Ella Fitzgerald: The Irving Berlin Songbook Vol. 2 (1958)

• Corrections to Textbook • P830 line 9: “dominant” should be “servient”• P848 2d para. line 5: “licensor” should be

“licensee”

Chapter 8: ServitudesUnit IV about multiple interests in same piece of land•Chapter 6: Landlord-tenant divides by time, but landlord retains some interest & rights even during lease•Chapter 7: Estates & future Interests divides by time & conditions

Chapter 8: Servitudes• Chapter 8: One person is primary owner of land w

most of the rights• One or more persons have some simultaneous

interest in land – Generally arises from contractual agreement– Resulting interest (= “servitude”) limits rights of

primary owner– Can see as one way to address pot’lly conflicting land

uses

REGULATION OF LAND USE

1. By Tort Law: Nuisance (Ch. 2)2. By Ltd Grant: Defeasible Fees

(Ch. 7)3. By Contract: Servitudes (Ch. 8)

(especially promissory servitudes & homeowners’ associations)

4. By Regulation: Zoning & Envir. Law

Chapter 8: ServitudesDetailed Coverage of Three Issues1.Interpretation of Express Easements2.Circumstances Where Courts Will Imply Easements w/o Express Grant3.Permissible Rules of Homeowner’s Associations

Chapter 8: Servitudes1.Easements

a.Express (Positive & Negative)b. Implied (Positive Only)

2. Promissory Servitudes (Brief Intro)

3. Homeowner’s Associations

Express EasementsBasic Introduction in Reading; Should Know:• Create using same formalities as deeds• Subject to Recording Acts• Vocabulary:– Appurtenant v. In Gross– Dominant Tenement v. Servient Tenement– Positive v. Negative Easement

Express EasementsIssues: Interpreting Language

1. Fee Simple v. Easement2. Scope of the Easement

Express Easements:1. Fee Simple v. Easement

• Recurring Issue: Document creating the interest says “right-of-way” or similar, but doesn’t say either “easement” or “fee”; which is created?

• We’ll look at: – Chevy Chase (MD) [Primary Case P826]– City of Manhattan (CA) [See Note 1 P832]

Express Easements:1. Fee Simple v. Easement

A. Courts looking for evidence of parties’ intent. Look at both:

(i) Language(ii) Circumstances Surrounding Grant

B. DQ126: Should there be a presumption favoring either fee or easement?

Express Easements:1. Fee Simple v. Easement

A. Evidence of parties’ intent (Chevy Chase):(i) Language:– P826: to RR, “its successors & assigns, a free &

perpetual right of way”– P827: “right of way” slightly ambiguous• Legal right to use (technical meaning)• Strip of land itself (common non-legal usage)• Court says most likely understanding is easement

Express Easements:1. Fee Simple v. Easement

A. Evidence of parties’ intent (Chevy Chase):(i) Language:– P826: “a free & perpetual right of way”– P826: separate grant for RR station in “fee

simple”• Use of different terms suggests different meaning• Common interpretation argument (White v.

Brown)

Express Easements:1. Fee Simple v. Easement

A. Evidence of parties’ intent (Manhattan):(i) Language: (Ambiguous)– “remise, release & quitclaim” (looks like giving

up all rights, therefore fee)– “right of way” + “upon, over & along” (look

more like easement)

Express Easements:1. Fee Simple v. Easement

A. Evidence of parties’ intent (Chevy Chase):(ii) Circumstances Surrounding Grant:–Nominal Consideration: Suggests Easement. Why? (Ct isn’t explicit.)• Giving Up Fee is Big Change in Value of Servient

Estate (Especially if Bisects Lot)• Thus, would expect more than nominal

consideration for Fee

Express Easements:1. Fee Simple v. Easement

A. Evidence of parties’ intent (Manhattan):(ii) Circumstances Surrounding Grant:–Motivation is to Get RR to Extend Tracks to Additional City (Important to Local Economy)–Might be Consistent with Fee• Arguably need bigger carrot to convince RR• City might be willing to give up more to get

Express Easements:1. Fee Simple v. Easement

A. Evidence of parties’ intent (Manhattan):(ii) Circumstances Surrounding Grant:–Motivation is to Get RR to Extend Tracks to Additional City (Important to Local Economy)–Other documents (unspecified) indicated fee.

Qs on Evidence of Intent?

