1. 4-18-17 NATIONAL ANIMAL CRACKERS DAY
PROPERTY A SLIDES
NATIONAL ANIMAL CRACKERS DAY

2. Music to Accompany Dupont: Jewel: Spirit (1998) featuring “Deep Water”
2d Window for Optional Sample Answers Open
By End of Class Today, We’ll Have Covered Material Needed for All Eight Options
All Submissions Due by 2 p.m.
Preliminary Deadline for Feedback Before Classes End = 11p.m. (I will review later submissions with you in the three days after the CrimPro exam.)

3. Thank You, Daniel!!

4. Chapter 5: Easements Implied Easements
Introduction
Interpreting Language
Easement v. Fee
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity (cont’d)
By Prescription

5. Questions on Williams Island?
Easement-by-Implication (Acadia) Williams Island: Path from 13th  14th Holes
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable: (Good Evidence)
Reasonable necessity: (Court finds test met; you could dispute)
Notice to Subseq. Purchasers: (Unusually Good Evidence)
Pretty Easy Case if You Accept Court’s Necessity Analysis
Dependent on Use as Golf Course in Present Configuration
Might be Different if Strict Necessity Required
Questions on Williams Island?

6. BADLANDS: DuPont v. Whiteside
NORBECK PASS

7. Dupont & Easement-by-Necessity (Badlands)
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Undisputed that, prior to sale, Duponts built road across their own land providing access to so Whiteheads could build.
Dispute as to whether Duponts said this access was permanent or temporary.

8. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Court Resolves Easement-by-Necessity on Necessity Element
Majority: Not Strict Necessity: WHY?
Dissent: Meets Strict Necessity

9. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Majority: Not Strict Necessity:
Access available to Lower Portion
Possibility of road across Wetlands (though expert said $40,000-50,000 in )
Dissent: Meets Strict Necessity: Why?

10. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Majority: Not Strict Necessity:
Access available to Lower Portion
Possibility of road across Wetlands (though expert said $40,000-50,000 in 1981 (CHECK))
Dissent: Meets Strict Necessity:
Getting road built across Wetlands costs time, $$, and conservation easement (giving up use of some of land).
“Might be easier to traverse a river by walking across the surface”

11. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Majority: Not Strict Necessity (Has to Be Met Both at Split & Currently):
Access available to Lower Portion
Possibility of road across Wetlands (though expert said $40,000-50,000 at time of trial)
Dissent: Meets Strict Necessity: Why?

12. Easement-by-Necessity (Badlands) Necessity in Dupont Opinions
Duponts sell Three-Part Lot to Whitesides
“Riverfront” where W’s want to build house
“Lower Portion”: accessible from public road
“Wetlands” in between
Majority: Not Strict Necessity:
Access available to Lower Portion
Possibility of road across Wetlands (though expert said $40,000-50,000 at time of trial)
Dissent: Meets Strict Necessity:
Getting road built across Wetlands costs time, $$, and conservation easement (giving up use of some of land).
“Might be easier to traverse a river by walking across the surface”

13. Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980
Lot as a whole was not landlocked at split b/c road to Lower Portion of lot existed.

14. Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980
Lot as a whole not landlocked at split; road to Lower Portion existed.
Access to house on Riverfront not necessary for enjoyment of lot at time of split b/c house built later.

15. Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980
Lot as a whole not landlocked at split; road to Lower Portion existed.
Access to house on Riverfront not necessary for enjoyment of lot at split; house built later.
Wetlands Regulations greatly raise cost of road, but no evidence if Regs existed at split (probably not in 1980).

16. Easement-by-Necessity (Badlands) Necessity in Dupont = Tricky in 1980
Lot as a whole not landlocked at split; road to Lower Portion existed.
Access to house on Riverfront not necessary for enjoyment of lot at split; house built later.
Wetlands Regs greatly raise cost of road, but no evidence if Regs existed at split (probably not).
To get E-by-N for Riverfront, need to treat large parcel as two separate lots divided by water with no access between them (cf. Dissent re “no bridge”)

17. Easement-by-Necessity (Badlands) Dupont: Necessity Confusing in FL
Fl. Stats. on Easement-by-Necessity
§704.01(1): “reasonably necessary”; “reasonable & practicable”
§704.03: “practicable” means w/o use of “bridge, ferry, turnpike road, embankment or substantial fill.”
Tortoise Island (Fla SCt reading statute): “absolute necessity”
Hunter (1st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”
[THANKS A BUNCH!]

