PROPERTY D SLIDES 3 -31 -16 National Bunsen

PROPERTY D SLIDES 3 -31 -16: National Bunsen Burner Day & National Clams on the Half Shell Day NOW THAT’S A CLAM BAKE!

Thursday April 16 Music (to Accompany Dupont): Jewel: Spirit (1998) featuring “Deep Water” CLASS TOMORROW: 7: 55 -9: 45 1 ST CRITIQUES • Advice on Course Selection • Review Problem 5 J • ACADIA (Arguments for E-by-E) • BADLANDS (Arguments Against) • EVERGLADES (Critique) • Completion of Prescriptive Easements (Sequoia) • Brief Intro to Chapter 7 (Bring) • Rev. Prob. 5 M (Olympic) • Badlands: Can Get Hard Copy from me if You Wish • Everglades: Can Get from Me Now • Olympic: Will E-Mail to You Monday.

Review Problem 5 D (S 100): Badlands. Critique Everglades = P Andy/Serv. Olympic= 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 5 D (S 100): Badlands. Critique Everglades = P Andy/Serv. Olympic= 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 5 D: EVERGLADES = P Andy/Serv. OLYMPIC = D Gudr. Acad. /Dom. Badlands Critique “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 5 D: EVERGLADES = P Andy/Serv. OLYMPIC = D Gudr. Acad. /Dom. Badlands Critique “Burden must not be significantly greater than that contemplated by parties” Arguments (incl. Missing/Ambiguous Facts)?

Review Problem 5 D: EVERGLADES = P Andy/Serv. OLYMPIC = D Gudr. Acad. /Dom. Badlands Critique “Evolutionary not revolutionary” changes allowed. (Chevy Chase: Same “Quality) Arguments (incl. Missing/Ambiguous Facts)?

DF Sessions: Tomorrow and Tuesday Review Problem 5 F (2014 Short Scope Problem) & Review Problem 5 H (Lawyering Scope Problem)

Chapter 5: Easements 1. Intoduction 2. Interpreting Language a. b. Easement v. Fee Scope of Express Easements 3. Implied Easements a. By Estoppel b. By Implication and/or Necessity (cont’d) c. By Prescription

Easement-by-Implication & Easement-by-Necessity: Review • Both Arise from Split of Larger Parcel • Different Requirements • Sometimes Same Facts Can Give Rise to Both.

Easement-by-Implication Review of Elements (States Vary on Formulation) Parties Intend Prior Existing Use Should Continue 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-Necessity Review of Elements Split Creates Landlocked Parcel Needing Access 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

BADLANDS: Du. Pont v. Whiteside (cont’d) NORBECK PASS

Dupont & Easement-by-Necessity (Badlands) 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 (Badlands) Review: 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 (Badlands) 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 (Badlands) 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 (Badlands) 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 Regulations greatly raise cost of road, but no evidence if Regs existed at split (probably not in 1980).

Easement-by-Necessity (Badlands) 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 (Badlands) 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 reading statute): “absolute necessity” • Hunter (1 st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property” [THANKS A BUNCH!]

Dupont & Easement-by-Necessity (Badlands) 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. 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 * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

Du. Pont & Easement-by-Necessity (Badlands) 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 Continuous (14 years; Florida So. L = 7) Adverse/Hostile (Most Jurisdictions Don’t Require Exclusive)

Dupont & Easement-by-Necessity (Badlands) 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 (Badlands) • 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?

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer E-by-I Raised: Pipes in Use Before O Sells Separate Units. E-by-N Raised: Split Creates “Landlocked” Lot b/c Sewage Disposal Must Cross Anther Lot

Easement-by-Implication & Easement-by-Necessity: Sewage Pipe Hypothetical Notice Issues • What constitutes notice of underground pipes? • Actual Knowledge • Courts tend to be generous re Inquiry Notice • Sometimes: From any visible element (pipe ends; manhole covers) (See Kirma cited in Williams Island @ P 795) • Sometimes: From need for utility service + no visible access

Easement-by-Implication & Easement-by-Necessity: Sewage Pipe Hypothetical Necessity Issues • Is utilities access “Necessary”? : Cases split: • Lot not worthless or landlocked (re physical access); usually possible to get utility service at some expense. • BUT can’t use for many purposes without new expensive utility connection

Easement-by-Implication & Easement-by-Necessity: Sewage Pipe Hypothetical Necessity Issues • Is utilities access “Necessary”? : Cases split • Assuming some access to utilities is necessary, how expensive must alternatives be to meet tests? • Drill through mountain ridge? • Policy: Very inefficient to reroute utility service if existing pipes or wires ( cf. Marcus Cable) Rev. Probs. 5 K & 5 M: We’ll Return to Sewage Pipe Hypo & Implied Easements

Review Problem 5 L (S 104): Thursday 4/7 Opinion/Dissent Q: Assume Facts Sufficient for E-by-N Everglades: Range of [Policy] Arguments for Allowing Knowing Waiver of Easement by Necessity Olympic: Range of [Policy] Arguments for Prohibiting Waivers of Easement by Necessity Acadia: Critique

Chapter 5: Easements 1. Overview & Terminology 2. Interpreting Language a. b. Easement v. Fee Scope of Express Easements 3. Implied Easements a. b. By Estoppel By Implication and/or Necessity c. By Prescription

SEQUOIA: Easements-by-Prescription & DQs 6. 08 -6. 11 SEQUOIAS

Easement-by-Prescription Generally 1. Easement Created by Particular Use of Another’s Land for Adverse Possession Period 2. Need to Show Adverse Possession Elements (with Some Variations in Some States) 3. We’ll Look at Elements Individually