Express Easements:1. Fee Simple v. Easement

B. Chevy Chase: Presumption of Easement(i) Little Purpose for Fee Interest in RR Strips; Not

Necessary for Original RR Purpose(ii) Lot of RR Rights of Way Get Abandoned• If Easement, merges back into servient tenement• If Fee, RR still owns: cuts across & severs servient

tenement

Express Easements:1. Fee Simple v. Easement

B. Manhattan: Applies Presumption of Fee Simple; BUT Usual Rationales Don’t Fit Well

1. Likely Meets Ordinary Expectations (Unclear)2. Furthers Alienability (No)3. Giving All Grantor Has Avoids

Uncertainty/Partial Intestacy (Not relevant when grantor retains adjoining lot)

Express Easements:1. Fee Simple v. Easement

Qs on Presumptions -OR-Fee Simple v. Easement

Generally

Express Easements2. Scope of Easement

• Q is whether new use proposed by dominant tenement-holder allowed

• Generally interpret scope issues like contracts – Objective indications/manifestations of parties’

intent– Not hidden understanding

• Often arises with changed circumstances: which party should bear different burden?

Express Easements:2. Scope of Easement

A. Sample Blackletter Tests (S230)i. “Use must be reasonable considering the terms of

the grant”a. Initial focus on literal languageb. Then check if proposed use is reasonable in light of

language

Express Easements:2. Scope of Easement

A. Sample Blackletter Tests (S230)i. “Use must be reasonable considering the terms of the

grant”

ii. “Evolutionary not revolutionary” changes allowed.a. Focus on nature & speed of changeb. Fair to characterize as “evolution”?

Express Easements:2. Scope of Easement

A. Sample Blackletter Tests (S230)i. “Use must be reasonable considering the terms of the

grant”ii. “Evolutionary not revolutionary” changes allowed.

iii.“Burden must not be significantly greater than that contemplated by parties”a. First ask what parties intendedb. Then look for change in relative burdens

Express Easements:2. Scope of Easement

B. RR Easement Recreational Trail1. Common transition encouraged by Congress2. Fed’l statute gives fed’l regulatory

permission, but doesn’t resolve state law scope Q

3. We’ll look at Chevy Chase (MD) and Preseault (Fed. Cir. 1996) (P833 Note 2)

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope–Start with Language of Grant (If no limits, presumption in favor of grantee’s desired use).–Is Proposed Use of “Same Quality”/Consistent w Purpose?–Check for Unreasonable Increase in Burden (“so substantial” that creates “a different servitude.”)

Looks like slight variation on my three blackletter tests in same order.

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Start with Language of Grant • “Primary Consideration”• If no limits, presumption in favor of grantee’s

desired use.• Cf. “Use must be reasonable considering the

terms of the grant”

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

• Start with Language : To RR, “its successors & assigns, a free and perpetual right of way.”

–No express limits (e.g., to RR or freight RR)–“Free & Perpetual” suggests “few, if any” limits contemplated; can change w evolving circumstances–“Successors & Assigns”

• Means Transferability (Not Ltd. to RRs) • Also suggests possibility of changing use

LOGISTICS: FRI & MON/TUEFRIDAY

• Lecture on Implied Easements & Promissory Servitudes

• Rev. Probs 8A & 8C (RICE) (Arguments from Blackletter Tests & Cases)

MONDAY/TUESDAY• Lecture on Homeowners’ Ass’ns & Nahrstedt • Review Problem 8E (WHEAT instead of CORN)

LOGISTICS: GENERALLY• Dean’s Fellow Evaluations• Assignment Sheet Updated• Practice Midterm Handout Posted• Practice Midterm Review Meetings• E-mail me for times

Mid-September Crisis

Mid-October Crisis

Mid-November Crisis

Mid-November Crisis

YOU HAVE MORE TIME THAN YOU THINK YOU DO

• 2-3 Clear Days Before Each Test• Thanksgiving• Fri Nov 26-Mon Nov 29• Schedule Your Time (Roughly)

USE OLD EXAMS• Do Under Exam Conditions• You’ll Never “Feel Ready”; Build in Time to

Do Anyway• Look at Old Model Answers if Available– Imperfect– Evidence of Kind of Exam Professor Likes

• If Questions Remain Afterward, Ask!

OTHER EXAM PREP TIPS• My Exam Tip Session Online (under AAP)• Checklists for Open Book Exams• Make Time for Group Work–Consult on Qs from Cases/Classnotes–Discuss Hypos & Old Exam Qs– Identify Likely Issues for Exam

• Go to Office Hours/Review Sessions–My times posted soon on course page

Peace of Mind Tips• Now to Dec. 13: You Need to Sleep• Ignore Rumor Mill• The First Year “Grade Curve”• September 2013

YOU CAN DO THIS !

