PROPERTY A SLIDES 4-10-15. Friday April 10 Music (to Accompany Stoner v. Zucker): Scott Joplin, His...

PROPERTY A SLIDES4-10-15

Friday April 10 Music (to Accompany Friday April 10 Music (to Accompany Stoner v. ZuckerStoner v. Zucker):):

Scott Joplin, His Greatest HitsScott Joplin, His Greatest Hits(Composed 1895-1917)(Composed 1895-1917)

Richard Zimmerman, Piano Richard Zimmerman, Piano (Recorded 2006)(Recorded 2006)

REDWOOD Critique of Review Problem 5H

Due Tomorrow @ 10:00 a.m.

APPROACHINGCOURSE SELECTION

COURSE SELECTION:PREPARATION

•Become Familiar with Registration Procedures Especially Wait List (Ask Qs!!)•Become Familiar with Graduation Requirements•Read Course Descriptions• Talk to People re Courses & Profs (including Me after class & in

Office Hours)

COURSE SELECTION:2L FALL SEMESTER

•Not Sophomore Year in College•No Need to Get All “Basic Courses” Out of the Way Early•No Need to Take Especially Heavy Load

•Some of You Won’t Get Everything You Want•3Ls Will Fill or Nearly Fill Some Classes• Later 2L Slots Have Fewer Options•Check in Advance & Prepare Alternatives

COURSE SELECTION:HOW TO CHOOSE

1. Becoming a Well-Rounded Lawyer2. Resume Management3. Taking Care of Yourself

Becoming a Well-Rounded Lawyer• Administrative Law: • Business Associations: • Evidence: (also flexibility re Litigation Skills; Profs)• Federal Income Tax I:• Substantive Criminal Law: • Trusts & Estates: • U.S. Constitutional Law II: • At Least One Comparative/International Course (E.g., European Union,

International Law, Comparative Law, Doing Business in Latin America) • At Least One Course Addressing a Complex Statute: (E.g., Bankruptcy,

Commercial Law, Copyright, Environmental Law, Employment or Housing Housing DiscriminationDiscrimination, Immigration, Labor Law, Patent Law)

Becoming a Well-Rounded Lawyer

The Bar Exam: Becoming a Practicing Lawyer

• Multiple Studies Here Find Essentially No Correlation Between Courses Taken and Bar Passage

• Bar Review Courses Will Give You Version You Need for Bar

• Probably Mildly Helpful to Have Had the Material Before

• Matters Less the Better You Are at Law School Exams

RESUME MANAGEMENT

•Preparing for a Specialty Area•Not a College Major•Check Lists On Registrar’s Page• Talk to Faculty in Area

•Putting Yourself in the Best Light

RESUME MANAGEMENT

•Preparing for a Specialty Area

•Putting Yourself in the Best Light•Alternate Forms of Evaluation•Writing Papers• Lawyering Skills

• Schedules That Facilitate Your Doing Well• During Semester• Four or More Exams in December

TAKING CARE OF YOURSELF

• Balance in Course Selection• # of Exams or Papers• Likely Size of Classes• One Subject You Really Want to Take

• Comfortable Daily/Weekly Schedule• Choose Professors Rather Than Course Titles

FINAL POINT

FINAL POINT: Registration is NOTNOT a Crucial Turning Point in Your Life

•You are Picking One Set of Elective Classes • Three More Opportunities to Fill in Gaps•You’ve Done This Before

•Employers Care Much Less Than You’d Imagine

FINAL POINT: Registration is Not a Crucial Turning Point in Your Life

• You are Picking One Set of Elective Classes • Three More Opportunities to Fill in Gaps• You’ve Done This Before

• Employers Care Much Less Than You’d Imagine

• Not a Fork But a Spoon

Chapter 6: Easements1. Overview & Terminology

2. Interpreting Languagea. Easement v. Feeb. Scope of Express Easements

i. Positive Easements (continued)ii. Negative Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessityc. By Prescription

Scope of Express EasementsChange in Technology

• Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement?• Carry Water Water Pipes?• Use Road on Foot/Horse Automobiles?

