PROBLEM 7B: MANGOS

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PROBLEM 7B MANGOS

• For Mike Sonderling Blankstein J.Mason
• For Debbie Hutzler Milson Tanner
• Judges Gottlieb Leibowitz Sarinsky
• Reserves Dryer Laufer Salsburg Tano
• MUSIC Billy Joel, The Stranger (1977)

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Problem 7B

• Mike gets poor TV reception b/c of valley
  location
• Debbie owns neighboring ranch above Ms land
• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms land to allow
  television reception for that property.

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Problem 7B

• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms land to allow
  television reception for that property.
• Antenna installed reception still not good
  cable unavailable
• 2007 M wants to put a satellite dish where
  antenna is now, but D objects.

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Arguments from Marcus Cable?

• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms land to allow
  television reception for that property.

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Arguments from Chevy Chase?

• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms land to allow
  television reception for that property.

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PROBLEM 7B POLICY Q

• What to do if increase in burden is negligible
  but not withing literal language of grant?

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EASEMENTS BY PRESCRIPTION

• featuring
• FICUS
• continued

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EASEMENTS BY PRESCRIPTION

• 115. To what extent do the following rationales
  for adverse possession also support the doctrine
  of Prescriptive Easements?
• (a) reward beneficial use of land

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EASEMENTS BY PRESCRIPTION

• 115. To what extent do the following rationales
  for adverse possession also support the doctrine
  of Prescriptive Easements?
• (b) punish sleeping owners

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EASEMENTS BY PRESCRIPTION

• 115. To what extent do the following rationales
  for adverse possession also support the doctrine
  of Prescriptive Easements?
• (c) recognize psychic connection to land

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EASEMENTS BY PRESCRIPTION

• 115. To what extent do the following rationales
  for adverse possession also support the doctrine
  of Prescriptive Easements?
• (d) protect people and legal system from being
  burdened with stale claims

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS CONTINUOUS

1. Evidence in Macdonald?
2. Evidence in Lyons?

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EASEMENTS BY PRESCRIPTIONELEMENTS CONTINUOUS

• Note that can be seasonal use like Adverse
  Possession (Ray)

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS OPEN
NOTORIOUS

• DQ117. Evidence of open and notorious
• MacDonald actual notice other states do not. Is
  it a good idea to do so?

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EASEMENTS BY PRESCRIPTIONELEMENTS OPEN
NOTORIOUS

• DQ117. Evidence of open and notorious
• Can a claim of prescriptive easement with regard
  to underground utilities like sewer pipes ever be
  open and notorious?

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS EXCLUSIVE

• Many Jurisdictions Dont Require (Nature of
  Easement is Non-Exclusive Use)
• Some Means Exclusive of Everyone but Owner
• Some (TX) Shared w Owner ? Presumption of
  Permissive

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• Continuous use for AP Period presumed adverse
  (MacDonald)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• Continuous use for AP Period presumed adverse
  (MacDonald). How do you disprove?

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• 2. Public recreational use presumed permissive
  (Lyons)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• 2. Public recreational use presumed permissive
  (Lyons) v. Undeveloped land presumed permissive
  (Lyons Dissent)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• 3. Shared use with the owner (e.g., of a
  driveway) presumed permissive (Texas)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Presumptions frequently decide cases because hard
  to disprove.

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Policy Q What do you do with case like MacDonald
  or Dupont where use continues for a long time and
  then servient owner says no? (plausible to say
  permissive)
• Could create hybrid of prescription estoppel
  if use goes on long enough, cant change your
  mind.

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EASEMENTS BY PRESCRIPTIONPOLICY QUESTIONS

• DQ118. The best justifications for granting an
  implied easement are reliance and need. Thus, if
  claimants cannot meet the elements of an Easement
  by Estoppel or of an Easement by Necessity, they
  should not be able to get a Prescriptive Easement
  unless they pay market value for it. Do you
  agree?

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EASEMENTS BY PRESCRIPTIONPOLICY QUESTIONS

• Note 6 Should there be prescriptive rights to
  commit nuisance? (Any reason not to let statute
  of limitations operate as it does for trespass?)

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NOTICE THE RECORDING SYSTEM
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NOTICE (of Conflicting Property Rights)

• Actual Notice Fact Question
• Constructive Notice Generally Legal Q
• Record Notice (from public records)
• Inquiry Notice (facts suggesting conflicting
  interest)

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Operation of the Recording System

• Every jurisd. in US has recording office
• If a real property interest is transferred,
  normally record document
• Deeds, Mortgages, Easements
• Court judgments lis pendens etc.
• Clerks of court blind recipients w date stamps
• County keeps documents notes in indexes

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Purposes of Recording System

• Provides public record of land titles govt
  knows who is responsible
• Secures copies of important documents
• Provides notice to subsequent buyers
• Can see chain of title of seller
• Can see non-ownership interests (e.g., easements,
  other servitudes)
• Gives grantees incentive to record
•  

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Recording Acts Problem Addressed

• Transfer of Interest in Same Property to Two
  Different Grantees(O?A, O?B)
• Can be resale of whole parcel
• More frequently, transfer of partial interest
  (e.g., easement or mineral rights) that conflicts
  with later transfer of complete interest

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Recording Acts Problem Addressed

• Transfer of Interest in Same Property to Two
  Different Grantees(O?A, O?B)
• O liable for fraud or breach of warranty
• A v. B who gets lawsuit who gets ppty rt?
• Common law answer 1st in time 1st in Right

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Recording Acts Operation

• Recording has no effect on rights of parties to
  original transaction as betw. themselves
• Unrecorded O?A deed still valid
• O cant defend suit by A by saying unrecorded

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Recording Acts Operation

• Recording has no effect on rights of parties to
  original transaction as betw. themselves
• Protects buyers who record against other
  transferees
• Often yields different results than 1st in time
• Most jurisdictions protect later BFP for value
  against unrecorded interests

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BFP for VALUE Definitions

• Bona Fide Purchaser good faith
• No notice of prior transaction
• Status is specific to one prior transaction
• Can only be true of later player

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BFP for VALUE Definitions

• Bona Fide Purchaser good faith
• What is value? (jurisdiction specific)
• donees, heirs, devisees usually not protd
• split re amount of consideration needed