Unit IV: Breaches in the Castle Wall



Chapter 5. Bearing Other People’s Crosses:

Easements Express & Implied

Some Key Definitions

A. Servitudes: Rights of one person or group of persons to use or control the use of another's land

1. E.g., owner of Blackacre agrees to allow owner of neighboring Redacre to use driveway (Express Easement or License).

2. E.g., owner of one parcel of land agrees with neighboring landholders not to build a third story on her house; neighbors may be able to enforce agreement against subsequent owner. (Promissory Servitude; not covered 2014)

B. Easements: Type of servitude usually formed with all the formalities associated with conveyances of real property. Jurisdictions limit the kinds of rights that can be embodied in easements. The most common kind of easements are rights of way: a particular person or the owner of a particular parcel gets the right to cross over someone else's property.

C. Types of Easements

1. Positive v. Negative

a. Positive Easement: A given the right to enter onto B's land. E.g.,

i) right of way

ii) right to take water for animals/people

b. Negative Easement: A given the right to enforce restriction on B's use of B's land.

i) jurisdictions vary in what types they allow

A) very limited at common law

B) most allow view, light, air

ii) e.g. easement for light and air: A can prevent B from building in such a way as to block A's access to light or free-flowing air

iii) e.g., easement for view: A can prevent B from building or putting obstruction in front of A's view

2. Appurtenant v. In Gross

a. Appurtenant: a servitude for the benefit of an adjoining piece of land, regardless of who owns it. E.g., "The owner of Blackacre shall have the right to cross Whiteacre to get to Fremont Lake."

b. In Gross: a servitude for the benefit of a specific individual. E.g., "Lee shall have the right to cross Redacre to get to Fremont Lake."

3. Express v. Implied Easements

a. Express Easement: easement created with all the formalities required for deeds in the jurisdiction (i.e., writing, signature, description, delivery, etc.). Interpreted like contracts.

b. Implied Easement: easements created by law in certain circumstances. Four types, described below, interpreted in accordance with the legal purpose for implying the easement

D. Dominant v. Servient Tenement

1. Tenement: from the French meaning "holding": one of the parcels of land involved in a servitude

2. Dominant Tenement: the parcel that can enforce rights over the other.

3. Servient Tenement: the parcel subject to rights of another parcel or person.

4. E.g., If owner of Redacre has right of way over Blueacre to get to Fremont Lake, Redacre is dominant tenement; Blueacre is servient tenement.

E. Grant v. Reservation

1. Easements are often created at the time a larger parcel is divided into two by the original owner. For example, Black-and-Whiteacre is divided into Blackacre and Whiteacre. There is an old path across Whiteacre connecting the house at Blackacre with Fremont Lake. The owner creates an easement in conjunction with the division of property to allow the owner of Blackacre to continue to use the path to the lake.

2. Easement-By-Grant: In the situation above, the original owner retains Whiteacre and sells Blackacre. She grants the easement to the new owner of Blackacre,

3. Easement-by-Reservation: In the situation above, the original owner retains Blackacre. She sells Whiteacre, reserving an easement across Whiteacre for her own use.

4. If an easement is created by two neighboring landowners, and not in the context of a division of a pre-existing parcel, it also will be called an easement-by-grant.

F. Profits

1. A given the right to enter on B's land and remove something valuable attached to it.

2. E.g., crops, timber, minerals, wild game, fish.

3. Generally the rules for easements apply.

G. Licenses

1. Black's: permission to do an act that, w/o permission would be trespass or tort. License with respect to real property is privilege to go on premises for certain purpose, but does not confer on, or vest in, licensee any title or estate in the servient property

2. Examples

a. laundryman delivering laundry

b. guest coming to dinner

c. purchaser of theater ticket

d. "Fred, you can use my pool when I'm out of town"

3. Licenses are revocable with 2 exceptions:

a. Irrevocable if coupled with a profit. E.g. you give Chris a profit to pick plums from your plum tree using all the proper formalities, implicitly or expressly, you also give him a license to enter your property to get to the plums. Since Chris has rights to the plums, you cannot deny him access to your property by claiming to revoke his license to enter.

b. Irrevocable in some jurisdictions if estopped (see Easement by Estoppel)

4. Licenses technically are not interests in land, so the statute of frauds does not apply; they can be created orally

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EXPRESS EASEMENTS: OVERVIEW

A. Creation: by formalities necessary to convey real property

B. Interpretation or "Scope of the Easement"

1. Problem: Language of an easement does not clearly state whether a particular use of the easement is acceptable or whether increased use of the easement for the same purpose is acceptable.

2. Basically interpret like a contract:

a. what did the parties intend?

b. what objective evidence is there of the parties’ intent?

3. Blackletter tests include:

a. “Use must be reasonable considering the terms of the grant”

b. “Evolutionary not revolutionary” changes allowed.

c. “Burden must not be significantly greater than that contemplated by parties”

4. Remedies for overuse

a. injunction prohibiting overuse (automatic in most jurisdictions)

b. damages for overuse

c. termination only if profit

i) overuse generally will not terminate an easement

ii) however, courts will enforce a forfeiture provision in grant

C. Termination of Easements

1. Expiration date set in grant ("Owner of Blackacre has an easement over Whiteacre until the year 2000"; "Owner of Whiteacre has an easement over Blackacre so long as St. Martin’s Church holds services on Whiteacre.").

