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PROPERTY A SLIDES

In this pop culture moment, we delve into the fun and sometimes confusing world of idioms involving animals and prepositions. From "horsing around" to "bugging out," we explore the origins and meanings of these expressions.

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PROPERTY A SLIDES

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  1. PROPERTY A SLIDES 4-17-15

  2. Friday April 17 Music (to Accompany MacDonald):Eagles, Hotel California (1976)featuring “The Last Resort” Today: Extendo-Class (7:55-9:45) Biscayne Critique of Rev. Prob. 6D Due Tomorrow @ 10am Second Sample Exam Q (Optional) Due Tomorrow @ Noon

  3. PROPERTY A: 4/17 FRIday Pop Culture Moment Fun with the English Language: Animals & Prepositions

  4. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions HORSES are Very Different from MONKEYS …

  5. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions So Why Is HORSING AROUND the Same as MONKEYING AROUND?

  6. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions And why is WOLFING DOWN the same as PIGGING OUT?

  7. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions: OUT-Takes The STOOL PIGEON Was Going to RAT OUT His Boss, BUT He …

  8. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions: OUT-Takes The STOOL PIGEON Was Going to RAT OUT His Boss, BUT He CHICKENED OUT. WORMED OUT of it. BUGGED OUT. WEASELED OUT of it.

  9. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions Finally, The Goldilocks Proposition: A Careful Study of Human Nature…

  10. FRIday Pop Culture Moment PROPERTY A: 4/17 Animals & Prepositions The Goldilocks Proposition: A Careful Study of Human Nature BEARS OUT That Sometimes The Only Way To BEAR UP Is To BEAR DOWN

  11. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity (cont’d) • By Prescription

  12. 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

  13. Easement-by-Implication &Easement-by-Necessity: Sewage Pipe Hypothetical Notice Issues • What constitutes notice of underground pipes? • Actual Knowledge • Courts tend to be generous re Inquiry Notice • From any visible element (pipe ends; manhole covers) (See Kirmacited in Williams Island @ P795) • From need for utility service + no visible access

  14. 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

  15. Easement-by-Implication &Easement-by-Necessity: 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. Prob. 6I: We’ll Return to Sewage Pipe Hypo & Easements-by-Implication

  16. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

  17. SHENANDOAH: Easements-by-Prescription & DQ6.08-6.11 APPALACHIAN TRAIL

  18. Easement-by-PrescriptionGenerally • 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

  19. Easement-by-PrescriptionElements • [Actual] Use of Pathway • Open & Notorious • Continuous • Exclusive (Some Jurisdictions) • Adverse/Hostile

  20. Easement-by-PrescriptionRedwood: [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 (DQ6.09): What Meets?

  21. Easement-by-PrescriptionRedwood: [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 (DQ6.09): Golf Shots & Retrieval (Very Atypical!!!)

  22. Easement-by-PrescriptionRedwood: Open & Notorious & DQ6.10 (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

  23. Easement-by-PrescriptionShenandoah: Open & Notorious & DQ6.10 (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 (DQ6.10): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

  24. Easement-by-PrescriptionShenandoah: 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 Adverse Possession in Ray • Evidence in MacDonald (DQ6.09)?

  25. Easement-by-PrescriptionShenandoah: 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 (DQ6.09): • Golf Course in Use Through Whole Period & • Steady # of Users End Up on Land in Q

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

  27. Easement-by-PrescriptionAdverse/Hostile & Presumptions • General Difficulty: Reasonable to Assume Permission If: • O in Possession of Servient Estate AND • Use is Open & Notorious?

  28. Easement-by-PrescriptionAdverse/Hostile & Presumptions • General Difficulty: Reasonable to Assume Permission If: • O in Possession of Servient Estate AND • Use is Open & Notorious? • Presumptions frequently decide cases because 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?

  29. Easement-by-PrescriptionAdverse/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.

  30. Easement-by-PrescriptionShenandoah: Policy Questions DQ6.08. 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) reward beneficial use of land (b) punish sleeping owners (c) recognize psychic connection to the land • For you to consider & use to help decide close Qs.

