Product Information. This highly respected and widely used casebook - long recognized by both students and instructors as one of the best available for any course - continues to offer a dynamic and distinctive introduction To The law of property. Carefully preserving the excellent foundation created by original authors the late Jesse Dukeminier and James Krier, PROPERTY, Sixth Edition, incorporates a wealth of new material. What makes PROPERTY such an ideal casebook?

1. Property Dukeminier 8th Edition
2. 1l Study

PROPERTYKEYED TO DUKEMINIER-7 th EditionFUNDAMENTALS. Property rights: are instruments of society; they conveythe right to benefit or harm oneself or others and they specify howpersons may be benefited or harmed. They were developed tointernalize externalities when the cost of internalization is lessthan the gains produced. “Mere pursuit” does not constitute possession. Ancient legal scholars determine that captureand mortal wounding constitutes possession.DISSENT said a reasonable prospect constitutespossession. Peace and order will be preserved if a very clear rule isestablished (reduce litigation and shape people’s behavior).DISSENT pushed for an instrumental outcome – to encouragesocially useful behavior (killing the awful beasts).

Ratione Soli (“right of soil”)- The landownerwould have the primary right to capture and it protected theowner’s land from trespassing. At the time the fox left alandowner’s land, the fox was no longer that owner’s property.Since the fox was not on someone’s land, it was subject to theright of capture. Animous revertendi-For animals thathave the intent to return, then the rule is that itremains yours even though it has left your land.Problem: How is a hunter to know what is in an animalsmind. Rule of increase-The person who ownsthe parent, owns the offspring.

Pierson v. PostFacts – Π ( Post) hunted fox with dogs and ahorse, through the wild. Δ ( Pierson), knowing the fox was hunted,killed it and took possession. Δ eventually wins the fox.Issue – Whether Π, by pursuit and intent to possess,took possessionRule – An entity can only become propertythrough occupancy. Pursuit alone cannot grant occupancy or right tothe property.Reasoning – By only pursuing the fox, Π had not deprived thefox of its “natural right” to liberty.

The fact that the fox could stillget away; he hadn’t demonstratably removed it from the realm of “ feraenaturae.”Notes – the dissent wanted this argument to go beforearbitration instead of a court, by having the regulators of the industry’srules apply. RichFacts – Π (Ghen) shot (bomb-lanced) and instantly killed awhale with a bomb-lance. Days later when the whale washed ashore, Δ bought,at auction, the remains from Ellis, some joe who found the dead carcass.Finding out that his kill had been sold, Π brought suit.Issue – Whether Π took the necessary steps towards possessionto sustain a claim for conversionRule – Ownership requires physical possession, except wherethe normal means of possession cannot practically be applied. In such casestaking those steps to appropriation customary to the trade will besufficient for possession.Reasoning – In an industry such as whaling, the nature of thehunt is such that to effectively capture a whale, one can only hope toinitially kill the whale and hope that its remains will rise for tow or bewashed ashore. By killing the whale with the intention of possessing it, Πeffectively established a future claim to the whale. Δ seeing that it hadbeen mortally wounded should have known it wasn’t his to sell. HickeringillFacts – Π built a decoy pond for catching wild fowl, which hesold for profit.

Δ, spitefully, tried to scare the wild fowl awayeffectively hurting Π. International News Service v. AssociatedPressFacts – The INS was taking news reports produced by AP andpirating by copying news from bulletin boards and from early editions ofcomplainant’s newspapers and selling this, either bodily or after rewritingit to Δ’s customers (also was bribing to gain stories, but this was allowedinjunction by District Court)Issue – Whether there is any property in news once released,such that would support an injunction.Rule – The news is quasi propertyirrespective of the rights of either as against the public, but with meritagainst competing reporting. Note-quasi property doesn’t make anysense-either you have rights, or you don’tReasoning – The news itself isn’t property (knowledge).How it is presented (the story, video footage) is protected. INS wasengaging in unfair business practices (similar to a tortious interference),which gives rise to the injunction. Chanel, Inc.Facts – Δ’s perfume claimed in advertisements to be theequivalent of the more expensive Chanel No. 5.Issue – Whether Chanel could exclude Δ from using the samescent and so advertiseRule – Without a patent, others are free andencouraged to copyReasoning – A large expenditure doesn’t create legallyprotectable rights without a patent.

