1. PROPERTY A SLIDES 4-9-15

2. Thursday April 9: Music to Accompany Petersen Ricky Nelson (Self-Titled 1958) REVIEW PROBLEM 5H (Boundary Dispute) Redwood Critique due Saturday @ 10 a.m. SHENANDOAH (P APors): Huang, Dan Melendez, Laura Ordonez, Maria Yaniz, Alina Murray, Leslie Chen, Connie (Alternate) ARCHES (D OOs) Sued, Alexandra Castillo, Felix Dahle, Alex Sandler, Ted Agramonte, Mat Kalil, Deanna (Alternate)

3. Rev. Prob. 5H (Opinion/Dissent): Original Instructions The Comstock Supreme Court granted certiorari to determine the appropriate rules in border disputes for (1) the open and notorious requirement and (2) the state of mind requirement. Write drafts of the analysis sections of both a majority opinion and of a shorter dissent for the court determining the appropriate rules for both these requirements in the context of this case.

4. Rev. Prob. 5H (Opinion/Dissent) Arguments Targeting State Supreme Court Setting Rules for the State Going Forward. Attys Can Use General Policy Arguments Attys Can Use Arguments Treating Facts of Case as Example. No Need to Apply Rules to Facts Here (Results Should be Clear). “Assume that the trial judge’s findings of fact are supported by the record and that the Petersons met all the other elements of adverse possession.” Look at Spring 2014 Q3 Comments & Models QUESTIONS?

5. Rev. Prob. 5H (Opinion/Dissent) Shenandoah (In-Class for Plaintiffs) & Arches (In-Class for Defendants Redwood (Critique) 1.Should rules for boundary disputes (BDs) be different than for ordinary Adverse Possession? 2.Assuming Court is willing to consider different rules for BDs: a.Should state adopt “actual knowledge” as standard for Open & Notorious in BDs? b.Should state adopt “bad faith” State of Mind requirement in BDs?

6. Property A: Logistics Shenandoah Critiques Due Today @ 10:00 a.m. Tomorrow I’ll Start with General Advice re Course Selection & Afterward You Can Stop By or E-Mail if Specific Qs

7. Chapter 6: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements i.Positive Easements ii.Negative Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

8. Interpreting Language: Scope of Express Easements “Scope” is Most Common Testable Issue for Express Easements Q is whether new/additional use contemplated by dominant tenement-holder allowed As noted last week, generally interpret scope issues like contracts Objective indications/manifestations of parties’ original intent NOT hidden understanding Often arises with changed circumstances: which party should bear different burden?

9. Interpreting Language: Scope of Express Easements (Coverage) Sample Blackletter Tests (S144) “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 (& Presault): Common Transition from RR Rights of Way to Recreation Trails Marcus Cable: Common Problem of Improved Technology Review Problems 6B 6C 6D in Class; 6F & 6G in DF

10. Common Scope of Easement Issues Proposed Use Seems to be w/in Very Broad Language, but Arguably Significant Change – Chevy Chase; Review Problems 6A & 6D-F Change in Technology; Might be Outside Literal Language, but Arguably Limited Increase in Burden – Marcus Cable; Review Problem 6B

11. 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 BUT doesn’t purport to resolve state law issues re allowable scope after transfer We’ll compare Chevy Chase (MD) to Preseault (Fed. Cir. 1996) (P774-75 Note 2)

12. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (DQ6.02) – 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.

13. Scope of Express Easements RR Easement  Recreational Trail 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”

14. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) Start with Language: To RR, “its successors & assigns, a free and perpetual right of way.” – No express limits (e.g., to RR or freight RR) – “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.

15. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Is Proposed Use of “Same Quality”/Consistent w Purpose & Reasonable Expectations? cf. “Evolution, not Revolution” Not necessary that use was 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?

16. Scope of Express Easements RR Easement  Recreational Trail 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 ) (See Cher: Shoop Shoop) – 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?

17. Scope of Express Easements RR Easement  Recreational Trail 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” – Here, Individual Recreation, So Too Different – Court: Hard to Believe w/in Contemplation of Parties

18. Scope of Express Easements RR Easement  Recreational Trail 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

19. Scope of Express Easements RR Easement  Recreational Trail 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

20. Scope of Express Easements RR Easement  Recreational Trail 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 noise & safety concerns. “Self-Evident” that change “imposes no new burdens” (You need to do better in 2 ways). Plus new use adds benefit to servient tenements (access to trail)

21. REDWOOD: DQ6.02 REDWOODS & FERNS

22. Scope of Express Easements RR Easement  Recreational Trail IMAGINATION EXERCISE (~6.02) Possible Increases in Burden? Everyone (but Redwoods First)

23. Scope of Express Easements RR Easement  Recreational Trail 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 (See Cher: Gypsies, Tramps & Thieves) Other: privacy; litter; total amount of time easement in use; crime (see Cher: Bang, Bang)

24. Scope of Express Easements RR Easement  Recreational Trail 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, court might also choose to weigh strong public policy behind hiker/biker trails against harms to servient owners. Qs on Chevy Chase?

25. Scope of Express Easements Change in Technology Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Carry Water  Water Pipes? Use Road on Foot/Horse  Automobiles? 

26. Scope of Express Easements: Change in Technology Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Marcus Cable (P776) & Cases Cited on P778: Development of Cable TV & Use of Easements for Electrical or Telephone Wires. What’s at Stake: Much Cheaper and Easier for Cable Co. to Negotiate One Deal with Telephone or Electric Co. Than to Negotiate New Easements Over Each Parcel Wires Might Cross.

27. Scope of Express Easements: Change in Technology DQ6.03: Marcus Cable Majority Analysis Start with language of grant o Give undefined terms ordinary meaning o Determine purposes of grant from language o Use can change to accommodate technological development, but must fall within original purposes as determined from terms of grant o Again, not necessary that proposed use was contemplated at time of grant

28. Scope of Express Easements: Change in Technology DQ6.03: Marcus Cable Majority Analysis Overlap with Blackletter Tests? i.“Use must be reasonable considering the terms of the grant” (Court employs) ii.“Evolutionary not revolutionary” changes allowed. (Maybe OK if w/in purposes as defined by language) iii.“Burden must not be significantly greater than that contemplated by parties” (No burden analysis in Marcus Cable, but court’s policy arguments suggest it might be relevant if burden increases.)

29. Scope of Express Easements: Change in Technology DQ6.03: Marcus Cable Majority Analysis Language: “electric transmission or distribution line or system.” Majority: Cable TV not w/in Ordinary Meaning Distinguishes cases where “electric + telephone” Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility) Note majority doesn’t endorse these cases, just distinguishes