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Property I Fall 2008


									    Property II
Professor Donald J. Kochan

      Spring 2009
         Class 38
     11 February 2009
      Today’s Material
   Introduction to Servitudes
           Easements

           Pages 667-715
                   Hovenkamp & Kurtz

Suggested Non-Required but Recommended
          Supplemental Material:

 The H&K hornbook (see your Syllabus) is
extremely helpful on these (and other) topics

                                                (The Fifth Edition is just as good if you can find it used.)

Three Principal Types:

           Easements

       Real Covenants

   Equitable Servitudes
        Servitudes and Dominant and
               Servient Estates
            Definitional Terms that you must understand

                          Very generally:

   Dominant is the person or property benefited by the use,
        disuse, or other burden on another‟s property

       Servient is the person or property that is burdened by
          giving up a stick to another – they must either do
         something or refrain from doing something for the
            benefit of another or must allow another to do
                      something on their property
       Historical Background of
                  Medieval Period
      Communal System v. Private Property

                 Agricultural basis

                       Profits

   From common fields and shared pastures to
        fenced fields and consolidated farms
      Affirmative and Negative Easements –
             Understand the difference
         Easements Generally

   This provides some useful information as a
            supplemental introduction:

  Restatement (Third) of Property:
                 Ҥ 1.2 Easement And Profit Defined

(1) An easement creates a nonpossessory right to enter and use land
      in the possession of another and obligates the possessor not to
            interfere with the uses authorized by the easement.
 (2) A profit à prendre is an easement that confers the right to enter
     and remove timber, minerals, oil, gas, game, or other substances
   from land in the possession of another. It is referred to as a “profit”
                             in this Restatement.
 (3) The burden of an easement or profit is always appurtenant. The
               benefit may be either appurtenant or in gross.
 (4) As used in this Restatement, the term “ easement” includes an
       irrevocable license to enter and use land in the possession of
   another and excludes a negative easement. A negative easement is
                 included in the term “restrictive covenant”
     From Westlaw and Black’s Law
         Dictionary Definitions
   “Easement (eez-m<<schwa>>nt). An interest in land owned by
    another person, consisting in the right to use or control the land, or
    an area above or below it, for a specific limited purpose (such as to
    cross it for access to a public road). • The land benefiting from an
    easement is called the dominant estate; the land burdened by an
    easement is called the servient estate. Unlike a lease or license, an
    easement may last forever, but it does not give the holder the right
    to possess, take from, improve, or sell the land. The primary
    recognized easements are (1) a right-of-way, (2) a right of entry for
    any purpose relating to the dominant estate, (3) a right to the
    support of land and buildings, (4) a right of light and air, (5) a right
    to water, (6) a right to do some act that would otherwise amount to
    a nuisance, and (7) a right to place or keep something on the
    servient estate. See SERVITUDE (1). Cf. PROFIT A PRENDRE. -- Also
    termed private right-of-way. [Cases: Easements 1. C.J.S.
    Easements §§ 2-8, 13-14, 21-22, 24, 53-55, 57-58, 89.]”
    From Westlaw and Black’s Law
        Dictionary Definitions

   “private easement. An easement whose
    enjoyment is restricted to one specific person or
    a few specific people. [Cases: Easements 52.
    C.J.S. Easements §§ 164-167.]”

   “public easement. An easement for the
    benefit of an entire community, such as the right
    to travel down a street or a sidewalk.”
         From Westlaw and Black’s Law
             Dictionary Definitions
         “affirmative easement. An easement that forces the servient-estate owner to
        permit certain actions by the easement holder, such as discharging water onto the
             servient estate. -- Also termed positive easement. Cf. negative easement.
         ‟Positive easements give rights of entry upon the land of another, not amounting to
               profits, to enable something to be done on that land. Some are commonplace,
             examples being rights of way across the land of another and rights to discharge
        water on to the land of another. Others are more rare, such as the right to occupy a
           pew in a church, the right to use a kitchen situated on the land of another for the
          purpose of washing and drying clothes, and the right to use a toilet situated on the
                                    land of another.‟ Peter Butt, Land Law 305 (2d ed. 1988).”

       “negative easement. An easement that prohibits the servient-estate owner from
        doing something, such as building an obstruction. Cf. affirmative easement. [Cases:
                      Covenants 20; Easements 13. C.J.S. Easements § 59.]
        ‟Negative easements ... confer no right of entry, but consist essentially of the right to
             prevent something being done; examples are the right to the flow of air through
        defined aperture, the right to receive light for a building, the right to the support of a
              building, and (possibly) the right to require a neighbouring landowner to repair
                                             fences.‟ Peter Butt, Land Law 305 (2d ed. 1988).”
 From Westlaw and Black’s Law
     Dictionary Definitions

“reciprocal negative easement. An easement
 created when a landowner sells part of the land
and restricts the buyer's use of that part, and, in
 turn, that same restriction is placed on the part
kept by the landowner. • Such an easement usu.
   arises when the original landowner creates a
   common scheme of development for smaller
  tracts that are carved out of the original tract.
   [Cases: Covenants 20; Easements 13. C.J.S.
                 Easements § 59.]”
      Appurtenant v. In Gross
   Appurtenant = attached to and runs with the
    land; transferee receives the benefit and the
    burdened property owner remains burdened
          despite the change in ownership

