Property

Front 1

what is the difference between an appurtenant easement and an easement in gross?

Back 1

Both types run with the servient estate. However, only appurtenant easements also run with the dominant estate.

Appurtenant easements are usually right-of-access easements that allow the owner of the dominant estate a path over the servient estate's land. When the dominant estate changes hands, that need doesn't necessarily change at all for the new owner, and so the easement "runs with the land."

Easements in gross are usually for a specific use of the servient estate such as running telephone cables, which do not have anything to do with owning a dominant estate. These are personal to the grantee.

Front 2

What needs to be shown for an easement to be found by estoppel?

Back 2

An easement by estoppel can result when a licensor acts in such a manner that the licenensee relies to a substantial degree on an expectation of the continued existence of the license.

Note that negligence on the part of the licensee in obtaining information about the nature of the situation can nullify the claim.

Front 3

Holbrook

Back 3

Roadway on one business' land (A); permissive use allowed to neighboring coal business (B). Permissivenes means that this was a license, not an easement. However, when A attempted to revoke the license, an easement by estoppel was granted, as B had spent a substantial sum maintaining the roadway, in reliance upon the expectation that the license would continue.

Front 4

What are the types of express easements?

Back 4

Easement
- by Grant: S grants easement to E
- by Reservation: D conveys title of servient estate to S, but reserves easement for her own use.
- by Exception: S conveys title of servient estate to S2, but must except E's easement on the land.

Front 5

What are the requirements of an express easement?

Back 5

1) Writing, signed by the grantor. Must conform to statute; may need to specify boundaries and such.
2) Grantor must intend for the easement to run with the servient estate. Easements run with the servient estate. (Note that if the easement does not run with the land, it's more like a license. For this class, we will assume that anything referred to as an easement runs with the servient estate.)
3) Grantor may or may not intend for the easement to run with the dominant estate. If it does, it is an appurtenant easement. If not, then it is an easement in gross.

Front 6

Green

Back 6

Motorcycle drag race case. Easement was granted to two individuals for ingress and egress, but they constructed a motor home lot, and the new tenants began drag racing on the strip.

The written instrument here was ambiguous as to the intent of the grantor as to whether the easement was appurtenant or in gross. On appeal, the higher court ruled that, at least in WA, there is a presumption that easements run with the land.

Front 7

How can implied easements be claimed?

Back 7

By prior use:
- Parcels had common prior ownership, before parcelling of the lot and conveyance of the land.
- use was apparent before the conveyance.
- use was continued after the conveyance.
- there is some reasonable necessity for the easement (not absolutely necessary, but not just convenient, either.)

By necessity:
- Common prior ownership.
- No prior use requirement.
- Easement is very necessary. In fact, usually only landlocked parcels that would not otherwise be accessible.

Front 8

Granite Properties

Back 8

Granite sold the middle parcel out of three contiguous parcels. A dispute arose over Granite's use of the two driveways separating the parcels.

Because Granite had been using the driveways continuously, and because the buyer knew this (open and notorious), the elastic necessity requirement was reduced and Granite was granted implied easements by prior use.

When Granite owned all three lots, it had a "quasi-easement" over its own land.

Front 9

Finn

Back 9

D sells P a lot bordered on all sides by others' property. P's only method of ingress/egress was over D's land or someone else's land.

Because D was the adjoining property owner with which P had a conveyance relationship, P was given and implied easement by necessity over D's land.

Front 10

What are the elements of prescriptive easement? How does it differ from adverse possession.

Back 10

Open, notorious, hostile, and continuous use for the statutory period in which the fee owner has acquiesced. PEs cannot be negative, because no notice would be available to the party on the servient property.

Differences from Adverse Possession.
- Applies to nonfee interests.
- Most courts drop the exclusivity requirement.
- Acquiescence: Some courts require that S knew of the use subjectively, but did not say anything.
- Minority view is that permissiveness is not assumed in the way it is with AP. Majority believe that permissiveness is assumed.

Front 11

What are the factors in determining the scope of an easement?
What are some particular situations?

Back 11

Generally, there are two major considerations:
1) the kind of use anticipated by the parties at the time the easement is formed.

2) whether the use constitutes an unreasonable burden on the servient estate.

