PROPERTY A SLIDES

1. PROPERTY A SLIDES 4-18-17 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 Sunday @ 2 p.m. • Preliminary Deadline for Feedback Before Classes End = Tomorrow @ 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 • Introduction • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity (cont’d) • By Prescription

5. 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 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

9. 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 in 1981) • Dissent: Meets Strict Necessity: Why?

10. 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 in 1981 (CHECK)) • Dissent: Meets Strict Necessity: • Getting road built across Wetlandscosts 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 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 (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 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 at time of trial) • Dissent: Meets Strict Necessity: • Getting road built across Wetlandscosts 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 Riverfrontnot 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 Riverfrontnot 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 Riverfrontnot 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-PrescriptionElements • [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 Kirmacited in Williams Island @ 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 OStephanie Sued to Enjoin Further Use of Her PipesShe Concedes Split of Original Parcel and Prior Use of the PipesBe Prepared to Discuss re Easement-by-ImplicationStrongest Arguments for Your Client (at Time of Split) reEvidence of intent to continue prior use Apparent, visible or reasonably discoverableSome degree of necessityLast Names A-N: Representing S (Servient O)Last Names O-Z: Representing Ws (Dominant O)

29. BADLANDS:Thursday  FridayReview Problem 5L (Opinion/Dissent Q @ S135-36)Last Names A-N: Range of [Policy] Arguments for Allowing Knowing Waiver of Easement by NecessityLast Names O-Z: Range of [Policy] Arguments for Prohibiting Waivers of Easement by NecessityAssume Facts Sufficient to Show Both E-by-N & Knowing WaiverHelpful 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 • 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-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

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

35. Easement-by-PrescriptionEverglades: [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-PrescriptionEverglades: : [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-PrescriptionEverglades: : 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-PrescriptionEverglades: : 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-PrescriptionEverglades: : 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-PrescriptionEverglades: : 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-PrescriptionEverglades: : 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-PrescriptionAdverse/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-PrescriptionAdverse/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-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 (if no change in burden/ circumstances).

45. Easement-by-PrescriptionEverglades: 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: EasementsEnd-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. 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