SCOPE OF EASEMENT REVIEW PROBLEMS

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• Use of Blackletter Tests• Use of Cases• Imagine Possible Missing Facts• Identify Possible Policy Concerns

Review Problem A

• Mike gets poor TV reception b/c of valley location

• Debbie owns neighboring ranch above M’s land

• 1962 Agreement: “[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 television reception for that property.”

Review Problem A• 1962 Agreement: “[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 television reception for that property.”

• Antenna installed; reception still not good; cable unavailable

• 2007: M wants to put a satellite dish where antenna is now, but D objects.

Arguments from Marcus Cable?

Evolutionary Not Revolutionary Change Allowed?

Greater Burden Than Contemplated by the Parties?

Other Arguments from Chevy Chase?

REVIEW PROBLEM A: POLICY QUESTION?

• What to do if increase in burden is negligible but not within literal language of grant?

REVIEW PROBLEM C• Santa-acre next to garbage dump. Elfacre =

big lot w small cottage. • Grant = “E’s owners shall have the right to

cross S to dump garbage in the adjacent garbage dump”

• Es replace cottage w toy factory (7x garbage).

Greater burden than contemplated by the parties?

• S next to garbage dump. E = big lot w small cottage.

• Grant = “E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump”

Reasonable considering terms of grant ?

Evolutionary not revolutionary change allowed?

Additional Arguments from Cases?

Problem C: Possible Concerns1. Want precision in language:

punish Santa for not specifying limits2. Want people to bargain fairly3. Check unequal bargaining power4. Check who drafted

Problem C: Possible Concerns1. Want precision in language

2. Want people to bargain fairly: punish elves if hid intent to expand factory

3. Check unequal bargaining power4. Check who drafted

Problem C: Possible Concerns1. Want precision in language2. Want people to bargain fairly

3. Check unequal bargaining powerA. Santa, Inc. v. little elves

B. Old man v. Keebler Cookies & Toys Int’lKeebler Cookies & Toys Int’l4. Check who drafted

Problem C: Possible Concerns1. Want precision in language2. Want people to bargain fairly3. Check unequal bargaining power

4. Check who drafted: construe against the drafter

COURSE SELECTION:PREPARATION

• Become Familiar with Registration Procedures• Become Familiar with Graduation

Requirements• Read Course Descriptions• Read Course Evaluations

COURSE SELECTION:2L FALL SEMESTER

• Not Sophomore Year in College– No Need to Get All “Basic Courses” Out of the Way

Early– No Need to Take Heavy Load

• You Won’t Get Everything You Want, Especially if Afternoon Registration Time

• Prepare Alternatives

COURSE SELECTION:HOW TO CHOOSE

1. Becoming a Well-Rounded Lawyer2. Resume Management3. Taking Care of Yourself

Becoming a Well-Rounded Lawyer• Administrative Law: • Business Associations: • Evidence: • Federal Income Tax I:• Substantive Criminal Law: • Trusts & Estates: • U.S. Constitutional Law II: • At Least One Comparative/International Course (E.g.,

International Law, Comparative Law, International Business Transactions)

• At Least One Course Addressing a Complex Statute: (E.g., Commercial Law, Bankruptcy, Environmental Law, Employment or Housing Discrimination)

Becoming a Well-Rounded LawyerThe Bar Exam:

Becoming a Practicing Lawyer

• Bar Review Courses Will Give You Version You Need for Bar

• Mildly Helpful to Have Had the Material Before

• Matters Less the Better You Are at Law School Exams

RESUME MANAGEMENT

• Preparing for a Specialty Area– Check Lists On Registrar’s Page– Not a College Major

• Putting Yourself in the Best Light– Alternate Forms of Evaluation

• Writing Papers• Lawyering Skills

– Schedules That Facilitate Your Doing Well

TAKING CARE OF YOURSELF

• Balance in Course Selection– # of Exams or Papers– Likely Size of Classes– One Subject You Really Want to Take

• Comfortable Daily/Weekly Schedule• Choose Professors Rather Than

Course Titles

FINAL POINTS

• Employers Care Much Less Than You’d Imagine

• Use Faculty Advising Sessions• Talk to Me After Class or in Office

Hours• Housing Discrimination (T-Th 8-9:20am)

Express EasementsPetersen v. Friedman & DQ 111-12Featuring Owls

Negative Easements• 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. – Access to Light & Air– Access to View– Unimpeded flow of artificial stream– Extra lateral or subjacent support

• Most forms essentially negative rights of way: path that cannot be impeded for light/view/ water to get to dom. estate across serv. estate

Negative EasementsPetersen v. Friedman

(Cal. App. 1958)

D Placed TV Antenna Within Negative Easement for Light, Air & View

Negative EasementsPetersen v. Friedman DQ111: D’s Arguments

1. D may have argued no such thing as a view easement in California. • Court says weight of authority supports

existence of view easements• Need to check in each jurisdiction for list of

recognized negative easements

1. No such thing as view easement in Cal. 2. Parties could not have intended to ban TV

antennas (in 1942 still unknown). Court’s Response?

1. No such thing as view easement in Cal. 2. No intent to ban TV antennas 3. Antenna doesn’t violate easement b/c it

doesn’t in fact block light & view. Court’s response?

Negative EasementsDQ111: D’s Arguments (Petersen)

1. No such thing as view easement in Cal. 2. No intent to ban TV antennas 3. Antenna doesn’t in fact block light & view. 4. Potential argument: Burden much greater

than contemplated by parties. Can you elaborate?

