1. PROPERTY D SLIDES 4-10-14

2. Thursday April 10 Music (to Accompany MacDonald): Eagles, Hotel California (1976) featuring “The Last Resort” Biscayne Critique of Rev. Prob. 6B due Today @ 10am Review Problem 6F (S147): Arches For P (Andy/Serv.): Fata, Gaid, Hoffman, Wheeler Alts: Menendez, Verley For Defendant (Gudr. Acad./Dom.): Altman, Kratzer, Lopez, Rasile Alts: Ciampittiello, Westerhorstmann Redwood Critique Due Saturday 4/12 @ 4pm

3. Andy/Serv. = P Gudridge Academy/Dom. =D Review Problem 6F: Arches Andy/Serv. = P Gudridge Academy/Dom. =D S-acre = Large wooded lot between public road & private beach. House on lot built by grandfather (GF) of present owner A Paved driveway connects road & beach w branch in middle to house Dawson Inst. = Former art school for college-aged students Used to be across road from S-acre Got as gift from GF an easement to use the private beach and the driveway during daylight hours. DI students used driveway & beach to sketch or paint.

4. Andy/Serv. = P Gudridge Academy/Dom. =D Review Problem 6F: Arches Andy/Serv. = P Gudridge Academy/Dom. =D S-acre = Large wooded lot between public road & private beach. Dawson Inst. = Former art school for college-aged students Got as gift from GF an easement to use the private beach and the driveway during daylight hours. DI students used driveway & beach to sketch or paint. Gudridge Academy buys Dawson Inst. Runs post-high school “transition schools” for troubled teens. Uses easement for student athletic activities like running /swimming Arguments from 3 Blackletter Tests (incl. Missing/Ambiguous Facts)

5. Andy/Serv. = P: Gudridge Academy/Dom. =D: Review Problem 6F: Arches Andy/Serv. = P: Fata, Gaid, Hoffman, Wheeler (Alts: Menendez, Verley) Gudridge Academy/Dom. =D: Altman, Kratzer, Lopez, Rasile (Alts: Ciampittiello, Westerhorstmann) “Use must be reasonable considering the terms of the grant” The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway connecting the beach to the county road.

6. Andy/Serv. = P: Gudridge Academy/Dom. =D: Review Problem 6F: Arches Andy/Serv. = P: Fata, Gaid, Hoffman, Wheeler (Alts: Menendez, Verley) Gudridge Academy/Dom. =D: Altman, Kratzer, Lopez, Rasile (Alts: Ciampittiello, Westerhorstmann) “Burden must not be significantly greater than that contemplated by parties” Arguments (incl. Missing/Ambiguous Facts)?

7. Andy/Serv. = P: Gudridge Academy/Dom. =D: Review Problem 6F: Arches Andy/Serv. = P: Fata, Gaid, Hoffman, Wheeler (Alts: Menendez, Verley) Gudridge Academy/Dom. =D: Altman, Kratzer, Lopez, Rasile (Alts: Ciampittiello, Westerhorstmann) “Evolutionary not revolutionary” changes allowed. (Chevy Chase: Same “Quality) Arguments (incl. Missing/Ambiguous Facts)?

8. LOGISTICS: My Priorities 4/10-4/26 Chapter 7 Materials & Assignments (On Course Page by Sat. @ Noon) Complete Feedback on 1 st Set of Sample Exam Answers (Rev Prob 1E) Complete Info Memos on Individual Chapters Feedback on Second Set of Critiques (A Little Less Thorough) Draft Exam Feedback on 2d Set of Sample Exam Answers (Due Sat. 4/19) I’ll Post Status-of-Feedback Updates at Top of Course Page Starting This Weekend

9. Chapter 6: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity (Cont’d) c.By Prescription

10. Elements: States Vary on Formulation Easement-by-Implication Elements: States Vary on Formulation 1.One parcel is split in two 2.Prior Use (“Quasi-Easement”) 3.Intent to continue prior use 4.*Apparent, visible or reasonably discoverable 5.*Some degree of necessity * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

11. Elements Easement-by-Necessity Elements 1.One parcel is split in two 2.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). 3.At time parcels split, access necessary to enjoyment of landlocked parcel

12. Recurring Concerns/Comparisons 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

13. 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? 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.

14. 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

15. Notice 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

16. Recurring Concerns/Comparisons 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

17. Easement-by-Implication & Easement-by-Necessity: Termination Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S143) 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

18. BISCAYNE: Williams Island & E-by-I SUNRISE AT ADAMS KEY

19. Williams Island Easement-by-Implication (Biscayne) Williams Island Use of Path Across Servient Tenement to Connect Two Holes of Golf Course 1.One parcel Split in Two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: Evidence?

20. Williams Island: Path from 13 th  14th Holes Easement-by-Implication (Biscayne) Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.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) *Apparent, visible or reas. discoverable: Evidence?

21. Williams Island: Path from 13 th  14th Holes Easement-by-Implication (Biscayne) Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.*Apparent, visible or reas. discoverable: Paved; 9 feet wide; “in constant use” + references in deed

22. Williams Island: Necessity Easement-by-Implication (Biscayne) Williams Island: Necessity Legal Standard – Case requires Reasonable Necessity – Some states would require Strict b/c by-Reservation Ct. (P852): “No practical or safe alternative route.” Evidence?