The “free ride” taken by Δ serves animportant public interest by offerning comparable goods at lowerprices. Right to Include/Exclude. Include-right to give or sell to another;. Exclude-law of trespass protects the right toexclude. Laws of conversion protect exclusion fromchattels. Jacque v. Steenberg Homes,Inc.Facts – Δ had to deliver a mobile home and the easiest routewas across Π’s land.

Despite adamant refusal, Δ plowed a path through theirproperty. Π sued for trespassIssue – Whether Π’s right to exclude supports punitivedamages where nominal damages are awarded.Rule – Private landowner’s right to exclude others fromhis/her land is one of the most essential sticks in the bundle of rightsthat are commonly characterized as property.Reasoning – The right to exclude people from one’s propertyhas no value unless protected by the state (where nominal awards don’tconstitute state protection). ShackFacts – Δ entered Π’s farm (unauthorized) to aid migrantfarmworkers employed and housed there. Δ were convicted of trespassing towhich they appealed.Issue – Whether the Π’s right to exclude may stand betweenthe migrant workers who live on his land and those who they would wish tobe on the propertyRule – A man’s right in his property isn’t absolute.

It was amaxim of common law that one should so use his property as not to injurethe rights of others.Reasoning – The migrant worker must be allowed to receivevisitors of his own choice, so long as there is no behavior hurtful toothers.Note-These two cases present two legal rules and a uniqueset of facts. As a laywer, have to determine which side of the line a casefalls oneither no right to exclude (State v. Shack) or absolute right toexclude (Jacque). Acquisition by FindLostMisplacedAbandoned1) unintentionally1) voluntarily placedin a particular place,1) intentionallyand2) involuntarilyparted with it through neglect or inadvertence, and2) intending o retainownership2) voluntarilyrelinquished3) does not know whereit is3) but the failing toreclaim it or forgets where it isLost property:finder IS entitled to possession against everyoneexcept the true owner. See exceptions on page120Mislaidproperty: a finder of property acquires NO rightsin mislaid property.Abandonedproperty: the finder IS entitled to keep abandonedproperty.

Abandoned—Owner has discarded orvoluntarily forsaken with the intention ofterminating his ownership, but without vesting ownership inany other person. FINDER has right to it against all otherclaim except the true owner. Lost Property—Property which the owner hasinvoluntarily and unintentionally parted withthrough neglect, carelessness, or inadvertence and does notknow the whereabouts. FINDER of property has right to itagainst all other claims except the original (true)owner. Armory v. DelamirieFacts – Π being a chimney sweeper’s boy found a jewel andcarried it to Δ’s shop to figure out what it was.

PeelFacts – Freehold Estate was conveyed to Δ (Peel) who neveroccupied the house. It was used for quartering soldiers. Π (Hannah) whilebeing quartered there, found a brooch which was not known of by the Δ.Issue – Whether the owner of a house possesses all objectswithin that house even if that owner has never resided in that house.Rule – A man possesses everything which is attached to orunder his land, but does not necessarily possess a thing which is lyingunattached on the surface of his land even though the thing is notpossessed by someone else.Holding – Judgment for Π.Reasoning – Since he was never physically in possession ofthe premises at any time, the brooch was never his since he had no priorpossession. He had no knowledge of it until it was brought to his attentionby the finder.

Since the brooch was “lost” the finder has the superiorclaim to title.Animus Possidendi – Possession with knowledge and intent to hold forones own benefit.Mislaid—That which the owner has intentionally set down in a placewhere he can again resort to it, and then forgets where he put it. TheOWNER OF THE PREMISES ( locus in quo) has the duty to safeguardthe property for the true owner. The owner of the property has a rightover the finder to property. MedinaFacts – Π (customer in Δ’s (barber) shop) found a pocket bookwhich was lying on a table. He informed the Δ who came over, counted themoney, and retained the pocket-book at Π’s request in hopes of finding thetrue owner. Van Valkenburgh v.