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Is Proposed Use of “Same Quality”/Consistent w Purpose & Reasonable Expectations• cf. “Evolution, not Revolution”• Not necessary that use was specifically contemplated

by parties• Depends on Characterization of Purpose (How do you

Generalize from RR Use?)

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Is Proposed Use of “Same Quality?• Chevy Chase: “Forms of Transportation”– Hiking/Biking = Transport, so OK– Relies on Cases Broadly Reading Grants for “Public

Highway” to Include New Types of Transport– Analogy Seems Suspect: Could You Change RR

Easement into Highway for Cars?

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Is Proposed Use of “Same Quality?• Chevy Chase: “Forms of Transportation”• Preseault: Use by Comm’l Entity as Part of its

Business– Here, Individual Recreation, So Too Different– Hard to Believe w/in Contemplation of Parties

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Is Proposed Use of “Same Quality?• Chevy Chase: “Forms of Transportation”• Preseault: Use by Comm’l Entity as Part of its

Business• For You: Whose Characterization is More

Convincing?

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Unreasonable Increase in Burden• Can’t be “so substantial” that creates “a

different servitude.”• Cf. “Burden must not be significantly greater

than that contemplated by parties”

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Increase in Burden? Chevy Chase says no:• Says less burden than RR w/o specifying; in fact

big decrease in noise & safety concerns.• “Self-Evident” that change “imposes no new

burdens” (You need to do better in 2 ways).• Plus new use adds benefit to servient

tenements (access to trail)

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Possible Increases in Burden?

IMAGINATION EXERCISE

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Possible Increases in Burden? Preseault: • No limits on location, number, frequency• No schedule (at whim of many individuals)• Trains stay on tracks; hiker/bikers might

wander off trail & trespass

–Other: privacy; litter; time on easement

Express Easements: ScopeRR Easement Recreational Trail

Chevy Chase: Tests for Scope (Application)

–Possible Increases in Burden? Hard Q:• Primary Burdens Decrease• Lots of New Smaller Ones Arise• Hard to Weigh; Might Suggest Preseault is Correct That

Should Fail 2d Test

–Court might also want to weigh strong public policy behind hiker/biker trails against harms to servient owners.

Express Easements: ScopeRR Easement Recreational Trail

Qs on Chevy Chase & Preseault?

Express Easements:2. Scope of Easement

C. Change in Technology• Common Problem: When Technology Changes,

Can Dominant Tenement Holder Adjust Use of Easement?

• Marcus Cable (P834) & Cases Cited on P836: Development of Cable TV & Use of Easements for Electrical or Telephone Wires.

Express Easements: ScopeChange in Technology

Marcus Cable: Majority Analysis• Start with language of granto Give undefined terms ordinary meaningo Determine purposes of grant from languageo Use can change to accommodate technological

development, but must fall within original purposes as determined from terms of grant

o Again, not necessary that proposed use was contemplated at time of grant

Express Easements: ScopeChange in Technology

Marcus Cable: Majority Analysis• Overlap with blackletter testsi.“Use must be reasonable considering the terms of the grant” (Court employs) ii.“Evolutionary not revolutionary” changes allowed. (Maybe OK if w/in purposes as defined by language)iii.“Burden must not be significantly greater than that contemplated by parties” (No burden analysis in Marcus Cable)

Express Easements: ScopeChange in Technology

Marcus Cable: Majority Analysis• Language: “electric transmission or distribution

line or system.”–Majority: Cable TV not w/in Ordinary Meaning–Distinguishes cases where “electric + telephone”

• Cts characterize as “communications” = cable. Persuasive?• Note majority doesn’t endorse these cases, just distinguishes

Express Easements: ScopeChange in TechnologyMarcus Cable: Analysis

• Language: “electric transmission or distribution line or system.”

–Majority: Cable TV not w/in Ordinary Meaning–Dissent: w/in language in two ways

• Literally (as technical matter)• As language has come to be understood w tech. changes

Express Easements: ScopeChange in Technology

Marcus Cable: Applying Blackletter Tests• “Evolutionary not revolutionary” changes allowed.–Couple more wires unlikely to be “revolutionary”

• “Burden must not be significantly greater than that contemplated by parties”

–Probably trivial increase in burden.

Express Easements: ScopeD. What’s at Stake

• Parties in long term relationship governed by terms of original agreement. Changing circumstances make change desirable (parties always can bargain)

• Strict adherence to original terms yields certainty for servient owners (Marcus Cable majority)

• Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs & expectations (especially re maximizing property value)

• May also want to promote new & valuable technology (e.g., cable to rural areas); like internet no-tax subsidy