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PROPERTY D SLIDES. 4-7-14. Monday April 7 Music (to Accompany Petersen ): Ken Burns’s Jazz: The Story of America’s Music Disc 4 (1950s-1960s). NCAA Sweet Sixteen Contest If Connecticut wins, Nicole Halmoukos wins. If Kentucky wins, Shari Munroe wins. Tomorrow We’ll Meet Until ~9:45

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PROPERTY D SLIDES


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    1. PROPERTY D SLIDES 4-7-14

    2. Monday April 7 Music (to Accompany Petersen):Ken Burns’s Jazz: The Story of America’s MusicDisc 4 (1950s-1960s) NCAA Sweet Sixteen Contest If Connecticut wins, Nicole Halmoukos wins. If Kentucky wins, Shari Munroe wins. Tomorrow We’ll Meet Until ~9:45 I’ll Talk About Course Selection Process

    3. PROPERTY D: 4/7 Monday Pop Culture Moment BaCK UP YOUR WORK: KROW RUOY PU KCAB INSIGHTS GAINED FROM PUTTING THINGS INTO ESREVER: REVERSE

    4. PROPERTY D: 4/7 Monday Pop Culture Moment WHY ARE SOME CARS NOT VERY TRENDY NO MATTER HOW [OFTEN] THEY’RE REDESIGNED?

    5. PROPERTY D: 4/7 Monday Pop Culture Moment WHY ARE SOME CARS NOT VERY TRENDY NO MATTER HOW [OFTEN] THEY’RE REDESIGNED? SUBARU = U R A BUS

    6. PROPERTY D: 4/7 Monday Pop Culture Moment WHAT DO YOU BECOME IF YOU CONSTANTLY WEAR EARBUDS?

    7. PROPERTY D: 4/7 Monday Pop Culture Moment WHAT DO YOU BECOME IF YOU CONSTANTLY WEAR EARBUDS? I-POD = DOPI

    8. PROPERTY D: 4/7 Monday Pop Culture Moment WHAT KIND OF PEOPLE PAY MONEY FOR BOTTLED WATER?

    9. PROPERTY D: 4/7 Monday Pop Culture Moment WHAT KIND OF PEOPLE PAY MONEY FOR BOTTLED WATER? EVIAN = NAIVE

    10. PROPERTY D: 4/7 Monday Pop Culture Moment WHO SUPPLIES ELECTRONIC DEVICES TO WILDEBEESTS?

    11. PROPERTY D: 4/7 Monday Pop Culture Moment WHO SUPPLIES ELECTRONIC DEVICES TO WILDEBEESTS? SAMSUNG = GNU’s MAS 

    12. Previously in Property D Adverse Possession Elements: Rules, Focus, Evidence, Purpose Actual Use Open & Notorious Exclusive: Rev. Prob. 5D Continuous: Tacking & Rev. Prob. 5E Adverse/Hostile & State of Mind Special Rules for Boundary Disputes Policy Considerations Rev Prob 5G: Lawyering

    13. Previously in Property D Easements Introduction & Rev Prob 6A Easement v. Fee: Relevant Arguments Scope of Positive Easements 3 Blackletter Tests Railroad Easements  Recreational Trails

    14. YELLOWSTONE (DQ6.02) GIANT GEYSER

    15. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Possible Increases in Burden? IMAGINATION EXERCISE(~6.02) Everyone (but Yellowstones First)

    16. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Possible Increases in Burden? Preseault: • No limits on location, number, frequency of users • No schedule (at whim of many individuals) • Trains stay on tracks; hiker/bikers might wander off trail & trespass (See Cher: Gypsies, Tramps & Thieves) • Other: privacy; litter; total amount of time easement in use; crime (see Cher: Bang, Bang)

    17. Scope of Express Easements:RR Easement  Recreational Trail Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden? Hard Q: • Primary Burdens Decrease • Lots of New Smaller Ones Arise • Hard to Weigh; Might Suggest Preseault is Correct That Should Fail “Same Quality” Test • In determining “reasonableness” of burden, court might also choose to weigh strong public policy behind hiker/biker trails against harms to servient owners. Qs on Chevy Chase?