18. Dupont & Easement-by-Necessity (Badlands)
Possible Implied Easements?
Easement-by-Necessity: Turns on Necessity
Easement-by-Implication: Why Not? (Look to Elements)
Easement-by-Prescription:
Easement-by Estoppel:

19. Easement-by-Implication Elements: States Vary on Formulation
One parcel is split in two
Prior Use (“Quasi-Easement”)
Intent to continue prior use
*Apparent, visible or reasonably discoverable
*Some degree of necessity
* Some states treat 4 & 5 as separate elements; some treat as evidence of intent

20. DuPont & Easement-by-Necessity (Badlands)
Possible Implied Easements?
Easement-by-Necessity: Turns on Necessity
Easement-by-Implication: No Prior Use
Easement-by-Prescription: Why Not? (Look at Elements)
Easement-by Estoppel:

21. Easement-by-Prescription Elements
[Actual] Use of Pathway
Open & Notorious
Continuous (14 years; Florida SoL = 7)
Adverse/Hostile
(Most states Don’t Require Exclusive)

22. Dupont & Easement-by-Necessity (Badlands)
Possible Implied Easements?
Easement-by-Necessity: Turns on Necessity
Easement-by-Implication: No Prior Use
Easement-by-Prescription: Clear Permission
Easement-by Estoppel: Was there Reliance that was Reasonable & Detrimental (Under Claimants’ View of Facts) ?

23. Dupont & Easement-by-Necessity (Badlands)
Easement-by Estoppel: (“Irrevokable License”)
Good Case for Reliance under Ws’ Version of Facts
Detrimental: Bought lot & spent $240K in 1981 to build house
Reasonable: Probably, since road built before purchase as inducement
Under Ds’ version of facts?
Reasonable: If D’s Say “Temporary” & Ws Spend $$?
Note that Ds Not Very Sympathetic: License Revoked After 14 Years for No Apparent Reason
Court Remands for Determination of this claim.
Questions on Dupont?

24. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1
To City Sewer 
E-by-I Raised: Pipes in Use Before O Sells Separate Units.
E-by-N Raised: Split Creates “Landlocked” Lot b/c Sewage Disposal Must Cross Anther Lot

25. E-by-I & E-by-N: Sewage Pipe Hypothetical
Notice Issues
What constitutes notice of underground pipes?
Actual Knowledge (always sufficient but may be hard to prove)
Courts tend to be generous re Inquiry Notice
Sometimes: From any visible element (pipe ends; manhole covers) (See Kirma cited in Williams P795)
Sometimes: From need for utility service + no visible access

26. E-by-I & E-by-N: Sewage Pipe Hypothetical
Necessity Issues
Is utilities access “Necessary”?: Cases split:
Lot not worthless or landlocked (re physical access); usually possible to get utility service at some expense.
BUT can’t use for many purposes without new expensive utility connection.
One Approach: Restatement on Necessity & Utilities in Note 3 (P802)

27. E-by-I & E-by-N: Sewage Pipe Hypothetical
Necessity Issues
Is utilities access “Necessary”?: Cases split
Assuming some access to utilities is necessary, how expensive must alternatives be to meet tests?
Drill through mountain ridge?
Policy: Very inefficient to reroute utility service if existing pipes or wires (cf. Marcus Cable).
Rev. Probs. 5K & 5M: We’ll Return to Sewage Pipe Hypo
& Implied Easements

28. ACADIA Thursday: Review Problem 5K (S135) Servient O Stephanie Sued to Enjoin Further Use of Her Pipes She Concedes Split of Original Parcel and Prior Use of the Pipes Be Prepared to Discuss re Easement-by-Implication Strongest Arguments for Your Client (at Time of Split) re Evidence of intent to continue prior use Apparent, visible or reasonably discoverable Some degree of necessity Last Names A-N: Representing S (Servient O) Last Names O-Z: Representing Ws (Dominant O)

29. BADLANDS: Thursday  Friday Review Problem 5L (Opinion/Dissent S135-36) Last Names A-N: Range of [Policy] Arguments for Allowing Knowing Waiver of Easement by Necessity Last Names O-Z: Range of [Policy] Arguments for Prohibiting Waivers of Easement by Necessity Assume Facts Sufficient to Show Both E-by-N & Knowing Waiver Helpful To Look At Some Old Q3s & Answers Online Helpful to Think about Similar Waiver Issues from Chapter 2

