1. PROPERTY D SLIDES 4-7-14

2. Monday April 7 Music (to Accompany Petersen): Ken Burns’s Jazz: The Story of America’s Music Disc 4 (1950s-1960s) NCAA Sweet Sixteen Contest If Connecticut wins, Nicole Halmoukos wins. If Kentucky wins, Shari Munroe wins. Tomorrow We’ll Meet Until ~9:45 I’ll Talk About Course Selection Process

3. PROPERTY D: 4/7 BaCK UP YOUR WORK: KROW RUOY PU KCAB INSIGHTS GAINED FROM PUTTING THINGS INTO ESREVER: REVERSE

4. PROPERTY D: 4/7 WHY ARE SOME CARS NOT VERY TRENDY NO MATTER HOW [OFTEN] THEY’RE REDESIGNED?

5. PROPERTY D: 4/7 WHY ARE SOME CARS NOT VERY TRENDY NO MATTER HOW [OFTEN] THEY’RE REDESIGNED? SUBARU = U R A BUS

6. PROPERTY D: 4/7 WHAT DO YOU BECOME IF YOU CONSTANTLY WEAR EARBUDS?

7. PROPERTY D: 4/7 WHAT DO YOU BECOME IF YOU CONSTANTLY WEAR EARBUDS? I-POD = DOPI

8. PROPERTY D: 4/7 WHAT KIND OF PEOPLE PAY MONEY FOR BOTTLED WATER?

9. PROPERTY D: 4/7 WHAT KIND OF PEOPLE PAY MONEY FOR BOTTLED WATER? EVIAN = NAIVE EVIAN = NAIVE

10. PROPERTY D: 4/7 WHO SUPPLIES ELECTRONIC DEVICES TO WILDEBEESTS?

11. PROPERTY D: 4/7 WHO SUPPLIES ELECTRONIC DEVICES TO WILDEBEESTS? SAMSUNG = GNU’s MAS  SAMSUNG = GNU’s MAS 

12. Previously in Property D Adverse Possession Elements: Rules, Focus, Evidence, Purpose a.Actual Use b.Open & Notorious c.Exclusive: Rev. Prob. 5D d.Continuous: Tacking & Rev. Prob. 5E e.Adverse/Hostile & State of Mind Special Rules for Boundary Disputes Policy Considerations Rev Prob 5G: Lawyering

13. Previously in Property D Easements Introduction & Rev Prob 6A Easement v. Fee: Relevant Arguments Scope of Positive Easements 3 Blackletter Tests Railroad Easements  Recreational Trails

14. YELLOWSTONE (DQ6.02) GIANT GEYSER

15. Scope of Express Easements: RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Possible Increases in Burden? IMAGINATION EXERCISE(~6.02) Everyone (but Yellowstones First)

16. 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)

17. 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?

18. 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? 

19. Scope of Express Easements: Change in Technology – Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? Marcus Cable (P834) & Cases Cited on P836: 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.

20. 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

21. 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.)

22. 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

23. Scope of Express Easements: Change in Technology DQ6.03: Marcus Cable Analysis Language: “electric transmission or distribution line or system.” – Majority: Cable TV not w/in Ordinary Meaning – Dissent: w/in language in two ways Literally (as technical matter) As language has come to be understood w tech. changes

24. REDWOOD: DQ 6.03 REDWOODS & FERNS

25. Scope of Express Easements: Change in Technology DQ6.03 (Redwood): Applying Blackletter Tests to Marcus Cable Facts “Evolutionary not revolutionary” changes allowed? “Burden must not be significantly greater than that contemplated by parties”?

26. Scope of Express Easements: Change in Technology Applying Blackletter Tests to Marcus Cable Facts “Evolutionary not revolutionary” changes allowed?  Couple more wires unlikely to be “revolutionary” “Burden must not be significantly greater than that contemplated by parties”?  Probably trivial increase in burden. Probably Why Many Courts Agree With Dissent on this Issue Qs on Marcus Cable?

27. Scope of Express Easements: What’s at Stake? Policy Considerations Relevant to Deciding Disputed Scope Qs

28. Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement. – Changing circumstances make change desirable (at least for one party). – Parties always could bargain for new agreement, but administrative costs may be very high, especially when large number of parcels affected by similar easements as in both cases we’re looking at.

29. Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. – Helps protect their property value. – Marcus Cable majority position.

30. Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change better meets dominant owners’ needs & expectations – Again, helps maximize property value – Can limit (to protect Servient Os) by saying, e.g., Use must be similar No great increase in burden

31. Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs Desire to promote valuable new technology? – E.g., Cable TV to rural areas – Like early internet no-tax subsidy – Arguably similar: Promoting hiker/biker trails

32. Scope of Express Easements: What’s at Stake? Parties in long term relationship governed by terms of original agreement face changing circumstances. Strict adherence to original terms provides certainty for servient owners. Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs Might wish to promote valuable new technology? Questions?

33. 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

34. Scope of Express Easements: Negative Easements Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate Limited # of harms can be protected this way. – E.g., Access to Light & Air; Access to View; Unimpeded Flow of Artificial Stream – States Vary on Which They Allow

35. Scope of Express Easements: Negative Easements Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate Limited # of harms can be protected this way. Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate

36. Scope of Express Easements: Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View

37. REDWOOD: DQs 6.04-6.05 REDWOODS & FERNS

38. Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.D may have argued, “No such thing as a view easement in California.” Court says weight of authority supports existence of view easements Note for You: Need to check in each jurisdiction for list of recognized negative easements 2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

39. Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.No view easement in California 2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown) – Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View – Cf. 16 Foot Tall Statue of Jackie Robinson (in 1942 also still unknown)

40. Scope of Express Easements: Negative Easements DQ6.04: D’s Arguments in Petersen – Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

41. Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s Response (& Evidence Supporting)?

42. Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. – Court: Fact Q implicitly decided below – Reviewing Injunction, so Defer to Trial Court – Supporting Evidence: Size & nature of obstruction; Lesser rental value b/c of antenna

43. Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?

44. Scope of Express Easements: Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden – Pre-Cable TV Reception in SF Not Good – Relative Importance of TV (Public Policy re Access to Information)

45. Scope of Express Easements: Negative Easements DQ6.04: D’s Arguments in Petersen Burden on D Greater than Contemplated? Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden Court’s Likely Responses – TV Not That Important (Especially in 1958) – If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One- on-One = Much Easier Than Chevy Chase or Marcus Cable)

46. Scope of Express Easements: Negative Easements DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement?

47. Scope of Express Easements: Negative Easements DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement? Few line-drawing problems Bans anything that interferes w light or view v. Open to interpretation about allowable uses where language is broad or where technology changes Qs on Negative Easements

48. 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 c.By Prescription

49. Implied Easements: Overview Easements are both contracts & conveyances (land transfers) How do you achieve contracts and conveyances without express agreement? Four Theories…

50. Implied Easements: Overview Contract/Conveyance w/o Express Agreement: Four Theories 1.Promissory Estoppel (Detrimental Reliance) 2.Implied-in-Fact Contract (Parties’ Intent) 3.Implied-in-Law Contract (Public Policy) 4.Adverse Possession

51. Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Promissory Estoppel (Detrimental Reliance) ≈ Easement-by Estoppel (2) Implied-in-Fact Contract (Parties’ Intent) ≈ Easement-by-Implication (3) Implied-in-Law Contract (Public Policy) ≈ Easement-by-Necessity (4) Adverse Possession ≈ Easement-by-Prescription

52. Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Easement-by Estoppel (2) Easement-by-Implication (3) Easement-by-Necessity (4) Easement-by-Prescription Helpful to view each type of implied easement as a legal result reached by a court after reviewing relevant facts – Similar fact patterns may yield different type if facts change a bit. – In rare cases, same facts will give rise to more than one type

53. Sewage Pipe Hypothetical Implied Easements: Sewage Pipe Hypothetical 1.Developer builds line of houses 2.Same set of pipes connect all houses in line to city sewer system. Sewage from houses further from the city sewer passes under all houses in line that are closer to the sewer.

54. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1

55. Sewage Pipe Hypothetical Implied Easements: Sewage Pipe Hypothetical 1.Developer builds line of houses 2.Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. 3.Developer sells all houses in line, but creates no easements to allow flow of sewage along the line. Connected nature of sewage pipes not referenced in deeds and no notice provided orally.

56. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 Issue: Lot #3 Being “Used” by Lots #4-6 to Dispose of Their Sewage

57. Sewage Pipe Hypothetical Implied Easements: Sewage Pipe Hypothetical 1.Developer builds line of houses 2.Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. 3.Developer sells all houses in line; creates no easements and provides no written or oral notice of connected nature of sewage pipes. 4.When can owners of houses further from sewer claim one or more types of implied easement? – Particular variations on the facts will give rise to each type. – For each type, we’ll revisit hypo to see similarities/differences in operation

58. 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 c.By Prescription

59. Background: Licenses (Note 1 P850) Easement-by-Estoppel Background: Licenses (Note 1 P850) LICENSE = Permission by owner for third party to use owner’s property. E.g., … – Right to enter theater or ballpark with ticket. – Come over & swim in my pool. – Store your things in my house while your house is tented.

60. Background: Licenses (Note 1 P850) Easement-by-Estoppel Background: Licenses (Note 1 P850) LICENSE = Permission by owner for third party to use owner’s property. License generally revokable by owner unless: – Combined with Another Interest (E.g., Right to Pick Fruit) -OR- – Easement-by-Estoppel (Some States but Not All)

61. General Rule Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property (Apparent License) 2.2d party reasonably and detrimentally relies on this acquiescence

62. General Rule Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property (Apparent License) 2.2d party reasonably and detrimentally relies on this acquiescence Effect in States that Allow Easements-by-Estoppel is that License Becomes Unrevokable Usually little debate about Apparent License, so existence of E-by-E usually turns on reliance.

63. General Rule Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property (Apparent License) 2.2d party reasonably and detrimentally relies on this acquiescence Default Rule b/c clear statement that E-by-E not intended precludes reasonable reliance.

64. ARCHES: Stoner & DQs 6.06-6.07 DELICATE ARCHES

65. Easement-by-Estoppel (Arches) DQ6.06: Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch Reasonable?

66. Easement-by-Estoppel (Arches) DQ6.06: Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch Reasonable? – P Presumably Aware of D’s Expenditures – BUT Should You Get it in Writing Before Spending? – Might explore more facts (nature of promise; extent of awareness of reliance; parties’ relationship, etc.) Detrimental?

67. Easement-by-Estoppel (Arches) DQ6.06: Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch Detrimental? (Easier) – $7000 in 19 th Century to construct ditch – Maybe other missed opportunities (e.g., alternate forms of irrigation now more expensive to install)