- The subdivision of appurtenant easements is so common that it is assumed that the possibility of their division is contemplated at their creation.
- Courts are split over how broadly to read easements, e.g. can a general right of way also be used as an easement to string telephone lines?
- Extension of the use is usually not allowed. The cases in which it has have been extreme (the additional lot was adjoining, and there was still to be only one house.)
- balance between rights of the easement holder to develop his estate versus the reasonableness of the servient estate owner's anticipation of that new use.
- modernly, some courts are allowing the servient estate owner to change the location of the easement, at their expense.

Front 12

Cox

Back 12

widening of the road case. Court ruled that the easement was appurtenant, and thus it could not be restricted to the use by a "single family home" as the dominant estate was apportioned.

However, the road could not be widened. They could probably pave it, but not widen.

The ruling may seem a bit absurd (how can more people use it if it's not widened?), judge was probably anticipating that the parties would be able to find an economic settlement.

Front 13

Henley

Back 13

Cable company takes over telephone company's easement to run cable along back 5 feet of P's land. Court rules that the T co's easement, being exclusive and in gross, was transferable.

The cable company's new use was also reasonable, placing no additional burden on Ps than the telephone wire did.

Front 14

When is an easement transferable/apportionable?

Back 14

Appurtenant easements can be apportioned readily, as it is expected that the dominant estate itself will be apportioned and conveyed to new owners.

Easements in gross may be transferred, but this depends on whether the grantee that wishes to transfer or apportion the easement right has an exclusive easement. If other parties (the servient estate owner or other parties) have rights to the easement, the tne grantee cannot transfer or apportion his interest. However, if the grantee has an exclusive easement, then it is freely transferable to another party or parties.

Modernly, courts (and the restatements) are more willing to see the issue from the point of view of the grantor of the easement. Rather than ask simply whether the easement is exclusive, courts ask if the new use will be an unreasonable burden on the servient estate.

Front 15

What are the ways in which an easement may terminate?

Back 15

Express Limitation:
- Express time period ends.
- Failure or frustration of purpose.
- Breach of a condition to which the easement is subject.

Subsequent Events:
- Release
- Abandonment
- Misuse or Overuse
- Transfer
- Adverse Possession or Prescription
- Merger
- Estoppel

Front 16

Lindsey

Back 16

Dispute between neigbors, involving two driveways and non-use/forgetting of whose easement was where.

Two major points of law.
First, non-use of an easement alone does not terminate it by abandonment. There must be some overt act by the easement holder that indicates that the intention is to abandon the easement.

Second, easement by estoppel can be frustrated if the party that relied detrimentally did so in part because of their own negligence in ascertaining the facts of the situation.

Front 17

Castle

Back 17

Long history of parcel that was cut into four pieces. P eventually holds three of the four, but because of the peculiarities of the land, still needs the use of an easement across D's quarter-parcel.

D's argument that the easement was terminated by merger was rejected by the court: P came to own parts of the servient estate, but not all of it.

D had built a fence to preclude the use of the easement, but the easement had never been exercised. Court rules that "an unopened right of way can not give rise to an adverse possesssion."

Front 18

Everman

Back 18

The "Right to Destroy" case. Woman decided in her will that she would tear down her home, with no reason given. The court overrules this property right citing a number of policy justifications:
- rights in death are administered by the state, and so the state has greater leeway in abridging those rights.
- when people die, the negative impacts of unreasonable, wasteful actions do not accrue to them.

Front 19

What is a Nuisance?

Back 19

A substantial and unreasonable intereference with P's right to the quiet enjoyment of her property.

Front 20

Page County Appliance Center

Back 20

RF intereference from the travel agency's computers made the TV retailer lose business.

The court considers:
Travel agency may not have been negligent, but negligence is not required; what matters is the result. Here, we are balancing the reasonableness of the RF leak against the reasonableness of P's sensitivity to the radiation. Having a TV is very common; the court doubts that this is hypersensitive. Not resolved; case goes back down for better jury instructions.

Front 21

What is a "spite fence" and how do courts view them?

Back 21

A "spite fence" is a nuisance erected by one neighbor solely to irritate the other. Courts will enjoin their construction, but only in the rare cases where there is absolutely no utility to them other than to annoy the injured party.

