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PROPERTY A SLIDES 4 -16 -15 PROPERTY A SLIDES 4 -16 -15

Thursday April 16 Music (to Accompany Dupont): Jewel: Spirit (1998) featuring “Deep Water” • Thursday April 16 Music (to Accompany Dupont): Jewel: Spirit (1998) featuring “Deep Water” • Yellowstone 2 d Critiques Due Today @ 10: 00 a. m. • Tomorrow: Extendo-Class (7: 55 -9: 45) • Biscayne 2 d Critiques (from today) due Saturday @ 10: 00 a. m. • Second Sample Exam Q Due Saturday @ Noon • On Course Page • Version of Syllabus That Will be Attached to Exam • Info Memos #2 (Chapter 1) & #3 (Chapter 2) • Info Memos on Chapters 3 and 5 Will Be Posted by Mid-Day Friday

Easement-by-Estoppel Policy Considerations (DQ 6. 07) We’ll do as Op/Diss Problem Tomorrow for Both Easement-by-Estoppel Policy Considerations (DQ 6. 07) We’ll do as Op/Diss Problem Tomorrow for Both Types of Easements Described in DQ Yellowstones (& ALL): Last Names A-K: Allow Emt-by-Estoppel Last Names L-Z: Disallow Emt-by-Estoppel (or Allow Only if Compensation Paid)

Easement-by-Estoppel Relevant Policy Considerations (DQ 6. 07) • Policies Underlying Statute of Frauds & Easement-by-Estoppel Relevant Policy Considerations (DQ 6. 07) • Policies Underlying Statute of Frauds & Reasonableness of Reliance w/o Writing • Equitable Considerations re Both Parties • How Do We Think Neighbors Should Behave (cf. Adv. Poss. Border Disputes) • Can Add Your Own

Chapter 6: Easements 1. Overview & Terminology 2. Interpreting Language a. b. Easement v. Chapter 6: Easements 1. Overview & Terminology 2. Interpreting Language a. b. Easement v. Fee Scope of Express Easements 3. Implied Easements a. By Estoppel b. By Implication and/or Necessity (Continued) c. By Prescription

Easement-by-Implication & Easement-by-Necessity Overview (from Last Time) • Both Arise from Split of Larger Easement-by-Implication & Easement-by-Necessity Overview (from Last Time) • Both Arise from Split of Larger Parcel; Different Requirements But Sometimes Same Facts Can Give Rise to Both • E-by-I: Parties Intend that Prior Existing Use Should Continue • E-by-N: Split Creates Landlocked Parcel Needing Access

Easement-by-Implication Elements: States Vary on Formulation 1. 2. 3. 4. 5. One parcel is Easement-by-Implication Elements: States Vary on Formulation 1. 2. 3. 4. 5. 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 jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

Easement-by-Implication Review Problem 6 I (Biscayne) For Tomorrow, Prepare Arguments for Each Party re Easement-by-Implication Review Problem 6 I (Biscayne) For Tomorrow, Prepare Arguments for Each Party re 1. One parcel is split in two 2. Prior Use (“Quasi-Easement”) 3. Intent to continue prior use 4. *Apparent, visible or reasonably discoverable 5. *Some degree of necessity

Easement-by-Necessity Elements 1. One parcel is split in two 2. Landlock: One resulting parcel Easement-by-Necessity Elements 1. One parcel is split in two 2. Landlock: One resulting parcel is cut off from key access (e. g. to roads or sewer system) by other parcel (alone or in combination with parcels owned by 3 d parties). 3. At time parcels split, access necessary to enjoyment of landlocked parcel

Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Eassement) • Termination

Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation Parcel split into Eastacre and Westacre. Prior Use Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation Parcel split into Eastacre and Westacre. Prior Use = Driveway from House on Eastacre across Westacre to main road. • Original owner sells East, retains West = by Grant (Claim in Dupont) • Original owner sells West, retains East = by Reservation (Claim in Williams Island) • Original Owner Simultaneously Sells Both to Different People = by Grant

Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation • FL & Majority Rule (in Williams Island): Easement-by-Implication & Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation • FL & Majority Rule (in Williams Island): No Difference • Some states treat some elements of E-by-I or E-by-N more favorably if “by grant” than “by reservation” • Implied-by-Reservation seen as shady: “When I sold you the lot next door, I forgot to mention that I was going to keep using the path to the lake. Oops!”

Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Eassement) • Termination

Easement-by-Implication & Easement-by-Necessity: Degree of Necessity EASEMENTS BY IMPLICATION: • • • Some states: Easement-by-Implication & Easement-by-Necessity: Degree of Necessity EASEMENTS BY IMPLICATION: • • • Some states: Evidence of intent, but not required. Most states: Reasonable necessity required. Some states (not FL): Strict necessity required if implied by reservation. EASEMENTS BY NECESSITY: • Most states: Strict necessity Some Legal Tests/Examples for Reasonable & Strict Necessity in Cases and Note 3 (P 801 -02)

Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Easement) • To Subsequent Purchasers • At Time of Split (E-by-I Only) • Termination

Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to continue easement if notice Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to continue easement if notice of its existence at time of purchase • Actual Notice/Knowledge (Fact Q): Did buyer know about easement? • Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? (cf. Common Tests for Open & Notorious) • Often Sufficient: Path/road going to property line • Courts sometimes stretch to find inquiry notice: should have been aware that pipes underground might connect, etc. • Usually won’t be notice from public land records b/c documents unlikely to refer to implied easement.

Easement-by-Implication: Notice to Parties of Existence of Easement at Time of Split • Legal Easement-by-Implication: Notice to Parties of Existence of Easement at Time of Split • Legal Test Often Version of “Apparent, visible or reasonably discoverable” • Some states treat as requirement • Some states treat as evidence of intent • Same kinds of evidence relevant as with notice to subsequent purchasers

Easement-by-Necessity: Notice • Subsequent Purchasers of Servient Estate • In theory, also need notice Easement-by-Necessity: Notice • Subsequent Purchasers of Servient Estate • In theory, also need notice to bind. • Court finding the easement necessary for dominant estate to operate probably will be hesitant to find lack of notice. • At Time of Split: Doesn’t Arise b/c Parties Should Be Aware that Newly Created Parcel is Landlocked

Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Easement-by-Implication & Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Easement) • Termination

Easement-by-Implication & Easement-by-Necessity: Termination • Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Easement-by-Implication & Easement-by-Necessity: Termination • Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss. , etc. ) (See S 145) • E-by-N: Ends if the necessity ends b/c created as a matter of policy to address necessity • E-by-I: Does not end if the necessity ends. • Created Based on Intent of Parties • Necessity Often Just Evidence of Intent • So Comparable to Express Easement; Change in Necessity Doesn’t Undo Express Agreement

BISCAYNE: Williams Island SUNRISE AT ADAMS KEY BISCAYNE: Williams Island SUNRISE AT ADAMS KEY

Easement-by-Implication (Biscayne) Williams Island Use of Path Across Servient Tenement to Connect Two Holes Easement-by-Implication (Biscayne) Williams Island Use of Path Across Servient Tenement to Connect Two Holes of Golf Course 1. One parcel Split in Two (Undisputed) 2. Prior Use (Undisputed) 3. Intent to continue prior use: Evidence?

Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. One parcel Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. One parcel is split in two (Undisputed) 2. Prior Use (Undisputed) 3. Intent to continue prior use (Unusually Good Evidence) • • • Testimony: Intent of original parties & that when Williams purchased golf course, it was told that original owner of servient estate had agreed to easement References to “Easements” in Deed (but Not Specified) Overall Circumstances (incl. continual use) 4. Apparent, visible or reas. discoverable at time of split: Evidence?

Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. One parcel Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. One parcel is split in two (Undisputed) 2. Prior Use (Undisputed) 3. Intent to continue prior use: (Unusually Good Evidence) 4. Apparent, visible or reas. discoverable: • Paved; 9 feet wide; “in constant use” + references in deed

Easement-by-Implication (Biscayne) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Easement-by-Implication (Biscayne) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Some states would require Strict b/c by-Reservation • Ct. (top P 794): “No practical or safe alternative route. ” Evidence?