  31. 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

  32. Implied Easements GenerallyShenandoah: DQ6.11 “The best justifications for granting an implied easement are reliance and need. Thus, if claimants cannot meet the elements of an Easement by Estoppel or of an Easement by Necessity, they should not be able to get a Prescriptive Easement unless they pay market value for it.” For you to think about. (Good-Bye to Shenandoahs)

  33. YELLOWSTONE (DQ6.07) GIANT GEYSER

  34. Easement-by-EstoppelPolicy Considerations (DQ6.07) Positive Easement-by-Estoppel as in Stoner or Dupont Yellowstones (& ALL): Last Names A-K: Allow Emt-by-Estoppel Last Names L-Z: Disallow Emt-by-Estoppel (or Allow Only if Compensation Paid)

  35. Easement-by-EstoppelPolicy Considerations (DQ6.07) Negative Easement-by-Estoppel as in Berchamer(birders purchase house after assurance that neighboring lot would stay undeveloped) Yellowstones (& ALL): Last Names A-K: Allow Emt-by-Estoppel Last Names L-Z: Disallow Emt-by-Estoppel (or Allow Only if Compensation Paid) (Good-Bye to Yellowstones)

  36. LOGISTICS: My Priorities Today  Last Class • Note on Evaluations • Post Today’s Slides & Info Memos on Chapters 3 and 5 • Complete Feedback on 1st Set of Sample Exam Answers • I’ll E-Mail You When Complete with Possible Times for Pick-Up • Draft Exam • Feedback on Second Set of Critiques (A Little Less Thorough) • Start Feedback on 2d Set of Sample Exam Answers • I’ll Update Status-of-Feedback at Top of Course Page as I Progress

  37. BISCAYNE: Rev. Prob. 6I SUNRISE AT ADAMS KEY

  38. Easement-by-Implication Review Problem 6I (BISCAYNE) Quick Summary of Facts • Webers own lot with 4 guest cottages connected to one set of pipes running one mile west, then across edge of lot to connect to municipal water & sewer lines. • S purchases western part of lot including westernmost guest cottage. • After the purchase, pipes from other 3 cottages (and connecting to S’s cottage and municipal water/sewer) continue to run under S’s part of lot.

  39. SEWAGE PIPE HYPOTHETICAL  REV. PROB. 6I GC GC GC Ws S GC To City Sewer/Water  E-by-I Raised: Pipes in Use Before Ws Sell Western Part to S

  40. Easement-by-Implication Review Problem 6I (BISCAYNE) Prepare Arguments for Each Party re • One parcel is split in two: YES • Prior Use (“Quasi-Easement”): YES • Intent to continue prior use? • *Apparent, visible or reasonably discoverable? • *Some degree of necessity? We’ll Do in Reverse Order

  41. Easement-by-ImplicationReview Problem 6I (BISCAYNE) • Sufficient Necessity • Extent of Necessity at Time of Split? • Relevant Considerations? • Sufficient to Meet Relevant Test? • Arguments If “Reasonable Necessity”? • Arguments If “Strict Necessity”? • Why Might This Be Test?

  42. Easement-by-ImplicationReview Problem 6I (BISCAYNE) • Apparent, Visible or Reasonably Discoverable (Notice) • Actual Knowledge by S: Evidence/Arguments? • Inquiry Notice to S: Evidence/Arguments?

  43. Easement-by-ImplicationReview Problem 6I (BISCAYNE) Intent to Continue Prior Use (at Time of Split) • If both aware of pipes, probably intended (or atty S likely would have addressed before sale) • If Webers aware but no notice to S, • Maybe punish Ws by saying no • Ws might claim they reasonably believed S knew • If neither party aware? • Hard to say intent as a factual matter • BUT Court might be reluctant to punish Ws for mutual mistake. (Good-Bye to Biscaynes)

  44. Review Problem 6L Implied Easements Generally • B gets Prince-Acre in Great-Aunt K’s will; unmonitored for years • HARM Law Firm Claims to have sold Prince-Acre to K’s Husband with Understanding that Could Continue to Use Existing Roads from Building across Prince-Acre to main streets.

  45. Review Problem 6L (Redwood) Easement-by-Estoppel • An owner may be estopped from barring a 2d party access to the owner’s property where • The owner apparently allows 2d party to use the property (Apparent License) • 2d party reasonably and detrimentally relies on this acquiescence

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