Front 22

Fontainbleu

Back 22

Hotel plans a tower that will cast a shadow over the neighbor's pool. P sues to enjoin the construction, arguing that it is a nuisance interfering with their easement right over the light coming down from that direction.

Court rules that one cannot establish an easement over light or air. Thus, no nuisance.

Prof: This is the domain of zoning regulation, not nuisance law.

Front 23

Let's hear some statements on the reciprocal nature of land use conflicts.

Back 23

Unlike with trespass, nuisance claims can run both ways. There is friction at the boundary between two parties' use rights, and a line can be drawn quite arbitrarily for the sake of governance. One can take this analysis to a Ronald Coase-like economic extreme, but simplified, capital-driven models often fail to capture the value we place on equality, inalienable rights, and intangible moral values.

Front 24

When deciding the outcome of a nuisance claim between P and D, what questions are asked, and what remedies are usually arrived at?

Back 24

Two questions:
1) Was P's injury substantial?
2) Was D's conduct reasonable?

1 - 2
Y - Y: P's injury was substantial, and so it would be unfair to burder P with the cost. At the same time, D's conduct is reasonable, and may serve a social good. In this case, we award damages to compensate P, but allow D to continue with the activity.

Y - N: P's injury is substantial, and D's activity is unreasonable, so an injunction against D is likely.

N - Y: P's injury is not substantial, so it's fair to force the cost on P, especially since D's activity is serving a reasonable, social good. In this case, no remedy is likely.

N - N: P's injury is not substantial, so it's fair to force the cost on P, but we also don't want D's unreasonable, socially detrimental activity to continue. So the court can use a purchased injunction, here.

Front 25

Estancias

Back 25

Air conditioning unit for huge apartment complex is built in neighborhood's back yards.

Court issues an injunction, which turns out to be a good solution: harm to P was substantial, and the cost of moving the air conditioning unit out front was much lower than D testified.

Front 26

Boomer

Back 26

Cement plant pollutes the area very badly.

Here, the court awarded damages. The cement production was a public good of sorts, and at the same time P's injury was substantial. The court pioneered "permanent damages" in this case to allow the cement production to continue indefinitely.

Front 27

Spur Industries

Back 27

Cattle feedlot versus the new developers mving in. The developers were second to arrive, but found the smell to be a nuisance.

Court decided on a purchased injunction. P's were second in time and their harm was not so substantial. But D's business was unreasonable given the changing uses of hte land. So the cost was pushed onto P's, but D's activity was forced to stop.

Front 28

State v Shack

Back 28

Doctor and social worker trespass on farm to provide assistance to migrant workers.

General rule found by the court: "Necessity, public or private, may justify entry upon the lands of another."

This ruling was based on very narrow case, however. There was specific legislation for the protection of these workers; Congressional mandate.

Front 29

Desnick

Back 29

TV crew pretends to be patients of P's in order to capture footage for a televised expose.

Rule: Entering upon someone's land with consent that is obtained not through fraud but through misleading omission is lawful.

Also banks upon the fact that the injury caused to P is not the kind of injury that trespass is designed to prevent (i.e. invasion of privacy, trade secrets, operation of business, etc.)

Front 30

Uston

Back 30

Card counter is barred from entering a casino.

Rule established (in NJ): Places of business open to the public may not unreasonably exclude particular members of the public.

This is a minority rule. The Majority rule is that places of amusement may exclude whomever they wish, as long as they do not run afoul of civil rights legislation (which they did not, with Uston.)

Front 31

What is the rule regarding Inns and Common Carriers?

Back 31

Under the CL, Inns and Common Carriers were not allowed to deny services. Policy justifications were that such businesses were often monopolies, and provided essential services.

Uston attempted to extend this rule to all places of entertainment, but this is not the majority rule.

Front 32

Dale

Back 32

Exemplery scout leader was expelled from the Boy Scouts of America (BSA) for being a homosexual.

Debate was on technicalities of NJ's Law Against Discrimination, which had stronger protections than the Civil Rights Act of 1964. Basically, was the BSA a place of public accommodation? Court rules yes, as there were strong ties to public entities, and the BSA did not employ any truly distinguishing criteria for its membership (which would allow it to win on the "distinctly private" exception)

Front 33

Lloyd

Back 33

A bare majority ruling reversed lower court decisions, finding that malls are not sufficiently public spaces for free speech rights to trump private property rights.