2. Release: document with all deed formalities releasing interest back to owner of servient tenement.

3. Common ownership: If both the servient tenement and dominant tenement come into common ownership, however briefly, the easement is extinguished.

4. Adverse Possession: use of the servient tenement for the adverse possession period in a manner inconsistent with the existence of the easement (e.g., a building on top of the right of way).

5. Estoppel: (some states) easement holder apparently acquiesces in servient tenement holder eliminating the easement; servient tenement holder reasonably and detrimentally relies on the acquiescence.

6. Abandonment: act of the dominant owner indicated an intent to abandon the easement; mere non-use insufficient.

7. Elimination of Purpose (some states): If the purpose of the easement is destroyed without fault of the servient tenement holder, the easement will be extinguished. For example, an easement to get to a lake might be extinguished if the lake dries up permanently.

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Review Problem 5A

(5A) Santa-acre and Elfacre are neighboring parcels of land. Santa-acre is adjacent to a garbage dump. Elfacre is a big lot containing a small cottage. The owners of the parcels reach the following agreement: "Elfacre’s owners shall have the right to cross Santa-acre to dump garbage in the adjacent garbage dump." Later, Elfacre’s owners tear down the cottage and put up a toy factory, which produces seven times the garbage that the cottage did. Discuss whether they can use the right of way to dump the factory’s garbage.

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DISCUSSION QUESTIONS

5.01: Should the usual presumption in favor of interpreting ambiguous grants as creating fee simple interests apply in the context of cases like Chevy Chase?

5.02: In Chevy Chase, what test or tests did the court use to determine whether the proposed use was within the scope of the easement? Does the court’s approach include or substantially overlap one or more of the “blackletter tests” listed on S144? Would the result be substantially different under any of the “blackletter tests”?

5.03: In Marcus Cable, what test or tests did the court use to determine whether the proposed use was within the scope of the easement? Does the court’s approach include or substantially overlap one or more of the “blackletter tests” listed on S144? Would the result be substantially different under any of the “blackletter tests”?

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PETERSEN v. FRIEDMAN

328 P.2d 264 (Cal. App. 1958)

KAUFMAN, Presiding Justice. The parties are owners of adjacent parcels of improved real estate situated on Franklin Street in San Francisco. Plaintiff’s complaint sought to perpetually enjoin the defendants from violating an express easement of light, air and unobstructed view created in favor of plaintiff’s property and to compel the defendants to remove certain television aerials and antennae. The trial court found all of the allegations of the complaint to be true, rendered judgment for the plaintiff, and issued both injunctions requested. Defendants appeal.

The nature and creation of the easement appurtenant to plaintiff’s property is not in dispute. On November 6, 1942, Mary Petersen, now deceased, also known as Mrs. Chris Petersen, by a grant deed duly recorded conveyed a part of her property on Franklin Street to C. A. Petersen. The deed contained the following reservation of an easement:

Reserving, however, unto the first party, her successors and assigns, as and for an appurtenance to the real property hereinafter particularly described and designated as ‘Parcel A’ and any part thereof, a perpetual easement of right to receive light, air and unobstructed view over that portion of the real property hereinabove described, to the extent that said light, air and view will be received and enjoyed by limiting any structure, fence, trees or shrubs upon said property hereinabove described or any part thereof, to a height not extending above a horizontal plane 28 feet above the level of the sidewalk of Franklin Street as the sidewalk level now exists at the junction of the southern and western boundary lines of the property hereinabove described. Any obstruction of such view above said horizontal plane except by a peaked gable roof extending the entire width of the front of the building referred to herein and extending 9 feet in an easterly direction from a point 1 foot 6 inches east of Franklin Street, the height of said peaked roof being 3 feet 2 inches together with spindles 3 feet in height on the peak of said roof, and except the necessary number of flues or vents constructed of galvanized iron and/or terra cotta not over 4 feet in height, shall be considered an unauthorized interference with such right or easement and shall be removed upon demand at the expense of second party, and his successors and assigns in the ownership of that real property described or any part thereof.

Thereafter, the defendants, by mesne conveyances from C. A. Petersen, acquired all of the property conveyed by the deed of November 6, 1942, subject to the reservation. Plaintiff is the duly appointed and qualified executor of the estate of Mary Petersen, which is the owner of the dominant tenement.

Defendants’ contentions on appeal are limited to the following: 1) that it could not have been the intent of the parties to preclude the erection of television aerials and antennae on the defendants’ roof as the easement was created before such devices were known; 2) that the evidence does not support the judgment.

The language of the easement is clear and leaves no room for construction or determination of the intent of the parties, as contended by the defendant. Its purpose is to avoid any type of obstruction of the light, air and view without regard to the nature thereof. The reservation was not limited to the use then being made of the servient estate, but extended to all uses to which the servient estate might thereafter be devoted. Easements of light and air may be created in this state. Civil Code, §801; Bryan v. Grosse, 155 Cal. 132. Although we have not been able to find a California precedent on an easement of view, the weight of authority is that such an easement may be created by express grant. See 142 A.L.R. 467 and cases collected therein. It has been held in this state however that interference with an easement of light, air or view by a structure in the street is ground for an injunction. Williams v. Los Angeles R. Co., 150 Cal. 592.

