Transcript Document
PROPERTY D SLIDES 4-3-14 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 REVIEW PROBLEM 5G (Shenandoah) • 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. 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile 6. State of Mind 7. Other/General Qs 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? 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? Chapter 6: Easements 1. Overview & Terminology 2. Interpreting Language a. b. Easement v. Fee Scope of Express Easements 3. Implied Easements a. b. c. By Estoppel By Implication and/or Necessity By Prescription 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 Chapter 6: Easements 1. Overview & Terminology 2. Interpreting Language a. Easement v. Fee b. Scope of Express Easements 3. Implied Easements a. b. c. By Estoppel By Implication and/or Necessity By Prescription Interpreting Language: Easement v. Fee • Recurring Issue: Document creating the interest says “right-ofway” 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] Interpreting Language: Easement v. Fee A. Courts looking for evidence of parties’ intent. Look at both: (i) Language (ii) Circumstances Surrounding Grant B. Presumption? (DQ6.01) i. From Chapter 4: Normal Presumption is Ambiguous Language Creates a Fee Simple. ii. Should there be a presumption in context of “Right of Way” favoring either fee or easement? We’ll see what cases do. Interpreting Language: Easement v. Fee A. Evidence of parties’ intent (Chevy Chase): (i) 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 Interpreting Language: Easement v. Fee A. Evidence of parties’ intent (Chevy Chase): (i) 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 Interpreting Language: Easement v. Fee A. Evidence of parties’ intent (Manhattan): (i) Language: (Ambiguous) – “remise, release & quitclaim” (looks like giving up all rights, therefore fee) – “right of way” + “upon, over & along” (look more like easement) Interpreting Language: Easement v. Fee A. 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 Interpreting Language: Easement v. Fee A. 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 Interpreting Language: Easement v. Fee A. 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. Interpreting Language: Easement v. Fee B. Chevy Chase: Presumption of Easement (i) Little Purpose for Fee Interest in RR Strips; Not Necessary for Original RR Purpose (ii) 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 Interpreting Language: Easement v. Fee B. Manhattan: Applies Presumption of Fee Simple; BUT Usual Rationales Don’t Fit Well 1. Likely Meets Ordinary Expectations (Unclear) 2. Furthers Alienability (No) 3. 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? Chapter 6: Easements 1. Overview & Terminology 2. Interpreting Language a. Easement v. Fee b. Scope of Express Easements 3. i. Positive Easements ii. Negative Easements Implied Easements a. b. c. By Estoppel By Implication and/or Necessity By Prescription 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? 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 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 Review Problem 6B: Tuesday April 8 In-Class Arguments: Shenandoah Critique: Biscayne Arguments/Missing Facts? 1. If Marcus Cable is Binding Precedent 2. If Chevy Chase is Binding Precedent Review Problem 6F: Thursday April 10 In-Class Arguments: Arches Critique: Redwood Arguments/Missing Facts Using the Three Blackletter Tests 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) 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. 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” 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 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? 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: Shoop Shoop) – 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? 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 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 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 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 big decrease 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) YELLOWSTONE (DQ6.02) GIANT GEYSER 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)