1. PROPERTY D SLIDES 3-22-16 National Goof Off Day

2. Tuesday March 22 Music (to Accompany Chevy Chase) Carlos Santana, Supernatural (1999) LOGISTICS GOING FORWARD INFO ON EFI TEST NCAA SWEET SIXTEEN CONTEST CRITIQUES & CRITIQUE PROBS SAMPLE EXAM Qs DF: Rev. Prob. 3I (Adverse Possession/Lawyering) PREP & LAST 4 WEEKS

3. Chapter 5: Chapter 5: Bearing Other People’s Crosses: Easements Express & Implied

4. Chapter 5: Easements 1.Introduction a.Overview of Chapter 5 & 6 b.Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

5. More Divided Rights in the Same Piece of Land Chapter 5: Easements Yellow Brick Roads Chapter 6: Landlord- Tenant Law Formica & Courier

6. Two Sets of Property Rights to Consider Divided Rights in the Same Piece of Land: Two Sets of Property Rights to ConsiderEasements 1.Holder of Easement 2.Owner of Underlying Land (Servient Tenement) Landlord-Tenant 1.Leaseholder (Term of Years) 2.Landlord (Holds Reversion)

7. Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Intent -- Reasonable Understanding under All the Circumstances Divided Rights in the Same Piece of Land: Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Intent -- Reasonable Understanding under All the CircumstancesEasements Written Document Creating Express Easement Landlord-Tenant Written Lease

8. Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights Divided Rights in the Same Piece of Land: Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable RightsEasements Written Document Creating Express Easement  Implied Easements Landlord-Tenant Written Lease  Implied & Statutory Terms

9. Different Primary Skills Focus for Each Divided Rights in the Same Piece of Land Different Primary Skills Focus for EachEasements Working with Stated & Unstated Facts Landlord-Tenant Working with Statutory Provisions

10. Chapter 5: Easements 1.Introduction a.Overview of Chapter 5 & 6 b.Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

11. Chapter 5: Easements Terminology Easement = Property Right to Use Land Owned by Someone Else for Specific Purpose (e.g., Right of Way) Key Vocabulary: – Express v. Implied Easements – Positive v. Negative Easements – Appurtenant v. In Gross – Dominant Tenement (Holding) v. Servient Tenement

12. Chapter 5: Easements 1.Introduction a.Overview of Chapter 5 & 6 b.Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

13. Interpreting Language: Easement v. Fee Recurring Issue: Document creating the interest says “right- of-way” or similar, but doesn’t say either “easement” or “fee”; which is created? Good introduction to examining language & purpose of interest created; arguments similar to scope issues. We’ll look at: – Chevy Chase (MD) [Primary Case P768] – City of Manhattan Beach (CA) [See Note 1 P773-74]

14. Interpreting Language: Easement v. Fee A.Cts looking for evidence of parties’ intent. Look at both: i.Language ii.Circumstances Surrounding Grant B.Presumption? (DQ5.01) i.Normal Presumption: Ambiguous Language Creates a Fee Simple (from Chapter 4). ii.Should there be a presumption in context of “Right of Way” favoring either fee or easement? We’ll see what cases do.

15. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Chevy Chase): (i)Language : – to RR, “its successors & assigns, a free & perpetual right of way” – “right of way” slightly ambiguous Legal right to use (technical meaning) Strip of land itself (common non-legal usage: “She left her bicycle on the right of way”) Court says most likely understanding is easement

16. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Chevy Chase): (i)Language: – “a free & perpetual right of way” – separate grant for RR station in “fee simple” Use of different terms suggests different meaning Common interpretation argument – E.g., White v. Brown – E.g., Statutes

17. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Manhattan Beach): (i)Language: (Ambiguous) – “remise, release & quitclaim” (looks like giving up all rights, therefore fee) – “right of way” + “upon, over & along” (phrases look more like easement)

18. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Chevy Chase): (ii) Circumstances Surrounding Grant: – Nominal Consideration: Suggests Easement. Why? (Ct isn’t explicit.) Giving Up Fee is Big Change in Value of Servient Estate (Especially if Bisects Lot) Thus, would expect more than nominal consideration for Fee

19. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Manhattan Beach): (ii) Circumstances Surrounding Grant: – Motivation is to Get RR to Extend Tracks to Additional City (Important to Local Economy) – Might be Consistent with Fee Arguably need bigger carrot to convince RR City might be willing to give up more to get

20. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Manhattan Beach): (ii) Circumstances Surrounding Grant: – Motivation is to Get RR to Extend Tracks to Additional City (Important to Local Economy) – Other documents (unspecified) indicated fee.