LutzFacts – ( Yonkers Adverse Possession Driveway) TheLutz’s bought at auction two wooded lots in Yonkers (1912), and built adriveway on another lot along with a garden, a chicken coop, and storedsome junk. Van Valkenburgh, a feuding neighbor, bought the land atforeclosure (1947) and fenced off the property, blocking what the Lutz’sclaimed to have a prescriptive right (right to use, without claimingownership) to as his only access to his property (1948). He then claimsAdverse Possession (1950). Trial court awarded Lutz the right away, and theAppellate court upheld the decision. Van Valkenburgh appeals to thiscourt.Issue – Whether there is evidence showing that the premiseswere cultivated or improved sufficiently to satisfy a claim to adversepossession.Rule – To acquire title to real property by adversepossession it must be shown by clear and convincing proof that there was an“actual” occupation under a claim of title by cultivating or improving theland.

Color of Title and Constructive Adverse Possession. Color of Title – a deed or other instrument of conveyancethat purports ( but fails) to convey title to the landdescribed in it. Advantages:. Makes it easier to satisfy the elements of adversepossession. Constructive possession (get all the land in the title, not justwhat was occupied/possessed). Law of Prescription – Statute of Limitations for AdversePossession.

Quieting Title – an action to resolve title againstadverse claims. Mistaken Improvers – Courts used to order mistakenimprovers to remove their property. Now: decide if property ownerwas irrevocably damaged, if not, usually force a conveyance.

(Seecase below). GorskiFacts – ( Stairwell encroaching on neighbors property)Gorski built an outside stairwell connected to his mom (Δ’s) house, whichencroached on the property of Mannillo by some 15 inches. Δ states that shehas title to said land by adverse possession, while Π asserts that therequisite hostile nature is lackingIssue – Whether an entry and continuance of possession underthe mistaken belief that the possessor has title to the lands involved,exhibits the requisite openness necessary for a successful adversepossession claim.Rule – Intent is irrelevant to a claim of adverse possession( Connecticut Doctrine). KuntoFacts – ( Summer home built on wrong lot) Prior owner’sdeed to Δ’s property described a neighboring lot to the one the house wasbuilt on.

Δ (The Kuntos) took possession of the disputed property under adeed from a family who procured the lot from the original prior owner. Theneighboring Howards (Π) desiring to convey half of their land had theirland surveyed. This survey indicated the error, and revealed that theKunto’s house lay on the Howard’s land. Action was brought to quiet titlein the Howards, and the court upheld this action stating that the Δs failedto prove their continuous possession sufficient to tack onto the adversepossession of the preceding owners. The Kuntos appeal.Issue – (1) Is the continuous requirement of adversepossession defeated by only summer occupancy?

Snyder. Discovery Rule-the statute of limitationsdoes not start to run until the injured party discoversor should have discovered through reasonable diligence(due diligence), the facts that cause the cause ofaction. The purpose of this rule is to mitigate harshresults of the statute of limitations.

The discovery rule shifts the burden of proof on thetrue owner. They have an obligation to not sleep ontheir rights. Due diligence includes taking all reasonablemeasures available to the owner.

Void Title-if the true owner has neverintended to give title away it is void. Good faithpurchaser can’t get a void title. Voidable Title-title which may be voided bytrue owner, good title—title was meant to be passed on,it is voidable and you can only get damages. Good faithpurchaser can get a clean title for a voidabletitle. Acquisition by Gift. Intent to make a gift—may be shown by oralevidence. Intent can be express or implied by what is saidand done.

Delivery of gift—must be shown by objectiveacts-shows intent to give and helps prevent fraud.Generally, actual delivery is required. Actual—if an object can be handed over,it must be actually delivered. Constructive—if an object cannot bedelivered because it is impractical (too large orheavy) or it is inaccessible, constructive deliveryis allowed. Generally, it is handing over a key orsome object that will open access to the subjectmatter of the gift. Symbolic—delivery is handing oversomething symbolic of the property given. Normally,it is a written instrument declaring a gift of thesubject matter.

Acceptance. Types of gifts:.

Inter vivos—gifts between theliving. Causa Mortis—gifts made incontemplation of the donor’s eminent death (i.e. Ondeathbed). Requires one witness. If donor lives, the gift is revoked. If donee already has possession of item,it must be redelivered to be a validgift.

Substitutes for a will. Newman v.

