MUSIC: BACKSTREET BOYS MILLENIUM (1999). Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Promissory Servitudes.

MUSIC: BACKSTREET BOYSMILLENIUM (1999)

Chapter 8: Servitudes1.Easements

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

2. Promissory Servitudes (Brief Intro)

3. Homeowner’s Associations

Negative Easements• Express agreement not to use servient

estate in any way that causes specific type of harm to dominant estate

Negative Easements• Express 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 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. • Most forms essentially negative rights of

way: path that cannot be impeded for light/view/ water to get to dominant estate across servient estate.

Negative EasementsPetersen v. Friedman (Cal. App. 1958)

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

Negative EasementsPetersen v. Friedman: 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. D may have argued no such thing as a view easement in California.

2. Parties could not have intended to ban TV antennas (in 1942 still unknown). Court says doesn’t matter; easement bans “any structure”; “any obstruction” Scope of negative easement is easy b/c anything violates. (E.g., 45-foot statue of Harry Potter)


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: Fact Q implicitly decided below.

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. – “Not TV” much more important than “Not Flagpole”– Pre-Cable Reception in SF iffy

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. – “Not TV” much more important than “Not Flagpole”– Pre-Cable Reception in SF iffy

– BUT not that important in 1958 + cd renegotiate

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 (Implied from Reliance)•Easement by Implication (Implied from Intent)•Easement by Necessity (Implied from Public Policy)•Easement by Prescription (≈ Adverse Possession

Implied Easements: Sewage Pipe Hypo

• Developer builds line of houses.• Sewer pipes connecting houses to city sewer system pass

under all other houses in line closer to sewers. • No express easements created to allow passage of

sewage from one lot through pipes on other lots.

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1


• Developer builds line of houses; sewer pipes connecting houses to city sewer system pass under all other houses in line closer to sewers. No express easements.

• When can owners of houses further from sewer system claim one or more types of implied easement for the flow of sewage through pipes under other lots? (Can have more than one on same facts.)

Easements by Estoppel

LICENSE: Permission by owner for third party to use owner’s property. Generally, licenses are revocable. Examples:

• 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.


An owner may be estopped from barring a 2d party access to the owner’s property (license may become irrevocable) where:

1. The owner apparently allows 2d party to use the property

2. 2d party reasonably and detrimentally relies on this acquiescence

Easements by EstoppelDQ131: In Stoner, D relies on P’s promise to

build ditch. Reasonable to rely on Oral Permission? • P presumably aware of D’s expenditures• v. Should get it in writing before spending• Might explore more facts (nature of promise; extent of

awareness of reliance, etc.)


DQ131: In Stoner, D relies on P’s promise to build ditch.

Detrimental Reliance (Easier)• $7000 in 19th Century to construct ditch • Maybe other missed opportunities (e.g.,

alternate forms of irrigation now more expensive to install)


• Developer builds line of houses; sewer pipes connecting houses to city sewer system pass under all other houses in line closer to sewers. No express easements.

• When can owners of houses further from sewer system claim one or more types of implied easement for the flow of sewage through pipes under other lots? (Can have more than one on same facts.)


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

Sewage Pipe Hypothetical: Michael buys #2 w/o house (but with sewage pipe in place) from Joshua, owner of #1. M makes clear he will build a house on #2 and J doesn’t object to use of sewer until after house is complete. When is reliance reasonable & detrimental ?


DQ132: 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. • BUT: Neighbors don’t typically commit all arrangements to signed writings (like border disputes in adv. poss.).


DQ132 & Note 2: Should states allowEasements by Estoppel …? (policy Q for you)

• Whenever there’s reasonable and detrimental reliance (many states); • Only after compensation paid (narrow set of cases); –OR– • Never (Many states!)

Easements by EstoppelNote 3 (P851): Nelson v. AT&T: Easement contained in deed

invalid b/c lack of formalities. D placed 32 poles & maintained for 30 years. Stronger or weaker case than Stoner for granting Easement by Estoppel?