21. Interpreting Language: Easement v. Fee B.Chevy Chase: Presumption of Easement (i)Little Purpose for Fee Interest in RR Strips; Not Necessary for Original RR Purpose (ii)Lot of RR Rights of Way Get Abandoned If Easement, merges back into servient tenement If Fee, RR still owns: cuts across & severs servient tenement

22. Interpreting Language: Easement v. Fee B. Manhattan Beach: Applies Presumption of Fee Simple; BUT Usual Rationales Don’t Fit Well 1.Likely Meets Ordinary Expectations (Unclear) 2.Furthers Alienability (No) 3.Giving All Grantor Has Avoids Uncertainty/Partial Intestacy (Not relevant when grantor retains adjoining/underlying lot; like grant when still alive on Ch. 4 Test) Questions?

23. Chapter 5: Easements 1.Introduction 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements i.Positive Easements ii.Negative Easements 3.Implied Easements a.By Estoppel b.By Implication and/or Necessity c.By Prescription

24. Interpreting Language: Scope of Express Easements “Scope” is Most Common Testable Issue for Express Easements Q is whether new/additional use contemplated by dominant tenement-holder allowed As noted, generally interpret scope issues like contracts Objective indications/manifestations of parties’ original intent NOT hidden understanding Often arises with changed circumstances: which party should bear different burden?

25. Interpreting Language: Scope of Express Easements (Coverage) Sample Blackletter Tests (S96) “Use must be reasonable considering the terms of the grant” “Evolutionary not revolutionary” changes allowed. “Burden must not be significantly greater than that contemplated by parties” Sample Cases Chevy Chase (& Preseault): Common Transition from RR Rights of Way to Recreation Trails Marcus Cable: Common Problem of Improved Technology Review Problems 5A-5D in Class; Others in DF Next Week

26. Common Scope of Easement Issues Proposed Use Seems to be w/in Very Broad Language, but Arguably Significant Change – Chevy Chase; Review Problems 5A & 5D-F Change in Technology; Might be Outside Literal Language, but Arguably Limited Increase in Burden – Marcus Cable; Review Problem 5B

27. ACADIA: Review Problem 5A Sunrise

28. Intro to Scope of Easements Intro to Scope of Easements Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = – Time of Grant: Big lot w small cottage. – Later: Cottage  Toy factory (7x garbage).

29. Scope of Express Easements Generally Sample Blackletter Tests (S96) 1.“Use must be reasonable considering the terms of the grant.” 2.“Evolutionary not revolutionary” changes allowed. 3.“Burden must not be significantly greater than that contemplated by parties.”

30. Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = – Time of Grant: Big lot w small cottage. – Later: Cottage  Toy factory (7x garbage). Apply Blackletter Tests Consider Missing or Ambiguous Facts

31. Scope of Express Easements Generally Sample Blackletter Tests (S96) (1) “Use Must Be Reasonable Considering the Terms of the Grant” a.Initial focus on literal language b.Then check if proposed use is reasonable in light of language c. Can use ordinary contract interpretation principles e.g., Interpret Ambiguities against Drafter

32. Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = – Time of Grant: Big lot w small cottage. – Later: Cottage  Toy factory (7x garbage). (1) “Use Must Be Reasonable Considering the Terms of the Grant”

33. Scope of Express Easements Generally Sample Blackletter Tests (S96) (2) “Evolutionary not Revolutionary” Changes Allowed. a.Focus on nature & speed of change b.Q of Characterization: Fair to View as “Evolution”?

34. Scope of Express Easements Generally Sample Blackletter Tests (S96) (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties” a.Look for change in relative burdens. b.Compare to what parties appear to have reasonably intended.

35. Review Problem 5A: Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” Santa-acre = next to garbage dump. Elf-Acre = – Time of Grant: Big lot w small cottage. – Later: Cottage  Toy factory (7x garbage). (2) “Evolutionary not Revolutionary” Changes Allowed. (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”

36. Scope of Easement: RR Easement  Recreational Trail Common Transition with Decline of RRs Federal statute encourages and gives RRs authority to transfer rights-of-way BUT doesn’t purport to resolve state law issues re allowable scope after transfer We’ll compare Chevy Chase (MD) to Preseault (Fed. Cir. 1996) (P774-75 Note 2)

37. Scope of Express Easements (For Thursday) RR Easement  Recreational Trail IMAGINATION EXERCISE (~5.02) Possible Increases in Burden? Everyone (but ACADIA First)

38. Scope of Express Easements RR 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.

39. Scope of Express Easements RR Easement  Recreational Trail 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”

40. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) Start with Language: To RR, “its successors & assigns, a free and perpetual right of way.” – No express limits (e.g., to RR or freight RR) – “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.

41. Scope of Express Easements RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Is Proposed Use of “Same Quality”/Consistent w Purpose & Reasonable Expectations? cf. “Evolution, not Revolution” Not necessary that use was 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?

42. Scope of Express Easements RR Easement  Recreational Trail 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 ) (See Cher: Shoop Shoop) – 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?