1. PROPERTY A SLIDES 4-14-15

2. Tuesday April 14 Music (to Accompany Williams Island): Pat Benatar: Best Shots (1989) featuring “Hit Me with Your Best Shot” Complete Office Hours Posted Yellowstone Critiques E-Mailed; Biscayne by Mid-Day Tomorrow Friday: Double Class (7:55-9:45) Second Sample Exam Q Due Saturday @ Noon Review Session 2pm Fri 4/24 Old Model Answers & Last Minute Qs

3. Review Problem 6C (S148) 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.

4. 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

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

6. 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

7. 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

8. 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 Ways to Think About Parties generally not trying to create implied easements. Can view each type as an after-the-fact legal result/remedy reached by a court after review of 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.

9. 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.

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

11. 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.

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

13. 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

14. 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

15. Background: Licenses (Note 1 P791) Easement-by-Estoppel Background: Licenses (Note 1 P791) 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.

16. Background: Licenses (Note 1 P791) Easement-by-Estoppel Background: Licenses (Note 1 P791) 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)

17. 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

18. 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.

19. 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.

20. YELLOWSTONE: Stoner, Easements-by-Estoppel, & DQ6.06- 6.07 GIANT GEYSER

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

22. 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?

23. Easement-by-Estoppel (Yellowstone) 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)

24. 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.

25. Easement-by-Estoppel Reasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P792-93) Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Compare to Stoner re Reliance. AT&T: Clearer that easement rather than license intended b/c explicit, in writing, & problems w deed arose after O signed BUT AT&T sophisticated party; should’ve known that deed was invalid & fixed

26. Easement-by-Estoppel Reasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P851) Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Mass SCt: No easement; AT&T should have known easement not properly created meaning they had a “mere license.” Essentially holds reliance was not reasonable by a sophisticated player.

27. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: “For so long a time as the nature of it calls for.” Means?

28. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. Easy Case: House Built in Reliance on Access Through Neighbor’s Driveway  E-by-E New Public Road Built Adjoining Dominant Tenement Creates Alternate Access Use of House No Longer Relies on Driveway; E-by-E Ends

29. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for an irrigation ditch?

30. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for an irrigation ditch? So long as irrigation remains useful to Dominant Tenement? So long as no cheap alternatives?

31. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for hypo in Note 4: House built in reliance on E-by-E burns down. Can owner rebuild?

32. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick in Stoner (bottom P790): “The right to rebuild [a mill] in the case of destruction or dilapidation and to continue the business on its original footing may have been in fact as necessary to his safety, and may have been an inducement of the particular investment in the first instance.”

33. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P793): How Long Does an E-by-E Last? House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick in Stoner (middle P849): Could read to allow absolute right to rebuild BUT may turn on evidence of nature of reliance Connection between safety and dilapidation Return on investment w/o rebuilding? (insurance $)

34. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 Danielle buys Lot #2 from Owner of Lot #1 (No House on #2 but Sewage Pipe in Place)

35. Easement-by-Estoppel Sewage Pipe Hypothetical Danielle buys Lot #2 from Owner of Lot #1 No House on #2 but Sewage Pipe in Place D makes clear she intends to build house on Lot #2 Owner of Lot #1 doesn’t object to use of sewer line until after house on #2 is complete & connected. Assume no other easy way to connect to sewer. Is D’s Reliance on O’s Silence While House is Constructed Reasonable? If so, will yield E-by-E in states that allow

36. Policy Considerations (DQ6.07) Easement-by-Estoppel Policy Considerations (DQ6.07) We’ll do as Op/Diss Problem Friday for both Types of Easements Described in DQ Yellowstones & ALL (I’ll Do Set-Up Slide on Thursday)

37. Policy Considerations (DQ6.07) Easement-by-Estoppel Policy Considerations (DQ6.07) Should We Allow E-by-E?: Possible Results (1) Whenever there’s reasonable and detrimental reliance. (Many States) –OR– (2) Only after compensation paid (A Few Cases) –OR– (3) Never (Many States) Qs on Easements by Estoppel?

38. 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

39. Overview Easement-by-Implication & Easement-by- Necessity: Overview Both Arise from Split of Larger Parcel Different Requirements Sometimes Same Facts Can Give Rise to Both.

40. Overview Easement-by-Implication & Easement-by- Necessity: Overview 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 Objective Look for Objective Evidence of Intent; Not Secret Subjective Belief Default Rule: Default Rule: Clear statement that not intended precludes E-by-I.

41. Overview Easement-by-Implication & Easement-by- Necessity: Overview 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 Objective Look for Objective Evidence of Intent; Not Secret Subjective Belief Default Rule: Default Rule: Clear statement that not intended precludes E-by-I. E-by-N: Split Creates Landlocked Parcel Needing Access Dispute as to Whether Based in Public Policy or (Very Generous Notion of) Intent Resolution of this dispute determines whether E-by-N is default rule or universal policy (See Rev Prob 6J).

42. Mike/Dom. = P Debbie/Serv. =D Review Problem 6B Mike/Dom. = P Debbie/Serv. =D “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow [TV] reception for that property.” Time of Grant (1962): Mike gets poor TV reception b/c of valley location Debbie owns neighboring ranch above M’s land Antenna installed; reception still not good; no cable TV 2014: Can M replace antenna w satellite dish?

43. Redwood =Mike/Dom. = P Biscayne = Debbie/Serv. =D Review Problem 6B: (Yellowstone Critique) Redwood = Mike/Dom. = P Biscayne = Debbie/Serv. =D For P: Powell, Rodriguez, Fellig, Daniels (Alt: Whitley) For D: Pecorella, Aleman, Pierre, Kaleel-J (Alt: Foote) 1962: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow [TV] reception for that property.” 2014: Can M replace antenna w satellite dish? Arguments from Marcus Cable?

44. Redwood =Mike/Dom. = P Biscayne = Debbie/Serv. =D Review Problem 6B: (Yellowstone Critique) Redwood = Mike/Dom. = P Biscayne = Debbie/Serv. =D For P: Powell, Rodriguez, Fellig, Daniels (Alt: Whitley) For D: Pecorella, Aleman, Pierre, Kaleel-J (Alt: Foote) 1962: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow [TV] reception for that property.” 2014: Can M replace antenna w satellite dish? Arguments from Chevy Chase? (incl. Missing/Ambiguous Facts)