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)