Property II Professor Donald J. Kochan

1. Property IIProfessor Donald J. Kochan Spring 2009 Classes 39-40 16 & 18 February 2009

2. Today’s Readings (and next class) • Easements • http://www.nps.gov/hps/tps/tax/easement.htm • Pages 715-738

3. Scope of Easements First Decide Whether an Easement Exists. Then, Consider Why Each of These Concepts Become Relevant in Any Definition of a Particular Easement or the Disputes Over an Easement: • Purpose • Intent • Use • Parties/Substitutability • Expansion • Type/Nature • Increases in Burden on the Servient Estate • Difference between in gross and appurtenant

4. Brown v. Voss • Please observe diagrams in text; visualize these property relationships • Focus on change in burden on servient estate • Ingress/Egress Issues • Note the court’s focus on it as an express easement • “If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement.” • Remedies and Reliance Issues (focus on the dispute on these issues between majority and dissent) (the notes following the case also focus on remedy) • Prescription Issues

5. Termination of Easements • Cessation of Purpose Issues • Change in Circumstances Issues • Burden/Purpose/Special Circumstances Issues • Can the Dominant Unilaterally Change? • If Terminated/Abandoned, What Outcome – How is the Estate Changed?

6. Presault v. United States • Rails-to-Trails Act Case; Change from Railroad Easements to Hiking and Biking Trails • Scope/Changed Circumstances Issues • Powell quote in case is key: “It is often said that the parties are to be presumedto have contemplated such a scope for the created easement as would reasonably serve the purposes of the grant. . . . This presumption often allows an expansion of use of the easement, but does not permit in use not reasonably foreseeable at the time of the establishment of the easement.” Richard R. Powell, 3 Powell on Real Property para. 34.12[2] (Patrick J. Rohan ed. 1996). • What changes are foreseeable, anticipated, expected, and acceptable? – Focus on fact-specific nature • Abandonment Issues: Does the Change in Anticipated Use Relieve the Servient of Any Encumbrance? • Takings Issues – Does a Judicially-Authorized Alteration/Expansion of the Scope of an Easement Constitute a Taking?

7. Affirmative Easements • I agree to let you do something on my land (even though I might not be required to let you) • I agree to do something on your land(even though you might not be required to demand that I do so) • You agree to do something on my land(even though I could not demand it absent our private agreement) • Consider whether it is for the benfit of property or the person only – i.e., the distinction between appurtenant and in gross • Examine Servient/Dominant Issues • Revisit Slides from Class 38

8. Negative Easements • I agree to not do something on my land (even though I might be able to do so) • You agree to not do something on your land (even though you might not be precluded from doing so) • Consider whether it is for the benefit of property or the person only – i.e., the distinction between appurtenant and in gross • Consider again the concept of negative reciprocal easements – we each agree not to do something • Revisit Slides from Class 38

9. Introduction toConservation Easements Please read: http://www.nps.gov/hps/tps/tax/easement.htm

10. Concluding Remarks • Easements are just one type of servitude • Revisit Class 38 Material • Scope, Intent, Scope, Intent – I cannot say enough how important these are