dictionary Definitions “private easement. An easement whose enjoyment is restricted to one specific person or a few specific people. [Cases: Easements 52. C.J.S. Easements §§ 164-167.]” “private easement. An easement whose enjoyment is restricted to one specific person or a few specific people. [Cases: Easements 52. C.J.S. Easements §§ 164-167.]” C.J.S. Easements §§ 164167 C.J.S. Easements §§ 164167 “public easement. An easement for the benefit of an entire community, such as the right to travel down a street or a sidewalk.” “public easement. An easement for the benefit of an entire community, such as the right to travel down a street or a sidewalk.”

11. From Westlaw and Black’s Law Dictionary Definitions “affirmative easement. An easement that forces the servient-estate owner to permit certain actions by the easement holder, such as discharging water onto the servient estate. -- Also termed positive easement. Cf. negative easement. “affirmative easement. An easement that forces the servient-estate owner to permit certain actions by the easement holder, such as discharging water onto the servient estate. -- Also termed positive easement. Cf. negative easement. ’Positive easements give rights of entry upon the land of another, not amounting to profits, to enable something to be done on that land. Some are commonplace, examples being rights of way across the land of another and rights to discharge water on to the land of another. Others are more rare, such as the right to occupy a pew in a church, the right to use a kitchen situated on the land of another for the purpose of washing and drying clothes, and the right to use a toilet situated on the land of another.’ Peter Butt, Land Law 305 (2d ed. 1988).” ’Positive easements give rights of entry upon the land of another, not amounting to profits, to enable something to be done on that land. Some are commonplace, examples being rights of way across the land of another and rights to discharge water on to the land of another. Others are more rare, such as the right to occupy a pew in a church, the right to use a kitchen situated on the land of another for the purpose of washing and drying clothes, and the right to use a toilet situated on the land of another.’ Peter Butt, Land Law 305 (2d ed. 1988).” “negative easement. An easement that prohibits the servient-estate owner from doing something, such as building an obstruction. Cf. affirmative easement. [Cases: Covenants 20; Easements 13. C.J.S. Easements § 59.] “negative easement. An easement that prohibits the servient-estate owner from doing something, such as building an obstruction. Cf. affirmative easement. [Cases: Covenants 20; Easements 13. C.J.S. Easements § 59.]C.J.S. Easements § 59C.J.S. Easements § 59 ’Negative easements... confer no right of entry, but consist essentially of the right to prevent something being done; examples are the right to the flow of air through defined aperture, the right to receive light for a building, the right to the support of a building, and (possibly) the right to require a neighbouring landowner to repair fences.’ Peter Butt, Land Law 305 (2d ed. 1988).” ’Negative easements... confer no right of entry, but consist essentially of the right to prevent something being done; examples are the right to the flow of air through defined aperture, the right to receive light for a building, the right to the support of a building, and (possibly) the right to require a neighbouring landowner to repair fences.’ Peter Butt, Land Law 305 (2d ed. 1988).”

12. From Westlaw and Black’s Law Dictionary Definitions “reciprocal negative easement. An easement created when a landowner sells part of the land and restricts the buyer's use of that part, and, in turn, that same restriction is placed on the part kept by the landowner. Such an easement usu. arises when the original landowner creates a common scheme of development for smaller tracts that are carved out of the original tract. [Cases: Covenants 20; Easements 13. C.J.S. Easements § 59.]” C.J.S. Easements § 59C.J.S. Easements § 59

13. Appurtenant v. In Gross Appurtenant = attached to and runs with the land; transferee receives the benefit and the burdened property owner remains burdened despite the change in ownership Appurtenant = attached to and runs with the land; transferee receives the benefit and the burdened property owner remains burdened despite the change in ownership In Gross = attached to a person and may be alienable but presumed not; a personal benefit; does not necessarily run with the land and usually does not; the “I trust you but not necessarily your successor” situation In Gross = attached to a person and may be alienable but presumed not; a personal benefit; does not necessarily run with the land and usually does not; the “I trust you but not necessarily your successor” situation Realize that each is very fact specific Realize that each is very fact specific

