property a slides 4-9-15. thursday april 9: music to accompany petersen ricky nelson (self-titled...

PROPERTY A SLIDES4-9-15

Thursday April 9: Music to Accompany Petersen

Ricky Nelson (Self-Titled 1958)

REVIEW PROBLEM 5H (Boundary Dispute)Redwood Critique due Saturday @ 10 a.m.

SHENANDOAH (P APors): •Huang, Dan•Melendez, Laura•Ordonez, Maria•Yaniz, Alina•Murray, Leslie•Chen, Connie (Alternate)

ARCHES (D OOs)•Sued, Alexandra•Castillo, Felix•Dahle, Alex•Sandler, Ted•Agramonte, Mat•Kalil, Deanna (Alternate)

Rev. Prob. 5H (Opinion/Dissent): Rev. Prob. 5H (Opinion/Dissent): Original InstructionsOriginal Instructions

The Comstock Supreme Court granted certiorari to determine the appropriate rules in border disputes for

(1) the open and notorious requirement and (2) the state of mind requirement.

Write drafts of the analysis sections of both a majority opinion and of a shorter dissent for the court determining the appropriate rules for both these requirements in the context of this case.

Rev. Prob. 5H (Opinion/Dissent)

Arguments Targeting State Supreme Court Setting Rules for the State Going Forward.

•Attys Can Use General Policy Arguments

•Attys Can Use Arguments Treating Facts of Case as Example.

•No Need to Apply Rules to Facts Here (Results Should be Clear).

• “Assume that the trial judge’s findings of fact are supported by the record and that the Petersons met all the other elements of adverse possession.”

•Look at Spring 2014 Q3 Comments & Models

QUESTIONS?

Rev. Prob. 5H (Opinion/Dissent)Shenandoah (In-Class for Plaintiffs) & Arches (In-Class for

DefendantsRedwood (Critique)

1.1. Should rules for boundary disputes (BDs) be Should rules for boundary disputes (BDs) be different than for ordinary Adverse Possession? different than for ordinary Adverse Possession?

2.2. Assuming Court is willing to consider different Assuming Court is willing to consider different rules for BDs:rules for BDs:a.a. Should state adopt “actual knowledge” as standard for Open Should state adopt “actual knowledge” as standard for Open

& Notorious in BDs?& Notorious in BDs?b.b. Should state adopt “bad faith” State of Mind requirement in Should state adopt “bad faith” State of Mind requirement in

BDs?BDs?

Property A: LogisticsProperty A: Logistics

• Shenandoah Critiques Due Today @ 10:00 a.m.

• Tomorrow I’ll Start with General Advice re Course Selection & Afterward You Can Stop By or E-Mail if Specific Qs

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

Interpreting Language: Scope of Express Easements

• “Scope” is Most Common Testable Issue for Express Easements • Q is whether new/additional use contemplated by dominant

tenement-holder allowed• As noted last week, generally interpret scope issues like contracts

• Objective indications/manifestations of parties’ original intent

• NOT hidden understanding

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

Interpreting Language: Scope of Express Easements (Coverage)Sample Blackletter Tests (S144)• “Use must be reasonable considering the terms of the grant”• “Evolutionary not revolutionary” changes allowed.• “Burden must not be significantly greater than that contemplated by parties”

Sample Cases• Chevy Chase (& Presault): Common Transition from RR Rights of Way to

Recreation Trails• Marcus Cable: Common Problem of Improved Technology

Review Problems 6B 6C 6D in Class; 6F & 6G in DF

Common Scope of Easement IssuesCommon Scope of Easement Issues

•Proposed Use Seems to be w/in Very Broad Language, but Arguably Significant Change– Chevy Chase; Review Problems 6A & 6D-F

•Change in Technology; Might be Outside Literal Language, but Arguably Limited Increase in Burden – Marcus Cable; Review Problem 6B

Scope of Easement: RR Easement Recreational Trail

Common Transition with Decline of RRs•Federal statute encourages and gives RRs authority to transfer rights-of-way•BUT doesn’t purport to resolve state law issues re allowable scope after transfer•We’ll compare Chevy Chase (MD) to Preseault (Fed. Cir. 1996) (P774-75 Note 2)

Scope of Express EasementsRR Easement Recreational Trail

Chevy Chase: Tests for Scope (DQ6.02)–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.Looks like slight variation on my three blackletter tests in same order.


Chevy Chase: Tests for Scope (Application to RR Easement)

–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”



•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.



–Is Proposed Use of “Same Quality”/Consistent w Purpose & Reasonable Expectations?• cf. “Evolution, not Revolution”• Not necessary that use was specifically contemplated by parties– NOTE: Common Distinction between “Purpose” and “Intent”

• Depends on Characterization of Purpose – Lawyering Task/Game– How do you Generalize from RR’s Normal Use?



–Is Proposed Use of “Same Quality?• Chevy Chase: “Forms of Transportation”– Hiking/Biking = Transport, so OK (+ Onomatopoeia ) (See Cher:

Shoop Shoop)– 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?



–Is Proposed Use of “Same Quality?• Chevy Chase: “Forms of Transportation”• Preseault: “Use by Commercial Entity as Part of its Business”– Here, Individual Recreation, So Too Different– Court: Hard to Believe w/in Contemplation of Parties



–Is Proposed Use of “Same Quality?• Chevy Chase: “Forms of Transportation”• Preseault: “Use by Commercial Entity as Part of its Business”• For You on Review Problem/Test Q:– Try out two or more ways to characterize.

– Then discuss which characterization seems more convincing



–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”• Here: Trains Hikers/Bikers



–Unreasonable Increase in Burden?: • Chevy Chase says no: Says less burden than RR w/o specifying.• Clearly 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)

REDWOOD: DQ6.02

REDWOODS & FERNS


IMAGINATION EXERCISE IMAGINATION EXERCISE (~6.02)(~6.02)

Possible Increases in Burden?

Everyone (but Redwoods First)Everyone (but Redwoods First)



•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)


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?

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

• Common Problem: When Technology Changes, Can Dominant Tenement Holder Adjust Use of Easement?

• Marcus Cable (P776) & Cases Cited on P778: 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.


DQ6.03: 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 granto Again, not necessary that proposed use was contemplated at time of grant


DQ6.03: Marcus Cable Majority AnalysisOverlap with Blackletter Tests?

i.“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, but court’s policy arguments suggest it might be relevant if burden increases.)


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

property a slides 4-9-15. thursday april 9: music to accompany petersen ricky nelson (self-titled...

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