As to defendant’s second contention, the issues of whether or not the aerials and antennae obstructed plaintiff’s view and otherwise interfered with the easement to the detriment of the plaintiff, were questions of fact for the lower court. The plaintiff offered evidence as to the size and nature of the obstructions and testified that because of the presence of the aerials and antennae, he received a lesser rental for the apartments on his property. The question of granting or refusing an injunction is addressed to the sound discretion of the lower court and its action will not be reversed on appeal unless there appears to be an abuse of discretion. Williams v. Los Angeles R. Co., supra. The record here supports the judgment.

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DISCUSSION QUESTIONS

5.04: How does the court respond to each of the defendant’s arguments in Peterson? Are its responses convincing? Can you formulate an argument that the burden on the servient tenement is greater than anticipated? How might the court respond?

5.05: Why is it easier to determine the scope of a negative easement than that of a positive easement?

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Review Problems 5B-5H

(5B) Mike owned Cyracre, a ranch located in a valley in a sparsely populated area. In 1962, he bought his first television set, but discovered that it got poor reception because of his location. Debbie, the owner of Keanacre, a neighboring ranch, did not have reception problems because Keanacre is located on a plateau above Cyracre. They entered into a written agreement that said, “The owners of Cyracre may place and maintain an antenna onto the Keanacre barn and run wires from the antenna to Cyracre to allow television reception for that property.” Mike immediately put up the antenna and wires. However, even with Liz’s antenna, his TV reception was not great. Earlier this year, tired of poor reception and frustrated because cable television still was not available locally, Mike purchased a satellite dish. He wishes to place it on Debbie’s barn where the antenna is now, but she objects. Discuss whether Mike can place his satellite dish on Debbie’s barn.

(5C) Discuss whether, in the following problem, Robyn can prevent Jorie from riding her horse on the easement across Rhodes-acre: Christina and Robyn owned neighboring lots called Carr-acre and Rhodes-acre respectively. A driveway ran along the western edge of Rhodes-acre from Hungerford Highway to the edge of Carr-acre.

Christina thought it would be convenient when traffic was a problem to use the driveway to get on and off her lot instead of using the street in front of her house. She also wanted to go jogging on a route that included the driveway. In 1985, Robyn allowed Christina to purchase an easement, created with all proper formalities, that included the following language:

Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise.

In 2006, Jorie purchased Carr-acre and moved onto the property along with her horse, Diamond Dinner. Jorie likes to ride her horse every morning on Christina’s old jogging route. She also sometimes rides the horse along Hungerford Highway to the nearest village to run errands.

(5D) Discuss whether, in the following scenario, Andy must allow students from the Gudridge Academy to use the existing easement across Silver-Acre for athletic activities: Andy Amkraut owns Silver-Acre, a large wooded lot sandwiched between a county road and a private beach on the shore of Victory Bay. Andy’s grandfather built a big house on Silver-Acre where Andy and his family live today. A paved driveway connects the road to the beach and branches off in the middle to go to the house.

For many years, the Dawson Institute, an Art School for college-aged students, was located right across the county road from Silver-Acre. Andy’s grandmother met his grandfather while she was attending Dawson. In gratitude, when they got married, Andy’s grandfather granted an easement to the school that included the following pertinent language:

The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway connecting the beach to the county road.

For as long as Andy can remember, art students from Dawson quietly worked on Silver-Acre, sketching the woods from the edge of the driveway or doing watercolors of the different kinds of sea gulls on the private beach.

Last year, the Dawson Institute was bought by the Gudridge Academy, which runs “transition schools” where troubled teens spend an extra year after high school to get ready for college. The Academy has been using the easement for student athletic activities like running and swimming.

(5E) The Bar-Z Dude Ranch consists of 35 guest cabins near Lake Geller. The path to the lake is on the west side of the ranch, so it is inconvenient for guests staying in the 12 cottages on the east side. The owners of the Bar-Z purchased an easement from the neighboring S-4 Ranch that contained the following language: "Guests of the Bar-Z Ranch shall have the right to use a path across the S-4 Ranch to reach Lake Geller if that path is the closest access to the lake from the cabins in which they are staying." Subsequently, an earthquake destroyed the path from the west side of the Bar-Z to the Lake. Can all guests of the Bar-Z now use the easement across the S-4 Ranch?

(5F) Discuss whether, in the following scenario, the owners of Dwarf-acre will be able to continue to use the express easement across Snow-Acre to connect the water and sewer pipes from their renovated hotel to the municipal utility system: Dwarf-Acre and Snow-Acre are large neighboring lots in a ski resort town. In 1975, Snow-Acre’s owner built a three-bedroom house on that lot and connected the house to the municipal utility system with underground water and sewer pipes with substantially more capacity than he needed in case he later decided to add to the house. Two years later, the owners of Dwarf-Acre built on the lot a hotel with 16 guest rooms called “Warren Court.” They purchased an easement from the owner of Snow-Acre that included the following language:

The owner of Snow-Acre and his successors and assigns grant to the owners of Dwarf-Acre and their successors and assigns the right in perpetuity to create and maintain connections from water and sewer pipes serving a hotel on Dwarf-Acre to the water and sewer pipes serving Snow-Acre and to have the hotel’s sewage and water flow through those pipes across Snow-Acre to and from the municipal utility system.

