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23 Cards in this Set
- Front
- Back
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F. Easements by Prescription H. Assignability of Easements (and Profits) – benefits of easements can be assigned
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Prescription deals w/____, not _____. Therefore, the ____ on the cause of action of _____ does not apply. It is technically irrelevant because the SOL deals w/questions of possession and this is question of use
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1. Prescription deals w/use, not possession. Therefore, the SOL on the cause of action of ejectment does not apply. It is technically irrelevant because the SOL deals w/questions of possession and this is question of use
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List the 2 ways of dealing w/problem of prescription:
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a) English approach – lost grant and acquiescence. b) By analogy to the SOL (of the doctrine of A/P) – just like it is adverse possession. Court uses its common law powers
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What is English Approach for dealing w/problem of prescription?
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a) English approach – lost grant and acquiescence. (1) Judges in England didn’t want to disturb ancient uses, so they said if a use is ancient, it goes back to “time immemorial” (Sept. 3, 1189). (2) They said if it is that old, we won’t ask for a piece of paper. They would bring geezer testimony in to prove it. (3) “Time immemorial” was then changed. Any use that went back for 20 years was said to go back to that far. To do that, they presumed that there had been a lost grant and they based the use on that lost deed. (4) Lost grant – further fiction of acquiescence to the lost grant by the owner of the servient tenement. Had to plead not only a lost grant, but also acquiescence of the owner of the servient tenement. (a) The point of the fiction is that it justifies accepting the use w/o the piece of paper (5) Some take acquiescence literally and say if it is removed, the 20 year period is interrupted, throwing both fictions into the ashcan. This is nonsense, because once A/P begins, permission can never terminate it. (6) Difference between acquiescence and permission (a) Acquiescence – more humble, gives way (b) Permission – allows you to enter, the grand gesture of the owner.
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What is "By analogy to the SOL (of the doctrine of A/P)" Approach for dealing w/problem of prescription?
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b) By analogy to the SOL (of the doctrine of A/P) – just like it is adverse possession. Court uses its common law powers (1) Open and Notorious (2) Continuous and Uninterrupted (3) Adverse and (4) Under claim of right (a) Some courts add exclusive – that is stupid (i) Split of authority whether a prescriptive easement may be acquired by tacking
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Public Trust (and customary rights)–When the government gave the wet sands and the dry sands of a lake to the first private owner, the government impliedly reserved a ____....
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G. Public Trust (and customary rights)–When the government gave the wet sands and the dry sands of a lake to the first private owner, the government impliedly reserved a right of use for the public. We’re talking about rights of use in the land of another, but now we’re not dealing w/neighbors.
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Land under water – owned by
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a) Land under water – owned by public
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Wet sands – (who owns it?)
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b) Wet sands – owner depends on what state you’re in
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Dry sands – (who owns it?)
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c) Dry sands – owner depends on what state you’re in
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Veg line – (who owns it?)
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d) Veg line – private ownership (unless state bought or kept it)
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We want to let people get to the wet and dry sands, so we imply a ________..
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2. We want to let people get to the wet and dry sands, so we imply a reserved right of use for the public
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Generally describe: Assignability of Easements (and Profits) –
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H. Assignability of Easements (and Profits) – benefits of easements can be assigned
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Example: 1. Looking at it specifically w/in context of an easement in gross - a) PG&E owns an easement in my backyard for power lines – if PGE sells out, is the easement assignable to the new company?
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1. Looking at it specifically w/in context of an easement in gross - a) PG&E owns an easement in my backyard for power lines – if PGE sells out, is the easement assignable to the new company? (1) YES – has to be as a matter of public policy – any other answer is insane - (b) If I sell my house, the burden of the power line easement will also transfer w/the land to the new owner.
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a) Is there such a thing as easement in gross? b) If so, is the benefit assignable?
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a) Is there such a thing as easement in gross? (YES) b) If so, is the benefit assignable? (YES)
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Is there such a thing as an easement in gross? Is it assignable? Is it divisible? F’s attack on Lutherans? Miller v. Lutheran Conference –– FACTS: 3. F and R Miller and others owned land around Lake Naomi and they leased land to Ice co. for 99 years. Ice co. granted to F the rights to fish and boat in the lake. F granted ¼ interest in those rights (fishing, boating and bathing) to R. a) F and R build a bathhouse and do business for 25 years until R dies. Then R’s heirs grant their ¼ interest to the Lutherans. F wants to stop Lutherans. 4. F and R were co-tenants of an FSA in the land a) They had grant from Ice co – exclusive right to fish and boat (1) Note – default rule for easements is that they are non-exclusive (unless otherwise created) b) This is not an easement, this is a Profit – right to extract fish (1) Actually it is a profit combined w/easement (right to boat) 5. This is an easement in gross – because the court said so a) We prefer easements in appurtenants b) Court should have found this was appurtenant.