Majority opinion.

Front 34

New Jersey Coalition Against War in the Middle East

Back 34

Minority opinion on the mall/free speech issue. This is NJ, again, which has a specific statute that the courts interpreted as protecting free speech rights vis-a-vis not only state actors, but private actors as well.

Thus, free speech trumps private property rights, here.

The Federal Constitution protects individual liberties only from the state, not from other individuals (the "State Actor" Distinction)

Front 35

Matthews v Bay Head Improvement Association

Back 35

Association bought up strips of public beach so as to restrict access to the swaths of public beach in between.

Court rules that the Association must provide access to the public areas of the beach, and to the ocean.

Public Trust Doctrine: Private property interests are mitigated by the need to access and make use of lands held in the public trust.

Front 36

Intel

Back 36

Hamidi emailed his grievances to all of Intel's employees. Trespass to the servers?

Court recognizes that servers are personal property, not real property. They defer to legislature to decide whether this behavior should be punished; law by analogy here would seem to falter.

Front 37

What is a prescriptive easement?
How does it differ from Adverse Possession?

Back 37

Use of land that is open, notorious, hostile, and continuous for the statutory period in which the fee owner has acquiesced.

Note that there are no negative prescriptive easements (how would notice work, right?)

Differences with PE:
- mainly, that PEs are for nonfee interests.
- the exclusive requirement is usually dropped.
- Acquienscence: some courts consider this to mean that the landowner must subjectively know of the use but not overtly object.
- Majority believe that there is a presumption that use is permissive (where it's public use of private land), whereas with AP the presumption is that occupation is hostile.

Front 38

Community Feed Store

Back 38

Gravel lot shared between two stores. One claims a PE for use of the lot to load and unload goods.

Court creates the easement:
- "general outlines" can define the area of the easement.
- this court rules that the presumption of permission is only when the public uses private property. otherwise, with PE, it can be presumed to be adverse.

Front 39

Feist

Back 39

Copying of directory listing

Facts vs. Expression case. The Expression can be copyrighted, facts cannot. Court rules that only the facts were copied.

Front 40

International News Service

Back 40

Is "news" property?

Court rules that it is not, but pulls in unfair competition to find "quasi-property" between competing businesses. Vocal dissent.

Note the difference between this and Feist: in the domain of unfair competition, they side with the idea that an investment can create property. In Feist, the expediture of dollars does not necessarily create a protectable interest.

Front 41

Pierson v Post

Back 41

Fox hunting case.

When has ferae naturae been captured? Court rules that pursuit is not sufficient: hunter must establish dominion over the wild creature (mortal wounding, perhaps.)

Again, mere expenditure of effort does not create a protected property interest.

Front 42

Eliff

Back 42

Oil drilling case, where there is a shared reserve of oil under the two properties. One party drills negligently, destroying the entire reserved and damaging the land above.

"First capture" of oil allows for all parties to draw as much as they can (it is somewhere between a fixed asset and ferae naturae.) Each party has an undivided interest in the whole repository, and this setup incentivizes exploitation of the resource.

However, the rights are "correlative," limiting the property interest. Negligence that damages the reservoir makes one liable for damages.

Front 43

Popov v Hayashi

Back 43

Baseball case.

Court rules:
- baseball was not captured until it was fully stopped and under the "unequivocalble dominion and control" of Hayashi.
- however, Popov has a "pre-possessory interest," as it was criminal act of mob that prevented us from know if his initial capture would be successful.
- court awards a half interest in the whole value of the ball, according to equitable division.

Front 44

Moore v Regents

Back 44

Cell line established off of Moore's cancerous cells.

Court rules that cells are not property, so no conversion.
- privacy rights argument fails when the cell is indistinguishable from those of others
- the cell line is factually and legally distinct from Moore's cells, which gave rise to it.
- socialy policy: extending ownership over personal body parts would have a deleterious effect on medical research.

Front 45

What are the three types of "lost" property?
What are the rules regarding ownership when those types of property are found?

Back 45

Lost - Property unintentionally and involuntarily relinquished. Owner doesn't know where it is.

Mislaid - Property voluntarily relinquished. Intention is to retain ownership, but meanwhile the property is mislaid.

Abandoned - Property intentionally and voluntarily relinquished. Intention to relinquish right, title, and interest.

