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MUSIC: The Dinah Washington Story (Disc Two: Recordings 1954-61). Fleetwood Mac Critiques: Put Hard Copy on Front Table (if not already e-mailed to me) Corrections to Textbook P830 line 9: “dominant” should be “servient” P848 2d para. line 4: “licensor” should be “licensee”.

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MUSIC: The Dinah Washington Story (Disc Two: Recordings 1954-61)

Fleetwood Mac Critiques: Put Hard Copy on Front Table (if not already e-mailed to me)

Corrections to Textbook

  • P830 line 9: “dominant” should be “servient”

  • P848 2d para. line 4: “licensor” should be “licensee”


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SCOPE OF EASEMENT ISSUE 1954-61)

  • 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

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


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DQ103: 1954-61)Marcus Cable and the Blackletter Tests

  • Reasonable Considering Terms of Grant: Case essentially uses

  • Evolution Not Revolution: A couple of additional wires probably OK.

  • Burden Not Greater Than Parties Contemplated: Increase in burden probably trivial

    Focus on #1 = choosing certainty for servient owner over flexibility & maximizing value of dominant estate


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DQ104: Relocation 1954-61)

  • Inverse of usual scope problem: Changing circumstances make servient owner want to shift the location of the easement.

  • Could disallow because inconsistent with specific description of location (certainty for dominant owner)

  • Could treat flexibly and allow if no significant harm to dominant owner (minimize economic harm to servient estate)


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NEGATIVE EASEMENTS 1954-61)

  • 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.

    • Access to Light & Air

    • Access to View

    • Unimpeded flow of artificial stream

    • Extra lateral or subjacent support

  • Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate


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Petersen v. Friedman 1954-61)(Cal. App. 1958)D Placed TV Antenna Within Negative Easement for Light, Air & View

FLEETWOOD MAC


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DQ105: P’s Arguments 1954-61)

  • P may have argued no such thing as a view easement in California.

    • Court says weight of authority supports existence of view easements

    • Need to check in each jurisdiction for list of recognized negative easements


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DQ105: P’s Arguments 1954-61)

  • No view easement in California.

  • Parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?


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DQ105: P’s Arguments 1954-61)

  • No view easement in California.

  • Parties could not have intended to ban TV antennas

  • Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s response?


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DQ105: P’s Arguments 1954-61)

  • No view easement in California.

  • Parties could not have intended to ban TV antennas

  • Antenna doesn’t block light & view.

  • Potential argument: Burden much greater than contemplated by parties. Can you elaborate?


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DQ105: P’s Arguments 1954-61)

  • No view easement in California.

  • Parties could not have intended to ban TV antennas

  • Antenna doesn’t block light & view.

  • Potential argument: Burden much greater than contemplated by parties. Court’s likely response?


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DQ106. Why is it easier to determine the scope of a negative easement than that of a positive easement?


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PREP POINTS FOR WED. 4/11 negative easement than that of a positive easement?

  • Review Problem A (Santa & Elves)

    • Led Zeppelin Argument/Beatles Critique

    • Judges from Other Panels

    • Focus on 3 Blackletter Tests

  • Review Problem B (Satellite Dish)

    • Supremes Argument/Grateful Dead Critique

    • Judges from Other Panels

    • Focus on Chevy Chase, Marcus Cable & Note Cases as Persuasive Authority

  • Recording Acts: DQ113 ALL


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Easements by Estoppel negative easement than that of a positive easement?

An owner may be estopped from barring a 2d party access to the owner’s property where

  • The owner apparently allows 2d party to use the property

  • 2d party reasonably and detrimentally relies on this acquiescence


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Easements by Estoppel negative easement than that of a positive easement?

An owner may be estopped from barring a 2d party access to the owner’s property where

  • The owner apparently allows 2d party to use the property

  • 2d party reasonably and detrimentally relies on this acquiescence

    Was the D’s reliance on the oral promise in Stoner reasonable? Was it detrimental?


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Policy Arguments re negative easement than that of a positive easement?Easements by Estoppel

Common Concerns include

  • Doctrine undermines the Statute of Frauds

  • Claimants should make sure of legal rights before relying on mere license.

  • Neighbors don’t typically commit all arrangements to signed writings.


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Policy Arguments re negative easement than that of a positive easement?Easements by Estoppel

DQ108 & Note 2: Should states allow

Easements by Estoppel …?

  • Whenever there’s reasonable and detrimental reliance;

  • Only after compensation paid; –OR–

  • Never


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Policy Arguments re negative easement than that of a positive easement?Easements by Estoppel

Note 3: Nelson v. AT&T: Stronger or weaker case than Stoner for granting Easement by Estoppel?


