PROPERTY A SLIDES

Tuesday April 7: More Music to Accompany Chevy Chase If I Could Turn Back Time: Cher’s Greatest Hits (1999) REVIEW PROBLEM 5F (“Continuous”) Shenandoah Critique due 10 a.m. BISCAYNE (P Monica): Aleman, Elan Baquedano, Marlon Ghomeshi, Sogol Duke, Katie Crosby, Shannon Foote, Jeff (Alternate) ARCHES (D Orig. Owner) Sandler, Ted Agramonte, Mat Kalil, Deanna Palomo, Christopher De La Pedraja, Carolina Dominguez, Anthony (Alt)

Review Problem 5F: “Continuous” M Resided in House with Color of Title for Most of 10Y Statutory Period Absent 5 Mos. Undergoing Rehab for Physical Injury While M Away: Utilities & Mail Service Stopped M’s Friend David watered plants every 2-3 weeks M asked David to Feed Cat at M’s House; Instead David Took Cat to Own Home

Review Problem 5F: “Continuous” Arguments/Missing Facts 1.Should a 5-Month Interruption for this Reason Break Continuity? no 2.Assuming 5 Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the 5 Mos. M Was Away to Retain Continuity? 3.What is the Legal Significance of David not doing what M asked?

Previously in Property A Adverse Possession Elements: Rules, Focus, Evidence, Purpose Exclusive Acts of Other Third Parties (Bell) Acts of OO (Rev. Probs. 5C-5D) Adverse/Hostile & State of MindAdverse/Hostile & State of Mind Special Rules for Boundary Disputes Policy Considerations Easements: Introduction & Rev Prob 6A

Property A: Logistics NCAA Contest Winners: Agramonte/Plowden Finish Chapter 5 Today/Thurs: Rev Probs 5I & 5H Prior Submissions: 1 st Critiques Available by Day Before 2d Critiques Sample Exam Qs: Feedback by Wed 4/15 Complete Syllabus & Assmt Sheet on Course Page

JETTISONING CHAPTER 7

ARCHES: Rev. Prob. 5I (Lawyering) DELICATE ARCHES

REVIEW PROBLEM 5I (Arches) 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile 6. State of Mind 7. Other/General Qs C bought farm 3 years ago. RR Ranch directly to east; long fence between. Recent surveys: Several hundred feet of the fence actually on C’s land, about 12 feet west of the true boundary line. C wants to know if he still owns the land between the fence and the true boundary.

Chapter 6: Easements 1.Overview & 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

Chapter 6: Easements Overview & Terminology Easement = Right to Use Land Owned by Someone Else for Specific Purpose (e.g., Right of Way) Basic Background Info Last Week & in Readings Key Vocabulary: – Express v. Implied Easements – Positive v. Negative Easements – Appurtenant v. In Gross – Dominant Tenement (Holding) v. Servient Tenement

Chapter 6: Easements 1.Overview & 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

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]

Interpreting Language: Easement v. Fee A.Cts looking for evidence of parties’ intent. Look at both: i.Language ii.Circumstances Surrounding Grant B.Presumption? (DQ6.01) 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? We’ll see what cases do.

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

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

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)

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

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

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.

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

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?