In 1978, the Warren Court Hotel opened after its water and sewage pipes were connected to the pipes running across Snow-Acre. The hotel has been in business ever since and its water and sewage continue to flow through the pipes on Snow-Acre. In 2013, the hotel came under new management, which began construction to renovate and greatly widen the building, adding a glass exterior and 120 additional guest rooms. They plan to reopen in May 2014, retaining the connections to the Snow-Acre pipes.

In 1999, Abraham had purchased Snow-Acre as his residence after having been given a copy of the easement language. In 2013, he became very unhappy about “the glass coffin” being built next door. He became obsessed with the Warren Court, trying to find some improper elements that could stop the project, but the hotel management had complied with all necessary zoning, building, and environmental regulations. On a very cold night in February 2014, the water pipes in the basement of Abraham’s house froze and burst. Although this problem was unconnected to the hotel’s use of the pipes, it gave Abraham the idea to try to enjoin the use of the easement by the rebuilt hotel.

(5G): Discuss whether, in the following scenario, the owners of Quirrell Quarry will be able to continue to use the express easement across Broom-Acre now that the output of McGonagall Mine has transfigured from lead into gold: Quirrell Quarry is a large parcel of land that originally was used to extract stone used for building projects. In the 1950s, the owners discovered a substantial vein of ore in the Quarry that could be processed into lead (the metal, not a singer or a headline or a leash). They began extracting the lead ore from a location they called McGonagall Mine.

In 1960, to facilitate their operation of the Mine, the owners of the Quarry purchased an easement (created with all necessary formalities) to allow them to get to the nearest public road across neighboring Broom-Acre. The document creating the easement contained the following language:

The owners of Broom-Acre (and their successors and assigns) grant the rights to the owners of Quirrell Quarry (and their successors and assigns) for themselves, their agents, and their employees to cross Broom-Acre to and from Hogwarts Highway with all personnel and equipment needed to extract and process metal from the McGonagall Lead Mine.

When the parties created the easement, they expected that it would take about 50 years to extract all the lead ore from the Mine, although they were aware that this timing could vary considerably depending on changes in technology and the precise amount of ore found in the Mine. Unsurprisingly, almost no lead ore remained in the Mine by the end of 2014. However, early in 2015, the owners of the Quarry discovered a vein of gold accessible through the Mine. Although extracting the gold would have been too difficult and expensive in 1960, extraction might be profitable in 2015 because of new mining technology and new chemical processing methods. The owners of the Quarry want to keep using the easement to extract gold instead of lead, but the current owners of Broom-Acre have said that this proposed change in use “just won’t fly.”

(5H) Discuss the factual and legal research you would need to do in order to advise Carlos regarding the concerns described below. About three years ago, Carlos Cabrera bought a large farm in the state of Preston, on which he grows cotton, green beans and bell peppers. Recently, oil was discovered at a new well on Camp Osprey, a dude ranch owned by Sam Sackel located directly north of the farm. Sam showed Carlos a genuine-looking document that describes an easement that allows oil workers employed by Camp Osprey to cross roads on Carlos’s farm to access oil wells on Camp property. According to the farm’s foreman, the easement was created to service earlier oil wells that have since stopped producing and was intended to allow the workers to operate the wells without disturbing the activities of the dude ranch. Carlos wants to know whether he has to allow Sam’s oil workers to use the easement to service the new well.

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Note: Easements By Estoppel

A. If an owner apparently allows a servitude on his property, and another person reasonably and detrimentally relies on the acquiescence, a court may find the owner estopped from barring access to the party that relied. The resulting interest is called an easement by estoppel.

B. Only about half the states recognize these.

C. Example: Patty owns Melvacre. David purchases a parcel with no access to the highway, just to the north of Melvacre. Patty gives David permission to use a dirt road across Melvacre to allow materials and workman to gain access to build a house on David's property. Once the house is built, Patty tries to stop David from using the road to get personal access to his house. A court may find that Patty is estopped from doing so; it may have been reasonable for David to assume that Patty would understand that once the house was built, David would require continued access.

D. An Easement by Estoppel can be terminated if the reliance interest disappears. For example, if David's house burns down, so that he would have to rebuild the house, a court may find that the easement terminates since she no longer has any investment in use of the property that would be destroyed by eliminating access.

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DISCUSSION QUESTIONS

5.06: Normally courts state that an Easement by Estoppel requires reasonable and detrimental reliance. Was the reliance in Stoner reasonable? Was it detrimental?

5.07: Some jurisdictions do not recognize Easements by Estoppel, arguing that the doctrine undermines the Statute of Frauds and that claimants should make sure of their legal rights before relying on a mere license. On the other hand, neighbors don’t typically commit all arrangements they make to signed writings. Do you think states should allow Easements by Estoppel in cases similar to Stoner? In cases similar to Bershader (described on P792)? If they do, should they be conditioned on payment of some damages to the servient tenement holder?

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Review Problems 5I-5K

(5I) Sammy owns Whiteacre; his neighbor Davis owns Redacre. Because access from Whiteacre to roads is difficult, Davis allows Sammy to use a road across Redacre to reach Whiteacre. Sammy decides to turn his house on Whiteacre into a bed & breakfast inn. He hires contractors to construct a pool, tennis courts and an addition to the house; the contractors use the road across Redacre to get to Whiteacre. Sammy advertises the new inn in local papers. Although he sees the contractors cross his land and sees the ads, Davis does not attempt to stop Sammy from using the road until after guests have started to arrive. Discuss whether he is estopped from revoking Sammy’s right to use the road.

