PROPERTY D SLIDES 4-7-14. Monday April 7 Music (to Accompany Petersen): Ken Burns’s Jazz: The Story of America’s Music Disc 4 (1950s-1960s) NCAA Sweet.

PROPERTY D SLIDES4-7-14

Monday April 7 Music (to Accompany Monday April 7 Music (to Accompany PetersenPetersen):):Ken Burns’s Jazz: The Story of America’s Ken Burns’s Jazz: The Story of America’s

MusicMusicDisc 4 (1950s-1960s)Disc 4 (1950s-1960s)

NCAA Sweet Sixteen ContestIf Connecticut wins, Nicole Halmoukos wins.

If Kentucky wins, Shari Munroe wins.

Tomorrow We’ll Meet Until ~9:45

I’ll Talk About Course Selection Process

PROPERTY D: 4/7

BaCK UP YOUR WORK: KROW RUOY PU BaCK UP YOUR WORK: KROW RUOY PU

KCABKCAB

INSIGHTS GAINED FROM PUTTING THINGS INSIGHTS GAINED FROM PUTTING THINGS

INTO INTO ESREVER: REVERSEESREVER: REVERSE

PROPERTY D: 4/7

WHY ARE SOME CARS NOT VERY TRENDY WHY ARE SOME CARS NOT VERY TRENDY

NO MATTER HOW [OFTEN] THEY’RE NO MATTER HOW [OFTEN] THEY’RE

REDESIGNED?REDESIGNED?

PROPERTY D: 4/7

WHY ARE SOME CARS NOT VERY TRENDY WHY ARE SOME CARS NOT VERY TRENDY

NO MATTER HOW [OFTEN] THEY’RE NO MATTER HOW [OFTEN] THEY’RE

REDESIGNED?REDESIGNED?

SUBARU = U R A BUSSUBARU = U R A BUS

PROPERTY D: 4/7

WHAT DO YOU BECOME IF YOU WHAT DO YOU BECOME IF YOU

CONSTANTLY WEAR EARBUDS?CONSTANTLY WEAR EARBUDS?

PROPERTY D: 4/7

WHAT DO YOU BECOME IF YOU WHAT DO YOU BECOME IF YOU

CONSTANTLY WEAR EARBUDS?CONSTANTLY WEAR EARBUDS?

I-POD = DOPI I-POD = DOPI

PROPERTY D: 4/7

WHAT KIND OF PEOPLE PAY WHAT KIND OF PEOPLE PAY

MONEY FOR BOTTLED WATER?MONEY FOR BOTTLED WATER?

PROPERTY D: 4/7

WHAT KIND OF PEOPLE PAY MONEY FOR WHAT KIND OF PEOPLE PAY MONEY FOR

BOTTLED WATER?BOTTLED WATER?

EVIAN = NAIVE EVIAN = NAIVE

PROPERTY D: 4/7

WHO SUPPLIES ELECTRONIC WHO SUPPLIES ELECTRONIC

DEVICES TO DEVICES TO WILDEBEESTS? WILDEBEESTS?

PROPERTY D: 4/7

WHO SUPPLIES ELECTRONIC DEVICES TO WHO SUPPLIES ELECTRONIC DEVICES TO

WILDEBEESTS? WILDEBEESTS?

SAMSUNG = GNU’s SAMSUNG = GNU’s

MAS MAS

Previously in Property DPreviously in Property D

Adverse PossessionAdverse Possession•Elements: Rules, Focus, Evidence, Purpose

a. Actual Useb. Open & Notorious

c.c. Exclusive: Exclusive: Rev. Prob. 5DRev. Prob. 5D

d.d. Continuous: Tacking & Rev. Prob. 5E Continuous: Tacking & Rev. Prob. 5E e.e. Adverse/Hostile & State of MindAdverse/Hostile & State of Mind

•Special Rules for Boundary Disputes•Policy Considerations•Rev Prob 5G: Lawyering

Previously in Property DPreviously in Property D

EasementsEasements•Introduction & Rev Prob 6A•Easement v. Fee: Relevant Arguments•Scope of Positive Easements• 3 Blackletter Tests• Railroad Easements Recreational Trails

YELLOWSTONE (DQ6.02)

GIANT GEYSER

Scope of Express Easements:RR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application to RR Easement)

–Possible Increases in Burden?