    18. Scope of Express Easements:Change 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? 

    19. Scope of Express Easements: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. • What’s at Stake: Much Cheaper and Easier for Cable Co. to Negotiate One Deal with Telephone or Electric Co. Than to Negotiate New Easements Over Each Parcel Wires Might Cross.

    20. Scope of Express Easements:Change in Technology DQ6.03: Marcus Cable Majority Analysis • Start with language of grant • Give undefined terms ordinary meaning • Determine purposesof grant from language • Use can change to accommodate technological development, but must fall within original purposes as determined from terms of grant • Again, not necessary that proposed use was contemplated at time of grant

    21. Scope of Express Easements:Change in Technology DQ6.03: Marcus Cable Majority Analysis Overlap with Blackletter Tests? • “Use must be reasonable considering the terms of the grant” (Court employs) • “Evolutionary not revolutionary” changes allowed. (Maybe OK if w/in purposes as defined by language) • “Burden must not be significantly greater than that contemplated by parties” (No burden analysis in Marcus Cable, but court’s policy arguments suggest it might be relevant if burden increases.)

    22. Scope of Express Easements:Change in Technology DQ6.03: 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” • Courts have characterized this combination as “communications” = cable. (Plausible but not only possibility) • Note majority doesn’t endorse these cases, just distinguishes

    23. Scope of Express Easements:Change in Technology 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

    24. REDWOOD: DQ 6.03 REDWOODS & FERNS

    25. Scope of Express Easements:Change in Technology DQ6.03 (Redwood): Applying Blackletter Tests to Marcus Cable Facts • “Evolutionary not revolutionary” changes allowed? • “Burden must not be significantly greater than that contemplated by parties”?

    26. Scope of Express Easements:Change in Technology 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?

    27. Scope of Express Easements:What’s at Stake? Policy Considerations Relevant to Deciding Disputed Scope Qs

    28. Scope of Express Easements:What’s at Stake? • 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.

    29. Scope of Express Easements:What’s at Stake? • 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.

    30. Scope of Express Easements:What’s at Stake? • Parties in long term relationship governed by terms of original agreement face changing circumstances. • 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

    31. Scope of Express Easements:What’s at Stake? • Parties in long term relationship governed by terms of original agreement face changing circumstances. • 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 • 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

    32. Scope of Express Easements:What’s at Stake? • Parties in long term relationship governed by terms of original agreement face changing circumstances. • 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?

    33. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Positive Easements • Negative Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

    34. 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

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

    36. Scope of Express Easements:Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View

    37. REDWOOD: DQs 6.04-6.05 REDWOODS & FERNS

    38. Scope of Express Easements:Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen • Dmay have argued, “No such thing as a view easement in California.” • 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 • Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown). Court’s Response?

    39. Scope of Express Easements:Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen • No view easement in California • 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)

    40. Scope of Express Easements:Negative Easements DQ6.04: D’s Arguments in Petersen • Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

    41. Scope of Express Easements:Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen • No view easement in California • Parties could not have intended to ban antennas • Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court’s Response (& Evidence Supporting)?

    42. Scope of Express Easements:Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen • No view easement in California • Parties could not have intended to ban antennas • 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

    43. Scope of Express Easements:Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated Because …?

    44. Scope of Express Easements:Negative Easements DQ6.04 (Redwood): D’s Arguments in Petersen Conceivable 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)

    45. Scope of Express Easements:Negative Easements DQ6.04: D’s Arguments in Petersen Burden 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)

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

    47. Scope of Express Easements:Negative Easements 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 Easements

    48. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

    49. Implied Easements: Overview • Easements are both contracts & conveyances (land transfers) • How do you achieve contracts and conveyances without express agreement? Four Theories…

    50. Implied Easements: Overview Contract/Conveyance w/o Express Agreement: Four Theories • Promissory Estoppel (Detrimental Reliance) • Implied-in-Fact Contract (Parties’ Intent) • Implied-in-Law Contract (Public Policy) • Adverse Possession