1. And Down the Stretch They Come …

2. Expectations/Preparation for a Closed Book Exam Your Questions Will Look Like Old Exam Questions in Terms of Form & Level of Difficulty Most of “Best Student Answers” are from Closed Book Exams; I Expect Your A Answers to be Similar Do Old Qs Under Exam Conditions, Meaning: – With Exam Syllabus Beside You – With Key Statutory Provisions Beside You At Review Session, I’ll Talk in Detail About Common Problems with Each Type of Exam Q

3. Chapter 7: Easements Issues from This Chapter Will Be Tested on Exam (But Not on Opinion/Dissent Q) I’ll Lecture Today & Monday with Focus on Issues That Might Appear on Test (E-Mail Qs) Review Problems Next Tuesday/Thursday; More Detailed Instructions are Posted on Course Page

4. Chapter 7: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Prescription c.By Implication and/or Necessity

5. 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 We’ll look at: – Chevy Chase (MD) [Primary Case P826] – City of Manhattan (CA) [See Note 1 P832]

6. Interpreting Language: Easement v. Fee A.Courts looking for evidence of parties’ intent. Look at both: (i)Language (ii)Circumstances Surrounding Grant B.Presumption? (DQ107) i.From Chapter 4: Normal Presumption is Ambiguous Language Creates a Fee Simple. ii.Should there be a presumption in context of “Right of Way” favoring either fee or easement?

7. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Chevy Chase): (i)Language: – P826: to RR, “its successors & assigns, a free & perpetual right of way” – P827: “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

8. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Chevy Chase): (i)Language: – P826: “a free & perpetual right of way” – P826: 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

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

10. 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

11. Interpreting Language: Easement v. Fee A.Evidence of parties’ intent (Manhattan): (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

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

13. 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

14. Interpreting Language: Easement v. Fee B. Manhattan: 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)

15. Chapter 7: Easements 1.Overview & Terminology 2.Interpreting Language a.Easement v. Fee b.Scope of Express Easements 3.Implied Easements a.By Estoppel b.By Prescription c.By Implication and/or Necessity

16. Interpreting Language: Scope of Express Easements “Scope” is Primary Testable Issue for Express Easements Q is whether use contemplated by dominant tenement-holder allowed 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?

17. Interpreting Language: Scope of Express Easements Sample Cases Chevy Chase: Common Transition from RR Rights of Way to Recreation Trails Marcus Cable: Common problem of improved technology

18. Interpreting Language: Scope of Express Easements Sample Blackletter Tests (S167) “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”

19. Interpreting Language: Scope of Express Easements Sample Blackletter Tests (S167) “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

20. Interpreting Language: Scope of Express Easements Sample Blackletter Tests (S167) “Evolutionary not revolutionary” changes allowed. a.Focus on nature & speed of change b.Fair to characterize as “evolution”?

21. Interpreting Language: Scope of Express Easements Sample Blackletter Tests (S167) “Burden must not be significantly greater than that contemplated by parties” a.First ask what parties intended b.Then look for change in relative burdens

22. 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) (P833 Note 2)

23. Scope of Express Easements: RR Easement  Recreational Trail Chevy Chase: Tests for Scope (DQ108) – 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.

24. 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”

25. 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

26. 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 Depends on Characterization of Purpose – Lawyering Task/Game – How do you Generalize from RR Use?

27. 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 – 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?

28. 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” Preseault: Use by Commercial Entity as Part of its Business – Here, Individual Recreation, So Too Different – Hard to Believe w/in Contemplation of Parties

29. 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” Preseault: Use by Commercial Entity as Part of its Business For You on Test Q: – Try out two or more ways to characterize. – Then discuss which characterization seems more convincing

30. Scope of Express Easements: RR Easement  Recreational Trail 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

31. Scope of Express Easements: RR Easement  Recreational Trail 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 big decrease in noise & safety concerns. “Self-Evident” that change “imposes no new burdens” (You need to do better in 2 ways). Plus new use adds benefit to servient tenements (access to trail)

32. Scope of Express Easements: RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) – Possible Increases in Burden? IMAGINATION EXERCISE

33. 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 No schedule (at whim of many individuals) Trains stay on tracks; hiker/bikers might wander off trail & trespass – Other: privacy; litter; total amount of time easement in use

34. Scope of Express Easements: RR Easement  Recreational Trail 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 “Same Quality” Test – In determining “reasonable,” court might also weigh strong public policy behind hiker/biker trails against harms to servient owners.

35. 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? 

36. Scope of Express Easements: Change in Technology – 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. – NOTE: Much Cheaper and Easier for Cable Co. to Negotiate One Deal with Telephone or Electric Co. Than Easements Over Each Parcel Wires Might Cross

37. Scope of Express Easements: Change in Technology DQ109: Marcus Cable Majority Analysis Start with language of grant o Give undefined terms ordinary meaning o Determine purposes of grant from language o Use can change to accommodate technological development, but must fall within original purposes as determined from terms of grant o Again, not necessary that proposed use was contemplated at time of grant

38. Scope of Express Easements: Change in Technology DQ109: Marcus Cable Majority Analysis Overlap 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)

39. Scope of Express Easements: Change in Technology DQ109: 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” Cts characterize combination as “communications” = cable. (Plausible but not only possibility) Note majority doesn’t endorse these cases, just distinguishes

40. Scope of Express Easements: Change in Technology DQ109: 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

41. Scope of Express Easements: Change in Technology DQ109: Applying Blackletter Tests to Marcus Cable Facts “Evolutionary not revolutionary” changes allowed. – Couple more wires unlikely to be “revolutionary”

42. Scope of Express Easements: Change in Technology DQ109: Applying Blackletter Tests to Marcus Cable Facts Couple more wires unlikely to be “revolutionary” “Burden must not be significantly greater than that contemplated by parties” – Probably trivial increase in burden.

43. Scope of Express Easements: Change in Technology DQ109: Applying Blackletter Tests to Marcus Cable Facts Couple more wires unlikely to be “revolutionary” Probably trivial increase in burden. Probably Why Many Courts Agree With Dissent on this Issue

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

45. 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.

46. 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.

47. 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 – Again, helps maximize property value – Can limit (to protect Servient Os) by saying, e.g., Use must be similar No great increase in burden

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

49. 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

50. 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

51. Scope of Express Easements: Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View

52. Scope of Express Easements: Negative Easements DQ110: 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 Need to check in each jurisdiction for list of recognized negative easements

53. Scope of Express Easements: Negative Easements DQ110: D’s Arguments in Petersen 1.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)

54. Scope of Express Easements: Negative Easements DQ110: D’s Arguments in Petersen – Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

55. Scope of Express Easements: Negative Easements DQ110: D’s Arguments in Petersen 1.No view easement in California 2.Parties could not have intended to ban antennas 3.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

56. Scope of Express Easements: Negative Easements DQ110: D’s Arguments in Petersen Conceivable 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)

57. Scope of Express Easements: Negative Easements DQ110: D’s Arguments in Petersen Burden on D Greater than Contemplated? Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden 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)

58. Scope of Express Easements: Negative Easements DQ111: Easier to determine the scope of a negative easement than that of a positive easement b/c few line-drawing problems Bans anything that interferes w light or view v. Open to interpretation about precise uses allowed where language is broad or where technology changes