Three competing interests: Owner, Finder, and Landowner where the property is found.

If it's lost, F gets it subject to O's possessory interest.

If it's mislaid, L gets it subject to O's possessory interest. Minority will award title to F if F is on the land lawfully.

If it's abandoned, F gets it period.

Front 46

Benjamin v. Lindner Aviation

Back 46

Money found strapped to the inside of a plane's wing.

Court ruled that the property was mislaid, therefore belonged to the owner of the plane (the "premises" where the money was found, not the airfield.)

Case involved a "finder's statute" which set a statute of limitations to allow finders clear title.

Front 47

What is adverse possession? Review the elements and complications with each.

Back 47

possession of land that is actual, exclusive, open and notorious, adverse (or hostile) under a claim of right, and continuous for the statutory period.

Actual: as opposed to constructive. Some activity customary for the type of property is required.

Exclusive: not everyone need be excluded, but others' use should be by permission of the AP.

Open and Notorious: Objectively measured. Owner is on notice of the possession (actual notice) or would have been on notice had he been present as a owner should (constructive notice.)

Adverse (Hostile) under a Claim of Right: Possession must not be by the permission of the true owner. Possession is presumed to be hostile, where no outward objections manifest.
- Majority: intent of the AP objectively measured. Doesn't matter if they knew they were adversely possessing.
- Minority: intent of AP subjectively measured. Good faith?

Continuous: According to customary use of the property.
- Tacking only applies to title transferred in privity.

For the Statutory Period: Usually based on the Jx's statute of limitations.

Front 48

Review the additional assisting/burdening rules for Adverse Possession.

Back 48

Government immunity: Historically, gov't is immune to AP. In some states his immunity has been abrogated, recently, for land not being used by the public.

Taxes: in many Jx's there is a statutory requirement that the AP pay taxes on the possessed property for the stat. period.

Transfer of Debts, Liens, and Encumbrances: One possesses only the bundle of rights that the prior possessor had. If there are any encumbrances on that property, the AP inherits those encumbrances.

"ouster": If possession began consensually, the AP must give actual notice to begin the period of adverse possession. Constructive notice is not adequate: the AP must be overt, and owner must subjectively know of the intention.

tolling for disability: if the true owner is disabled of incapacitated (an legal incapacity to act as the true owner), the statutory period is tolled.

cloud on the title: if AP is happening because the AP's title is clouded without their knowledge (i.e. extremely good faith), then the actual requirement is changed: constructive possession of the entire parcel is allowed. The statutory period may also be reduced.

Front 49

Brown v. Gobble

Back 49

misplaced fence between neighbors.

transfer of property by adverse possession is found, satisfying all elements (though there was not tax requirement)

AP period was found via tacking.

Front 50

Nome 2000

Back 50

Native Alaskans occupy a parcel of land belonging to a mining co.

They are only awarded the part of the land that they had built upon and used; the rest was only hiked on. Adversity of the possession was before the establishment of the cabin; other, less permanent structures were accepted given that the land was rural.

Also, subjective cultural intentions of "native" people was not considered: possession is hostile if it objective appears to be.

Front 51

How does transfer of title by estoppel work?

Back 51

one party makes a misrepresentation that another party relies upon detrimentally (e.g. builds a fence or constructs on the property.)

Some Jxs even consider a lack of objection to the construction to be a misrepresentation.

Front 52

When will oral agreements as to a boundary be binding?

Back 52

Both parties are uncertain about location, or it is legally uncertain.
The existence of agreement setting the boundary can be proven.
The parties actually take/relinquish possession of the area in question.

Front 53

What can P do if no easement is granted?

Back 53

- Purchase it
- Ask the city to build a road.

Front 54

What is the general rule against creating easements in 3rd parties?

Back 54

If an owner apportions a lot, he can't sell one, and the afterwards sell the other with an easement for access over the first. He doesn't own the first lot anymore; he should have obtained an easement by reservation in the first sale.

CA allows this, but it is not commonly done.`

Front 55

Jus Tertii

Back 55

in a dispute between two parties, one party's right to bring up the legal interests of a third party.

in finding cases where there are long strings of possessors, each party's possessory rights are relative to each of the other parties. They do not have jus tertii to abridge another party's rights simply because those rights would be weak relative to a third party.