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23 Cards in this Set
- Front
- Back
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Easements
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Define: Easements Generally –
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II. EASEMENTS A. Generally – a non possessory interest in the land of another
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HYPO – B/A owned by O, W/A owned by E. O to E, a right of way across B/A to get to the main road.\\ Is there an easement?
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a) E has an easement in O’s land b) Easements lie in grant – that means easements are created by transfer, by a deeding of this interests in somebody else’s land.
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Define: Easements lie in grant –
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b) Easements lie in grant – that means easements are created by transfer, by a deeding of this interests in somebody else’s land.
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O to E, a right of view (right to prevent action on B/A, no trees, no buildings, so E can see the ocean). B/A is burdened how?
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a) In both hypos, B/A is burdened – (1) Servient tenement – the land that is burdened. In this case, B/A – B/A “serves” W/A. (2) Dominant tenement – the land that is benefited. IN this case, W/A.
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Define: Easement appurtenant –
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1. Easement appurtenant – the easement runs w/ the land a) If E transfers to E1, it is E1 who gets to walk on the right of way. b) Default rule is that easements are appurtenant
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Default rule is that easements are _____
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b) Default rule is that easements are appurtenant
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Define: Easement in gross-
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2. Easement in gross- easement that benefits a person, not property a) O (owns B/A) grants X the right to bring customers onto B/A to gaze at scenic wonder on B/A. X is not an adjacent landowner. X has an easement in gross – b) B/A is servient tenement - there is no dominant tenement because there is no adjacent land to which this benefit is attached
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Easements in gross are _____ (can be _____) if they are _____
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c) Easements in gross are transferable (can be sold) if they are commercial
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Define: servient tenement -
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servient tenement - there is no dominant tenement because there is no adjacent land to which this benefit is attached
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Define Affirmative Easement–
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Affirmative – the holder of the easement may act on the servient tenement (the burdened land) E.g., right of way
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Define: Negative Easement – the holder of the easement can prevent action on the servient tenement. E.g., right of view is a right to prevent building
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Negative Easement – the holder of the easement can prevent action on the servient tenement. E.g., right of view is a right to prevent building
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Easements are created by _____ by _____ by _____
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1. Easements are created by grant, by transfer, by conveyance.
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Is what I’m looking at a fee or an easement? O to R.R. strip of land along edge of property in FSA. Is that an easement or a fee?
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a) Usually the answer is the RR just has a right of way. Even though RR has an FSA, it is a right of way. (1) Goal is to effectuate the intent of the grantor b) Justification is when the RR abandons the right of way, you won’t have an abandoned piece of land with A/P issues.
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Point of case? What is the split of authority? How could this be done in a traditional jurisdictoin? Willard v. First Church of Christ – FACTS: 3. Lot 19 and 20 owned by O and she allowed church to use 20 as parking lot. O sold lot 20 to A w/reservation of an easement going to church. A sold lot 20 to B. Deed was silent about easement. a) Terms of easement – Auto parking during church which shall run w/land so long as used for church purposes. 4. B wants rid of the easement – his theory is that you can’t reserve an easement in a TP.
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Willard v. First Church of Christ – Grantor can reserve an easement in a TP in CA a) Terms of easement – Auto parking during church which shall run w/land so long as used for church purposes. 4. B wants rid of the easement – his theory is that you can’t reserve an easement in a TP. Court says no. 5. B can’t claim BFPFV status because he had constructive notice – if he read A’s deed he would have seen the easement. 6. Court says reservation of easement in TP is OK. They make a new rule (old rule said no) because they’re trying to effectuate the grantor’s intent a) Split of authority (1) Modern Jx – reservation in TP is OK (2) Traditional Jx – (current majority rule) Not OK (a) Could have been done in traditional Jx by O granting the lot to the church and then church conveys to A or B w/reservation of easement.
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Point of case? Attacks on this doctrine? Holbrook v. Taylor – Facts: 1. 1942 Holbrook bought property and allowed road to be built for someone to haul coal out. 1964 Taylor buys 3 acre site next to Holbrook. Taylor builds house, Holbrook allows Taylor to use the road. Taylor widened and graveled road. a) Finally Holbrook offered Taylor deed to the road and T was supposed to purchase it. When T refused to pay, H blocked the road 2. T needed to use the land – but no piece of paper a) Prescription- (adverse use) – can’t use this theory – the use was permissive (1) Permission can be revoked. A permissive use can never ripen into an interest under the doctrine of prescription.
