PROPERTY D SLIDES

1. PROPERTY D SLIDES 4-3-14

2. Thursday Apr 3 Music (to Accompany Chevy Chase): If I Could Turn Back Time: Cher’s Greatest Hits (1999) Today: Review Problem 5G (Shenandoah) featuring (to start with) Rostock, Shawn, Nelson, Block, Alvarez, Raijman Critique of Review Problem 5E (Yellowstone +) Due Today @ 10am

3. REVIEW PROBLEM 5G (Shenandoah) • Actual Use • Open & Notorious • Exclusive • Continuous • Adverse/Hostile • State of Mind • 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.

4. DQ5.21: Adverse Possession Policy:Legislative Debate • Florida Legislature considering eliminating or modifying adverse possession doctrine. • Proposals include • Complete elimination • Color of Title Only • Adverse Possessor must pay market value (Forced Sale) • Arguments suggested by facts of cases we read? • Note useful technique for Opinion/Dissent Qs • Example: Nightmare • Others?

5. DQ5.21: Adverse Possession Policy:Legislative Debate • Florida Legislature considering eliminating or modifying adverse possession doctrine. • Proposals include • Complete elimination • Color of Title Only • Adverse Possessor must pay market value (Forced Sale) • Other Proposals/Arguments?

6. 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

7. 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 Time & in Readings • Key Vocabulary: • Express v. Implied Easements • Positive v. Negative Easements • Appurtenant v. In Gross • Dominant Tenement (Holding) v. Servient Tenement

8. 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

9. 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 P826] • City of Manhattan (CA) [See Note 1 P832]

10. Interpreting Language: Easement v. Fee • Courts looking for evidence of parties’ intent. Look at both: • Language • Circumstances Surrounding Grant • Presumption? (DQ6.01) • From Chapter 4: Normal Presumption is Ambiguous Language Creates a Fee Simple. • Should there be a presumption in context of “Right of Way” favoring either fee or easement? We’ll see what cases do.

11. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Chevy Chase): • 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: “She left her bicycle on the right of way”) • Court says most likely understanding is easement

12. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Chevy Chase): • 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 • E.g., White v. Brown • E.g., Statutes

13. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Manhattan): • Language: (Ambiguous) • “remise, release & quitclaim” (looks like giving up all rights, therefore fee) • “right of way” + “upon, over & along” (look more like easement)

14. Interpreting Language: Easement v. Fee • 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

15. Interpreting Language: Easement v. Fee • 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

16. Interpreting Language: Easement v. Fee • 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.

17. Interpreting Language: Easement v. Fee • Chevy Chase: Presumption of Easement • Little Purpose for Fee Interest in RR Strips; Not Necessary for Original RR Purpose • 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

18. Interpreting Language: Easement v. Fee B. Manhattan: Applies Presumption of Fee Simple; BUTUsual Rationales Don’t Fit Well • Likely Meets Ordinary Expectations (Unclear) • Furthers Alienability (No) • 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?

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

20. Interpreting Language: Scope of Express Easements • “Scope” is Primary Testable Issue for Express Easements • Q is whether use contemplated by dominant tenement-holder allowed • As noted last time, generally interpret scope issues like contracts • Objective indications/manifestations of parties’ original intent • NOT hidden understanding • Often arises with changed circumstances: which party should bear different burden?

21. Interpreting Language: Scope of Express Easements (Coverage): Sample Blackletter Tests (S142) • “Use must be reasonable considering the terms of the grant” • “Evolutionary not revolutionary” changes allowed. • “Burden must not be significantly greater than that contemplated by parties” Sample Cases • Chevy Chase (& Presault): Common Transition from RR Rights of Way to Recreation Trails • Marcus Cable: Common Problem of Improved Technology Review Problems 6B & 6F

22. Common Scope of Easement Issues • Proposed Use Seems to be w/in Very Broad Language, but Arguably Significant Change • Chevy Chase; Review Problems 6A & 6F • Change in Technology; Might be Outside Literal Language, but Arguably Limited Increase in Burden • Marcus Cable; Review Problem 6B

23. Review Problem 6B: Tuesday April 8In-Class Arguments: Shenandoah Critique: Biscayne Arguments/Missing Facts? • If Marcus Cable is Binding Precedent • If Chevy Chase is Binding Precedent

24. Review Problem 6F: Thursday April 10In-Class Arguments: Arches Critique: Redwood Arguments/Missing Facts Using the Three Blackletter Tests

25. Scope of Easement: RR Easement  Recreational Trail Common Transition with Decline of RRs • Federal statute encourages and gives RRs authority to transfer rights-of-way • BUT doesn’t purport to resolve state law issues re allowable scope after transfer • We’ll compare Chevy Chase (MD) to Preseault(Fed. Cir. 1996) (P833 Note 2)

26. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (DQ6.02) • 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.

27. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • 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”

28. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • 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

29. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality”/Consistent w Purpose & Reasonable Expectations • cf. “Evolution, not Revolution” • Not necessary that use was specifically contemplated by parties • NOTE: Common Distinction between “Purpose” and “Intent” • Depends on Characterization of Purpose • Lawyering Task/Game • How do you Generalize from RR Use?

30. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Hiking/Biking = Transport, so OK (+ Onomatopoeia ) (See Cher: ShoopShoop) • 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?

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

32. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Preseault: “Use by Commercial Entity as Part of its Business” • For You on Review Problem/Test Q: • Try out two or more ways to characterize. • Then discuss which characterization seems more convincing

33. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • 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” • Here: Trains  Hikers/Bikers

34. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden: Chevy Chase says no: • Says less burden than RR w/o specifying; clearly bigdecrease in noise & safety concerns. • “Self-Evident” that change “imposes no new burdens” (You need to do better in 2 ways). (See Cher: Heart of Stone) • Plus new use adds benefit to servient tenements (access to trail)

35. YELLOWSTONE (DQ6.02) GIANT GEYSER

36. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Possible Increases in Burden? IMAGINATION EXERCISE(~6.02) Everyone (but Yellowstones First)