Scope of Express Easements:Change in Technology

DQ6.03: Marcus Cable Majority Analysis(from yesterday)

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

• Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility)• Note majority doesn’t endorse these cases, just distinguishes


DQ6.03: Marcus 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


DQ6.03: Applying Blackletter Tests to Marcus Cable Facts• “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.

• Probably Why Many Courts Agree with Dissent on this Issue.

Qs on Marcus Cable?Qs on Marcus Cable?

Scope of Express Easements:What’s at Stake?

Policy Considerations Relevant to Deciding Disputed Scope Qs


• Parties in long term relationship governed by terms of original agreement. • Changing circumstances make change desirable (at least for

one party).• Parties always could bargain for new agreement, but

administrative costs may be very high, especially when large number of parcels affected by similar easements as in both cases we’re looking at.


• Parties in long term relationship governed by terms of original agreement face changing circumstances.

• Strict adherence to original terms provides certainty for servient owners.• Helps protect their property value.• Marcus Cable majority position.



• Strict adherence to original terms provides certainty for servient owners.

• Flexibly allowing change better meets dominant owners’ needs & expectations • Again, helps maximize property value• Can limit (to protect Servient Os) by saying, e.g., • Use must be similar• No great increase in burden



• Strict adherence to original terms provides certainty for servient owners.• Flexibly allowing change if similar use & no great increase in burden

better meets dominant owners’ needs • Might consider desire to promote valuable new technology.• E.g., Cable TV to rural areas• Like early internet no-tax subsidy• Arguably similar: Promoting hiker/biker trails



• Strict adherence to original terms provides certainty for servient owners.

• Flexibly allowing change if similar use & no great increase in burden better meets dominant owners’ needs

• Might wish to promote valuable new technology.

Questions?Questions?

Review Problem 6B (S147): Tuesday Review Problem 6B (S147): Tuesday April 14April 14

Redwood: In-Class Arguments for P Mike Redwood: In-Class Arguments for P Mike Biscayne: In-Class Arguments for D Debbie Biscayne: In-Class Arguments for D Debbie

Critique: YellowstoneCritique: Yellowstone

Arguments/Missing Facts?Arguments/Missing Facts?

1.If Marcus Cable is Binding Precedent

2.If Chevy Chase is Binding Precedent

Review Problem 6D (S148): Thursday Review Problem 6D (S148): Thursday April 16April 16

Redwood: In-Class Arguments for P AndyRedwood: In-Class Arguments for P AndyYellowstone: In-Class Arguments for D Gudridge Yellowstone: In-Class Arguments for D Gudridge

AcademyAcademyBiscayne: CritiqueBiscayne: Critique

Arguments/Missing Facts Arguments/Missing Facts Using the Three Blackletter TestsUsing the Three Blackletter Tests

DF Sessions:DF Sessions:Today and TuesdayToday and Tuesday

Review Problem 6F (2014 Short Scope

Problem) &

Review Problem 6G (Lawyering Scope Problem)

YELLOWSTONE: Review Problem 6C

GIANT GEYSER

Review Problem 6C (S148)Review Problem 6C (S148)YellowstoneYellowstone

Those living on Carr-acre can use the driveway Those living on Carr-acre can use the driveway

across the western edge of Rhodes-acre in across the western edge of Rhodes-acre in vehicles or on foot for access to and from vehicles or on foot for access to and from

Hungerford Highway and for exercise.Hungerford Highway and for exercise.

•Originally used for jogging & automobile access to Highway.

•J moves onto Carr-Acre with her horse DD• Rides horse on easement every morning• Sometimes rides horse to Highway to run errands in nearest village

•Can R (owner of Rhodes-acre) prevent J from riding horse on easement?

