Property II Professor Donald J. Kochan Spring 2009 Class 38 11 February 2009.

Property IIProperty IIProfessor Donald J. KochanProfessor Donald J. Kochan

Spring 2009Spring 2009Class 38Class 38

11 February 200911 February 2009

Today’s MaterialToday’s Material

Introduction to ServitudesIntroduction to Servitudes EasementsEasements

Pages 667-715Pages 667-715

Hovenkamp & KurtzHovenkamp & Kurtz

Suggested Non-Required but Recommended Suggested Non-Required but Recommended Supplemental Material:Supplemental Material:

The H&K hornbook (see your Syllabus) isThe H&K hornbook (see your Syllabus) isextremely helpful on these (and other) extremely helpful on these (and other)

topicstopicsSeeSee http://west.thomson.com/productdetail/128860/22048674/productdetail.aspxhttp://west.thomson.com/productdetail/128860/22048674/productdetail.aspx

(The Fifth Edition is just as good if you can find it used.)(The Fifth Edition is just as good if you can find it used.)

ServitidesServitides

Three Principal Types:Three Principal Types:

EasementsEasements

Real CovenantsReal Covenants

Equitable ServitudesEquitable Servitudes

Servitudes and Dominant and Servitudes and Dominant and Servient EstatesServient Estates

Definitional Terms that you must understandDefinitional Terms that you must understand

Very generally:Very generally:

Dominant is the person or property benefited by Dominant is the person or property benefited by the use, disuse, or other burden on another’s the use, disuse, or other burden on another’s

propertyproperty

Servient is the person or property that is burdened Servient is the person or property that is burdened by giving up a stick to another – they must either by giving up a stick to another – they must either do something or refrain from doing something for do something or refrain from doing something for the benefit of another or must allow another to do the benefit of another or must allow another to do

something on their property something on their property

Historical Background of Historical Background of EasementsEasements

Medieval PeriodMedieval Period Communal System v. Private PropertyCommunal System v. Private Property

Agricultural basisAgricultural basis ProfitsProfits

From common fields and shared pastures From common fields and shared pastures to fenced fields and consolidated farmsto fenced fields and consolidated farms

Affirmative and Negative Easements – Affirmative and Negative Easements – Understand the differenceUnderstand the difference

Easements GenerallyEasements Generally

This provides some useful This provides some useful information as a information as a

supplemental introduction:supplemental introduction:

http://legal-dictionary.thefreedictionaryhttp://legal-dictionary.thefreedictionary.com/easement.com/easement

Restatement (Third) of Property: Restatement (Third) of Property: Servitudes Servitudes

““§ 1.2 Easement And Profit Defined§ 1.2 Easement And Profit Defined

(1) An easement creates a nonpossessory right to enter and use (1) An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor land in the possession of another and obligates the possessor

not to interfere with the uses authorized by the easement.not to interfere with the uses authorized by the easement.(2) A profit à prendre is an easement that confers the right to (2) A profit à prendre is an easement that confers the right to

enter and remove timber, minerals, oil, gas, game, or other enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another. It is substances from land in the possession of another. It is

referred to as a “profit” in this Restatement.referred to as a “profit” in this Restatement.(3) The burden of an easement or profit is always appurtenant. (3) The burden of an easement or profit is always appurtenant.

The benefit may be either appurtenant or in gross.The benefit may be either appurtenant or in gross.(4) As used in this Restatement, the term “ easement” includes (4) As used in this Restatement, the term “ easement” includes

an irrevocable license to enter and use land in the possession an irrevocable license to enter and use land in the possession of another and excludes a negative easement. A negative of another and excludes a negative easement. A negative easement is included in the term “restrictive covenant” easement is included in the term “restrictive covenant”

From Westlaw and Black’s Law From Westlaw and Black’s Law Dictionary DefinitionsDictionary Definitions