30. E-by-I & E-by-N: Additional Work/Exam Prep
From Last Two Slides:
Rev Prob 5K (ACADIA) in class Thursday
Rev Prob 5L (BADLANDS) in class Thursday  Friday
Qs testing two or more types of Implied E-mts together:
In class Friday  Monday: Rev Prob. 5M (OLYMPIC/SEQUOIA)
For 2d Window: Rev. Prob. 5N & Sample Issue-Spotter 4Z
On Your Own: 2016 QI(b); Sample Lawyering Qs 1J & 1M

31. Chapter 5: Easements Implied Easements By Prescription Introduction
Interpreting Language
Easement v. Fee
Scope of Express Easements
Implied Easements
By Estoppel
By Implication and/or Necessity
By Prescription

32. EVERGLADES: Easements-by-Prescription & DQs 5.08-5.11
EGRET IN MANGROVE SWAMP

33. Easement-by-Prescription Generally
Easement Created by Particular Use of Another’s Land for Adverse Possession Period
Need to Show Adverse Possession Elements (with Some Variations in Some States)
We’ll Look at Elements Individually

34. Easement-by-Prescription Elements
[Actual] Use of Pathway
Open & Notorious
Continuous
Exclusive (Some States)
Adverse/Hostile

35. Easement-by-Prescription Everglades: [Actual] Use
Not listed as separate element in MacDonald but claimant clearly must show some kind of use.
Usually Straightforward: Use of, e.g., Path or Driveway
Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P817)
MacDonald (DQ5.09): What Meets?

36. Easement-by-Prescription Everglades: : [Actual] Use
Not listed as separate element in MacDonald but there must be some kind of use
Usually Straightforward; Use of, e.g., Path or Driveway
Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P817)
MacDonald (DQ5.09): Golf Shots & Retrieval (Very Atypical!!!)

37. Easement-by-Prescription Everglades: : Open & Notorious & DQ5
Easement-by-Prescription Everglades: : Open & Notorious & DQ5.10 (See P817)
Some States: Traditional Definition of O&N
Use of Path or Driveway Almost Certainly Meets
Underground Utilities (Sewage Pipe Hypo)
Hard to Meet O&N (Like Marengo Caves)
Could Analyze Like Notice for E-by-I or E-by-N

38. Easement-by-Prescription Everglades: : Open & Notorious & DQ5
Easement-by-Prescription Everglades: : Open & Notorious & DQ5.10 (See P817)
Some States: Traditional Definition of O&N
Some States: Require that Servient Owner Have Actual Knowledge (e.g., MacDonald)
Policy Concerns Similar to Border Disputes; Don’t Necessarily Need O in Possession to Monitor Closely
Evidence of Actual Knowledge in MacDonald (DQ5.10): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

39. Easement-by-Prescription Everglades: : Continuous (See P817)
Obviously Doesn’t Need to be 24/7 for Whole SoL Period
Could Just Be Use “Throughout” Period
Might Ask re Normal Utilization of That Type of Easement
Can be Seasonal Use like Adv. Possession in Ray or Howard
Evidence in MacDonald (DQ5.09)?

40. Easement-by-Prescription Everglades: : Continuous (See P817)
Obviously Doesn’t Need to be 24/7 for Whole Statutory Period
Could just be use “throughout” period
Might Ask re Normal Utilization of That Type of Easement
Can be Seasonal Use like Adverse Possession in Ray
Evidence in MacDonald (DQ5.09):
Golf Course in Use Through Whole Period &
Steady # of Users End Up on Land in Q

41. Easement-by-Prescription Everglades: : Exclusive (See P818)
Many States Don’t Require
Sensible: Nature of Easement is Non-Exclusive Use
MacDonald doesn’t list as element
Some States: Means Exclusive of Everyone but Owner
Some States (e.g., TX): Shared w Owner  Presumption of Permissive
Hard to overcome:
Need evidence that O didn’t give permission but didn’t interfere.

42. Easement-by-Prescription Adverse/Hostile & Presumptions
Gen’l Difficulty: Seems Reasonable to Assume Permission If:
O in Possession of Servient Estate AND
Use is Open & Notorious.

43. Easement-by-Prescription Adverse/Hostile & Presumptions
General Difficulty: Seems Reasonable to Assume Permission If:
O in Possession of Servient Estate AND
Use is Open & Notorious
Presumptions frequently decide cases b/c hard to disprove.
Shared use with the owner (e.g., of a driveway) presumed permissive (Texas). How do you disprove?
Continuous use for AP Period presumed adverse (MacDonald). How do you disprove?