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Holbrook v. Taylor – licenses are revocable unless there has been a reliance and then there may be an estoppel of the power to revoke or an estoppel to plead the SOF as an affirmative defense. 3. Court decides in equity to estop the owners of the servient tenement from revoking permission to use the road a) Also estopped H from pleading the Statute of Frauds. (1) The essence of the Taylor argument is “we have an oral easement” b) The estoppel lasts forever – court says “as long as is necessary” 4. Dobie thinks this should have been classified as a perpetual easement because anything else is too complicated. a) Holbrook deserves to lose anyway – did nothing while watching T’s house being built. 5. Attacks on this doctrine a) There are good reasons to write things down b) Irrevocable oral licenses clog land titles c) People who want easements should get them d) This penalizes nice people e) Judicially inefficient – if it were written down, there would be no trial
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Quasi-easements, or pre-existing uses, become ____ _______ when land is ___ and someone ______ to express the quasi-easement.
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1. Quasi-easements, or pre-existing uses, become implied easements when land is divided and someone forgets to express the quasi-easement.
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Imply easements in 2 situations:
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2. Imply easements in 2 situations a) Pre-existing use (Van Sandt) b) Necessity arising from the severance w/o regard to prior use (1) If you are claiming an easement by necessity, you don’t have to talk about prior use
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Quasi-easements must be: (ACNE) [what of plumbing fixtures?]
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3. Quasi-easements must be: (ACNE) a) Apparent b) Continuous c) Necessary d) Easement is implied (1) Underground pipes are apparent if the building has plumbing fixtures
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Implied easements are often so-called "_____ _____" (underground transmission lines, sewer) or “______"
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4. Implied easements are often so-called “utility easements” (underground transmission lines, sewer) or “rights of way
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How is there an Easement by implication? What kind of Easement? Why didn’t the recording act scrub this reserved easement off P’s bowl? in Van Sandt v. Royster – Facts: 1. O had plot of land w/lots 19, 20 and 4. She put sewer line across all 3 lots to connect city sewer to her house on lot 4 (furthest from street). O then sold lot 19 to A. A built a house connected to the private sewer. Then lot 20 was sold to B and house on it was connected. 2. P is now the owner of a divided lot 19. the sewer line is on his property and both lots 4 and 20 use the sewer that goes across his property. The line broke and backed up into his basement
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a) Note this case is during depression and it may have been cheaper to take this to court w/an unethical lawyer than hire a plumber to fix the sewer line 3. P thinks there is no easement a) There was nothing in writing, he was a BFPFV (recording act scrubs whatever is there off my deed) 4. There is an implied easement - a) There was a quasi-easement when O owned the whole thing (an owner cannot have an easement in his own land) (1) Lot 4 was “quasi-dominant”, lot 19 was “quasi-servient” 5. When O conveyed lot 19 to A an easement arose by implication (quasi-easement manifested itself into an easement) a) It was created by reservation – O impliedly reserved the right to send shit across lot 19 to the street 6. Why didn’t the recording act scrub this reserved easement off P’s bowl? a) Because it was Ps responsibility to find out where his toilet goes. The fixtures made him “aware” and he is charged w/ constructive notice (inquiry branch) 7. Argument not in the case – it could have been argued that since the easement arose by operation of law, it was never written down, never recorded and therefore the recording act can have no validity.
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Easements by necessity – sub version of easements by implication 1. An easement of way by necessity will be implied w/o regard to prior use when…_____
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E. Easements by necessity – sub version of easements by implication 1. An easement of way by necessity will be implied w/o regard to prior use when a tract is divided so as to deprive a part of the tract of access to a public road. The easement is implied over the portion of the tract w/public access. a) Othen’s lawyer failed to prove this by an analysis of the conveyances and by resurrecting the use of the land afterwards by testimony (if possible)
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1. Hill owned huge piece of land in TX – cut it up and sold pieces. Landlocked pieces had to cross other pieces to get to main road. Guy who buys landlocked pieces uses the road for a long time. When it rained the water would erode the road. Rosier built a levee to fix this which made Othen’s access to the main road muddy and impassible. a) Othen sues for injunction to get them to stop maintaining the levee (tear it down) (1) Othen loses – court says no piece of paper, no rights 2. Rosier arguments: a) My property; w/o levee my land is worthless; letting Othen use it for 40 years, isn’t that enough? 3. Othen arguments a) I need this road bad; I’ve been using it for a long time; I can’t get to my farm 4. Othen HAD an easement by necessity a) His lawyer never proved that his land was landlocked however. He never proved the easement by implication, if there was one."
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(1) Othen’s lawyer blew it – he could have proved an easement by necessity by going back into the records and showing that when Hill conveyed the land, he couldn’t have land locked his property and would have reserved a quasi-easement 5. To prove an easement by implication, Othen’s lawyer should have brought in testimony about pre-existing use. 6. Why was there no easement by prescription? a) Because Othen’s use was permissive. Rosier let him do it (1) Othen passed through a gate maintained by Rosier (if there’s a gate, you are under the control of the owner of the “servient tenement” [Rosier]). b) Othen could have argued that he had an irrevocable license – would work in some Jx. (in other Jx, they are revocable) 7. Othen’s only option now is to work w/Rosier a) Ask him not to revoke the license; pay money for a revoked license; pay money to buy a right of way; sell his land at a deep discount
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