““EasementEasement ( (eezeez-m<<schwa>>nt). An interest in land -m<<schwa>>nt). An interest in land owned by another person, consisting in the right to use or owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public limited purpose (such as to cross it for access to a public road). • The land benefiting from an easement is called the road). • The land benefiting from an easement is called the dominant estatedominant estate; the land burdened by an easement is ; the land burdened by an easement is called the called the servient estateservient estate. Unlike a lease or license, an . Unlike a lease or license, an easement may last forever, but it does not give the holder easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land. the right to possess, take from, improve, or sell the land. The primary recognized easements are (1) a right-of-way, The primary recognized easements are (1) a right-of-way, (2) a right of entry for any purpose relating to the dominant (2) a right of entry for any purpose relating to the dominant estate, (3) a right to the support of land and buildings, (4) a estate, (3) a right to the support of land and buildings, (4) a right of light and air, (5) a right to water, (6) a right to do right of light and air, (5) a right to water, (6) a right to do some act that would otherwise amount to a nuisance, and some act that would otherwise amount to a nuisance, and (7) a right to place or keep something on the servient (7) a right to place or keep something on the servient estate. See SERVITUDE (1). Cf. PROFIT A PRENDRE. -- Also estate. See SERVITUDE (1). Cf. PROFIT A PRENDRE. -- Also termed termed private right-of-wayprivate right-of-way. [Cases: Easements 1. . [Cases: Easements 1. C.J.S. C.J.S. EasementsEasements §§ 2 §§ 2--88, , 1313--1414, , 2121--2222, , 2424, , 5353--5555, , 5757--5858, , 8989.]”.]”


““private easementprivate easement.. An easement whose An easement whose enjoyment is restricted to one specific person enjoyment is restricted to one specific person or a few specific people. [Cases: Easements or a few specific people. [Cases: Easements 52. 52. C.J.S. C.J.S. EasementsEasements §§ 164 §§ 164--167167.]”.]”

““public easementpublic easement.. An easement for the An easement for the benefit of an entire community, such as the benefit of an entire community, such as the right to travel down a street or a sidewalk.”right to travel down a street or a sidewalk.”


““affirmative easementaffirmative easement.. An easement that forces the servient-estate An easement that forces the servient-estate owner to permit certain actions by the easement holder, such as owner to permit certain actions by the easement holder, such as

discharging water onto the servient estate. -- Also termed discharging water onto the servient estate. -- Also termed positive positive easementeasement. Cf. . Cf. negative easementnegative easement. .

’ ’Positive easements give rights of entry upon the land of another, not Positive easements give rights of entry upon the land of another, not amounting to profits, to enable something to be done on that land. Some amounting to profits, to enable something to be done on that land. Some

are commonplace, examples being rights of way across the land of another are commonplace, examples being rights of way across the land of another and rights to discharge water on to the land of another. Others are more and rights to discharge water on to the land of another. Others are more

rare, such as the right to occupy a pew in a church, the right to use a rare, such as the right to occupy a pew in a church, the right to use a kitchen situated on the land of another for the purpose of washing and kitchen situated on the land of another for the purpose of washing and

drying clothes, and the right to use a toilet situated on the land of another.’ drying clothes, and the right to use a toilet situated on the land of another.’ Peter Butt, Peter Butt, Land LawLand Law 305 (2d ed. 1988).” 305 (2d ed. 1988).”

““negative easementnegative easement.. An easement that prohibits the servient-estate An easement that prohibits the servient-estate owner from doing something, such as building an obstruction. Cf. owner from doing something, such as building an obstruction. Cf. affirmative affirmative

easementeasement. [Cases: Covenants 20; Easements 13. . [Cases: Covenants 20; Easements 13. C.J.S. C.J.S. EasementsEasements § 59 § 59.] .] ’ ’Negative easements ... confer no right of entry, but consist essentially of the Negative easements ... confer no right of entry, but consist essentially of the

right to prevent something being done; examples are the right to the flow of right to prevent something being done; examples are the right to the flow of air through defined aperture, the right to receive light for a building, the air through defined aperture, the right to receive light for a building, the

right to the support of a building, and (possibly) the right to require a right to the support of a building, and (possibly) the right to require a neighbouring landowner to repair fences.’ Peter Butt, neighbouring landowner to repair fences.’ Peter Butt, Land LawLand Law 305 (2d ed. 305 (2d ed.

1988).”1988).”


““reciprocal negative easementreciprocal negative easement.. An An easement created when a landowner sells easement created when a landowner sells part of the land and restricts the buyer's part of the land and restricts the buyer's use of that part, and, in turn, that same use of that part, and, in turn, that same

restriction is placed on the part kept by the restriction is placed on the part kept by the landowner. • Such an easement usu. arises landowner. • Such an easement usu. arises

when the original landowner creates a when the original landowner creates a common scheme of development for common scheme of development for

smaller tracts that are carved out of the smaller tracts that are carved out of the original tract. [Cases: Covenants 20; original tract. [Cases: Covenants 20;

Easements 13. Easements 13. C.J.S. C.J.S. EasementsEasements § 59 § 59.]”.]”

