Understanding Easements: Properties and Terminology Overview

1. PROPERTY D SLIDES 3-29-16 National Lemon Chiffon Cake Day

2. Tuesday March 29 Music (to Accompany Williams Island):Pat Benatar: Best Shots (1989)featuring “Hit Me with Your Best Shot” CHAPTER 4 TEST IS GRADED NCAA Contest: Possible Winners Florio: If Syracuse defeats UNC. Estrella: If UNC defeats Syracuse and Villanova defeats Oklahoma DeGiovanni: If UNC defeats Oklahoma in Finals D.Roberts: If Oklahoma defeats UNC in finals. • Get Individual Results from my Asst. Tina Sutton After Class • Blind Grading = Do NOT Tell Me (or Even Hint) How Well You Did • Answers & Explanations Memo on Course Page; E-Mail if Qs • Score = Number Correct Divided by 2 (Up to 12 Points added to up to 60 points from Final Exam)

3. Previously in Property D Easements Introduction & Key Terminology Fee v. Easements (Chevy Chase & Manhattan Beach) Determining Scope of Positive Easements Blackletter Tests RR Easements: Chevy Chase & Presault Technological Change & Marcus Cable Review Problems 5A, 5B, 5C [Thursday: Review Problem 5D] [DF Friday & Next Tuesday Rev. Probs. 5F & 5H]

4. Previously in Property D Easements Introduction & Key Terminology Fee v. Easements (Chevy Chase & Manhattan Beach) Determining Scope of Positive Easements Negative Easements Implied Easements Introduction Easements by Estoppel Arising from Detrimental Reliance Recognized in about Half the States

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

6. Easement-by-EstoppelGeneral Rule • 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

7. Easement-by-EstoppelDuration/Termination N.4 (P793): How Long Does an E-by-E Last? Stoner: “For so long a time as the nature of it calls for.” Means?

8. Easement-by-EstoppelDuration/Termination N.4 (P793): 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

9. Easement-by-EstoppelDuration/Termination N.4 (P793): 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 relatively cheap alternatives?

10. Easement-by-EstoppelDuration/Termination N.4 (P793): 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?

11. Easement-by-EstoppelDuration/Termination N.4 (P793): How Long Does an E-by-E Last? • House built in reliance on E-by-E burns down. Can owner rebuild? • See quote from Rerickin Stoner (bottom P790): “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.”

12. Easement-by-EstoppelDuration/Termination N.4 (P793): How Long Does an E-by-E Last? • House built in reliance on E-by-E burns down. Can owner rebuild? • See quote from Rerickin 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 possible w/o rebuilding? (insurance $) QUESTIONS?

13. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  Danny buys Lot #2 from Owner of Lot #1 (No House on #2 but Sewage Pipe in Place)

14. Easement-by-EstoppelSewage Pipe Hypothetical • Danny 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? • If so, will yield E-by-E in states that allow

15. Review Problem 5J(S104): Friday 4/1Opinion/Dissent Q: Assume Facts Sufficient for E-by-EFor Class: Ignore Possibility of PaymentAcadia: Range of [Policy] Arguments for Adopting Easement by EstoppelBadlands: Range of [Policy] Arguments for Rejecting Easement by EstoppelEverglades: Critique

16. Easement-by-Estoppel Some RelevantPolicy Considerations • Policies Underlying Statute of Frauds & Reasonableness of Reliance w/o Writing • Equitable Considerations re Both Parties • How Do We Think Neighbors Should Behave (cf. Adv. Poss. Border Disputes) • Can Add Your Own

17. Distinct Tasks in Your Post-Brief World • Oral Arguments • Critiques • Exams

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

19. Easement-by-Implication &Easement-by-Necessity: Overview • Both Arise from Split of Larger Parcel • Different Requirements • Sometimes Same Facts Can Give Rise to Both.

20. Easement-by-Implication &Easement-by-Necessity: Overview • Both Arise from Split of Larger Parcel; Different Requirements but Sometimes Same Facts Can Give Rise to Both • E-by-I: Parties Intend that Prior Existing Use Should Continue • Look for ObjectiveEvidence of Intent; Not Secret Subjective Belief • Default Rule: Clear statement that not intended precludes E-by-I .

