PROPERTY D SLIDES4-3-14

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)

1.Actual Use

2.Open & Notorious

3.Exclusive

4.Continuous

5.Adverse/Hostile

6.State of Mind

7.Other/General Qs

•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.

DQ5.21: Adverse Possession Policy:DQ5.21: Adverse Possession Policy:Legislative DebateLegislative 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?Arguments suggested by facts of cases we read?–Note useful technique for Opinion/Dissent QsNote useful technique for Opinion/Dissent Qs– Example: NightmareExample: Nightmare– Others?Others?

DQ5.21: Adverse Possession Policy:DQ5.21: Adverse Possession Policy:Legislative DebateLegislative 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?Other Proposals/Arguments?

Chapter 6: Easements1. Overview & Terminology2. Interpreting Language

a. Easement v. Feeb. Scope of Express Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessityc. By Prescription

Chapter 6: EasementsOverview & 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: Easements1. Overview & Terminology

2. Interpreting Languagea. Easement v. Feeb. Scope of Express Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessityc. By Prescription

Interpreting Language: Easement v. Fee

• Recurring Issue: Document creating the interest says “right-of-way” 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: Easements1. Overview & Terminology

2. Interpreting Languagea. Easement v. Fee

b. Scope of Express Easementsi. Positive Easementsii. Negative Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessityc. 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 IssuesCommon 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 8Review Problem 6B: Tuesday April 8In-Class Arguments: Shenandoah In-Class Arguments: Shenandoah Critique: Critique:

BiscayneBiscayne

Arguments/Missing Facts?Arguments/Missing Facts?

1.If Marcus Cable is Binding Precedent

2.If Chevy Chase is Binding Precedent

Review Problem 6F: Thursday April 10Review Problem 6F: Thursday April 10In-Class Arguments: Arches In-Class Arguments: Arches Critique: RedwoodCritique: Redwood

Arguments/Missing Facts Arguments/Missing Facts

Using the Three Blackletter TestsUsing 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.Looks like slight variation on my three blackletter tests in same order.

Scope of Express Easements:RR Easement Recreational TrailChevy 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 TrailChevy 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 TrailChevy 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 TrailChevy 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 TrailChevy 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 TrailChevy 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 TrailChevy 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)Everyone (but Yellowstones First)