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Note 4: How Long Does an negative easement than that of a positive easement?Easement by Estoppel Last?

Stoner: “For so long a time as the nature of it calls for.” What does this mean …

  • For an irrigation ditch?


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Note 4: How Long Does an negative easement than that of a positive easement?Easement by Estoppel Last?

Stoner: “For so long a time as the nature of it calls for.” What does this mean …

  • In the hypo in Note 4: House built in reliance on use of right of way, which created EbyE. House burns down. Can it be rebuilt using that right of way?


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EASEMENTS BY IMPLICATION negative easement than that of a positive easement?& NECESSITY

featuring

EAGLES


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EASEMENTS BY IMPLICATION: negative easement than that of a positive easement?

  • One parcel is split in two

  • Prior use of of one part of parcel for benefit of another part (Quasi-Easement)

  • Circumstances suggest parties intended to continue the use of the prior pathway after the split

    • Williams Island: Permanent Use Intended

    • Restatement: Long list of relevant considerations including terms of conveyance, consideration paid, etc.


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EASEMENTS BY IMPLICATION: negative easement than that of a positive easement?

  • One parcel is split in two

  • Prior use

  • Intent to continue prior use

  • *Apparent, visible or reasonably discoverable at severence

  • *Some degree of necessity at severence

    • Usually reasonable necessity

    • Some states: strict necessity if implied by reservation

  • Need notice to bind subsequent purchasers

    * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent


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EASEMENTS BY NECESSITY: negative easement than that of a positive easement?

  • One parcel is split in two

  • One of the resulting parcels is cut off from key access (e.g. to roads) by the other parcel or by the other parcel in combination with parcels owned by 3d parties.

  • At the time the parcels are split, the access is necessary to the enjoyment of the landlocked parcel (most jurisdictions require strict necessity)


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Questions on Necessity negative easement than that of a positive easement?

  • Note 3: Was there reasonable necessity in Williams Island?Alternatives (from note 1 on P853):

    • Cross highway, travel 200 feet on sidewalk, cross highway again

    • Backtrack along a substantial portion of the golf course to get around defendant’s tract


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Questions on Necessity negative easement than that of a positive easement?

  • Note 3: Should lack of access to utilities meet the strict necessity test?


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Questions on Necessity negative easement than that of a positive easement?

  • Is the majority’s analysis of necessity in Dupont more convincing than that of the dissent?


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A Little More Doctrine negative easement than that of a positive easement?

  • Easements by Necessity end when the necessity ends; Easements by Implication do not (because based entirely in intent)

  • Courts almost always hold that negative easements can’t be implied by implication or by necessity. Penn case cited in Note 4 is very rare in even considering.

  • Some states have private condemnation statutes like those described in Note 8.


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Last Eagles Q: Note 8 negative easement than that of a positive easement?

  • Suppose a state uses its eminent domain power to condemn easements to provide access to landlocked parcels and has the owner of the landlocked parcel pay for the easement. Does this use of Eminent Domain meet the public use requirement?


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EASEMENTS BY PRESCRIPTION negative easement than that of a positive easement?

featuring

TEMPTATIONS


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EASEMENTS BY PRESCRIPTION negative easement than that of a positive easement?

109. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements?

(a) reward beneficial use of land

(b) punish sleeping owners

(c) recognize psychic connection to the land

(d) protect people and the legal system from being burdened with “stale” claims


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COURSE ADVICE negative easement than that of a positive easement?

  • Becoming a Well-Rounded Lawyer

  • Resume Management

  • Taking Care of Yourself


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Becoming a Well-Rounded Lawyer negative easement than that of a positive easement?

  • Administrative Law: 

  • Business Associations: 

  • Evidence: 

  • Federal Income Tax I:

  • Substantive Criminal Law: 

  • Trusts & Estates: 

  • U.S. Constitutional Law II: 

  • At Least One Comparative/International Course (E.g., International Law, Comparative Law and International Business Transactions)

  • At Least One Course Addressing a Complex Statute:  (E.g., Commercial Law, Bankruptcy and Environmental Law)


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Becoming a Well-Rounded Lawyer negative easement than that of a positive easement?

The Bar Exam:

Becoming a Practicing Lawyer


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RESUME MANAGEMENT negative easement than that of a positive easement?

  • 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


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TAKING CARE OF YOURSELF negative easement than that of a positive easement?

  • Balance in Course Selection

  • Comfortable Daily/Weekly Schedule

  • Choose Professors Rather Than Course Titles


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