Appurtenant v. In GrossAppurtenant v. In Gross Appurtenant = attached to and runs with Appurtenant = attached to and runs with the land; transferee receives the benefit and the land; transferee receives the benefit and

the burdened property owner remains the burdened property owner remains burdened despite the change in ownershipburdened despite the change in ownership

In Gross = attached to a person and may be In Gross = attached to a person and may be alienable but presumed not; a personal alienable but presumed not; a personal

benefit; does not necessarily run with the benefit; does not necessarily run with the land and usually does not; the “I trust you land and usually does not; the “I trust you

but not necessarily your successor” situationbut not necessarily your successor” situation

Realize that each is very fact specificRealize that each is very fact specific

Appurtenant v. In Gross (cont.)Appurtenant v. In Gross (cont.) ALWAYS analyze scope – the dominant, however the ALWAYS analyze scope – the dominant, however the

transfer, can never expand the scope of the originally transfer, can never expand the scope of the originally agreed easement regardless of whether it runs with the agreed easement regardless of whether it runs with the

land or not; thus, the first steps are:land or not; thus, the first steps are:

Determine if it is appurtenant or in grossDetermine if it is appurtenant or in gross Define the Scope of UseDefine the Scope of Use

Define the scope of the dominant’s rights to assign or Define the scope of the dominant’s rights to assign or otherwise transferotherwise transfer

Determine if it runs with the landDetermine if it runs with the land Determine if a subsequent purchaser can take the benefit of Determine if a subsequent purchaser can take the benefit of

the easementthe easement Determine if the use is consistent with original intent and Determine if the use is consistent with original intent and

agreementagreement Determine whether any new uses add a new or unintended Determine whether any new uses add a new or unintended burden on the servient estate – because of user or type of useburden on the servient estate – because of user or type of use


““easement appurtenanteasement appurtenant.. An easement created to An easement created to benefit another tract of land, the use of easement benefit another tract of land, the use of easement

being incident to the ownership of that other being incident to the ownership of that other tract. -- Also termed tract. -- Also termed appurtenant easementappurtenant easement; ;

appendant easementappendant easement; ; pure easementpure easement; ; easement easement properproper. Cf. . Cf. easement in grosseasement in gross. [Cases: Easements . [Cases: Easements

3. 3. C.J.S. C.J.S. EasementsEasements §§ 4 §§ 4, , 1010--1111, , 2020.]”.]”

““easement in grosseasement in gross.. An easement benefiting a An easement benefiting a particular person and not a particular piece of particular person and not a particular piece of

land. • The beneficiary need not, and usu. does land. • The beneficiary need not, and usu. does not, own any land adjoining the servient estate. not, own any land adjoining the servient estate.

Cf. Cf. easement appurtenanteasement appurtenant. [Cases: Easements 3. . [Cases: Easements 3. C.J.S. C.J.S. EasementsEasements §§ 4 §§ 4, , 1010--1111, , 2020.]”.]”

Creation of EasementsCreation of Easements ExpressExpress

ImpliedImplied

EstoppelEstoppel

PrescriptionPrescription

But ALWAYS focus on SCOPE regardless of But ALWAYS focus on SCOPE regardless of the method of creationthe method of creation

Right-of-Way Examples for EasementsRight-of-Way Examples for EasementsDGDG>>

>> >>

>> >> >>

________________________________________>>______________________________________________________________________________________________________\ \ >> \ \ >>>>>>>>>>>>>>\\

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\>>>>>>>>>>>>>>>>>>>>>>>>DG or DADG or DA \\ SS \\ BB

\\ \\\\ \\\\ \\\\ \\

<<<<<<<<<<<<<<\\<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\<<<<<<<<<<<< <<<<<<<<<<<< RR\\ \\

__________________________________________________________________________________________________________________________________________________

DG = Dominant in grossDG = Dominant in grossDA = Dominant appurtenantDA = Dominant appurtenant

S = ServientS = ServientB = BeachB = BeachR = RoadR = Road

Consider all Permutations on DiagramConsider all Permutations on Diagram


““access easementaccess easement.. An easement An easement allowing one or more persons to travel allowing one or more persons to travel

across another's land to get to a across another's land to get to a nearby location, such as a road. • The nearby location, such as a road. • The access easement is a common type of access easement is a common type of easement by necessity. -- Also termed easement by necessity. -- Also termed

easement of accesseasement of access; ; easement of easement of wayway; ; easement of passageeasement of passage.” .”

