Ella Fitzgerald: The Irving Berlin Songbook Vol. 2 (1958) Corrections to Textbook P830 line 9: “dominant” should be “servient” P848 2d para. line 5: “licensor” should be “licensee”

Chapter 8: Servitudes Unit IV about multiple interests in same piece of land Chapter 6: Landlord-tenant divides by time, but landlord retains some interest & rights even during lease Chapter 7: Estates & future Interests divides by time & conditions

Chapter 8: Servitudes Chapter 8: One person is primary owner of land w most of the rights One or more persons have some simultaneous interest in land – Generally arises from contractual agreement – Resulting interest (= “servitude”) limits rights of primary owner – Can see as one way to address pot’lly conflicting land uses

REGULATION OF LAND USE 1.By Tort Law: Nuisance (Ch. 2) 2.By Ltd Grant: Defeasible Fees (Ch. 7) 3.By Contract: Servitudes (Ch. 8) (especially promissory servitudes & homeowners’ associations) 4.By Regulation: Zoning & Envir. Law

Chapter 8: Servitudes Detailed Coverage of Three Issues 1.Interpretation of Express Easements 2.Circumstances Where Courts Will Imply Easements w/o Express Grant 3.Permissible Rules of Homeowner’s Associations

Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Promissory Servitudes (Brief Intro) 3.Homeowner’s Associations

Express Easements Basic Introduction in Reading; Should Know: Create using same formalities as deeds Subject to Recording Acts Vocabulary: – Appurtenant v. In Gross – Dominant Tenement v. Servient Tenement – Positive v. Negative Easement

Express Easements Issues: Interpreting Language 1.Fee Simple v. Easement 2.Scope of the Easement

Express Easements: 1. Fee Simple v. Easement Recurring Issue: Document creating the interest says “right-of-way” or similar, but doesn’t say either “easement” or “fee”; which is created? We’ll look at: – Chevy Chase (MD) [Primary Case P826] – City of Manhattan (CA) [See Note 1 P832]

Express Easements: 1. Fee Simple v. Easement A.Courts looking for evidence of parties’ intent. Look at both: (i)Language (ii)Circumstances Surrounding Grant B.DQ126: Should there be a presumption favoring either fee or easement?

Express Easements: 1. Fee Simple v. Easement 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) Court says most likely understanding is easement

Express Easements: 1. Fee Simple v. Easement 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 (White v. Brown)

Express Easements: 1. Fee Simple v. Easement 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)

Express Easements: 1. Fee Simple v. Easement 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

Express Easements: 1. Fee Simple v. Easement 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

Express Easements: 1. Fee Simple v. Easement 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. Qs on Evidence of Intent?

Express Easements: 1. Fee Simple v. Easement 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

Express Easements: 1. Fee Simple v. Easement 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 lot)

Express Easements: 1. Fee Simple v. Easement Qs on Presumptions -OR- Fee Simple v. Easement Generally

Express Easements 2. Scope of Easement Q is whether new use proposed by dominant tenement-holder allowed Generally interpret scope issues like contracts – Objective indications/manifestations of parties’ intent – Not hidden understanding Often arises with changed circumstances: which party should bear different burden?

Express Easements: 2. Scope of Easement A. Sample Blackletter Tests (S230) i.“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

Express Easements: 2. Scope of Easement A. Sample Blackletter Tests (S230) i.“Use must be reasonable considering the terms of the grant” ii.“Evolutionary not revolutionary” changes allowed. a.Focus on nature & speed of change b.Fair to characterize as “evolution”?

Express Easements: 2. Scope of Easement A. Sample Blackletter Tests (S230) i.“Use must be reasonable considering the terms of the grant” ii.“Evolutionary not revolutionary” changes allowed. iii.“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

Express Easements: 2. Scope of Easement B. RR Easement  Recreational Trail 1.Common transition encouraged by Congress 2.Fed’l statute gives fed’l regulatory permission, but doesn’t resolve state law scope Q 3.We’ll look at Chevy Chase (MD) and Preseault (Fed. Cir. 1996) (P833 Note 2)

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope – 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.

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – 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”

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) 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

LOGISTICS: FRI & MON/TUE FRIDAY Lecture on Implied Easements & Promissory Servitudes Rev. Probs 8A & 8C (RICE) (Arguments from Blackletter Tests & Cases) MONDAY/TUESDAY Lecture on Homeowners’ Ass’ns & Nahrstedt Review Problem 8E (WHEAT instead of CORN)

LOGISTICS: GENERALLY Dean’s Fellow Evaluations Assignment Sheet Updated Practice Midterm Handout Posted Practice Midterm Review Meetings me for times

Mid-September Crisis

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YOU HAVE MORE TIME THAN YOU THINK YOU DO 2-3 Clear Days Before Each Test Thanksgiving Fri Nov 26-Mon Nov 29 Schedule Your Time (Roughly)

USE OLD EXAMS Do Under Exam Conditions You’ll Never “Feel Ready”; Build in Time to Do Anyway Look at Old Model Answers if Available – Imperfect – Evidence of Kind of Exam Professor Likes If Questions Remain Afterward, Ask!

OTHER EXAM PREP TIPS My Exam Tip Session Online (under AAP) Checklists for Open Book Exams Make Time for Group Work – Consult on Qs from Cases/Classnotes – Discuss Hypos & Old Exam Qs – Identify Likely Issues for Exam Go to Office Hours/Review Sessions – My times posted soon on course page

Peace of Mind Tips Now to Dec. 13: You Need to Sleep Ignore Rumor Mill The First Year “Grade Curve” September 2013

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Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – 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 (How do you Generalize from RR Use?)

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – 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?

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Preseault: Use by Comm’l Entity as Part of its Business – Here, Individual Recreation, So Too Different – Hard to Believe w/in Contemplation of Parties

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – Is Proposed Use of “Same Quality? Chevy Chase: “Forms of Transportation” Preseault: Use by Comm’l Entity as Part of its Business For You: Whose Characterization is More Convincing?

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – 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”

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – Increase in Burden? Chevy Chase says no: Says less burden than RR w/o specifying; in fact 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)

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

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – 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; time on easement

Express Easements: Scope RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application) – Possible Increases in Burden? Hard Q: Primary Burdens Decrease Lots of New Smaller Ones Arise Hard to Weigh; Might Suggest Preseault is Correct That Should Fail 2d Test – Court might also want to weigh strong public policy behind hiker/biker trails against harms to servient owners.

Express Easements: Scope RR Easement  Recreational Trail Qs on Chevy Chase & Preseault?

Express Easements: 2. Scope of Easement C. 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.

Express Easements: Scope Change in Technology 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

Express Easements: Scope Change in Technology 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)

Express Easements: Scope Change in Technology 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 as “communications” = cable. Persuasive? Note majority doesn’t endorse these cases, just distinguishes

Express Easements: Scope Change in Technology 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

Express Easements: Scope Change in Technology Marcus Cable: Applying Blackletter Tests “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.

Express Easements: Scope D. What’s at Stake Parties in long term relationship governed by terms of original agreement. Changing circumstances make change desirable (parties always can bargain) Strict adherence to original terms yields certainty for servient owners (Marcus Cable majority) Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs & expectations (especially re maximizing property value) May also want to promote new & valuable technology (e.g., cable to rural areas); like internet no-tax subsidy