44. Easement-by-Prescription Adverse/Hostile & Presumptions
3. Policy Q: What do you do with case like MacDonald or Dupont where visible use continues for a long time and then servient owner suddenly says no?
Plausible to say permissive.
Could create hybrid of prescription & estoppel: if use goes on long enough, servient owner can’t change mind (if no change in burden/ circumstances).

45. Easement-by-Prescription Everglades: Policy Questions (DQ5.08)
To what extent do the rationales for AP also support E-by-P?
Clearly protect people and the legal system from being burdened with “stale” claims.
Ideas re Rest:
(a) Punish sleeping owners?
(b) Reward beneficial use of land?
(c) Recognize/protect psychic connection/investment?
For you to consider & use to help decide close Qs.
Questions re E-by-P?

46. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1
To City Sewer 
E-by-P Raised: Use of Pipes by More Distant Users for Adv. Poss. Period; Likely Qs re Open & Notorious, Exclusive

47. Easement-by-Prescription: Additional Work/Exam Prep
Rev Prob 5O (Lawyering/EVERGLADES) in class Friday
Qs testing two or more types of Implied E-mts together:
In class Friday  Monday: Rev Prob. 5M (OLYMPIC/SEQUOIA)
For 2d Window: Rev. Prob. 5N & Sample Issue-Spotter 4Z
On Your Own: 2016 QI(b); Sample Lawyering Qs 1J & 1M

48. Chapter 5: Easements End-of-Chapter Review Problems (Opportunity to Test Yourselves & Get Feedback)
5D: Short Problem: Scope of Easement (OLYMPIC/SEQUOIA)
5K: Short Problem: Easement-by-Implication (ACADIA)
5L: Opinion/Dissent: Easement-by-Necessity/Waivability (BADLANDS)
5O: Lawyering: Easement-by-Prescription (EVERGLADES)
5M: Lawyering: Implied Easements Generally (OLYMPIC/SEQUOIA)

49. Review Problem 5D (S128) SEQUOIA OLYMPIC

50. Review Problem 5D (S128): Sequoia = P Andy/Serv
Review Problem 5D (S128): Sequoia = P Andy/Serv. Olympic = D Gudridge Academy/Dom.
S-acre = Large wooded lot between public road & private beach.
Dawson Inst. = Former art school for college-aged students
Got as gift from GF an easement to use the private beach and the driveway during daylight hours.
DI students used driveway & beach to sketch or paint.
Gudridge Academy buys Dawson Inst.
Runs post-high school “transition schools” for troubled teens.
Uses easement for student athletic activities like running /swimming

51. Review Problem 5D (S128): Sequoia = P Andy/Serv
Review Problem 5D (S128): Sequoia = P Andy/Serv. Olympic = D Gudridge Academy/Dom.
Dawson Inst. (DI) = Former art school for college-aged students
DI students used easement (driveway & beach) to sketch or paint.
GA buys DI to run post-high school “transition school”
Uses easement for student athletic activities like running /swimming
Looking for Arguments/Missing or Ambiguous Facts
Blackletter Tests as Starting Points for the Relevant Concerns:
Language
Burden
Purpose/Quality

52. Use must be reasonable considering the terms of the grant
Review Problem 5D: LANGUAGE Sequoia= P Andy/Serv. OLYMPIC = D Gudr. Acad./Dom.
Use must be reasonable considering the terms of the grant
“The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway connecting the beach to the county road.”

53. Review Problem 5D: LANGUAGE = Easy Q!
“The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway connecting the beach to the county road.”
NOTHING in language inconsistent with what you know of GA use.
IF GA acts outside stated limits (after dark; off driveway; invites parents or other schools), can enjoin particular violations, but shouldn’t prevent continued use w/in language unless pretty clear that these violations are unavoidable.

54. Review Problem 5D: BURDENS on SERRVENT O SEQUOIA= P Andy/Serv
Review Problem 5D: BURDENS on SERRVENT O SEQUOIA= P Andy/Serv. OLYMPIC = D Gudr. Acad./Dom.
“Burden must not be significantly greater than that contemplated by parties”
Arguments (incl. Missing/Ambiguous Facts)?
Possible Increased Burdens?
Increases Likely to Be Significant?