(5J) Discuss whether, in the following scenario, Regan acquired an Easement-by-Estoppel over Stephen’s land and, if so, whether he can use it to rebuild and reopen Munchkinland: In 2010, Regan Roberts, a pre-school teacher, inherited a very large undeveloped parcel of land on the outskirts of a small city in a mountainous western state. At that time, a public road ran along the northern edge of the Regan’s parcel. However, only about 15-20 feet of relatively flat land adjoined the road. And then, immediately further south was a very high cliff. The southern half of the parcel was much flatter and more appropriate for development, but there was no access to any public road (except for going over, or tunneling through, the cliff).

Stephen Sanjana owns land adjacent to the southern part of Regan’s lot. An old private road crosses Stephen’s land running from a public road on one side to the Regan’s property line on the other. When Regan first went out to look at his parcel, he and Stephen became friends and Stephen let Regan use the private road to get to it.

Regan told Stephen that he wanted to build a state of the art pre-school facility on his lot but didn’t know how to get construction material and equipment from the public road over the cliff to the usable Southern half. Stephen told him to feel free to use the private road while constructing his pre-school. Regan did so and in 2012 he opened his pre-school (called “Munchkinland”) in the new building. Once the school opened, parents and employees accessed the school across the private road and Stephen never objected. Regan invested a considerable amount of money in getting the finest teachers and equipment and, by 2017, Munchkinland had a great reputation in the immediate vicinity and a long wait list for entry. However, in April 2017, the building burned down (fortunately while it was empty).

(5K) Cedric Christopher is the owner of Dragon-Acre, a parcel of land in Lave (a little-known American state). On that parcel, Cedric owns and manages a sports bar called “Goblet of Fire.” Last year, Cedric brought an action in state trial court against Shannon Slytherin, owner of Maze-Acre, a neighboring piece of land. In his Complaint, he claimed that he had acquired an Easement-by-Estoppel for himself, his suppliers, and his customers to use a driveway across Maze-Acre to get from a public road to a parking lot on Dragon-Acre. He sought an injunction preventing Shannon from blocking access to the Easement. The Complaint included the following allegations:

• Cedric purchased Dragon-Acre in 2007. At the time, there was a building all the way at the north end of the lot, which fronted onto Alexandra Avenue. The building ran almost the entire East-West width of the lot, with barely enough room on the sides for Cedric to get around to the back of the lot with his motorcycle without trespassing onto the parcels on either side. The building only extended about 30 feet from front to back, leaving most of the parcel undeveloped to the south of the building.

• In 2008, Cedric refurbished the building, got proper licensing, and opened “Goblet of Fire.” Even though patrons had to find street parking on busy Alexandra Avenue, the bar was an immediate success and developed a steadily increasing group of “regulars.”

Review Problem 5K Continues on the Next Page

Review Problem 5K Continued

• In 2010, Cedric did extensive advertising to attract people to come to Goblet of Fire to watch the TV broadcasts of the World Cup matches that summer. He was particularly successful in attracting French and Eastern European immigrants that lived in the area and the bar was nearly completely full for every World Cup match.

• During the 2010 World Cup, Shannon began coming regularly to Goblet of Fire. She asked Cedric if he had any plans to expand the bar. He explained that, without additional parking, he couldn’t attract more people, and he couldn’t utilize the back of the lot because there was no street access to that part of Dragon-Acre.

• Shannon then revealed that she was the owner of Maze-Acre, immediately to the south, and offered to let Cedric use the existing driveway across her land to access the back of his lot so he could both expand the bar and put in a parking area. Delighted, Cedric offered to start negotiating a price. Shannon replied that he should “Just go for it. Don’t worry about paying me. A good neighborhood bar is worth its weight in gold.”

• Over the next eighteen months, Cedric greatly expanded the building and put in a paved parking lot behind it, using the driveway across Maze-Acre during the construction. During this time, he checked with Shannon frequently and each time she indicated that he should go ahead with the expansion project. Cedric re-opened the expanded Goblet of Fire in January 2012 and it was more successful than he had imagined possible. His business continued to grow over the next two years, utilizing Shannon’s driveway for access.

• In 2014, as the next World Cup approached, Cedric again engaged in a big advertising campaign. However, in June, as the date of the first World Cup match neared, Shannon became increasingly moody and then stopped talking to Cedric altogether. The day before the World Cup began, without any warning, Shannon put up chains blocking access to her driveway both from the street and from Dragon-Acre.

The trial court dismissed Cedric’s lawsuit on the pleadings for failure to state a claim. In a brief written opinion, the judge correctly noted that Cedric’s allegations would have been sufficient in a state that had given legal recognition to Easements-by-Estoppel. However, neither the courts nor the legislature in Lave had ever explicitly approved the claim and the judge believed that dicta in a 1912 case indicated that the Lave Supreme Court disapproved of this form of implied easement.