14. Appurtenant v. In Gross (cont.) ALWAYS analyze scope – the dominant, however the transfer, can never expand the scope of the originally agreed easement regardless of whether it runs with the land or not; thus, the first steps are: ALWAYS analyze scope – the dominant, however the transfer, can never expand the scope of the originally agreed easement regardless of whether it runs with the land or not; thus, the first steps are: Determine if it is appurtenant or in gross Determine if it is appurtenant or in gross Define the Scope of Use Define the Scope of Use Define the scope of the dominant’s rights to assign or otherwise transfer Define the scope of the dominant’s rights to assign or otherwise transfer Determine if it runs with the land Determine if it runs with the land Determine if a subsequent purchaser can take the benefit of the easement Determine if a subsequent purchaser can take the benefit of the easement Determine if the use is consistent with original intent and agreement Determine if the use is consistent with original intent and agreement Determine whether any new uses add a new or unintended burden on the servient estate – because of user or type of use Determine whether any new uses add a new or unintended burden on the servient estate – because of user or type of use

15. From Westlaw and Black’s Law Dictionary Definitions “easement appurtenant. An easement created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. -- Also termed appurtenant easement; appendant easement; pure easement; easement proper. Cf. easement in gross. [Cases: Easements 3. C.J.S. Easements §§ 4, 10-11, 20.]” C.J.S. Easements §§ 41011 20C.J.S. Easements §§ 41011 20 “easement in gross. An easement benefiting a particular person and not a particular piece of land. The beneficiary need not, and usu. does not, own any land adjoining the servient estate. Cf. easement appurtenant. [Cases: Easements 3. C.J.S. Easements §§ 4, 10-11, 20.]” C.J.S. Easements §§ 41011 20C.J.S. Easements §§ 41011 20

16. Creation of Easements Express Express Implied Implied Estoppel Estoppel Prescription Prescription But ALWAYS focus on SCOPE regardless of the method of creation But ALWAYS focus on SCOPE regardless of the method of creation

17. Right-of-Way Examples for Easements DG> > > > > > ____________________>___________________________________________________ \ >\ >>>>>>>\>>>>>>>>>>>>>>>>>>>>>\>>>>>>>>>>>> DG or DA\S\B \\ \\ \\ <<<<<<<\<<<<<<<<<<<<<<<<<<<<<\<<<<<<<<<<<< R <<<<<<<\<<<<<<<<<<<<<<<<<<<<<\<<<<<<<<<<<< R \\ _________________________________________________________________________ DG = Dominant in gross DA = Dominant appurtenant S = Servient B = Beach R = Road Consider all Permutations on Diagram

18. From Westlaw and Black’s Law Dictionary Definitions “access easement. An easement allowing one or more persons to travel across another's land to get to a nearby location, such as a road. The access easement is a common type of easement by necessity. -- Also termed easement of access; easement of way; easement of passage.”

19. Willard v. First Church of Christ, Scientist Church/Parking Lot case Church/Parking Lot case Reservation in a property to for “a stranger to the title” case Reservation in a property to for “a stranger to the title” case “our primary objective in construing a conveyance is to try to give intent to the grantor....” “our primary objective in construing a conveyance is to try to give intent to the grantor....” What burdens follow with a sale? What burdens follow with a sale? Ambiguity issues Ambiguity issues Reliance issues Reliance issues Easements created in favor of a Third Party Issues Easements created in favor of a Third Party Issues Extinguishment Issues Extinguishment Issues Note 1 and Note 4 following the case are important Note 1 and Note 4 following the case are important

20. Licenses Distinguished What is a license? Understand Nature of the Interest What is a license? Understand Nature of the Interest “A license is oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass.” D&K “A license is oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass.” D&K Plumber, dinner or barbecue guest, theater, housesitter examples, etc. Plumber, dinner or barbecue guest, theater, housesitter examples, etc. Primary Issue of Distinction Relates to Revocability – A license is generally revocable while an easement is not Primary Issue of Distinction Relates to Revocability – A license is generally revocable while an easement is not Involves a CONTRACT right to go upon or use another’s land, rather than a PROPERTY right Involves a CONTRACT right to go upon or use another’s land, rather than a PROPERTY right Property Remedies v. Contract Remedies for the Licensee and Licensor Property Remedies v. Contract Remedies for the Licensee and Licensor

21. Holbrook v. Taylor Coal haul road/right-of-way case Coal haul road/right-of-way case Estoppel issues – when, if ever, does a license turn into an easement? What is the distinction? Estoppel issues – when, if ever, does a license turn into an easement? What is the distinction? Reliance Issues Reliance Issues Prescription distinguished Prescription distinguished

22. Shepard v. Purvine Arm’s Length Issues Arm’s Length Issues Necessity for a formalization of an easement agreement to avoid the revocability of a mere license Necessity for a formalization of an easement agreement to avoid the revocability of a mere license