23. Williams Island: Necessity Easement-by-Implication (Biscayne) Williams Island: Necessity Legal Standard – Case requires Reasonable Necessity – Some states would require Strict b/c by-Reservation Ct. (P852): “No practical or safe alternative route.” Alternatives considered (P853 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

24. Williams Island: Path from 13 th  14th Holes Easement-by-Implication (Biscayne) Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.Apparent, visible or reas. discoverable: (Good Evidence) 5.Reasonable necessity: (Court finds) 6.Notice to Subsequent Purchasers: Evidence?

25. Williams Island: Path from 13 th  14th Holes Easement-by-Implication (Biscayne) Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.Apparent, visible or reas. discoverable: (Good Evidence) 5.Reasonable necessity: (Court finds) 6.Notice to Subsequent Purchasers: Evidence? – Actual: Buyer’s Rep Told 4 mos. Before Closing – Inquiry: Established Regular Use

26. Williams Island: Path from 13 th  14th Holes Easement-by-Implication (Biscayne) Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.Apparent, visible or reas. discoverable: (Good Evidence) 5.Reasonable necessity: (Court finds) 6.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?

27. YELLOWSTONE (DuPont & E-by-N) GIANT GEYSER

28. DuPont & DuPont & Easement-by-Necessity (Yellowstone) 1.DuPonts sell Three-Part Lot to Whitesides – “Riverfront” where W’s want to build house – “Lower Portion”: accessible from public road – “Wetlands” in between 2.Undisputed that, prior to sale, DuPonts built road across their own land providing access to Riverfront so Whiteheads could build 3.Dispute as to whether DuPonts said this access was permanent or temporary

29. Necessity in DuPont Opinions Easement-by-Necessity (Yellowstone) 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? Majority: Not Strict Necessity: WHY? Dissent: Meets Strict Necessity:

30. Necessity in DuPont Opinions Easement-by-Necessity (Yellowstone) 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: 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? Dissent: Meets Strict Necessity: Why?

31. Necessity in DuPont Opinions Easement-by-Necessity (Yellowstone) 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: 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? Dissent: Meets Strict Necessity: Why? – 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”

32. Necessity in DuPont = Tricky in 1981 Easement-by-Necessity (Yellowstone) Necessity in DuPont = Tricky in 1981 Lot as a whole was not landlocked at split (road to Lower Portion of lot existed)

33. Necessity in DuPont = Tricky in 1981 Easement-by-Necessity (Yellowstone) Necessity in DuPont = Tricky in 1981 Lot as a whole was not landlocked at split (road to Lower Portion of lot existed) Access to house on Riverfront not necessary for enjoyment of lot at split (house built later)

34. Necessity in DuPont = Tricky in 1981 Easement-by-Necessity (Yellowstone) Necessity in DuPont = Tricky in 1981 Lot as a whole was not landlocked at split (road to Lower Portion of lot 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).

35. Necessity in DuPont = Tricky in 1981 Easement-by-Necessity (Yellowstone) Necessity in DuPont = Tricky in 1981 Lot as a whole was not landlocked at split (road to Lower Portion of lot 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”)

36. DuPont: Necessity Confusing in FL Easement-by-Necessity (Yellowstone) 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): “absolute necessity” Hunter (1 st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”

37. DuPont & DuPont & Easement-by-Necessity (Yellowstone) Possible Implied Easements? 1.Easement-by-Necessity: Turns on Necessity 2.Easement-by-Implication: Why Not? (Look to Elements) 3.Easement-by-Prescription: 4.Easement-by Estoppel:

38. Elements: States Vary on Formulation Easement-by-Implication Elements: States Vary on Formulation 1.One parcel is split in two 2.Prior Use (“Quasi-Easement”) 3.Intent to continue prior use 4.*Apparent, visible or reasonably discoverable 5.*Some degree of necessity * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

39. DuPont & DuPont & Easement-by-Necessity (Yellowstone) Possible Implied Easements? 1.Easement-by-Necessity: Turns on Necessity 2.Easement-by-Implication: No Prior Use 3.Easement-by-Prescription: Why Not? (Look at Elements) 4.Easement-by Estoppel:

40. Elements Easement-by-Prescription Elements 1.[Actual] Use of Pathway 2.Open & Notorious 3.Continuous (14 years; Florida SoL = 7) 4.Adverse/Hostile 5.(Most Jurisdictions Don’t Require Exclusive)

41. DuPont & DuPont & Easement-by-Necessity (Yellowstone) Possible Implied Easements? 1.Easement-by-Necessity: Turns on Necessity 2.Easement-by-Implication: No Prior Use 3.Easement-by-Prescription: Clear Permission 4.Easement-by Estoppel: Was there Reliance that was Reasonable & Detrimental (Under Claimants’ View of Facts) ?

42. DuPont & DuPont & Easement-by-Necessity (Yellowstone) Easement-by Estoppel: (“Irrevokable License”) Easement-by Estoppel: (“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 – 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 Questions on DuPont?