A three-judge panel of the state Court of Appeals reversed. The majority argued that most states reasonably allowed Easements-by-Estoppel to protect significant reliance interests and refused to rely on century-old dicta to block the implementation of sensible public policy. The majority remanded the case to the trial court to give Cedric an opportunity to prove his allegations. The third Court of Appeals judge wrote a concurring and dissenting opinion, saying she would allow the claim only if the claimant paid compensation to the Servient owner for the value of the Easement.

The Lave Supreme Court granted review to decide whether to recognize claims for Easements-by-Estoppel, and if so, when, if ever, to require claimants to pay compensation in order to get the Easement.

Compose drafts of the analysis sections of both a majority opinion for the Court, and of a dissenting opinion, addressing these questions. Each of your draft opinions should adopt and defend one of the three positions noted in the lower courts. Remember that, in this procedural posture, you must treat Cedric’s allegations as true.

Note: Easements By Implication & By Necessity

A. Easements by Implication

1. When one parcel is split in two, and there was a preexisting pathway that historically existed on the original lot, a court may find that the parties intended to continue the use of the prior pathway after the split, even though they made no express agreement.

2. Examples:

a. Black-and-Whiteacre is divided into two parcels. A path from the house on Blackacre leads across Whiteacre to Fremont Lake. When the properties are split, the deeds make no mention of the easement. A court still may say that the parties must have intended the traditional use to continue and give the owners Blackacre an easement (by implication) over Whiteacre.

b. John owns two neighboring houses, Eastacre and Westacre. He runs a sewage line from Eastacre under Westacre to the county sewer pipe in the street. He then sells Eastacre, without including a right of way for the sewage line in the deed. A court might find that the parties intended to give the owners of Westacre continued rights to the sewage line, and give the owner of Westacre an easement under Eastacre.

3. Factors Relevant to the Determination

a. Would the easement have been by grant or reservation? Courts are much more willing to imply easements by grant. An implied easement-by-reservation seems a little shady: "I'm selling you this property, but I'm intending to keep a right of way across it, but I am not mentioning my right of way in the documentation."

b. How necessary is the easement? The more necessary it is to the use and enjoyment of the dominant tenement, the more likely a court is to rule that the parties must have intended to continue the pre-existing use.

i) some courts require strict necessity to imply easements by reservation (i.e., the easement must be absolutely necessary to the use of the dominant tenement)

ii) some: disproportionate effort & expense to use other access

iii) some: necessity is factor to decide whether parties really intended

c. Circumstances of the conveyance

i) consideration

ii) knowledge of parties

iii) obviousness of right of way

4. Binding on Subsequent Parties?

a. Interest in land; under recording statutes, probably turns on notice

b. Won't be record notice

c. Look to actual or inquiry notice

B. Easements by Necessity

1. Court will create an easement by necessity if

a. when a parcel is divided

b. one resulting parcel is completely shut off from roads or other

access (electric, water, etc.) at the time the parcels are divided

c. by the grantor's land, or some combination of the grantor's land and

land of third parties

d. and the access is necessary to the owner's enjoyment of the parcel

2. How necessary?

a. most jurisdictions: strict

b. some: just costly or difficult to get access another way

3. easement by necessity ends at the moment the necessity ends

4. some jurisdictions have private condemnation statutes

a. if landlocked parcel, sue to get easement across neighboring land.

b. pay owner just compensation.

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Review Problems 5L-5N

(5L) Discuss whether, in the following scenario, an Easement-by-Implication exists in 2013 allowing water and sewage to flow across Stephanie’s land to and from the remaining Weber guest cottages: The Weber family owned a large estate divided by a steep ridge. On the east side of the ridge, the family lived in a large mansion. On the west side, they built a row of four guest cottages, each with two bedrooms and two bathrooms. Installing pipes over or through the ridge would have been very costly, so the Webers did not connect the water and sewer lines for the cottages to the pipes serving the mansion. Instead, they installed a single new set of pipes that ran west from the cottages for about a mile to connect to municipal water and sewer lines that lay just beyond the western edge of their land.

During summers in the 1980s, when Marc Weber and his cousins were teen-agers, they would invite friends from school, including Stephanie Seppi, to join them at the estate. When there were no adult guests, the teen-agers would stay in the guest cottages away from any direct adult supervision. Stephanie spent parts of several summers on the Weber estate and fell in love with the area around the guest cottages.

Review Problem 5L Continues on the Next Page

Review Problem 5L Continued

In 2009, Stephanie, by then a wealthy attorney, ran into Marc Weber for the first time in many years. He admitted that his family had squandered their fortune and had had to sell the mansion and the land directly on the east side of the ridge. He and two of his cousins were living in the guest cottages and looking to sell more of the estate. Stephanie leapt at the opportunity, and they soon completed a deal in which she purchased the westernmost guest cottage and all of the Weber land from the cottage west to the property line. Marc and his cousins continued to live in the other three cottages.

In 2013, Stephanie began building a much larger house next to her guest cottage. In the course of their work on the house, her plumbers became aware that the remaining Weber cottages and Stephanie’s cottage all connected into the same set of pipes running across Stephanie’s land.