23. Henry v. Dalton Intent issues – what arrangement was intended? Intent issues – what arrangement was intended? Statute of Frauds as an important method for determining whether or not property should be bound Statute of Frauds as an important method for determining whether or not property should be bound Revocable or Irrevocable Rights Revocable or Irrevocable Rights Nature of the Grant of Use Nature of the Grant of Use See Notes re Restatement regarding estoppel following cases See Notes re Restatement regarding estoppel following cases

24. Van Sandt v. Royster Underground Lateral Sewage Drain Case Underground Lateral Sewage Drain Case One issue is whether it is appurtenant One issue is whether it is appurtenant Implied grants and implied reservations – when and how do they rise to enforceable easements? Implied grants and implied reservations – when and how do they rise to enforceable easements? Notice how the court focuses on intent of the parties Notice how the court focuses on intent of the parties

25. Implied and “Quasi” Easements From the text: From the text: “Easements are implied in two basic situations. In the first situation the easement is implied on the basis of an apparent and continuous (or permanent) use of a portion of the tract existing when the tract is divided. The existing use is often described as a ‘quasi-easement.’ The easement is implied to protect the probable expectations of the grantor and grantee that the existing use will continue past the transfer.... In the second situation the easement is implied when the court finds the claimed easement is necessary to the enjoyment of the claimant’s land and that the necessity arose when the claimed dominant parcel was severed from the claimed servient parcel. This kind of implied easement is known as an easement by necessity...” Should we protect the continuation of existing uses? Should we protect the continuation of existing uses? Intentions and expectations of the parties key Intentions and expectations of the parties key

26. From Westlaw and Black’s Law Dictionary Definitions “easement by estoppel. A court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief. [Cases: Estoppel 82. C.J.S. Estoppel § 90.]” “easement by estoppel. A court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief. [Cases: Estoppel 82. C.J.S. Estoppel § 90.]”C.J.S. Estoppel § 90C.J.S. Estoppel § 90 “equitable easement. 1. An implied easement created by equity when adjacent lands have been created out of a larger tract. Such an easement is usu. created to allow implied privileges to continue. [Cases: Easements 16. C.J.S. Easements §§ 3, 61-65, 68-71, 74, 79- 81, 88.] 2. See restrictive covenant (1) under COVENANT (4).” “equitable easement. 1. An implied easement created by equity when adjacent lands have been created out of a larger tract. Such an easement is usu. created to allow implied privileges to continue. [Cases: Easements 16. C.J.S. Easements §§ 3, 61-65, 68-71, 74, 79- 81, 88.] 2. See restrictive covenant (1) under COVENANT (4).”C.J.S. Easements §§ 3616568717479 8188C.J.S. Easements §§ 3616568717479 8188 “implied easement. An easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale. -- Also termed easement by implication; way of necessity. [Cases: Easements 15-19. C.J.S. Easements §§ 3, 13, 61-88, 90-109, 149.]” “implied easement. An easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale. -- Also termed easement by implication; way of necessity. [Cases: Easements 15-19. C.J.S. Easements §§ 3, 13, 61-88, 90-109, 149.]”C.J.S. Easements §§ 313618890109149C.J.S. Easements §§ 313618890109149

27. Othen v. Rosier Roadway Easement Case Roadway Easement Case By Necessity and By Prescription Issues By Necessity and By Prescription Issues Implication of Easement at Sale/Notice of Encumbrance Implication of Easement at Sale/Notice of Encumbrance Consent/Reliance Issues Consent/Reliance Issues Fencing Fencing Intent Issues Intent Issues Doctrine of Strict Necessity – mere convenience is insufficient Doctrine of Strict Necessity – mere convenience is insufficient

28. Easements by Necessity Means the creation of an easement mandated by law and not by private negotiation – When is it appropriate because it places a burden on another? Means the creation of an easement mandated by law and not by private negotiation – When is it appropriate because it places a burden on another? Define whether necessity exists Define whether necessity exists Strict Necessity v. Convenience Distinction Strict Necessity v. Convenience Distinction See Notes regarding issue of duration See Notes regarding issue of duration Landlocked property issues (“I can’t get in, I can’t get out!”), including knowledge upon acquisition and whether price was discounted (buyer beware and unjust enrichment issues) Landlocked property issues (“I can’t get in, I can’t get out!”), including knowledge upon acquisition and whether price was discounted (buyer beware and unjust enrichment issues) See the Note regarding Leo Sheep Co. – Why does the existence of the power of eminent domain make a difference? (in considering that, also go back to the NGA 7(h) example from Class 30 (mining v. natural gas example)) See the Note regarding Leo Sheep Co. – Why does the existence of the power of eminent domain make a difference? (in considering that, also go back to the NGA 7(h) example from Class 30 (mining v. natural gas example))