Willard v. Willard v. First Church of Christ, ScientistFirst Church of Christ, Scientist

Church/Parking Lot caseChurch/Parking Lot case Reservation in a property to for “a stranger to the Reservation in a property to for “a stranger to the

title” casetitle” case ““our primary objective in construing a conveyance our primary objective in construing a conveyance

is to try to give intent to the grantor. . . .”is to try to give intent to the grantor. . . .” What burdens follow with a sale?What burdens follow with a sale?

Ambiguity issuesAmbiguity issues Reliance issuesReliance issues

Easements created in favor of Easements created in favor of a Third Party Issuesa Third Party Issues

Extinguishment IssuesExtinguishment Issues Note 1 and Note 4 following the case are importantNote 1 and Note 4 following the case are important

Licenses DistinguishedLicenses Distinguished What is a license? What is a license?

Understand Nature of the InterestUnderstand Nature of the Interest ““A license is oral or written permission given by the A license is oral or written permission given by the

occupant of land allowing the licensee to do some occupant of land allowing the licensee to do some act that otherwise would be a trespass.” D&Kact that otherwise would be a trespass.” D&K

Plumber, dinner or barbecue guest, theater, Plumber, dinner or barbecue guest, theater, housesitter examples, etc.housesitter examples, etc.

Primary Issue of Distinction Relates to Revocability Primary Issue of Distinction Relates to Revocability – A license is generally revocable while an – A license is generally revocable while an

easement is noteasement is not Involves a CONTRACT right to go upon or use Involves a CONTRACT right to go upon or use

another’s land, rather than a PROPERTY rightanother’s land, rather than a PROPERTY right Property Remedies v. Contract Remedies for the Property Remedies v. Contract Remedies for the

Licensee and LicensorLicensee and Licensor

Holbrook v. TaylorHolbrook v. Taylor

Coal haul road/right-of-way caseCoal haul road/right-of-way case

Estoppel issues – when, if ever, does a Estoppel issues – when, if ever, does a license turn into an easement? What is license turn into an easement? What is

the distinction?the distinction?

Reliance IssuesReliance Issues

Prescription distinguishedPrescription distinguished

Shepard v. PurvineShepard v. Purvine

Arm’s Length IssuesArm’s Length Issues

Necessity for a formalization of an Necessity for a formalization of an easement agreement to avoid the easement agreement to avoid the

revocability of a mere licenserevocability of a mere license

Henry v. DaltonHenry v. Dalton Intent issues – what arrangement was intended?Intent issues – what arrangement was intended?

Statute of Frauds as an important method for Statute of Frauds as an important method for determining whether or not property should be determining whether or not property should be

boundbound

Revocable or Irrevocable RightsRevocable or Irrevocable Rights

Nature of the Grant of UseNature of the Grant of Use

See Notes re Restatement regarding estoppel See Notes re Restatement regarding estoppel following casesfollowing cases

Van Sandt v. RoysterVan Sandt v. Royster

Underground Lateral Sewage Drain CaseUnderground Lateral Sewage Drain Case

One issue is whether it is appurtenantOne issue is whether it is appurtenant

Implied grants and implied reservations – Implied grants and implied reservations – when and how do they rise to enforceable when and how do they rise to enforceable

easements?easements?

Notice how the court focuses on intent of Notice how the court focuses on intent of the partiesthe parties

Implied and “Quasi” EasementsImplied and “Quasi” Easements From the text:From the text:

““Easements are implied in two basic situations. In the first situation Easements are implied in two basic situations. In the first situation the easement is implied on the basis of an apparent and the easement is implied on the basis of an apparent and

continuous (or permanent) use of a portion of the tract existing continuous (or permanent) use of a portion of the tract existing when the tract is divided. The existing use is often described as a when the tract is divided. The existing use is often described as a

‘quasi-easement.’ The easement is implied to protect the ‘quasi-easement.’ The easement is implied to protect the probable expectations of the grantor and grantee that the existing probable expectations of the grantor and grantee that the existing use will continue past the transfer. . . . In the second situation the use will continue past the transfer. . . . In the second situation the easement is implied when the court finds the claimed easement is easement is implied when the court finds the claimed easement is

necessary to the enjoyment of the claimant’s land and that the necessary to the enjoyment of the claimant’s land and that the necessity arose when the claimed dominant parcel was severed necessity arose when the claimed dominant parcel was severed

from the claimed servient parcel. This kind of implied easement is from the claimed servient parcel. This kind of implied easement is known as an easement by necessity . . .”known as an easement by necessity . . .”