Negative EasementsDQ111: D’s Arguments (Petersen)

1. No such thing as view easement in Cal. 2. No intent to ban TV antennas 3. Antenna doesn’t in fact block light & view. 4. Potential argument: Burden much greater

than contemplated by parties. Court’s likely response?

Negative EasementsPetersen v. Friedman

(Cal. App. 1958)

DQ112. Why is it easier to determine the scope of a negative easement than that of a

positive easement?

Chapter 8: Servitudes1.Easements

a. Express (Positive & Negative)b.Implied (Positive Only)

2. Promissory Servitudes (Brief Intro)

3. Homeowner’s Associations

Implied EasementsFour Types

• Easement by Estoppel•Easement by Implication•Easement by Necessity•Easement by Prescription

Implied Easements• Easements are both contracts & conveyances• How do you achieve contracts and conveyances without express agreement?

Implied EasementsFour Theories

Promissory Estoppel (Detrimental Reliance) Implied-in-Fact K (Parties’ Intent)Implied-in-Law K (Public Policy)

Adverse Possession

Implied EasementsFour Theories Four Types

Promissory Estoppel (Detrimental Reliance) ≈ Easement by Estoppel

Implied-in-Fact K (Parties’ Intent) ≈ Easement by Implication

Implied-in-Law K (Public Policy) ≈ Easement by Necessity

Adverse Possession ≈ Easement by Prescription

Implied EasementsRecurring “Sewage Pipe Hypo”

1. Developer builds line of houses

1. Developer builds line of houses2. Sewer pipes connecting last house in line

to sewage disposal system pass under other houses in line

1. Developer builds line of houses2. Sewer pipes connecting last house in line to

sewage disposal system pass under other houses in line

3. Developer sells all houses in line, but sewer lines serving last house not referenced in deeds and no notice provided orally

1. Developer builds line of houses2. Sewer pipes connecting last house in line to sewage

disposal system pass under other houses in line3. Developer sells all houses in line, but sewer lines

serving last house not referenced in deeds and no notice provided orally

4. When can owners of last house claim one or more types of implied easement? (Note can have more than one on same facts.)

Easements by Estoppelfeaturing

Easements by EstoppelAn 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 property2. 2d party reasonably and detrimentally relies

on this acquiescence

party access to the owner’s property where 1. The owner apparently allows 2d party to use

the property2. 2d party reasonably and detrimentally

relies on this acquiescenceDQ113: Was the D’s reliance on the

oral promise in Stoner reasonable? Was it detrimental?

party access to the owner’s property where 1. The owner apparently allows 2d party to

use the property2. 2d party reasonably and detrimentally

relies on this acquiescence

Application to Sewage Pipe Hypo

Easements by EstoppelDQ114: Policy Arguments re Easements by

Estoppel: Common Concerns include • Doctrine undermines Statute of Frauds • Claimants should make sure of legal rights before relying on mere license. • Neighbors don’t typically commit all arrangements to signed writings.

Easements by EstoppelDQ114 & Note 2: Should states allow

Easements by Estoppel …?• Whenever there’s reasonable and detrimental reliance; • Only after compensation paid; –OR– • Never

Easements by EstoppelDQ114 & Note 2: Should states allow

Easements by Estoppel …?

• NOTE: Many states do not allow!

Easements by EstoppelDQ114: Policy Arguments re Easements by

Estoppel• Note 3: Nelson v. AT&T: Stronger or

weaker case than Stoner for granting Easement by Estoppel?

Easements by EstoppelNote 4: How Long Does an Easement by Estoppel Last?

Stoner: “For so long a time as the nature of it calls for.” What does this mean …• For an irrigation ditch?

Stoner: “For so long a time as the nature of it calls for.” What does this mean …• In the hypo in Note 4:

– House built in reliance on use of right of way, which created E-by-E.

– House burns down. – Can it be rebuilt using that right of way?

P849 quote from Rerick• Could read to allow right to rebuild• May turn on evidence of nature of reliance

– Return on investment w/o rebuilding?– Connection between safety and dilapidation

Easements by Implication & Necessity

Featuring FALCONS

Easements by Implication & Necessity

• Both Arise from Split of Larger Parcel– E-by-I: Parties Intend that Prior Existing

Use Should Continue– E-by-N: Split Creates Landlocked Parcel

Needing Access• Same Facts Can Give Rise to Both

EASEMENTS BY NECESSITY:1. One parcel is split in two2. Landlock: One resulting parcel is cut off

from key access (e.g. to roads) 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

EASEMENTS BY IMPLICATION:1. One parcel is split in two2. Prior Use of one part of parcel to benefit

another part (“Quasi-Easement”)3. Circumstances suggest parties intended

to continue prior use after split NOTE: STATES VARY ON PRECISE

FORMULATION

EASEMENTS BY IMPLICATION:1. One parcel is split in two2. Prior Use (“Quasi-Easement”)3. Intent to continue prior use 4. *Apparent, visible or reasonably

discoverable5. *Some degree of necessity

* Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

EASEMENTS BY IMPLICATION: NOTICE

Need notice to bind subsequent purchasers

• Actual Notice (Fact Q): Did buyer know about easement?

• Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask?

• Usually can’t be notice from records b/c implied.

EASEMENTS BY IMPLICATION: NOTICE

Need notice to bind subsequent purchasers

• Actual Notice (Fact Q): Did buyer know about easement?

• Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask?

• Application to “Sewage Pipe Hypo”?

SCOPE OF EASEMENT REVIEW PROBLEMS

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