PROPERTY A SLIDES

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PROPERTY A SLIDES

• 4-17-15

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Friday April 17 Music (to Accompany
MacDonald)Eagles, Hotel California
(1976)featuring The Last Resort

• Today Extendo-Class (755-945)
• Biscayne Critique of Rev. Prob. 6D Due Tomorrow
  _at_ 10am
• Second Sample Exam Q (Optional) Due Tomorrow _at_
  Noon

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Fun with the English Language
• Animals
• Prepositions

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions
• HORSES are Very Different from MONKEYS

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions
• So Why Is
• HORSING AROUND
• the Same as
• MONKEYING AROUND?

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions
• And why is
• WOLFING DOWN
• the same as
• PIGGING OUT?

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions OUT-Takes
• The STOOL PIGEON
• Was Going to
• RAT OUT
• His Boss, BUT He

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions OUT-Takes
• The STOOL PIGEON Was Going to RAT OUT His Boss,
  BUT He
• CHICKENED OUT.
• WORMED OUT of it.
• BUGGED OUT.
• WEASELED OUT of it.

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions
• Finally, The Goldilocks Proposition
• A Careful Study of Human Nature

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PROPERTY A 4/17
FRIday Pop Culture Moment

• Animals Prepositions
• The Goldilocks Proposition A Careful Study of
  Human Nature
• BEARS OUT That Sometimes
• The Only Way To BEAR UP
• Is To BEAR DOWN

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Chapter 6 Easements

• Overview Terminology
• Interpreting Language
• Easement v. Fee
• Scope of Express Easements
• Implied Easements
• By Estoppel
• By Implication and/or Necessity (contd)
• By Prescription

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SEWAGE PIPE HYPOTHETICAL 6 5
4 3 2 1
To City Sewer ?
E-by-I Raised Pipes in Use Before O Sells
Separate Units. E-by-N Raised Split Creates
Landlocked Lot b/c Sewage Disposal Must Cross
Anther Lot
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Easement-by-Implication Easement-by-Necessity
Sewage Pipe Hypothetical

• Notice Issues
• What constitutes notice of underground pipes?
• Actual Knowledge
• Courts tend to be generous re Inquiry Notice
• From any visible element (pipe ends manhole
  covers) (See Kirma cited in Williams Island _at_
  P795)
• From need for utility service no visible access

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Easement-by-Implication Easement-by-Necessity
Sewage Pipe Hypothetical

• Necessity Issues
• Is utilities access Necessary? Cases split
• Lot not worthless or landlocked (re physical
  access) usually possible to get utility service
  at some expense.
• BUT cant use for many purposes without new
  expensive utility connection

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Easement-by-Implication Easement-by-Necessity
Sewage Pipe Hypothetical

• Necessity Issues
• Is utilities access Necessary? Cases split
• Assuming some access to utilities is necessary,
  how expensive must alternatives be to meet tests?
  
• Drill through mountain ridge?
• Policy Very inefficient to reroute utility
  service if existing pipes or wires (cf. Marcus
  Cable)
• Rev. Prob. 6I Well Return to Sewage Pipe Hypo
• Easements-by-Implication

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Chapter 6 Easements

• Overview Terminology
• Interpreting Language
• Easement v. Fee
• Scope of Express Easements
• Implied Easements
• By Estoppel
• By Implication and/or Necessity
• By Prescription

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SHENANDOAH Easements-by-Prescription
DQ6.08-6.11
APPALACHIAN TRAIL
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Easement-by-PrescriptionGenerally

1. Easement Created by Particular Use of Anothers
   Land for Adverse Possession Period
2. Need to Show Adverse Possession Elements (with
   Some Variations in Some States)
3. Well Look at Elements Individually

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Easement-by-PrescriptionElements

1. Actual Use of Pathway
2. Open Notorious
3. Continuous
4. Exclusive (Some Jurisdictions)
5. Adverse/Hostile

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Easement-by-PrescriptionRedwood Actual Use

1. Not listed as separate element in MacDonald but
   there must be some kind of use
2. Usually Straightforward Use of, e.g., Path or
   Driveway
3. Sometimes Q of Whether Use is Sufficient to
   Constitute Possession and Trigger AP Claim
   Instead of E-by-P (See Note 3 P817)
4. MacDonald (DQ6.09) What Meets?

