PROPERTY B SLIDES

PROPERTY B SLIDES 4-15-19 NATIONAL TAKE A WILD GUESS DAY creating a need for NATIONAL RUBBER ERASER DAY B? A? C? Q??? None of the Above???

Music to Accompany Chevy ChaseCarlos Santana, Supernatural (1999) Last Few DF Sessions: • Review Problem 5G (Brendan: Short Easement Prob) Today @ 9:40 & Fri @ 12:30 • Review Problem 4M (Lauren: AP Lawyering): Wed CORRECTION: Chevy Chase @ P771 6th Line from Bottom: “dominant” should be “servient”

LOGISTICS ON COURSE PAGE NOW: • Slides w Last Friday’s Class Coverage & More • Assignment for Wednesday • Info Memo for Ch.4 (Preliminary) • Comments & Best Student Answers from 2014 & 2016 Exams 2d Window Open for Submitting Sample Exam Answers • Deadline for Feedback Before CrimPro Exam: Wed @ 11pm • Final Deadline: Sun @ Noon

PROPERTY B: 4/15 MONDAY Pop Culture Moment The Origin of Reese’s PEANUT BUTTER EGGS

PROPERTY B: 4/15 MONDAY Pop Culture Moment The Origin of Reese’s PEANUT BUTTER EGGS: A LAWYERLY INQUIRY & SIMULATION

Previously in Property B Completion of Adverse Possession Continuous cont’d Review Problems 4C, 4E, 4H, 4I Adverse/Hostile State of Mind Boundary Disputes & Nightmare on 68th Street Devins& AP ag. Local Govts. Policy Qs Additional Material with Posted 4/12 Slides

Previously in Property B Intro to Chapter Five (Easements) Vocabulary Additional Intro Material on Posted 4/12 Slides Intro to Scope Qs & Blackletter Tests Review Problem 5A

Chapter 5: Easements • Introduction • Terminology • Overview of Chapter 5 (+ Comparison to Others) • Interpreting Language: Scope of Express Easements • Positive Easements • Negative Easements • Implied Easements • By Estoppel • By Implication and/or Necessity

Scope of Easement: RR Easement  Recreational Trail (Recap & Transition) Common Transition with Decline of RRs • Federal statute encourages and gives RRs authority to transfer rights-of-way (no longer used for operating trains) to state/local govts for use as recreational trails. • BUT fed’lstastute doesn’t purport to resolve whether these trails are allowable use of these rights-of-way (state law scope issue). • We’ll compare Chevy Chase (MD 1999) to Preseault(Fed. Cir. 1996) (See P774-75 Note 2)

Scope of Express EasementsRR Easement  Recreational Trail Chevy Chase: Tests for Scope (DQ5.02) • Start with Language of Grant (If no limits, presumption in favor of grantee’s desired use). • Is Proposed Use of “Same Quality”/Consistent w Purpose? • Check for Unreasonable Increase in Burden (“so substantial” that creates “a different servitude.”) Looks like slight variation on my three blackletter tests in same order.

Scope of Express EasementsRR Easement  Recreational Trail (Language) Chevy Chase: Tests for Scope (Application to RR Easement) • Start with Language of Grant • “Primary Consideration” • If no limits, presumption in favor of grantee’s desired use. • Cf. “Use must be reasonable considering the terms of the grant”

Scope of Express EasementsRR Easement  Recreational Trail (Language) Chevy Chase: Tests for Scope (Application to RR Easement) • Start with Language: To RR, “its successors & assigns, a free and perpetual right of way.” Court’s Reading: • No express limits (e.g., only to “RRs” or “freight RRs”) • “Free & Perpetual” suggests “few, if any” limits contemplated; can change w evolving circumstances • “Successors & Assigns” • Means Transferability (Not Ltd. to RRs) • Also suggests possibility of changing use.

Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality” (= Character or Nature) • Consistent w Purpose & Reasonable Expectations? • cf. “Evolution, not Revolution” • Again, no need to show use specifically contemplated by parties • NOTE: Common Distinction between “Purpose” and “Intent” • Depends on Characterization of Purpose • Lawyering Task/Game • How do you Generalize from RR’s Normal Use?

Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Hiking/Biking = Transport, so OK (+ Onomatopoeia ) • Relies on Cases Broadly Reading Grants for “Public Highway” to Include New Types of Transport • Analogy Seems Suspect: Could You Change RR Easement into Highway for Cars?

Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Preseault: “Use by Commercial Entity as Part of its Business” • Also a little questionable. • Why prohibit trains run by gov’t or charitable org.? • ALL: Examples of things that fit into this category that • Could take place on a RR easement BUT • Seem unlikely to be approved by a court?

Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) • Preseault: “Use by Comm’l Entity as Part of its Business” • Court: Here, Individual Recreation, So Too Different • Court: Hard to Believe w/in Contemplation of Parties • MAF: BUT often true in changing technology cases that parties didn’t/couldn’t imagine exact scenario. • Neither Chevy Chase nor Marcus Cable require this kind of foresight. • If you want to use this idea on a test, make clear that it comes from Preseault and that many courts don’t agree.

Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Preseault: “Use by Commercial Entity as Part of its Business” • For You on Review Problem/Test Q: • Try out two or more ways to characterize. • Then discuss which characterization seems more convincing (& why) • Cf. Fl. Stat. 83.56(2) (Eviction)

Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden • Can’t be “so substantial” that creates “a different servitude.” • Cf. “Burden must not be significantly greater than that contemplated by parties” • Here: Trains  Hikers/Bikers

Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden?: • Chevy Chase says no: Says less burden than RR w/o specifying. • Clearly bigdecrease in (i) noise & (ii) safety concerns. • Court: “Self-Evident” that change “imposes no new burdens” (You need to do better on test in 2 ways). • Court: Plus new use adds benefit to servient tenements (trail access) • Idea seems to be that you can offset some/all of burden with benefits • Preseaultand Marcus Cable courtsseem unlikely to agree.

SEQUOIA (L-Z): DQ5.02 SEQUOIAS

Scope of Express EasementsRR Easement  Recreational Trail (Burden) IMAGINATION EXERCISE (~5.02) Possible Increases in Burden? Everyone (but SRQUOIA (L-Z) First)

Scope of Express EasementsRR Easement  Recreational Trail (Burden) 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 • Other: privacy; litter; total time easement in use; crime • Possible increase in insurance rates • Possible overnighters/tent people • If a back wall, maybe graffiti or posted ads

Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy 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, a generous 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 EasementsChange 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? 

Scope of Express Easements:Change in Technology • Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement? • Marcus Cable (2002 @ P776) & Cases Cited on P778: Growth/ Development of Cable TV & Desire to Use Existing Easements for Electrical or Telephone Wires to Place New Cable 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.

Scope of Express Easements:Change in Technology DQ5.03: Marcus Cable Majority Analysis • Start with language of grant • Give undefined terms ordinary meaning • Determine purposes of grant from language • Use can change to accommodate technological development, but must fall within original purposes as determined from terms of grant • Again, not necessary that proposed use was contemplated at time of grant

Scope of Express Easements: Change in Technology DQ5.03: Marcus Cable Majority Analysis Overlap with Blackletter Tests? • “Use must be reasonable considering the terms of the grant” (Court employs) • “Evolutionary not revolutionary” changes allowed. (Maybe OK IF w/in purposes as defined by language). • “Burden must not be significantly greater than that contemplated by parties” • No burden analysis in Marcus Cable. • BUT court’s policy arguments re protecting servient owner suggest increase in burden should be relevant.

Scope of Express Easements:Change in Technology DQ5.03: Marcus Cable Majority Analysis • Language: “electric transmission or distribution line or system.” • Majority: Cable TV not w/in Ordinary Meaning (so neither covered literally nor within stated purpose). • Distinguishes cases where “electric + telephone” • Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility) • Note Marcus majority doesn’t endorse these cases, just distinguishes

Scope of Express Easements:Change in Technology DQ5.03: 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) • W/in ordinary meaning as language has come to be understood w tech. changes

Scope of Express Easements:Change in Technology DQ5.03: 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 most courts agree with Dissent that ok to include cable wires in electric/telephone easements. Qs on Marcus Cable?

Scope of Express Easements:What’s at Stake? Policy Considerations Relevant to Deciding Disputed Scope Qs

Scope of Express Easements:What’s at Stake? • 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.

Scope of Express Easements: What’s at Stake? • Parties in long term relationship governed by terms of original agreement. • If dispute occurs relatively soon after original agreement (like 5A: Santa v. Elves), can look at surrounding circumstances to supplement language as way to get at meaning of agreement: • Was desire for proposed use known or reasonably foreseeable? • Who drafted language? • Does price seem to reflect a broader or narrower view of easement? (nice Monteiro idea)

Scope of Express Easements: What’s at Stake? • Parties in long term relationship governed by terms of original agreement. • If dispute occurs relatively soon after original agreement (like 5A: Santa v. Elves), can look at surrounding circumstances: • As decades pass, those circumstances matter less and less: • Often precise proposed use not really foreseeable. • When RRs expanding, hard to predict extent of eventual decline. • Rapid spread of telephone & electric wires predates TV (let alone cable). • Successors on both sides rely increasingly on language.

Scope of Express Easements:What’s at Stake? • 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. • Usually will have knowledge of terms of easement from land records/title search (part of purchase process)

Scope of Express Easements:What’s at Stake? • Parties in long term relationship governed by terms of original agreement face changing circumstances. • Strict adherence to original terms provides certainty for servient owners. • Flexibly allowing change better meets dominant owners’ needs & expectations • Helps maximize property value (for dominant parcels), e.g., by allowing continuation of services/access with new technology • Can limit (to protect Servient Os) by saying, e.g., • Use must be similar • No great increase in burden

Scope of Express Easements:What’s at Stake? • Parties in long term relationship governed by terms of original agreement face changing circumstances. • Strict adherence to original terms provides certainty for servient owners. • Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs • In close cases, might consider supporting important new technology or innovative land use that may provide significant public benefits. • Like early internet no-tax subsidy • E.g., Getting Cable TV to rural areas • E.g., arguably Chevy Chase: Promoting hiker/biker trails

Scope of Express Easements:What’s at Stake? • Parties in long term relationship governed by terms of original agreement face changing circumstances. • Strict adherence to original terms provides certainty for servient owners. • Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs • Might wish to support valuable technology/land use. Questions?

Chapter 5: Easements • Introduction • Interpreting Language: Scope of Express Easements • Positive Easements • NegativeEasements • Implied Easements • By Estoppel • By Implication and/or Necessity • 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

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. • Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate

PROPERTY B SLIDES