29. From Westlaw and Black’s Law Dictionary Definitions “easement by necessity. An easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road. -- Also termed easement of necessity; necessary way. [Cases: Easements 18. C.J.S. Easements §§ 63, 69, 75-77, 91-97, 99-101, 103-109.]” “easement by necessity. An easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road. -- Also termed easement of necessity; necessary way. [Cases: Easements 18. C.J.S. Easements §§ 63, 69, 75-77, 91-97, 99-101, 103-109.]”C.J.S. Easements §§ 63 697577919799101103109C.J.S. Easements §§ 63 697577919799101103109

30. Easements by Necessity (cont.) Supplemental Case Study: Tolksdorf v. Griffith, 464 Mich. 1, 626 N.W.2d 163 (Mich. 2001) (Private Roads Act in Michigan found unconstitutional) (recognize relationship with takings law and the “public use” clause) For Non-Required Supplemental Reading, see: http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/SCT/20010515_S1 15032(52)_tolksdorf.PDF http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/SCT/20010515_S1 15032(52)_tolksdorf.PDF http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/SCT/20010515_S1 15032(52)_tolksdorf.PDF Michigan Supreme Court

31. Easements by Prescription Similarities and overlaps with adverse possession – “in many ways is similar to adverse possession but in some ways distinctly different” D&K Similarities and overlaps with adverse possession – “in many ways is similar to adverse possession but in some ways distinctly different” D&K Lost Grant Legal Fiction – What is a “Legal Fiction”? Lost Grant Legal Fiction – What is a “Legal Fiction”? Acquiescence, Permission, and Adversity Issues Acquiescence, Permission, and Adversity Issues Factual Evidence of Interruption and the Legal Effect Factual Evidence of Interruption and the Legal Effect Permissive v. Adverse Use Permissive v. Adverse Use Public Prescriptive Easements: The Beach Access Examples Public Prescriptive Easements: The Beach Access Examples Highly Fact-Specific Highly Fact-Specific

32. From Westlaw and Black’s Law Dictionary Definitions “prescriptive easement. An easement created from an open, adverse, and continuous use over a statutory period. -- Also termed easement by prescription; adverse easement. See ADVERSE POSSESSION. [Cases: Easements 5- 11. C.J.S. Easements §§ 13-51.]” C.J.S. Easements §§ 1351C.J.S. Easements §§ 1351

33. Matthews v. Bay Head Improvement Ass’n Public Trust Doctrine – sovereignty over tidal waters (and the ebb and flow) vested in the State in trust for the people Public Trust Doctrine – sovereignty over tidal waters (and the ebb and flow) vested in the State in trust for the people Public’s right of use over beachfront property Public’s right of use over beachfront property Extension of the Public Trust Doctrine to public use of dry-sand areas Extension of the Public Trust Doctrine to public use of dry-sand areas Public Access Across Private Land to Public Waters Public Access Across Private Land to Public Waters

34. Assignability of Easements “The benefits and burdens of appurtenant easements pass automatically to assignees of the land to which they are appurtenant, if the parties so intend and the burdened party has notice of the easement. Where the benefit is in gross, however, the benfit may not be assignable.” D&K

35. Miller v. Lutheran Conference & Camp Ass’n Scope – Boating & Fishing Rights; but Bathing? Scope – Boating & Fishing Rights; but Bathing? Explicit issues; Unilateral Expansion of Scope and Burden on Servient Tenement Explicit issues; Unilateral Expansion of Scope and Burden on Servient Tenement expressio unius est exclusio alterius – the expression of one is the exclusion of another; key interpretive phrase for deeds and statutes that you MUST know expressio unius est exclusio alterius – the expression of one is the exclusion of another; key interpretive phrase for deeds and statutes that you MUST know Yet, how does prescription play a role? Yet, how does prescription play a role? “One Stock” Rule “One Stock” Rule

36. Public Utility Easements Often exist as encumbrances on private property Often exist as encumbrances on private property Power Lines, Pipelines, Sewers, etc. Power Lines, Pipelines, Sewers, etc. Many individuals are unaware Many individuals are unaware My childhood tree anecdote My childhood tree anecdote

37. Concluding Remarks Continue to examine easements in the next class Continue to examine easements in the next class Later, be able to distinguish them from other types of servitudes Later, be able to distinguish them from other types of servitudes