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Easement-by-PrescriptionRedwood Actual Use

1. Not listed as separate element in MacDonald but
   there must be some kind of use
2. Usually Straightforward Use of, e.g., Path or
   Driveway
3. Sometimes Q of Whether Use is Sufficient to
   Constitute Possession and Trigger AP Claim
   Instead of E-by-P (See Note 3 P817)
4. MacDonald (DQ6.09) Golf Shots Retrieval (Very
   Atypical!!!)

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Easement-by-PrescriptionRedwood Open
Notorious DQ6.10 (See P817)

• Some States Traditional Definition of ON
• Use of Path or Driveway Almost Certainly Meets
• Underground Utilities (Sewage Pipe Hypo)
• Hard to Meet ON (Like Marengo Caves)
• Could Analyze Like Notice for E-by-I or E-by-N

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Easement-by-PrescriptionShenandoah Open
Notorious DQ6.10 (See P817)

• Some States Traditional Definition of ON
• Some States Require that Servient Owner Have
  Actual Knowledge (e.g., MacDonald)
• Policy Concerns Similar to Border Disputes Dont
  Necessarily Need O in Possession to Monitor
  Closely
• Evidence of Actual Knowledge in MacDonald
  (DQ6.10) Building Restrictions in Agreement
  Designed to Allow Continued Use of Area in Q

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Easement-by-PrescriptionShenandoah Continuous
(See P817)

• Obviously Doesnt Need to be 24/7 for Whole SoL
  Period
• Could Just Be Use Throughout Period
• Might Ask re Normal Utilization of That Type of
  Easement
• Can be Seasonal Use like Adverse Possession in
  Ray
• Evidence in MacDonald (DQ6.09)?

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Easement-by-PrescriptionShenandoah Continuous
(See P817)

• Obviously Doesnt Need to be 24/7 for Whole
  Statutory Period
• Could just be use throughout period
• Might Ask re Normal Utilization of That Type of
  Easement
• Can be Seasonal Use like Adverse Possession in
  Ray
• Evidence in MacDonald (DQ6.09)
• Golf Course in Use Through Whole Period
• Steady of Users End Up on Land in Q

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Easement-by-PrescriptionShenandoah Exclusive
(See P818)

• Many Jurisdictions Dont Require
• Sensible Nature of Easement is Non-Exclusive Use
• MacDonald doesnt list as element
• Some Means Exclusive of Everyone but Owner
• Some (TX) Shared w Owner ? Presumption of
  Permissive
• Hard to overcome
• Need evidence that O didnt give permission but
  didnt interfere.

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

• General Difficulty Reasonable to Assume
  Permission If
• O in Possession of Servient Estate AND
• Use is Open Notorious?

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

• General Difficulty Reasonable to Assume
  Permission If
• O in Possession of Servient Estate AND
• Use is Open Notorious?
• Presumptions frequently decide cases because hard
  to disprove.
• Shared use with the owner (e.g., of a driveway)
  presumed permissive (Texas). How do you
  disprove?
• Continuous use for AP Period presumed adverse
  (MacDonald). How do you disprove?

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

• 3. Policy Q What do you do with case like
  MacDonald or Dupont where visible use continues
  for a long time and then servient owner suddenly
  says no?
• Plausible to say permissive.
• Could create hybrid of prescription estoppel
  if use goes on long enough, servient owner cant
  change mind.

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Easement-by-PrescriptionShenandoah Policy
Questions

• DQ6.08. To what extent do the rationales for AP
  also support E-by-P?
• Clearly protect people and the legal system from
  being burdened with stale claims
• Ideas re Rest?
• (a) reward beneficial use of land
• (b) punish sleeping owners
• (c) recognize psychic connection to the land
• For you to consider use to help decide close Qs.

