logistics & schedule thursday: final class (no slides; may run long) friday: no class – info...

LOGISTICS & SCHEDULE• Thursday: Final Class (No Slides; May Run Long)• Friday: No Class– Info Memo on Chapter 7 Posted– Office Hours 2-6

• Saturday Apr 27– Office Hours 2-6– Optional Sample Exam Answers Due @ 9pm • Thursday May 2: Office Hours 2-6Thursday May 2: Office Hours 2-6• Tuesday May 7: Tuesday May 7: – Office Hours 2-6– Review Session @ 7pm Room F309 (Will Be Taped)

Chapter 7: Easements1. Overview & Terminology2. Interpreting Language

a. Easement v. Feeb. Scope of Express Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessityc. By Prescription

Easement-by-Prescription

Generally1. Easement Created by Particular Use of

Another’s Land for Adverse Possession Period

2. Need to Show Adverse Possession Elements (with Some Variations in Some States)

3. We’ll Look at Elements Individually


[Actual] Use[Actual] Use1. 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. MacDonald (DQ115): Golf Shots & Retrieval4. Sometimes Q of Whether Use is Sufficient

to Constitute “Possession” and Trigger Adv. Poss. Claim Instead of E-by-P (See Note 3 P876-77)

Easement-by-PrescriptionContinuous (See P877)

• Obviously Doesn’t 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 (DQ115): Golf Course in Use Through Whole Period & Steady # of Users End Up on Land in Q

Easement-by-PrescriptionOpen & Notorious & DQ116 (See

P877)• Some States: Traditional Definition of

O&N–Use of Path or Driveway Almost Certainly

Meets–Underground Utilities (Sewage Pipe Hypo) • Hard to Meet O&N (Like Marengo Caves)• Could Analyze Like Notice for E-by-I or E-by-N

• Some States: Need Actual Notice

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1

E-by-P Raised: Use of Pipes by More Distant Users for Adv. Poss. Period; Likely Qs re Open & Notorious, Exclusive

Easement-by-PrescriptionOpen & Notorious & DQ116 (See

P877)• Some States: Traditional Definition of

O&N• Some States: Require that Servient

Owner Have Actual Notice (e.g., MacDonald)– Policy Concerns Similar to Border Disputes;

Don’t Necessarily Need O in Possession to Monitor Closely

– Evidence of Actual Notice in MacDonald (DQ115): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

Easement-by-PrescriptionExclusive (See P877-78)

• Many Jurisdictions Don’t Require – Sensible: Nature of Easement is Non-

Exclusive Use– MacDonald doesn’t 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 didn’t give permission but didn’t interfere)


Adverse/Hostile & Presumptions1. General Difficulty: If O in Possession &

Use is Open & Notorious, Reasonable to Assume Permission?

2. 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?


Adverse/Hostile & PresumptionsPolicy Q: What do you do with case like

MacDonald or Dupont where use continues for a long time and then servient owner says no? (plausible to say permissive)

Could create hybrid of prescription & estoppel: if use goes on long enough, can’t change your mind.

Easement-by-PrescriptionPolicy Questions

DQ114. To what extent do the rationales for Adv. Poss. also support E-by-P?

• Clearly protect people and the legal system from being burdened with “stale” claims

• For you to consider & use to help decide close Qs:

(a) reward beneficial use of land(b) punish sleeping owners(c) recognize psychic connection to the land

Review Problems 7A-7B

GLACIER: For Santa & Mike

OLYMPIC:For Elves & Debbie

Review Problem 7A:Glacier for Santa; Olympic for

Elves “E’s owners shall have the right to cross S to dump garbage in the adjacent

garbage dump”•Santa-acre = next to garbage dump. •Elf-Acre = –Time of Grant: Big lot w small cottage. –Later: Cottage Toy factory (7x

garbage).



garbage dump”Cottage on E Toy Factory (7x

Garbage)

Reasonable considering terms of grant?




Garbage)

Missing/Ambiguous Facts re:•Extent of Burden on S•Evolution v. Revolution




Garbage)

Missing/Ambiguous Facts re:•Circumstances Surrounding Transaction

Review Problem 7B:Glacier for Mike; Olympic for

Debbie “[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

•2007: Can M replace antenna w satellite dish?


Debbie 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.” 2007: Can M replace antenna w satellite

dish?

Arguments from Marcus Cable?


Debbie 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.”

2007: Can M replace antenna w satellite dish?

Arguments underChevy Chase?

(Missing/Ambiguous Facts?)

Common Scope of Easement Issues

• Arguably w/in Very Broad Language, but Significant Change (7A & Chevy Chase)• Arguably Not w/in Language, but Trivial Increase in Burden (7B & Marcus Cable)

YOSEMITE: Rev. Prob. 7E

HALF DOME

YOSEMITE: Rev. Prob. 7E

Express Easement in force that allows oil workers to cross roads on your client’s land to access oil wells on neighboring ranch.

Used in past to service wells that have since stopped producing.

Factual & Legal Research Needed to See if Use re Newly Discovered Well is Within Scope of Easement?

logistics & schedule thursday: final class (no slides; may run long) friday: no class – info...

Documents

actual use easement

possession use

prescription actual

prescription slide

use of path

shared use

continuous use

seasonal use