Rev. Prob. 6C (Yellowstone): Rev. Prob. 6C (Yellowstone): Those living on Carr-acre Those living on Carr-acre can use the driveway across the western edge of Rhodes-can use the driveway across the western edge of Rhodes-

acre in vehicles or on foot for access to and from acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. Hungerford Highway and for exercise. Can R (owner of Can R (owner of

Rhodes-acre) prevent J from riding horse on easement? Rhodes-acre) prevent J from riding horse on easement?

• For J: McGee; Gross; Garcia (Alt: Gillum)

• For R: Manimalethu, Kim, Stone (Alt: Ortega)

Arguments/Missing Facts?Arguments/Missing Facts?1.Re Language

2.Re Burden

3.Re “Quality” or Evolution/Revolution

Chapter 6: Easements1. Overview & Terminology

2. Interpreting Languagea. Easement v. Feeb. Scope of Express Easements

i. Positive Easementsii. Negative Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessityc. By Prescription

Scope of Express Easements:Negative Easements

•Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate• Limited # of harms can be protected this way. • E.g., Access to Light & Air; Access to View; Unimpeded Flow of

Artificial Stream• States Vary on Which They Allow


• Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate• Limited # of harms can be protected this way. •Most forms essentially negative rights of way: path that cannot be

impeded for light/view/water to get to dominant estate across servient estate


Petersen v. Friedman (Cal. App. 1958)

D Placed TV Antenna Within Negative Easement for Light, Air & View

Cf. Ricky Nelson & New Roles of Television

REDWOOD: DQs 6.04-6.05

REDWOODS & FERNS


DQ6.04 (Redwood): D’s Arguments in Petersen

1.D may have argued, “No such thing as a view easement in Calif.” • Court says weight of authority supports existence of view easements.• Note for You: Need to check in each jurisdiction for list of recognized

negative easements.

2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?


DQ6.04 (Redwood): D’s Arguments in Petersen1.No view easement in California 2.Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown)• Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could

Interfere with View• Cf. 16 Foot Tall Statue of Jackie Robinson (in 1942 also still unknown)


DQ6.04: D’s Arguments in Petersen• Court: Bans “Any Structure”/”Any Obstruction” = Anything

That Could Interfere with View


DQ6.04 (Redwood): D’s Arguments in Petersen1.No view easement in California 2.Parties could not have intended to ban antennas

3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. • Court’s Response (& Evidence Supporting)?


DQ6.04 (Redwood): D’s Arguments in Petersen1.No view easement in California 2.Parties could not have intended to ban antennas

3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. • Court: Fact Q implicitly decided below• Reviewing Injunction, so Defer to Trial Court• Supporting Evidence: Size & nature of obstruction; Lesser rental value

b/c of antenna


DQ6.04 (Redwood): D’s Arguments in Petersen

Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?


DQ6.04 (Redwood): D’s Arguments in PetersenConceivable Argument Not Made in Case: Burden on D

Greater than Contemplated

•Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden• Pre-Cable TV Reception in SF Not Good• Relative Importance of TV (Public Policy re Access to Information)


DQ6.04: D’s Arguments in PetersenBurden on D Greater than Contemplated?

•Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden•Court’s Likely Responses• TV Not That Important (Especially in 1958)

• If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One-on-One = Much Easier Than Chevy Chase or Marcus Cable)


DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement?


DQ6.05 (Redwood) : Why easier to determine the scope of a negative easement than that of a positive easement?

Few line-drawing problems

•Bans anything that interferes w light or view v. •Open to interpretation about allowable uses where language is broad or where technology changes

Qs on Negative EasementsQs on Negative Easements

PROPERTY A SLIDES 4-10-15. Friday April 10 Music (to Accompany Stoner v. Zucker): Scott Joplin, His...

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Transcript of PROPERTY A SLIDES 4-10-15. Friday April 10 Music (to Accompany Stoner v. Zucker): Scott Joplin, His...