Easement-by-Implication (Biscayne) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Easement-by-Implication (Biscayne) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Some states would require Strict b/c by-Reservation • Ct. (P 794): “No practical or safe alternative route. ” Alternatives considered (P 794 fn 1): • Cross highway, travel 200 feet on sidewalk, cross highway again • Backtrack along a substantial portion of the golf course to get around defendant’s tract • Note: No discussion of possible renumbering or reconfiguration of course

Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. 2. 3. Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. 2. 3. 4. 5. 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) 6. Notice to Subsequent Purchasers: Evidence?

Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. 2. 3. Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. 2. 3. 4. 5. 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) 6. Notice to Subsequent Purchasers: Evidence? • • Actual: Buyer’s Rep Told 4 mos. Before Closing Inquiry: Established Regular Use

Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. One parcel Easement-by-Implication (Biscayne) Williams Island: Path from 13 th 14 th Holes 1. One parcel is split in two (Undisputed) 2. Prior Use (Undisputed) 3. Intent to continue prior use: (Unusually Good Evidence) 4. Apparent, visible or reas. discoverable: (Good Evidence) 5. Reasonable necessity: (Court finds) 6. 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 1. Might be Different if Strict Necessity Required Questions on Williams Island?

ARCHES: Dupont v. Whiteside DELICATE ARCHES ARCHES: Dupont v. Whiteside DELICATE ARCHES

Dupont & Easement-by-Necessity (Arches) 1. Duponts sell Three-Part Lot to Whitesides • “Riverfront” where Dupont & Easement-by-Necessity (Arches) 1. Duponts sell Three-Part Lot to Whitesides • “Riverfront” where W’s want to build house • “Lower Portion”: accessible from public road • “Wetlands” in between 2. Undisputed that, prior to sale, Duponts built road across their own land providing access to Riverfront so Whiteheads could build. 3. Dispute as to whether Duponts said this access was permanent or temporary.

Easement-by-Necessity (Arches) Necessity in Dupont Opinions • Duponts sell Three-Part Lot to Whitesides – Easement-by-Necessity (Arches) Necessity in Dupont Opinions • 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

Easement-by-Necessity (Arches) Necessity in Dupont Opinions • Duponts sell Three-Part Lot to Whitesides – Easement-by-Necessity (Arches) Necessity in Dupont Opinions • 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) • Dissent: Meets Strict Necessity: Why?

Easement-by-Necessity (Arches) Necessity in Dupont Opinions • Duponts sell Three-Part Lot to Whitesides – Easement-by-Necessity (Arches) Necessity in Dupont Opinions • 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) • Dissent: Meets Strict Necessity: • Getting road built across Wetlands costs time, $$, and conservation easement (giving up use of some of land) • “Might be easier to traverse a river by walking across the surface”

Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole was not landlocked at split (road to Lower Portion of lot existed)

Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole was not landlocked at split (road to Lower Portion of lot existed) • Access to house on Riverfront not necessary for enjoyment of lot at time of split (house built later)

Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole was not landlocked at split (road to Lower Portion of lot existed) • Access to house on Riverfront not 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 in 1980).

Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole Easement-by-Necessity (Arches) Necessity in Dupont = Tricky in 1981 • Lot as a whole was not landlocked at split (road to Lower Portion of lot existed) • Access to house on Riverfront not 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”)

Easement-by-Necessity (Arches) Dupont: Necessity Confusing in FL • Fl. Stats. on Easement-by-Necessity • § Easement-by-Necessity (Arches) 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): “absolute necessity” • Hunter (1 st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”

Dupont & Easement-by-Necessity (Arches) Possible Implied Easements? 1. Easement-by-Necessity: Turns on Necessity 2. Easement-by-Implication: Dupont & Easement-by-Necessity (Arches) Possible Implied Easements? 1. Easement-by-Necessity: Turns on Necessity 2. Easement-by-Implication: Why Not? (Look to Elements) 3. Easement-by-Prescription: 4. Easement-by Estoppel:

Easement-by-Implication Elements: States Vary on Formulation 1. 2. 3. 4. 5. One parcel is Easement-by-Implication Elements: States Vary on Formulation 1. 2. 3. 4. 5. 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 jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

Du. Pont & Easement-by-Necessity (Arches) Possible Implied Easements? 1. Easement-by-Necessity: Turns on Necessity 2. Du. Pont & Easement-by-Necessity (Arches) Possible Implied Easements? 1. Easement-by-Necessity: Turns on Necessity 2. Easement-by-Implication: No Prior Use 3. Easement-by-Prescription: Why Not? (Look at Elements) 4. Easement-by Estoppel:

Easement-by-Prescription Elements 1. 2. 3. 4. 5. [Actual] Use of Pathway Open & Notorious Easement-by-Prescription Elements 1. 2. 3. 4. 5. [Actual] Use of Pathway Open & Notorious Continuous (14 years; Florida So. L = 7) Adverse/Hostile (Most Jurisdictions Don’t Require Exclusive)

Dupont & Easement-by-Necessity (Arches) Possible Implied Easements? 1. Easement-by-Necessity: Turns on Necessity 2. Easement-by-Implication: Dupont & Easement-by-Necessity (Arches) Possible Implied Easements? 1. Easement-by-Necessity: Turns on Necessity 2. Easement-by-Implication: No Prior Use 3. Easement-by-Prescription: Clear Permission 4. Easement-by Estoppel: Was there Reliance that was Reasonable & Detrimental (Under Claimants’ View of Facts) ?

Dupont & Easement-by-Necessity (Arches) • Easement-by Estoppel: (“Irrevokable License”) • Good Case for Reliance Dupont & Easement-by-Necessity (Arches) • Easement-by Estoppel: (“Irrevokable License”) • Good Case for Reliance under Ws’ Version of Facts • Detrimental: Bought lot & spent $240 K in 1981 to build house • Reasonable: Probably, since road built before purchase • 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 Questions on Dupont?

Review Problem 6 D (S 148): Biscayne Critique Redwood = P Andy/Serv. Yellowstone = Review Problem 6 D (S 148): Biscayne Critique Redwood = P Andy/Serv. Yellowstone = 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 Arguments from 3 Blackletter Tests (incl. Missing/Ambiguous Facts)

Review Problem 6 D: Biscayne Critique Redwood = P Andy/Serv. Yellowstone = D Gudridge Review Problem 6 D: Biscayne Critique Redwood = P Andy/Serv. Yellowstone = D Gudridge Academy/Dom. • S-acre = Large wooded lot between public road & private beach. • House on lot built by grandfather (GF) of present owner A • Paved driveway connects road & beach w branch in middle to house • Dawson Inst. = Former art school for college-aged students • Used to be across road from S-acre • 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.

Review Problem 6 D: Biscayne Critique REDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Review Problem 6 D: Biscayne Critique REDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Corrales, Genase (Alts: Engstrom, Powell) YELLOWSTONE = D Gudr. Acad. /Dom. = Plowden, Garcia, Santos, Patel, Manimalethu (Alts: Mc. Gee, Kim) “Use must be reasonable considering the terms of the grant” 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.

Review Problem 6 D: Biscayne Critique REDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Review Problem 6 D: Biscayne Critique REDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Corrales, Genase (Alts: Engstrom, Powell) YELLOWSTONE = D Gudr. Acad. /Dom. = Plowden, Garcia, Santos, Patel, Manimalethu (Alts: Mc. Gee, Kim) “Burden must not be significantly greater than that contemplated by parties” Arguments (incl. Missing/Ambiguous Facts)?

Review Problem 6 D: Biscayne Critique REDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Review Problem 6 D: Biscayne Critique REDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Corrales, Genase (Alts: Engstrom, Powell) YELLOWSTONE = D Gudr. Acad. /Dom. = Plowden, Garcia, Santos, Patel, Manimalethu (Alts: Mc. Gee, Kim) “Evolutionary not revolutionary” changes allowed. (Chevy Chase: Same “Quality) Arguments (incl. Missing/Ambiguous Facts)?