Should we protect the continuation of existing uses?Should we protect the continuation of existing uses?

Intentions and expectations of the parties keyIntentions and expectations of the parties key


““easement by estoppeleasement by estoppel.. A court-ordered easement created A court-ordered easement created from a voluntary servitude after a person, mistakenly believing from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the servitude to be permanent, acted in reasonable reliance on the mistaken belief. [Cases: Estoppel 82. the mistaken belief. [Cases: Estoppel 82. C.J.S. C.J.S. EstoppelEstoppel § 90 § 90.]”.]”

““equitable easementequitable easement. 1.. 1. An implied easement created by An implied easement created by equity when adjacent lands have been created out of a larger equity when adjacent lands have been created out of a larger tract. • Such an easement is usu. created to allow implied tract. • Such an easement is usu. created to allow implied privileges to continue. [Cases: Easements 16. privileges to continue. [Cases: Easements 16. C.J.S. C.J.S. EasementsEasements §§ 3 §§ 3, , 6161--6565, , 6868--7171, , 7474, , 7979--8181, , 8888.] .] 2.2. See See restrictive covenantrestrictive covenant (1) under COVENANT (4).”(1) under COVENANT (4).”

“ “implied easementimplied easement.. An easement created by law after an An easement created by law after an

owner of two parcels of land uses one parcel to benefit the other owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the purchaser could reasonably expect the use to be included in the sale. -- Also termed sale. -- Also termed easement by implicationeasement by implication; ; way of necessityway of necessity. . [Cases: Easements 15-19. [Cases: Easements 15-19. C.J.S. C.J.S. EasementsEasements §§ 3 §§ 3, 13, 61-88, 90-, 13, 61-88, 90-109, 149.]”109, 149.]”

Othen v. RosierOthen v. Rosier Roadway Easement CaseRoadway Easement Case

By Necessity and By Prescription IssuesBy Necessity and By Prescription Issues

Implication of Easement at Sale/Notice of EncumbranceImplication of Easement at Sale/Notice of Encumbrance

Consent/Reliance IssuesConsent/Reliance Issues

FencingFencing

Intent IssuesIntent Issues

Doctrine of Strict Necessity – mere convenience is Doctrine of Strict Necessity – mere convenience is insufficientinsufficient

Easements by NecessityEasements by Necessity Means the creation of an easement mandated by law and Means the creation of an easement mandated by law and notnot by by

private negotiation – When is it appropriate because it places a private negotiation – When is it appropriate because it places a burden on another?burden on another?

Define whetherDefine whether necessity necessity exists exists

Strict Necessity v. Convenience DistinctionStrict Necessity v. Convenience Distinction

See Notes regarding issue of durationSee Notes regarding issue of duration

Landlocked property issues (“I can’t get in, I can’t get out!”), Landlocked property issues (“I can’t get in, I can’t get out!”), including knowledge upon acquisition and whether price was including knowledge upon acquisition and whether price was

discounted (buyer beware and unjust enrichment issues)discounted (buyer beware and unjust enrichment issues)

See the Note regarding See the Note regarding Leo Sheep Co.Leo Sheep Co. – Why does the existence of – Why does the existence of the power of eminent domain make a difference? (in considering the power of eminent domain make a difference? (in considering that, also go back to the NGA 7(h) example from Class 30 (mining that, also go back to the NGA 7(h) example from Class 30 (mining

v. natural gas example))v. natural gas example))


“ “easement by necessityeasement by necessity.. An An easement created by operation of law easement created by operation of law

because the easement is indispensable because the easement is indispensable to the reasonable use of nearby to the reasonable use of nearby property, such as an easement property, such as an easement

connecting a parcel of land to a road. -- connecting a parcel of land to a road. -- Also termed Also termed easement of necessityeasement of necessity; ;

necessary waynecessary way. [Cases: Easements 18. . [Cases: Easements 18. C.J.S. C.J.S. EasementsEasements §§ 63 §§ 63, , 6969, , 7575--7777, , 9191--

9797, , 9999--101101, , 103103--109109.]”.]”

Easements by Necessity (cont.)Easements by Necessity (cont.)