(5M) Discuss whether, in the following scenario, Samston Abbey has an Easement-by-Implication they can continue to use to hold Easter services around Glinda Pond on North-Acre: Samston Abbey is a parcel of land with several large old buildings in which, for almost a century, the Catholic Church has operated a chapel, a convent and an elementary school. Until early 2015, the Abbey consisted of 10 acres that included a small body of water called Glinda Pond that is located a few hundred yards north of the buildings. A pathway made of yellow bricks runs from the buildings to the pond and then encircles it.

One of the Abbey’s popular traditions is its annual Easter service. On Easter, the nuns, their students, and members of the surrounding community gather at the chapel at dawn, then walk together to Glinda Pond. The adults sing and the children blow soap bubbles. The congregation then spreads itself out on the brick**s around the pond and joins in the holiday service.

Recently, Samston Abbey began experiencing serious financial difficulties. In early 2015, Mother Mitchell, who was in charge of the Abbey, arranged to sell the northern three acres of its land (at a very generous price) to Carl Chenowith, an elderly philanthropist who had attended the Abbey’s school when he was a child. Carl’s acquisition, now called North-Acre, included Glinda Pond and the northern part of the yellow brick pathway. At the closing ceremony, Mother Mitchell told Carl, “Thank you for helping the continuation of the good which we do here.” However, just a month later Carl fell into a coma from which he never recovered.

The documents accompanying the sale of North-Acre made no mention of the Easter service or of the use by the Abbey of Glinda Pond. However, at Easter in both 2015 and 2016, the Abbey’s congregation maintained its tradition of holding the holiday service around Glinda Pond. In December 2016, Carl died and North-Acre was sold to the Baum Corporation, a real estate developer. Baum was surprised and unhappy when the Abbey’s congregation again held their Easter service at Glinda Pond.

(5N) Andrew owns a large undeveloped lot in the state of Readiness. The lot is bordered on the south side by a state highway and on the other three sides by lands owned by other parties. Bob wants to purchase the northern half of Andrew’s lot to create a residential subdivision. He is aware that the parcel he wishes to purchase is landlocked, but he intends to buy the more attractive parcel immediately to the north to extend his subdivision and provide access to public roads. Andrew and Bob negotiate the following provision, which appears in the final deed of sale:

The parties recognize that this parcel is landlocked, but intend that no easement by implication or necessity be granted over the seller’s remaining property.

Unfortunately, after he finalized the sale from Andrew, Bob was unable to complete a deal with the owners of the parcel to the north. Subsequently, Bob died, leaving all his property to his son Gilbert. Gilbert brought suit against Andrew to acquire an easement-by-necessity over Andrew’s land.

The trial court found that all of the elements of an easement-by-necessity were present and held that the intent of the parties was irrelevant because easements-by-necessity were created to further the public policy favoring productive use of land.

The court of appeals reversed, holding that the state should not create easements-by-necessity in favor of those who knowingly waived their rights to access. The state Supreme Court granted review to decide whether purchasers of landlocked parcels should ever be able to expressly waive their rights to access.

Draft the analysis sections of an opinion and of a shorter dissent for the Supreme Court of Readiness deciding this question in the context of the facts of this case. Assume that Readiness does not have a private eminent domain statute like the ones described in Note 8 on P804-05.

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Note: Prescriptive Easements

A. Prescriptive Easement = use of right of way for adverse possession period; elements vary slightly.

1. Continuous (all jurisdictions): without interruption.

a. Interruption = losing a lawsuit or an effective attempt to stop the use (successful blockade). Merely putting up a blockade won't work if the other person continuous to use the right of way anyway.

b. Regular seasonal use ok in some cases

2. Adverse (all jurisdictions): without permission. Many courts presume permissive use, so burden on claimant to show otherwise

3. Open & notorious: Some jurisdictions:

4. Exclusive: Some jurisdictions:

B. Scope of Prescriptive Easement = the scope of the continuous use that created it.

DISCUSSION QUESTIONS

5.08: To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements?

(a) reward beneficial use of land

(b) punish sleeping owners

(c) recognize psychic connection to, or investment in, the land

(d) protect people and the legal system from being burdened with “stale” claims

5.09: Be prepared to discuss the evidence in MacDonald that is relevant to each element of prescriptive easements.

5.10: What evidence should be necessary to meet the “open and notorious” element? MacDonald Properties says, “The owner of the servient property must have actual knowledge of its use.” Other states do not require actual notice. Is it a good idea to do so? Can a claim of prescriptive easement with regard to underground utilities like sewer pipes ever be open and notorious (see Note 7 on P804)?

5.11: “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.” Do you agree?

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Review Problems 5O-5Q

(5O) Discuss the factual and legal research you would need to do in order to advise Chris regarding the concerns described below: Chris Chaykin is the CEO of Tuazon Toppings, a company that packages and transports ingredients used by independent pizzerias in several U.S. states. Tuazon has recently increased its sales in the city of New Brittany and Chris has come to your firm (Lowenthal, Rossman & Rubenstein) regarding the company’s attempt to obtain adequate warehouse space in the city:

Three months ago, Chris purchased an existing warehouse from the Peraza Popover Co. in March and has started using it. David Dahlgard Development Co. (DDD) is engaged in a major construction project on a lot it owns adjoining the warehouse. The construction site was flooded during the heavy rains last month. While cleaning up, DDD employees discovered that the water and sewer lines serving Chris’s warehouse ran across the DDD lot before connecting with the municipal pipes on the far side. DDD and Tuazon’s in-house counsel searched both the public records and their own files, which revealed that the two lots had once belonged to a single owner. However, they found no evidence of express easements addressing the pipes. DDD is now threatening to sue Tuazon to enjoin the use of the pipes and Chris wants to know if that lawsuit would be likely to succeed.