IMAGINATION EXERCISE(~6.02)

Everyone (but Yellowstones First)Everyone (but Yellowstones First)

Scope of Express Easements:RR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application to RR Easement)

–Possible Increases in Burden? Preseault: • No limits on location, number, frequency of users• No schedule (at whim of many individuals)• Trains stay on tracks; hiker/bikers might wander off trail &

trespass (See Cher: Gypsies, Tramps & Thieves)

–Other: privacy; litter; total amount of time easement in use; crime (see Cher: Bang, Bang)

Scope of Express Easements:RR Easement Recreational TrailChevy Chase: Tests for Scope (Application to RR Easement)

–Unreasonable Increase in Burden? Hard Q:• Primary Burdens Decrease• Lots of New Smaller Ones Arise• Hard to Weigh; Might Suggest Preseault is Correct That Should Fail

“Same Quality” Test

–In determining “reasonableness” of burden, court might also choose to weigh strong public policy behind hiker/biker trails against harms to servient owners.

Qs on Chevy Chase?

Scope of Express Easements:Change in Technology

– Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement?• Carry Water Water Pipes?• Use Road on Foot/Horse Automobiles?


– Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement?

• Marcus Cable (P834) & Cases Cited on P836: Development of Cable TV & Use of Easements for Electrical or Telephone Wires.

• What’s at Stake: Much Cheaper and Easier for Cable Co. to Negotiate One Deal with Telephone or Electric Co. Than to Negotiate New Easements Over Each Parcel Wires Might Cross.


DQ6.03: Marcus Cable Majority Analysis• Start with language of granto Give undefined terms ordinary meaningo Determine purposes of grant from languageo Use can change to accommodate technological development, but must fall

within original purposes as determined from terms of granto Again, not necessary that proposed use was contemplated at time of grant


DQ6.03: Marcus Cable Majority AnalysisOverlap with Blackletter Tests?

i.“Use must be reasonable considering the terms of the grant” (Court employs) ii.“Evolutionary not revolutionary” changes allowed. (Maybe OK if w/in purposes as defined by language)iii.“Burden must not be significantly greater than that contemplated by parties” (No burden analysis in Marcus Cable, but court’s policy arguments suggest it might be relevant if burden increases.)


DQ6.03: Marcus Cable Majority Analysis• Language: “electric transmission or distribution line or

system.”–Majority: Cable TV not w/in Ordinary Meaning–Distinguishes cases where “electric + telephone”

• Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility)• Note majority doesn’t endorse these cases, just distinguishes


DQ6.03: Marcus Cable Analysis• Language: “electric transmission or distribution

line or system.”–Majority: Cable TV not w/in Ordinary Meaning–Dissent: w/in language in two ways

• Literally (as technical matter)• As language has come to be understood w tech. changes

REDWOOD: DQ 6.03

REDWOODS & FERNS


DQ6.03 (Redwood): Applying Blackletter Tests to Marcus Cable Facts

• “Evolutionary not revolutionary” changes allowed?• “Burden must not be significantly greater than that

contemplated by parties”?


Applying Blackletter Tests to Marcus Cable Facts• “Evolutionary not revolutionary” changes allowed?

Couple more wires unlikely to be “revolutionary”

• “Burden must not be significantly greater than that contemplated by parties”?

Probably trivial increase in burden.

• Probably Why Many Courts Agree With Dissent on this Issue

Qs on Marcus Cable?Qs on Marcus Cable?

Scope of Express Easements:What’s at Stake?

Policy Considerations Relevant to Deciding Disputed Scope Qs


• Parties in long term relationship governed by terms of original agreement. – Changing circumstances make change desirable (at

least for one party).– Parties always could bargain for new agreement, but

administrative costs may be very high, especially when large number of parcels affected by similar easements as in both cases we’re looking at.


• Parties in long term relationship governed by terms of original agreement face changing circumstances.

• Strict adherence to original terms provides certainty for servient owners.– Helps protect their property value.– Marcus Cable majority position.



• Strict adherence to original terms provides certainty for servient owners.

• Flexibly allowing change better meets dominant owners’ needs & expectations – Again, helps maximize property value– Can limit (to protect Servient Os) by saying, e.g., • Use must be similar• No great increase in burden




• Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs

• Desire to promote valuable new technology?– E.g., Cable TV to rural areas– Like early internet no-tax subsidy– Arguably similar: Promoting hiker/biker trails




• Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs

• Might wish to promote valuable new technology?

Questions?