 In Gross = attached to a person and may be
alienable but presumed not; a personal benefit;
   does not necessarily run with the land and
    usually does not; the “I trust you but not
      necessarily your successor” situation

        Realize that each is very fact specific
Appurtenant v. In Gross (cont.)
   ALWAYS analyze scope – the dominant, however the transfer, can
        never expand the scope of the originally agreed easement
     regardless of whether it runs with the land or not; thus, the first
                                 steps are:

                                   Determine if it is appurtenant or in gross
                                                    Define the Scope of Use
           Define the scope of the dominant‟s rights to assign or otherwise
                                          Determine if it runs with the land
           Determine if a subsequent purchaser can take the benefit of the
       Determine if the use is consistent with original intent and agreement
      Determine whether any new uses add a new or unintended burden on
                         the servient estate – because of user or type of use
   From Westlaw and Black’s Law
       Dictionary Definitions
   “easement appurtenant. An easement created to
  benefit another tract of land, the use of easement being
    incident to the ownership of that other tract. -- Also
   termed appurtenant easement; appendant easement;
  pure easement; easement proper. Cf. easement in gross.
    [Cases: Easements 3. C.J.S. Easements §§ 4, 10-11,

“easement in gross. An easement benefiting a particular
      person and not a particular piece of land. • The
   beneficiary need not, and usu. does not, own any land
  adjoining the servient estate. Cf. easement appurtenant.
    [Cases: Easements 3. C.J.S. Easements §§ 4, 10-11,
       Creation of Easements
                         Express

                         Implied

                         Estoppel

                     Prescription

   But ALWAYS focus on SCOPE regardless of the
                method of creation
      Right-of-Way Examples for Easements
                   \ >                         \
DG or DA           \        S                  \                  B
                   \                           \
                   \                           \
                   \                           \
                   \                           \
         <<<<<<<\<<<<<<<<<<<<<<<<<<<<<\<<<<<<<<<<<<                R
                   \                           \

                                                                     DG = Dominant in gross
                                                                  DA = Dominant appurtenant
                                                                                S = Servient
                                                                                  B = Beach
                                                                                   R = Road
                     Consider all Permutations on Diagram
 From Westlaw and Black’s Law
     Dictionary Definitions

“access easement. An easement allowing
    one or more persons to travel across
 another's land to get to a nearby location,
 such as a road. • The access easement is
 a common type of easement by necessity.
     -- Also termed easement of access;
 easement of way; easement of passage.”
                Willard v.
     First Church of Christ, Scientist
                    Church/Parking Lot case
    Reservation in a property to for “a stranger to the title”
    “our primary objective in construing a conveyance is to
              try to give intent to the grantor. . . .”
              What burdens follow with a sale?
                        Ambiguity issues
                         Reliance issues
                Easements created in favor of
                        a Third Party Issues
                     Extinguishment Issues
     Note 1 and Note 4 following the case are important
        Licenses Distinguished
                      What is a license?
               Understand Nature of the Interest
   “A license is oral or written permission given by the
    occupant of land allowing the licensee to do some act
          that otherwise would be a trespass.” D&K
 Plumber, dinner or barbecue guest, theater, housesitter
                         examples, etc.
  Primary Issue of Distinction Relates to Revocability – A
   license is generally revocable while an easement is not
 Involves a CONTRACT right to go upon or use another‟s
              land, rather than a PROPERTY right
     Property Remedies v. Contract Remedies for the
                     Licensee and Licensor
             Holbrook v. Taylor
            Coal haul road/right-of-way case

    Estoppel issues – when, if ever, does a license
    turn into an easement? What is the distinction?

                       Reliance Issues

                 Prescription distinguished
      Shepard v. Purvine

            Arm‟s Length Issues

   Necessity for a formalization of an
    easement agreement to avoid the
      revocability of a mere license
                 Henry v. Dalton
       Intent issues – what arrangement was intended?

        Statute of Frauds as an important method for
    determining whether or not property should be bound

                Revocable or Irrevocable Rights

                    Nature of the Grant of Use

   See Notes re Restatement regarding estoppel following
                 Van Sandt v. Royster
           Underground Lateral Sewage Drain Case

               One issue is whether it is appurtenant

   Implied grants and implied reservations – when
    and how do they rise to enforceable easements?

       Notice how the court focuses on intent of the
Implied and “Quasi” Easements
                                 From the text:

  “Easements are implied in two basic situations. In the first situation the
       easement is implied on the basis of an apparent and continuous (or
   permanent) use of a portion of the tract existing when the tract is divided.
  The existing use is often described as a „quasi-easement.‟ The easement is
 implied to protect the probable expectations of the grantor and grantee that
  the existing use will continue past the transfer. . . . In the second situation
      the easement is implied when the court finds the claimed easement is
    necessary to the enjoyment of the claimant‟s land and that the necessity
     arose when the claimed dominant parcel was severed from the claimed
  servient parcel. This kind of implied easement is known as an easement by
                                  necessity . . .”