(5P) Discuss the factual and legal research you would need to do in order to advise Ben regarding his concerns described below: Ben’s Great-Aunt Kylie died a few months ago after spending the last two decades of her life rarely awake in a nursing home suffering from a debilitating illness. James, her family attorney, recently informed Ben that, pursuant to a clause in her will, Ben was now the owner of Prince-Acre, a 30-acre wooded lot on the outskirts of a small city in the foothills of the Misty Mountains. As part of the administration of Kylie’s estate, James had inspected Prince-Acre, which Kylie had received from her husband on his death and apparently had forgotten about entirely. James reported that he had found that a local law firm had claimed some rights to parts of Prince-Acre

Hoffman, Altman, Rosenn & Meads is a law firm whose office building is located on a parcel of land it owns just east of Prince-Acre. Currently, the only way to get to the building by car is to use one of two roads that run from the law firm’s parcel across Prince-Acre, connecting to main streets to the north and to the south respectively. A freeway runs along the east side of the law firm lot, blocking any access to roads to in that direction. The law firm claims to have sold Prince-Acre to Kylie’s deceased husband with the understanding that they’d be allowed to continue using the two roads, although they admit that they never received an express easement.

(5Q) Discuss the factual and legal research you would need to do to advise the College of Phoenix regarding the concern described below. Your firm sometimes represents the College of Phoenix, a private residential undergraduate institution located in the city of Bellatrix in the state of Sogol. Felix Foote, General Counsel for the College, is retiring and has asked you to help get things “in order” by taking care of this pending legal concerns while the College searches for his replacement:

Prescriptive Easement: The college owns a fenced-in five acre parcel of well-forested land a few miles from the main campus. Named Weasley Woods after the donors, the parcel is maintained for the study of local ecology by the College’s Biology Department, which only allows people working with a member of the Biology Faculty to enter. However, adjoining Weasley Woods is the campus of the Malfoy Academy, a private Reform School. Recently, Malfoy’s attorneys sent Felix a letter claiming that the Academy has an Easement-by-Prescription across the Woods. They allege that Malfoy students broke through the fence in two places and, for at least ten years, have been using a now well-defined path through the Woods to travel between their dormitories and a nearby mall. Felix is worried that the Biology Faculty may have no idea this has been happening and wants you to see if the College can stop Malfoy from “filching” an easement.

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Stephen Sondheim, The Road You Didn't Take

You're either a poet or you're a lover

Or you're the famous Benjamin Stone.

You take one road,

You try one door,

There isn't time for any more.

One's life consists of either/or.

One has regrets which one forgets,

And as the years go on,

The road you didn't take hardly comes to mind,

Does it?

The door you didn't try,

Where could it have led?

The choice you didn't make never was defined,

Was it?

Dreams you didn't dare are dead.

Were they ever there?

Who said?

I don't remember, I don't remember at all.

The books I'll never read wouldn't change a thing,

Would they?

The girls I'll never know, I'm too tired for.

The lives I'll never lead couldn't make me sing,

Could they? Could they? Could they?

Chances that you miss,

Ignore.

Ignorance is bliss;

What's more, you won't remember,

You won't remember at all,

Not at all.

You yearn for the women,

Long for the money,

Envy the famous Benjamin Stones.

You take your road,

The decades fly,

The yearnings fade, the longings die.

You learn to bid them all good-bye.

And, oh, the peace, the blessed peace.

At last you've come to know:

The roads you never take go through rocky ground,

Don't they?

The choices that you make aren't all that grim.

The worlds you never see still will be around,

Won't they?

The Ben I'll never be,

Who remembers him?

Stephen Sondheim, Giants in the Sky

There are Giants in the sky!

There are big tall terrible Giants in the sky!

When you’re way up high

And you look below

At the world you left

And the things you know;

Little more than a glance

Is enough to show

You just how small you are.

When you’re way up high

And you’re on your own

In a world like none

That you’ve ever known,

Where the sky is lead

And the earth is stone,

You’re free to do

Whatever pleases you,

Exploring things you’d never dare

‘Cause you don’t care,

When suddenly there’s

A big tall terrible giant at the door,

A big tall terrible lady Giant sweeping the floor.

And she gives you food

And she gives you rest

And she draws you close

To her Giant breast,

And you know things now that you never knew before,

Not till the sky.

Only just when you’ve made

A friend and all,

And you know she’s big

But you don’t feel small,

Someone bigger than her

Comes along the hall

To swallow you for lunch.

And your heart is lead

And your stomach stone,

And you’re really scared

Being all alone …

And its then you miss

All the things you’ve known

And the world you left

And the little you own—

The fun is done.

You steal what you can and run.

And you scramble down

And you look below;

And the world you know

Begins to grow.

The roof, the house and your Mother at the door,

The roof, the house and the world you never thought to explore.

And you think of all of the things you’ve seen,

And you wish that you could live in between,

And you’re back again,

Only different than before,

After the sky.

There are Giants in the sky!

There are big tall terrible awesome scary wonderful

Giants in the sky!!

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