1. PROPERTY E SLIDES O4-22-13

2. LOGISTICS & SCHEDULE Info Memo on Chapter 6 Posted on Course Page Today: Class until 12:12, then Course Evaluations Tomorrow: Normal Class Time Thursday: Final Class (May Run Long) Friday: No Class – Info Memo on Chapter 7 Posted – Office Hours 2-6 Saturday – Office Hours 2-6 – Optional Sample Exam Answers Due @ 9pm

3. 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 Implication and/or Necessity c.By Prescription

4. Implied Easements: Overview Easements are both contracts & conveyances (land transfers) How do you achieve contracts and conveyances without express agreement? Four Theories…

5. Implied Easements: Overview Contract/Conveyance w/o Express Agreement: Four Theories 1.Promissory Estoppel (Detrimental Reliance) 2.Implied-in-Fact Contract (Parties’ Intent) 3.Implied-in-Law Contract (Public Policy) 4.Adverse Possession

6. Implied Easements: Overview 4 Theories  4 Types of Implied Easement 1.Promissory Estoppel (Detrimental Reliance) ≈ Easement-by Estoppel 2.Implied-in-Fact Contract (Parties’ Intent) ≈ Easement-by-Implication 3.Implied-in-Law Contract (Public Policy) ≈ Easement-by-Necessity 4.Adverse Possession ≈ Easement-by-Prescription

7. Sewage Pipe Hypothetical Implied Easements: Sewage Pipe Hypothetical 1.Developer builds line of houses 2.Same set of pipes connect all houses in line to city sewer system. Sewage from houses further from the city sewer passes under all houses in line that are closer to the sewer.

8. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1

9. Sewage Pipe Hypothetical Implied Easements: Sewage Pipe Hypothetical 1.Developer builds line of houses 2.Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. 3.Developer sells all houses in line, but creates no easements to allow flow of sewage along the line. Connected nature of sewage pipes not referenced in deeds and no notice provided orally.

10. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1 Lot #3 Being “Used” by Lots #4-6 to Dispose of Their Sewage

11. Sewage Pipe Hypothetical Implied Easements: Sewage Pipe Hypothetical 1.Developer builds line of houses 2.Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. 3.Developer sells all houses in line; creates no easements and provides no written or oral notice of connected nature of sewage pipes. 4.When can owners of houses further from sewer claim one or more types of implied easement? (NOTE: Particular variations on the facts will give rise to each type.)

12. 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 Implication and/or Necessity c.By Prescription

13. Background: Licenses (Note 1 P850) Easement-by-Estoppel Background: Licenses (Note 1 P850) LICENSE = Permission by owner for third party to use owner’s property. E.g., … – Right to enter theater or ballpark with ticket. – Come over & swim in my pool. – Store your things in my house while your house is tented.

14. Background: Licenses (Note 1 P850) Easement-by-Estoppel Background: Licenses (Note 1 P850) LICENSE = Permission by owner for third party to use owner’s property. License generally revokable by owner unless: – Combined with Another Interest (E.g., Right to Pick Fruit) -OR- – Easement-by-Estoppel (Some States)

15. General Rule Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property (Apparent License) 2.2d party reasonably and detrimentally relies on this acquiescence Effect in States that Allow Easements-by-Estoppel is that License Becomes Unrevokable

16. General Rule Easement-by-Estoppel General Rule An owner may be estopped from barring a 2d party access to the owner’s property where 1.The owner apparently allows 2d party to use the property (Apparent License) 2.2d party reasonably and detrimentally relies on this acquiescence Usually little debate about Apparent License, so existence of E-by-E usually turns on reliance.

17. Easement-by-Estoppel Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch (DQ112) Reasonable? – P Presumably Aware of D’s Expenditures – BUT Should You Get it in Writing Before Spending? – Might explore more facts (nature of promise; extent of awareness of reliance; parties’ relationship, etc.)

18. Easement-by-Estoppel Reasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch (DQ112) Detrimental? (Easier) – $7000 in 19 th Century to construct ditch – Maybe other missed opportunities (e.g., alternate forms of irrigation now more expensive to install)

19. Easement-by-Estoppel Reasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P851) Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Compare to Stoner re Reliance. – AT&T: Clearer that easement rather than license intended b/c explicit, in writing, & problems w deed arose after O signed – BUT AT&T sophisticated party; should’ve known that deed was invalid & fixed

20. Easement-by-Estoppel Reasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P851) Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Mass SCt: No easement; AT&T should have known easement not properly created meaning they had a “mere license.” Essentially holds reliance was not reasonable by a sophisticated player.

21. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: “For so long a time as the nature of it calls for.” Means?

22. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. Easy Case: – House Built in Reliance on Access Through Neighbor’s Driveway  E-by-E – New Public Road Built Adjoining Dominant Tenement Creates Alternate Access – Use of House No Longer Relies on Driveway; E-by-E Ends

23. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for an irrigation ditch? – So long as irrigation remains useful to Dominant Tenement? – So long as no cheap alternatives?

24. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for hypo in Note 4: House built in reliance on E-by-E burns down. Can owner rebuild?

25. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P851-52): How Long Does an E-by-E Last? House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick in Stoner (middle P849): “The right to rebuild [a mill] in the case of destruction or dilapidation and to continue the business on its original footing may have been in fact as necessary to his safety, and may have been an inducement of the particular investment in the first instance.”

26. Duration/Termination Easement-by-Estoppel Duration/Termination N.4 (P851-52): How Long Does an E-by-E Last? House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick in Stoner (middle P849): – Could read to allow absolute right to rebuild – BUT may turn on evidence of nature of reliance Connection between safety and dilapidation Return on investment w/o rebuilding? (insurance $)

27. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1 Dominic buys Lot #2 from Owner of Lot #1 (No House on #2 but Sewage Pipe in Place)

28. Easement-by-Estoppel Sewage Pipe Hypothetical Dominic buys Lot #2 from Owner of Lot #1 – No House on #2 but Sewage Pipe in Place – D makes clear he intends to build house on Lot #2 Owner of Lot #1 doesn’t object to use of sewer line until after house on #2 is complete & connected. Assume no other easy way to connect to sewer. Is D’s Reliance on O’s Silence While House is Constructed Reasonable?

29. Policy Considerations (DQ119) Easement-by-Estoppel Policy Considerations (DQ119) Should We Allow E-by-E?: Relevant Concerns Doctrine undermines Statute of Frauds People making significant investments should make sure of legal rights before relying on mere license. BUT: Neighbors don’t typically create signed writings for all agreements – People can take offense (My word isn’t good enough?) – Cf. Border disputes in adverse possession).

30. Policy Considerations (DQ119) Easement-by-Estoppel Policy Considerations (DQ119) Should We Allow E-by-E?: Possible Results (1) Whenever there’s reasonable and detrimental reliance. (Many States) –OR– (2) Only after compensation paid (A Few Cases) –OR– (3) Never (Many States)

31. 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 Implication and/or Necessity c.By Prescription

32. Overview Easement-by-Implication & Easement-by-Necessity: Overview Both Arise from Split of Larger Parcel E-by-I : Parties Intend that Prior Existing Use Should Continue [Look for Objective Evidence of Intent; Not Secret Subjective Belief] E-by-N: Split Creates Landlocked Parcel Needing Access [Theoretical Dispute as to Whether Based in Public Policy or (Very Generous Notion of) Intent] Different Requirements But Sometimes Same Facts Can Give Rise to Both

33. Elements: States Vary on Formulation Easement-by-Implication Elements: States Vary on Formulation 1.One parcel is split in two 2.Prior Use (“Quasi-Easement”) 3.Intent to continue prior use 4.*Apparent, visible or reasonably discoverable 5.*Some degree of necessity * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

34. Elements Easement-by-Necessity Elements 1.One parcel is split in two 2.Landlock: One resulting parcel is cut off from key access (e.g. to roads) by other parcel (alone or in combination with parcels owned by 3d parties). 3.At time parcels split, access necessary to enjoyment of landlocked parcel

35. Recurring Concerns/Comparisons Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons Implied-by-Grant v. Implied-by-Reservation Degree of Necessity Notice Termination

36. Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation Parcel split into Eastacre and Westacre. Prior Use = Driveway from House on Eastacre across Westacre to main road. Original owner sells East, retains West = by Grant (Claim in Dupont) Original owner sells West, retains East = by Reservation (Claim in Williams Island) Original Owner Simultaneously Sells Both to Different People = by Grant

37. Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation Some states treat some elements of E- by-I or E-by-N more favorably if “by grant” than “by reservation” Implied-by-Reservation seen as shady: “When I sold you the lot next door, I forgot to mention that I was going to keep using the path to the lake. Oops!”

38. Easement-by-Implication & Easement- by-Necessity: Degree of Necessity EASEMENTS BY IMPLICATION: Some states: Evidence of intent, but not required Most states: Reasonable necessity required Some states (not FL): Strict necessity required if implied by reservation EASEMENTS BY NECESSITY: Most states: Strict necessity Some Legal Tests/Examples for Reasonable & Strict Necessity in Cases and Note 3 (P860-61)

39. Easement-by-Implication: Notice Need notice to bind subsequent purchasers of servient tenement Actual Notice (Fact Q): Did buyer know about easement? Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? – Often Sufficient: Path/road going to property line – Courts sometimes stretch to find inquiry notice: should have been aware that pipes underground might connect, etc. Usually won’t be notice from public land records b/c documents unlikely to refer to implied easement.