             Should we protect the continuation of existing uses?

                 Intentions and expectations of the parties key
     From Westlaw and Black’s Law
         Dictionary Definitions
   “easement by estoppel. A court-ordered easement created from
    a voluntary servitude after a person, mistakenly believing the
    servitude to be permanent, acted in reasonable reliance on the
    mistaken belief. [Cases: Estoppel 82. C.J.S. Estoppel § 90.]”

   “equitable easement. 1. An implied easement created by equity
    when adjacent lands have been created out of a larger tract. • Such
    an easement is usu. created to allow implied privileges to continue.
    [Cases: Easements 16. C.J.S. Easements §§ 3, 61-65, 68-71, 74, 79-
    81, 88.] 2. See restrictive covenant (1) under COVENANT (4).”

    “implied easement. An easement created by law after an owner
    of two parcels of land uses one parcel to benefit the other to such a
    degree that, upon the sale of the benefited parcel, the purchaser
    could reasonably expect the use to be included in the sale. -- Also
    termed easement by implication; way of necessity. [Cases:
    Easements 15-19. C.J.S. Easements §§ 3, 13, 61-88, 90-109, 149.]”
                Othen v. Rosier
                       Roadway Easement Case

               By Necessity and By Prescription Issues

       Implication of Easement at Sale/Notice of Encumbrance

                       Consent/Reliance Issues

                                 Fencing

                             Intent Issues

   Doctrine of Strict Necessity – mere convenience is insufficient
         Easements by Necessity
     Means the creation of an easement mandated by law and not by private
    negotiation – When is it appropriate because it places a burden on another?

                              Define whether necessity exists

                        Strict Necessity v. Convenience Distinction

                          See Notes regarding issue of duration

     Landlocked property issues (“I can‟t get in, I can‟t get out!”), including
      knowledge upon acquisition and whether price was discounted (buyer
                     beware and unjust enrichment issues)

    See the Note regarding Leo Sheep Co. – Why does the existence of the
    power of eminent domain make a difference? (in considering that, also go
       back to the NGA 7(h) example from Class 30 (mining v. natural gas
From Westlaw and Black’s Law
    Dictionary Definitions
 “easement by necessity. An easement
  created by operation of law because the
      easement is indispensable to the
  reasonable use of nearby property, such
   as an easement connecting a parcel of
land to a road. -- Also termed easement of
     necessity; necessary way. [Cases:
  Easements 18. C.J.S. Easements §§ 63,
    69, 75-77, 91-97, 99-101, 103-109.]”
Easements by Necessity (cont.)
              Supplemental Case Study:

Tolksdorf v. Griffith, 464 Mich. 1, 626 N.W.2d 163
    (Mich. 2001) (Private Roads Act in Michigan
  found unconstitutional) (recognize relationship
   with takings law and the “public use” clause)

 For Non-Required Supplemental Reading, see:

                                                      Michigan Supreme Court
    Easements by Prescription
     Similarities and overlaps with adverse possession –
“in many ways is similar to adverse possession but in some ways
                     distinctly different” D&K

        Lost Grant Legal Fiction – What is a “Legal Fiction”?

            Acquiescence, Permission, and Adversity Issues

        Factual Evidence of Interruption and the Legal Effect

                       Permissive v. Adverse Use

   Public Prescriptive Easements: The Beach Access Examples

                           Highly Fact-Specific
From Westlaw and Black’s Law
    Dictionary Definitions
  “prescriptive easement. An
  easement created from an open,
 adverse, and continuous use over a
   statutory period. -- Also termed
 easement by prescription; adverse
      easement. See ADVERSE
POSSESSION. [Cases: Easements 5-
  11. C.J.S. Easements §§ 13-51.]”
               Matthews v.
        Bay Head Improvement Ass’n
    Public Trust Doctrine – sovereignty over tidal waters
    (and the ebb and flow) vested in the State in trust for
                          the people

           Public‟s right of use over beachfront property

   Extension of the Public Trust Doctrine to public use of
                       dry-sand areas

       Public Access Across Private Land to Public Waters
  Assignability of Easements
“The benefits and burdens of appurtenant
 easements pass automatically to assignees
 of the land to which they are appurtenant,
  if the parties so intend and the burdened
  party has notice of the easement. Where
 the benefit is in gross, however, the benfit
           may not be assignable.”
              Miller v. Lutheran
          Conference & Camp Ass’n
         Scope – Boating & Fishing Rights; but Bathing?

   Explicit issues; Unilateral Expansion of Scope and Burden
                       on Servient Tenement

   expressio unius est exclusio alterius – the expression of
    one is the exclusion of another; key interpretive phrase
          for deeds and statutes that you MUST know

              Yet, how does prescription play a role?

                          “One Stock” Rule
Public Utility Easements

        Often exist as encumbrances
             on private property

   Power Lines, Pipelines, Sewers, etc.

        Many individuals are unaware

        My childhood tree anecdote
        Concluding Remarks

   Continue to examine easements in the
                  next class

   Later, be able to distinguish them from
            other types of servitudes

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