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SEWAGE PIPE HYPOTHETICAL 6 5
4 3 2 1
To City Sewer ?
E-by-P Raised Use of Pipes by More Distant
Users for Adv. Poss. Period Likely Qs re Open
Notorious, Exclusive
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Implied Easements GenerallyShenandoah DQ6.11

• The best justifications for granting an implied
  easement are reliance and need. Thus, if
  claimants cannot meet the elements of an Easement
  by Estoppel or of an Easement by Necessity, they
  should not be able to get a Prescriptive Easement
  unless they pay market value for it.
• For you to think about.
• (Good-Bye to Shenandoahs)

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YELLOWSTONE (DQ6.07)
GIANT GEYSER
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Easement-by-EstoppelPolicy Considerations
(DQ6.07)

• Positive Easement-by-Estoppel
• as in Stoner or Dupont
• Yellowstones ( ALL)
• Last Names A-K Allow Emt-by-Estoppel
• Last Names L-Z Disallow Emt-by-Estoppel (or
  Allow Only if Compensation Paid)

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Easement-by-EstoppelPolicy Considerations
(DQ6.07)

• Negative Easement-by-Estoppel as in
• Berchamer (birders purchase house after assurance
  that neighboring lot would stay undeveloped)
• Yellowstones ( ALL)
• Last Names A-K Allow Emt-by-Estoppel
• Last Names L-Z Disallow Emt-by-Estoppel (or
  Allow Only if Compensation Paid)
• (Good-Bye to Yellowstones)

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LOGISTICS My Priorities Today ? Last Class

• Note on Evaluations
• Post Todays Slides Info Memos on Chapters 3
  and 5
• Complete Feedback on 1st Set of Sample Exam
  Answers
• Ill E-Mail You When Complete with Possible Times
  for Pick-Up
• Draft Exam
• Feedback on Second Set of Critiques (A Little
  Less Thorough)
• Start Feedback on 2d Set of Sample Exam Answers
• Ill Update Status-of-Feedback at Top of Course
  Page as I Progress

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BISCAYNE Rev. Prob. 6I
SUNRISE AT ADAMS KEY
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Easement-by-Implication Review Problem 6I
(BISCAYNE)

• Quick Summary of Facts
• Webers own lot with 4 guest cottages connected to
  one set of pipes running one mile west, then
  across edge of lot to connect to municipal water
  sewer lines.
• S purchases western part of lot including
  westernmost guest cottage.
• After the purchase, pipes from other 3 cottages
  (and connecting to Ss cottage and municipal
  water/sewer) continue to run under Ss part of
  lot.

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SEWAGE PIPE HYPOTHETICAL ? REV. PROB. 6I
GC GC GC Ws S GC
To City Sewer/Water ?
E-by-I Raised Pipes in Use Before Ws Sell
Western Part to S
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Easement-by-Implication Review Problem 6I
(BISCAYNE)

• Prepare Arguments for Each Party re
• One parcel is split in two YES
• Prior Use (Quasi-Easement) YES
• Intent to continue prior use?
• Apparent, visible or reasonably discoverable?
• Some degree of necessity?
• Well Do in Reverse Order

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Easement-by-ImplicationReview Problem 6I
(BISCAYNE)

• Sufficient Necessity
• Extent of Necessity at Time of Split?
• Relevant Considerations?
• Sufficient to Meet Relevant Test?
• Arguments If Reasonable Necessity?
• Arguments If Strict Necessity?
• Why Might This Be Test?

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Easement-by-ImplicationReview Problem 6I
(BISCAYNE)

• Apparent, Visible or Reasonably Discoverable
  (Notice)
• Actual Knowledge by S Evidence/Arguments?
• Inquiry Notice to S Evidence/Arguments?

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Easement-by-ImplicationReview Problem 6I
(BISCAYNE)

• Intent to Continue Prior Use (at Time of Split)
• If both aware of pipes, probably intended (or
  atty S likely would have addressed before sale)
• If Webers aware but no notice to S,
• Maybe punish Ws by saying no
• Ws might claim they reasonably believed S knew
• If neither party aware?
• Hard to say intent as a factual matter
• BUT Court might be reluctant to punish Ws for
  mutual mistake.
• (Good-Bye to Biscaynes)

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Review Problem 6L Implied Easements Generally

• B gets Prince-Acre in Great-Aunt Ks will
  unmonitored for years
• HARM Law Firm Claims to have sold Prince-Acre to
  Ks Husband with Understanding that Could
  Continue to Use Existing Roads from Building
  across Prince-Acre to main streets.

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Review Problem 6L (Redwood) Easement-by-Estoppel

• An owner may be estopped from barring a 2d party
  access to the owners property where
• The owner apparently allows 2d party to use the
  property (Apparent License)
• 2d party reasonably and detrimentally relies on
  this acquiescence