40. Easement-by-Implication: Notice Notice at Time of Split Legal Test Often Version of “Apparent, visible or reasonably discoverable” – Some states treat as requirement – Some states treat as evidence of intent Same kinds of evidence relevant as with notice to subsequent purchasers

41. Notice Easement-by-Necessity: Notice Subsequent Purchasers of Servient Estate – In theory, also need notice to bind. – Court finding the easement necessary probably hesitant to find lack of notice. At Time of Split: Doesn’t Arise b/c Parties Should Be Aware that Newly Created Parcel is Landlocked

42. Easement-by-Implication & Easement- by-Necessity: Termination Both: Can Terminate like other Easements (Agreement; Abandonment; Adv. Poss., etc.) E-by-N: Ends if the necessity ends b/c created as a matter of policy to address necessity E-by-I: Does not end if the necessity ends. – Created Based on Intent of Parties – Necessity Often Just Evidence of Intent – So Comparable to Express Easement; Change in Necessity Doesn’t Undo Express Agreement

43. Williams Island Easement-by-Implication Williams Island Use of Path Across Servient Tenement to Connect Two Holes of Golf Course 1.One parcel Split in Two (Undisputed) 2.Prior Use (Undisputed)

44. Williams Island: Path from 13 th  14th Holes Easement-by-Implication Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: Evidence? – Testimony: Intent of original parties & that when Williams purchased golf course, it was told that original owner of servient estate had agreed to easement – References to “Easements” in Deed (but Not Specified) – Overall Circumstances (incl. continual use)

45. Williams Island: Path from 13 th  14th Holes Easement-by-Implication Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.*Apparent, visible or reas. discoverable: Paved; 9 feet wide; “in constant use” + references in deed

46. Williams Island: Necessity Easement-by-Implication Williams Island: Necessity Legal Standard – Case requires Reasonable Necessity – Some states would require Strict b/c by-Reservation Ct. (P852): “No practical or safe alternative route.” Alternatives considered (P853 fn 1): – Cross highway, travel 200 feet on sidewalk, cross highway again – Backtrack along a substantial portion of the golf course to get around defendant’s tract Note: No discussion of possible renumbering or reconfiguration of course

47. Williams Island: Path from 13 th  14th Holes Easement-by-Implication Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.Apparent, visible or reas. discoverable: (Good Evidence) 5.Reasonable necessity: (Court finds) 6.Notice to Subsequent Purchasers – Actual: Buyer’s Rep Told 4 mos. Before Closing – Inquiry: Established Regular Use

48. Williams Island: Path from 13 th  14th Holes Easement-by-Implication Williams Island: Path from 13 th  14th Holes 1.One parcel is split in two (Undisputed) 2.Prior Use (Undisputed) 3.Intent to continue prior use: (Unusually Good Evidence) 4.Apparent, visible or reas. discoverable: (Good Evidence) 5.Reasonable necessity: (Court finds) 6.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

49. DuPont Easement-by-Necessity: DuPont 1.DuPonts sell Three-Part Lot to Whitesides – “Riverfront” where W’s want to build house – “Lower Portion”: accessible from public road – “Wetlands” in between 2.Undisputed that, prior to sale, DuPonts built road across their own land providing access to Riverfront so Whiteheads could build 3.Dispute as to whether DuPonts said this access was permanent or temporary

50. DuPont Easement-by-Necessity: DuPont Possible Implied Easements? 1.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 – 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

51. DuPont Easement-by-Necessity: DuPont Possible Implied Easements? 1.Easement-by Estoppel: Court Remands 2.Easement-by-Implication: No Prior Use 3.Easement-by-Prescription: Clear Permission 4.Easement-by-Necessity: Turns on Necessity

52. Necessity in DuPont Opinions Easement-by-Necessity: Necessity in DuPont Opinions Majority: Not Strict Necessity: – Access available to Lower Portion – Possibility of road across Wetlands (though expert said $40,000-50,000) 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”

53. Necessity in DuPont = Tricky in 1981 Easement-by-Necessity: Necessity in DuPont = Tricky in 1981 Lot as a whole was not landlocked at split (road to Lower Portion of lot 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”)

54. DuPont: Necessity Confusing in FL Easement-by-Necessity: 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 Supr Ct): “absolute necessity” Hunter (1 st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”

55. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1 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

56. Easement-by-Implication & Easement- by-Necessity: 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 Assuming some access to utilities is necessary, how expensive must alternatives be to meet tests? – Drill through mountain ridge? – Very inefficient to reroute utility service if existing pipes or wires (cf. Marcus Cable)

57. Easement-by-Implication & Easement- by-Necessity: Sewage Pipe Hypothetical Notice Issues What constitutes notice of underground pipes? – Actual Notice – Courts tend to be generous re inquiry notice From any visible element (pipe ends; manhole covers) ( See Kirma cited in Williams Island @ P854) From need for utility service + no visible access