Supplemental Case Study: Supplemental Case Study:

Tolksdorf v. GriffithTolksdorf v. Griffith, 464 Mich. 1, 626 N.W.2d , 464 Mich. 1, 626 N.W.2d 163 (Mich. 2001) (Private Roads Act in 163 (Mich. 2001) (Private Roads Act in

Michigan found unconstitutional) (recognize Michigan found unconstitutional) (recognize relationship with takings law and the “public relationship with takings law and the “public

use” clause)use” clause)

For Non-Required Supplemental Reading, see:For Non-Required Supplemental Reading, see:

http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/SCT/2001051http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/SCT/20010515_S115032(52)_tolksdorf.PDF5_S115032(52)_tolksdorf.PDF

Michigan Supreme CourtMichigan Supreme Court

Easements by PrescriptionEasements by Prescription Similarities and overlaps with adverse possession – Similarities and overlaps with adverse possession –

“in many ways is similar to adverse possession but in some “in many ways is similar to adverse possession but in some ways distinctly different” ways distinctly different” D&KD&K

Lost Grant Legal Fiction – What is a “Legal Fiction”?Lost Grant Legal Fiction – What is a “Legal Fiction”?

Acquiescence, Permission, and Adversity IssuesAcquiescence, Permission, and Adversity Issues

Factual Evidence of Interruption and the Legal EffectFactual Evidence of Interruption and the Legal Effect

Permissive v. Adverse UsePermissive v. Adverse Use

Public Prescriptive Easements: The Beach Access ExamplesPublic Prescriptive Easements: The Beach Access Examples

Highly Fact-SpecificHighly Fact-Specific


““prescriptive easementprescriptive easement.. An An easement created from an open, easement created from an open,

adverse, and continuous use adverse, and continuous use over a statutory period. -- Also over a statutory period. -- Also

termed termed easement by easement by prescriptionprescription; ; adverse easementadverse easement. .

See ADVERSE POSSESSION. See ADVERSE POSSESSION. [Cases: Easements 5-11. C.J.S. [Cases: Easements 5-11. C.J.S.

EasementsEasements §§ 13-51.]” §§ 13-51.]”

Matthews v.Matthews v.Bay Head Improvement Ass’nBay Head Improvement Ass’n

Public Trust Doctrine – sovereignty over tidal Public Trust Doctrine – sovereignty over tidal waters (and the ebb and flow) vested in the State waters (and the ebb and flow) vested in the State

in trust for the peoplein trust for the people

Public’s right of use over beachfront propertyPublic’s right of use over beachfront property

Extension of the Public Trust Doctrine to public Extension of the Public Trust Doctrine to public use of dry-sand areasuse of dry-sand areas

Public Access Across Private Land to Public Public Access Across Private Land to Public WatersWaters

Assignability of EasementsAssignability of Easements

““The benefits and burdens of The benefits and burdens of appurtenant easements pass appurtenant easements pass

automatically to assignees of the land automatically to assignees of the land to which they are appurtenant, if the to which they are appurtenant, if the parties so intend and the burdened parties so intend and the burdened party has notice of the easement. party has notice of the easement.

Where the benefit is in gross, however, Where the benefit is in gross, however, the benfit may not be assignable.”the benfit may not be assignable.”

D&KD&K

Miller v. Lutheran Miller v. Lutheran Conference & Camp Ass’nConference & Camp Ass’n

Scope – Boating & Fishing Rights; but Bathing?Scope – Boating & Fishing Rights; but Bathing?

Explicit issues; Unilateral Expansion of Scope and Explicit issues; Unilateral Expansion of Scope and Burden on Servient TenementBurden on Servient Tenement

expressio unius est exclusio alterius expressio unius est exclusio alterius – the – the expression of one is the exclusion of another; key expression of one is the exclusion of another; key

interpretive phrase for deeds and statutes that you interpretive phrase for deeds and statutes that you MUST knowMUST know

Yet, how does prescription play a role?Yet, how does prescription play a role?

““One Stock” RuleOne Stock” Rule

Public Utility EasementsPublic Utility Easements

Often exist as encumbrances Often exist as encumbrances on private propertyon private property

Power Lines, Pipelines, Sewers, etc.Power Lines, Pipelines, Sewers, etc.

Many individuals are unawareMany individuals are unaware

My childhood tree anecdoteMy childhood tree anecdote

Concluding RemarksConcluding Remarks

Continue to examine easements in Continue to examine easements in the next classthe next class

Later, be able to distinguish them Later, be able to distinguish them from other types of servitudesfrom other types of servitudes

Property II Professor Donald J. Kochan Spring 2009 Class 38 11 February 2009.

Documents

property slide

negative easements

anothers property dominant

anothers property servient

comeasement slide

difference slide

term easement

servitudes introduction