21. Easement-by-Implication &Easement-by-Necessity: Overview • Both Arise from Split of Larger Parcel; Different Requirements But Sometimes Same Facts Can Give Rise to Both • E-by-I: Parties Intend that Prior Existing Use Should Continue • Look for ObjectiveEvidence of Intent; Not Secret Subjective Belief • Default Rule: Clear statement that not intended precludes E-by-I . • E-by-N: Split Creates Landlocked Parcel Needing Access • Dispute as to Whether Based in Public Policy or (Very Generous Notion of) Intent • Resolution of this dispute determines whether E-by-N is default rule or universal policy (See Rev Prob 5L).

22. 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 jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

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

24. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Eassement) • Termination

25. 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

26. Easement-by-Implication &Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation • FL & Majority Rule (in Williams Island): No Difference • 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!”

27. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Eassement) • Termination

28. Easement-by-Implication &Easement-by-Necessity: Degree of Necessity EASEMENTS BY IMPLICATION: • Some states: Evidence of intent, but not required. • Most states: Reasonablenecessity required. • Some states (not FL): Strictnecessity required if implied by reservation. EASEMENTS BY NECESSITY: • Most states: Strictnecessity Some Legal Tests/Examples for Reasonable & StrictNecessity in Cases and Note 3 (P801-02)

29. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Easement) • To Subsequent Purchasers • At Time of Split (E-by-I Only) • Termination

30. Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to continue easement if notice of its existence at time of purchase • Actual Notice/Knowledge (Fact Q): Did buyer know about easement? • Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? (cf. Common Tests for Open & Notorious) • 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.

31. Easement-by-Implication: Notice Notice to Parties of Existence of Easement 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

32. Easement-by-Necessity: Notice • Subsequent Purchasers of Servient Estate • In theory, also need notice to bind. • Court finding the easement necessaryfor dominant estate to operate probably will be 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

33. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Easement) • Termination

34. Easement-by-Implication &Easement-by-Necessity: Termination • Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S197) • 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

35. ACADIA: Williams Island Sunrise

36. Easement-by-Implication (Acadia)Williams Island Use of Path Across Servient Tenement to Connect Two Holes of Golf Course • One parcel Split in Two (Undisputed) • Prior Use (Undisputed) • Intent to continue prior use: Evidence?

37. 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) • 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) 4. Apparent, visible or reas. discoverable at time of split: Evidence?

38. 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: • Paved; 9 feet wide; “in constant use” + references in deed

39. Easement-by-Implication (Acadia) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Some states would require Strict b/c by-Reservation • Ct. (top P794): “No practical or safe alternative route.” Evidence?

40. Easement-by-Implication (Acadia) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Some states would require Strict b/c by-Reservation • Ct. (P794): “No practical or safe alternative route.” Alternatives considered (P794 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

41. 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) • Notice to Subsequent Purchasers: Evidence?

42. 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) • Notice to Subsequent Purchasers: Evidence? • Actual: Buyer’s Rep Told 4 mos. Before Closing • Inquiry: Established Regular Use

43. 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) • 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?

44. Review Problem 5K (S107): Tuesday 4/5Stephanie Sued to Enjoin Further Use of Her PipesShe Concedes Split of Original Parcel and Prior Use of the PipesBe Prepared to Disc uss re Easement-by-ImplicationIntent to continue prior use Apparent, visible or reasonably discoverableSome degree of necessitySequoia for P Stephanie *** Acadia for D WebersOlympic: Critique

45. BADLANDS: DuPont v. Whiteside NORBECK PASS

46. 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 Riverfront so Whiteheads could build. • Dispute as to whether Duponts said this access was permanent or temporary.

47. Easement-by-Necessity (Badlands) Necessity in DupontOpinions • 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

48. Easement-by-Necessity (Badlands) Necessity in DupontOpinions • 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) • Dissent: Meets Strict Necessity: Why?

49. Easement-by-Necessity (Badlands) Necessity in DupontOpinions • 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) • 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”