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6. Is there such a thing as an easement in gross? a) YES – but in England you can’t have one. 7. Is it assignable? a) YES – IF it is commercial (like this one), and there is intent - may be assigned to multiple parties. 8. Is it divisible? – it is partially a profit a) NO – profits must be used as a common stock (4 hands on the shovel) (1) This is Montjoy’s one-stock rule – they have a single use, they must act in concert, in agreement (a) Protects against overuse (b) Saves judicial resources – you have to agree 9. F’s attack on Lutherans a) No bathing rights given to F, therefore none given to R (1) Answer: got them by prescription b) Rights are inalienable (1) Courts say they ARE assignable c) Rights are indivisible (1) Court agrees – Montjoy – 4 hands on the shovel 10. This makes sense as to fish, but hard to overuse lake by boating – should have been resolved by scope – limiting the Lutheran’s use of the lake – rather than importing the profit rule analogy.
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I. Scope of easements – the dimension and intensity of use 1. NOTE – all rights in the land of another are subject to ___ 2. Scope is a doctrine to protect the ______, although it doesn’t always work out that way a) Development is ____
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I. Scope of easements – the dimension and intensity of use 1. NOTE – all rights in the land of another are subject to scope 2. Scope is a doctrine to protect the servient tenement, although it doesn’t always work out that way a) Development is inevitable.
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Point? Traditional Rule? What did the Brown court find? Brown v. Voss – 3. O grants A an easement of way for A’s B/A. A buys another piece of property, W/A, adjacent to B/A and erects a building that covers B/A and W/A. Access to building is across the easement on O’s land.
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Brown v. Voss – Traditional Rule - it is outside the scope of an appurtenant easement to attach another piece of land to the dominant tenement and require the servient tenement to serve that other piece of land. 3. O grants A an easement of way for A’s B/A. A buys another piece of property, W/A, adjacent to B/A and erects a building that covers B/A and W/A. Access to building is across the easement on O’s land. a) Traditional Rule: O enjoins A, preventing the use of the easement to provide access to the portion of the building on Greenacre (1) Theory is that if you can attach another piece of land, then you can attach anything (amusement park) b) Brown court found the opposite – that there was no extra traffic on the easement and therefore did not enjoin A.
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HYPO – A wants to subdivide the land. Will each tract have the right to use the easement over the servient tenement (O’s land)?
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a) Dominant land can be subdivided provided the servient tenement is not burdened to a greater extent than was contemplated originally by the parties. b) A private easement of way does not usually permit the easement owner to install above ground and underground utilities - (1) Dobie says sewage pipe may be OK, since you can haul it in a truck down the road anyway. (a) Have easement to drive sheep to slaughterhouse. Could you drive horned cattle? NO, dangerous and outside scope (milk cows may be OK)
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Termination of easements When dominant and servient tenements come into same ownership – so the easement becomes a quasi easement 2. Release to servient tenement- servient buys out dominant’s interest 3. Servient stopping use by the dominant – chain across road equal to adverse use 4. Abandonment by act – Rare – conduct deemed sufficient by a court to constitute an abandonment
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1. When dominant and servient tenements come into same ownership – so the easement becomes a quasi easement
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Termination of easements -- Release to servient tenement:
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2. Release to servient tenement- servient buys out dominant’s interest
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Termination of easements -- Servient stopping use by the dominant –
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3. Servient stopping use by the dominant – chain across road equal to adverse use
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Termination of easements -- Abandonment by act –
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4. Abandonment by act – Rare – conduct deemed sufficient by a court to constitute an abandonment
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List: 4 types of Termination of easements
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1. When dominant and servient tenements come into same ownership – so the easement becomes a quasi easement 2. Release to servient tenement- servient buys out dominant’s interest 3. Servient stopping use by the dominant – chain across road equal to adverse use 4. Abandonment by act – Rare – conduct deemed sufficient by a court to constitute an abandonment
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