• AT&T: Clearer that easement rather than license intended b/c explicit in writing & probs w deed after O signed

• BUT AT&T sophisticated party; should’ve known that deed was invalid & fixed

• Mass SCt holds no easement b/c AT&T shd have known easement not properly created (and so mere license)

Easements by EstoppelN.4 (P851-52): 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 useful?– So long as no cheap alternatives?

Easements by EstoppelN.4 (P851-52): 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 …• 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?

Easements by EstoppelN.4 (P851-52): 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 in the hypo in Note 4: House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick (middle P849)• Could read to allow right to rebuild• May turn on evidence of nature of reliance

– Return on investment w/o rebuilding? (insurance $)– Connection between safety and dilapidation


Qs on Easements by Estoppel or Stoner?

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 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

Sewage System Hypo: Claimant buys house #6 new from owner of #5; sewer lines unused but in place.


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 of one part of parcel to benefit another part

(“Quasi-Easement”)3. Circumstances suggest parties intended to continue prior use

after split

SEWAGE PIPE HYPO: David owns and uses houses on #5 and #6. He subsequently sells one of the two houses to Jeremy.


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 & NECESSITY

Implied by Grant v. Implied by ReservationParcel split into Eastacre and Westacre. Prior Use =

Driveway from House on Eastacre across Westacre to main road.

• Original owner sells East, retains West = by Grant (Claim in Dupont)• Original owner sells West, retains East = by Reservation (Claim in

Williams Island)• Original Owner Simultaneously Sells Both to Different People = by

Grant

Easements by Implication & NECESSITY

Implied by Grant v. Implied by Reservation• Some jurisdictions treat some elements of E-by-I or E-by-

N more favorably if “by grant” than “by reservation”• Implied by Reservation seen as shady: “When I sold

you the lot next door, I forgot to mention that I was going to keep using the path to the lake.

Oops.”

EASEMENTS BY IMPLICATION: NOTICE

Need notice to bind subsequent purchasers (not original parties to transaction)

• 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 easement.


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”: David owns and uses houses on #5 and #6. He subsequently sells #6 to Jeremy. David later sells #5 to Andrea. If J has an E-by-I., is A bound by it? What would be notice here?



Need notice to bind subsequent purchasers• Application to “Sewage Pipe Hypo”:• See Kirma (cited in Williams Island @ P854):

underground pipes that crossed servient estate emerged at river bank where they emptied into river = Inquiry Notice

EASEMENTS BY NECESSITY: NOTICE

• In theory, also need notice to bind.• Court finding the easement necessary unlikely

to find lack of notice. (Courts sometimes stretch to find inquiry notice: should have been aware that pipes underground might connect, etc.)

Williams Island & the Elements of EASEMENTS BY IMPLICATION

1. One parcel is split in two (undisputed)2. Prior Use (“Quasi-Easement”) (undisputed)3. Intent to continue prior use: Evidence? – Testimony: Intent of original parties & that when Williams

purchased golf course, it was told that original; owner of servient estate had agreed toeasement

– References to “Easements” in Deed (but Not Specified)– Overall Circumstances (incl. continual use)


1. One parcel is split in two (undisputed)2. Prior Use (“Quasi-Easement”) (undisputed)3. Intent to continue prior use (good evidence)4. Apparent, visible or reasonably discoverable?– Paved; 9 feet wide; “in constant use” + references

in deed


1. One parcel is split in two (undisputed)2. Prior Use (“Quasi-Easement”) (undisputed)3. Intent to continue prior use (good evidence)4. Apparent, visible or reasonably discoverable?5. Necessity: Court says yes; we’ll do later

6. Notice to Subsequent Purchasers?: • Actual: Buyer’s Rep Told 4 mos. Before Closing• Inquiry: Established Regular Use


1. One parcel is split in two (undisputed)2. Prior Use (“Quasi-Easement”) (undisputed)3. Intent to continue prior use (good evidence)4. Apparent, visible or reasonably discoverable?5. Necessity: Court says yes; we’ll do later6. Notice: Both Actual & Inquiry

Unusually good evidence of both intent & notice.