Chapter 6: Easements1. Overview & Terminology

2. Interpreting Languagea. Easement v. Fee

b. Scope of Express Easementsi. Positive Easements

ii. Negative Easements3. Implied Easements

a. By Estoppelb. By Implication and/or Necessityc. By Prescription

Scope of Express Easements:Negative Easements

• Negative Easement = 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. – E.g., Access to Light & Air; Access to View; Unimpeded Flow of

Artificial Stream– States Vary on Which They Allow


• Negative Easement = 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


Petersen v. Friedman (Cal. App. 1958)

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

REDWOOD: DQs 6.04-6.05

REDWOODS & FERNS


DQ6.04 (Redwood): D’s Arguments in Petersen

1.D may have argued, “No such thing as a view easement in California.”

• Court says weight of authority supports existence of view easements• Note for You: Need to check in each jurisdiction for list of recognized

negative easements2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?


DQ6.04 (Redwood): D’s Arguments in Petersen1.No view easement in California 2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown)– Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could

Interfere with View

– Cf. 16 Foot Tall Statue of Jackie Robinson (in 1942 also still unknown)


DQ6.04: D’s Arguments in Petersen– Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could

Interfere with View


DQ6.04 (Redwood): D’s Arguments in Petersen1.No view easement in California 2.Parties could not have intended to ban antennas3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s Response (& Evidence Supporting)?


DQ6.04 (Redwood): D’s Arguments in Petersen1.No view easement in California 2.Parties could not have intended to ban antennas3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. – Court: Fact Q implicitly decided below– Reviewing Injunction, so Defer to Trial Court– Supporting Evidence: Size & nature of obstruction; Lesser rental value

b/c of antenna


DQ6.04 (Redwood): D’s Arguments in Petersen

Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?


DQ6.04 (Redwood): D’s Arguments in PetersenConceivable Argument Not Made in Case: Burden on D

Greater than Contemplated•Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden– Pre-Cable TV Reception in SF Not Good– Relative Importance of TV (Public Policy re Access to Information)


DQ6.04: D’s Arguments in PetersenBurden on D Greater than Contemplated?

•Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden•Court’s Likely Responses– TV Not That Important (Especially in 1958)– If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One-

on-One = Much Easier Than Chevy Chase or Marcus Cable)


DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement?


DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement?

Few line-drawing problems

•Bans anything that interferes w light or view v. •Open to interpretation about allowable uses where language is broad or where technology changes

Qs on Negative EasementsQs on Negative Easements

Chapter 6: 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

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

Implied Easements: OverviewContract/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

Implied Easements: Overview4 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

Implied Easements: Overview4 Theories 4 Types of Implied Easement

(1) Easement-by Estoppel(2) Easement-by-Implication(3) Easement-by-Necessity

(4) Easement-by-Prescription

•Helpful to view each type of implied easement as a legal result reached by a court after reviewing 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

Implied Easements: Sewage Pipe HypotheticalSewage Pipe Hypothetical

1. Developer builds line of houses2. 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.

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1


1. Developer builds line of houses2. 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.

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1

Issue: Lot #3 Being “Used” by Lots #4-6 to Dispose of Their Sewage


1. Developer builds line of houses2. 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

Chapter 6: 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-EstoppelBackground: Licenses (Note 1 P850)Background: Licenses (Note 1 P850)

• 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.

Easement-by-EstoppelBackground: Licenses (Note 1 P850)Background: Licenses (Note 1 P850)

• 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)

Easement-by-EstoppelGeneral RuleGeneral 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


• 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.


• 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.

ARCHES: Stoner & DQs 6.06-6.07

DELICATE ARCHES

Easement-by-Estoppel (Arches)

DQ6.06: Reasonable & Detrimental RelianceStoner: Reliance on Oral Permission to Build Ditch

Reasonable?


DQ6.06: Reasonable & Detrimental RelianceStoner: 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?


DQ6.06: Reasonable & Detrimental RelianceStoner: Reliance on Oral Permission to Build

Ditch Detrimental? (Easier)

–$7000 in 19th Century to construct ditch –Maybe other missed opportunities (e.g., alternate

forms of irrigation now more expensive to install)

PROPERTY D SLIDES 4-7-14. Monday April 7 Music (to Accompany Petersen): Ken Burns’s Jazz: The Story of America’s Music Disc 4 (1950s-1960s) NCAA Sweet.

Documents

dopi property d

naive property d

property d slides4

busproperty d

reverseproperty d

new easements

scope application

time easement