LOGISTICS

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LOGISTICS SCHEDULE

• Thursday Final Class (No Slides May Run Long)
• Friday No Class
• Info Memo on Chapter 7 Posted
• Office Hours 2-6
• Saturday Apr 27
• Office Hours 2-6
• Optional Sample Exam Answers Due _at_ 9pm
• Thursday May 2 Office Hours 2-6
• Tuesday May 7
• Office Hours 2-6
• Review Session _at_ 7pm Room F309 (Will Be Taped)

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Chapter 7 Easements

• Overview Terminology
• Interpreting Language
• Easement v. Fee
• Scope of Express Easements
• Implied Easements
• By Estoppel
• By Implication and/or Necessity
• By Prescription

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Easement-by-PrescriptionGenerally

1. Easement Created by Particular Use of Anothers
   Land for Adverse Possession Period
2. Need to Show Adverse Possession Elements (with
   Some Variations in Some States)
3. Well Look at Elements Individually

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Easement-by-PrescriptionActual Use

1. Not listed as separate element in MacDonald but
   there must be some kind of use
2. Usually Straightforward Use of, e.g., Path or
   Driveway
3. MacDonald (DQ115) Golf Shots Retrieval
4. Sometimes Q of Whether Use is Sufficient to
   Constitute Possession and Trigger Adv. Poss.
   Claim Instead of E-by-P (See Note 3 P876-77)

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Easement-by-PrescriptionContinuous (See P877)

• Obviously Doesnt Need to be 24/7 for Whole
  Statutory Period
• Could just be use throughout period
• Might Ask re Normal Utilization of That Type of
  Easement
• Can be Seasonal Use like Adverse Possession in
  Ray
• Evidence in MacDonald (DQ115) Golf Course in
  Use Through Whole Period Steady of Users End
  Up on Land in Q

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Easement-by-PrescriptionOpen Notorious DQ116
(See P877)

• Some States Traditional Definition of ON
• Use of Path or Driveway Almost Certainly Meets
• Underground Utilities (Sewage Pipe Hypo)
• Hard to Meet ON (Like Marengo Caves)
• Could Analyze Like Notice for E-by-I or E-by-N
• Some States Need Actual Notice

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SEWAGE PIPE HYPOTHETICAL 6 5 4
3 2 1
To City Sewer ?
E-by-P Raised Use of Pipes by More Distant
Users for Adv. Poss. Period Likely Qs re Open
Notorious, Exclusive
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Easement-by-PrescriptionOpen Notorious DQ116
(See P877)

• Some States Traditional Definition of ON
• Some States Require that Servient Owner Have
  Actual Notice (e.g., MacDonald)
• Policy Concerns Similar to Border Disputes Dont
  Necessarily Need O in Possession to Monitor
  Closely
• Evidence of Actual Notice in MacDonald (DQ115)
  Building Restrictions in Agreement Designed to
  Allow Continued Use of Area in Q

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Easement-by-PrescriptionExclusive (See P877-78)

• Many Jurisdictions Dont Require
• Sensible Nature of Easement is Non-Exclusive Use
• MacDonald doesnt list as element
• Some Means Exclusive of Everyone but Owner
• Some (TX) Shared w Owner ? Presumption of
  Permissive (Hard to Overcome Need Evidence that
  O didnt give permission but didnt interfere)

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

• General Difficulty If O in Possession Use is
  Open Notorious, Reasonable to Assume
  Permission?
• Presumptions frequently decide cases because hard
  to disprove.
• Shared use with the owner (e.g., of a driveway)
  presumed permissive (Texas) How do you disprove?
• Continuous use for AP Period presumed adverse
  (MacDonald). How do you disprove?

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

• 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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Easement-by-PrescriptionPolicy Questions

• DQ114. To what extent do the rationales for Adv.
  Poss. also support E-by-P?
• Clearly protect people and the legal system from
  being burdened with stale claims
• For you to consider use to help decide close
  Qs
• (a) reward beneficial use of land
• (b) punish sleeping owners
• (c) recognize psychic connection to the land

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Review Problems 7A-7B

• GLACIER
• For Santa Mike
• OLYMPIC
• For Elves Debbie

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Review Problem 7AGlacier for Santa Olympic for
Elves

• Es owners shall have the right to cross S to
  dump garbage in the adjacent garbage dump
• Santa-acre next to garbage dump.
• Elf-Acre
• Time of Grant Big lot w small cottage.
• Later Cottage ? Toy factory (7x garbage).

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Review Problem 7AGlacier for Santa Olympic for
Elves

• Es owners shall have the right to cross S to
  dump garbage in the adjacent garbage dump
• Cottage on E ? Toy Factory (7x Garbage)
• Reasonable considering terms of grant?

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Review Problem 7AGlacier for Santa Olympic for
Elves

• Es owners shall have the right to cross S to
  dump garbage in the adjacent garbage dump
• Cottage on E ? Toy Factory (7x Garbage)
• Missing/Ambiguous Facts re
• Extent of Burden on S
• Evolution v. Revolution

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Review Problem 7AGlacier for Santa Olympic for
Elves

• Es owners shall have the right to cross S to
  dump garbage in the adjacent garbage dump
• Cottage on E ? Toy Factory (7x Garbage)
• Missing/Ambiguous Facts re
• Circumstances Surrounding Transaction

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Review Problem 7BGlacier for Mike Olympic for
Debbie

• Owner of Ms land may place and maintain an
  antenna onto Debbies barn and run wires from
  the antenna to Ms land to allow TV reception
  for that property.
• Time of Grant (1962)
• Mike gets poor TV reception b/c of valley
  location
• Debbie owns neighboring ranch above Ms land
• Antenna installed reception still not good no
  cable TV
• 2007 Can M replace antenna w satellite dish?

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Review Problem 7BGlacier for Mike Olympic for
Debbie

• 1962 Owner of Ms land may place and maintain
  an antenna onto Debbies barn and run wires
  from the antenna to Ms land to allow TV
  reception for that property.
• 2007 Can M replace antenna w satellite dish?
• Arguments from Marcus Cable?

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Review Problem 7BGlacier for Mike Olympic for
Debbie

• 1962 Owner of Ms land may place and maintain
  an antenna onto Debbies barn and run wires
  from the antenna to Ms land to allow TV
  reception for that property.
• 2007 Can M replace antenna w satellite dish?
• Arguments underChevy Chase?
• (Missing/Ambiguous Facts?)

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Common Scope of Easement Issues

• Arguably w/in Very Broad Language, but
  Significant Change (7A Chevy Chase)
• Arguably Not w/in Language, but Trivial Increase
  in Burden (7B Marcus Cable)

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YOSEMITE Rev. Prob. 7E

HALF DOME
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YOSEMITE Rev. Prob. 7E

• Express Easement in force that allows oil workers
  to cross roads on your clients land to access
  oil wells on neighboring ranch. Used in past to
  service wells that have since stopped producing.
• Factual Legal Research Needed to See if Use re
  Newly Discovered Well is Within Scope of Easement?