Necessity RequirementEASEMENTS BY IMPLICATION: • Usually reasonable necessity required• Some states (not FL): strict necessity required

if implied by reservationEASEMENTS BY NECESSITY: • Most states: strict necessity


Necessity RequirementN.3: “Reasonable Necessity” in Williams Island? • Alternatives (from note 1 on P853):– Cross highway, travel 200 feet on sidewalk, cross

highway again– Backtrack along a substantial portion of the golf course

to get around defendant’s tract

• Ct. (P852): “No practical or safe alternative route”


Necessity RequirementN. 3: “Reasonable necessity” in Williams Island? • Alternatives (from note 1 on P853):– Cross highway, travel 200 feet on sidewalk, cross

highway again– Backtrack along a substantial portion of the golf

course to get around defendant’s tract

• Lawyering Task: Other Possible Alternatives?


Necessity RequirementNote 3: Should lack of access to utilities meet the

strict necessity test?• Not landlocked or worthless & usually possible to get

utility service at some expense• BUT can’t use for many purposes without new

expensive utility connection• PLUS Very inefficient to reroute utility service if

existing pipes or wires (cf. Marcus Cable)


Necessity RequirementIs the majority’s analysis of necessity in Dupont

more convincing than that of the dissent? – Access available to Southern part + possibility of

road across wetlands (v.)– Getting road built across wetlands costs time, $$,

and conservation easement (giving up use of some of land)


Necessity RequirementThoughts on Dupont: FL Necessity Standards Confusing• Fl. Stat. §704.01(1): “reasonably necessary”;

“reasonable & practicable”– §704.03: “practicable” means w/o use of “bridge, ferry,

turnpike road, embankment or substantial fill.”

• Tortoise Island (Fla Supr Ct): “absolute necessity”• Hunter (1st DCA interpreting Tortoise Island): “no other

reasonable mode of accessing the property”


Necessity RequirementThoughts on Dupont: FL Necessity Standards Confusing• Fl. Stat. §704.01(1): “reasonably necessary”; “reasonable &

practicable” (“practicable” means w/o use of “bridge, ferry, turnpike road, embankment or substantial fill.”)

• Tortoise Island (Fla Supr Ct): “absolute necessity”• Hunter (1st DCA interpreting Tortoise Island): “no other

reasonable mode of accessing the property”

What would you have to show to meet tests in“ Sewage Pipe Hypo”?

Thoughts on Dupont

• No easement by implicaton (no prior use)• No easement by prescription (permission)• BUT bad facts for servient owners: their own

story is revoking license after 14 years

Thoughts on Dupont

• If Whiteside’s version of facts is true, good case for easement by estoppel: – Purchasing land & building expensive house

($240,000 in 1981) = detrimental reliance– Duponts (sellers) building road prior to closing on

sale of land probably makes reliance reasonable

Thoughts on Dupont: Terminology

• Court says can’t have easement w/o writing• Allows possibility of “irrevocable license”• Really means same thing as Easement by

Estoppel

Thoughts on Dupont: E-by-N Tricky• Road to Southern part of lot existed in 1981 when

purchased, so lot as a whole was not landlocked• House on Northern part not built when purchased, so no

necessity for enjoyment in 1981• Would have to view essentially as two separate parcels

divided by water with no access between them to get E-by-N to Northern part

• What if road crossing wetlands easy in 1981?


A Little More Doctrine• E-by-N end when the necessity ends; E-by-I do not (based

in intent; necessity really is just evidence of intent)• Courts almost always hold that negative easements can’t

be created by implication or by necessity. Penn. case in N.4 is very rare in even considering.

• Some states have private condemnation statutes like those described in Note 8 to address situations that might give rise to E-by-N.


Qs on Easements by Implicationor by Necessity?

MUSIC: BACKSTREET BOYS MILLENIUM (1999). Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Promissory Servitudes.

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