BostFacts – Intestate of D allegedly gave P all his furniture andproperty in his dwelling as a gift in preparation of death. He gave P hisprivate keys and pointed at the bureau, the clock, and other articles offurniture in the house by pointing in the direction of various rooms.Issue – Was giving the keys only a constructive delivery ofitems the keys open or a more symbolic delivery—giving everything inhouse?Holding – Court ruled it was only constructivedelivery as the items could not be manually delivered, and P was entitledto things the keys opened, but not what was inside those items—those itemswould have to be physically delivered).Rule – Two things are necessary to make a gift: intention anddelivery. GruenFacts – Father wanted to give his son painting so hewrote letter expressing that intent.

However, he wanted his son to have thepainting after he died because he wanted to keep it for the duration of hislife.Issue – Whether a valid inter vivos gift of a chattel may bemade where the donor has reserved a life estate in the chattel and thedonee never has had physical possession of it before the donor’s death.Rule – The delivery necessary to consummate a gift must be asperfect as the nature of the property and the circumstances andsurroundings of the parties will reasonably permit.ESTATES IN LAND. Intro and Historical Background: The Fee Simple; FeeTailA. History-Up from Feudalism.

Feudal hierarchy: pyramid scheme w/ the Kingat the top. Land held by those below; owed duties tothose above. Freehold tenure: tenure of free men. As close to ownership as holders of theland. Developed into our concept of ownership ofland. Non-Freehold tenure: tenure of peasant workland (surf/villein).

Akin to renting.Fee Simple Absolute. “to A and his heirs” – lasts longer than life. “ToHeirs” no longer needed- as this is the default estate.It is assumed the testator or owner was trying to giveaway as large an estate as he himself had. Exclusive right to possession, use, and enjoymentwithout condition or limitations. Freely transferred, given by will or throughintestacy.

Perpetual duration. No restraints on alienation.

The estate will pass to a succession of heirs. Ifthere are no heirs, the estate escheats to thestate.

The Fee Tail. An estate in land that passes from one generation tothe next only in one family line; has a restraint ofalienability. Can be specified: fee tail male, female, etc. Always followed by a future interest – reversion orremainder.

“A and the heirs of her body”. Generally looked at as a FSA now. Fee tail = largelyunrecognized or enforced.

The Life Estate. At early common law- “To A.” Modern language – “To A forlife.”. Factors.

Finite duration. Right to exclusive possession, use, and enjoymentfor life. Right to alienation of the land – many interests canbe created out of it, but it ends at the death of thelife tenant. The life tenant may not be reimbursed forimprovements beyond general care.

Similarly, there isno duty to insure the premises. The grantor of a life estate can control who takesthe property at the life tenant’s death. “To Afor life, then to B.”.

A life tenant cannot sell a fee simple to someoneunless all other persons having an interest in theproperty consent or unless a court of equity orderssale and reinvestment of the proceeds. Obligation not to “waste”:. Life estate pur autre vie: Lifeinterest measured by the life of anotherEXAMPLES. O conveys to A for life. Example: “to A for life.” This gives theproperty to A for life, and then back to thegrantor upon A’s death (a reversion). To A for the life of B = life estate pur autrevie.

Valuation of a life estateThisis a present value calculation. If the home is worth 100,000 and the lifeexpectancy table says you have 10 more years to live then the present valueis N = 10 years, I = 6% (average ror), pmnt = 6000/year, PV = about 45,000or 45% of current value. Remainder is 55%.White v. Brown.

Facts — Testatrix dies with will stating for P to haveher home to live in and “not to be sold.”. Issue – This is a life estate if life estate then theremust be an implicit reversion (to whom and how???) or it is a feesimple with a restraint on alienation. Rule – absolute restraints upon alienation are void, itis just a fee simple. In ambiguous cases, courts.

try to carry out the intent of intestate – lookto language of instrument in light of surroundingcircumstances. presume a fee simple over a lifeestate. Dis-favor partial intestacies.Baker v. Weedon. Facts — Weedon and Anna worked the farm together (Wmarried A when she was 17). Told Anna to remarry when he died, shedid. Weedon’s will left everything to Anna and her children (if shehad any).

If she dies w/o kids, all go to his grandchildren. Heleft nothing to his children. Issue – Anna has life estate.

Vested remainder. Contingent remainder. Executory interest. Reversion = The interest left over when the owner givesless than the estate that he has and does not provide for who is totake the property when the lesser estate expires. The interest remaining in the grantor who transfers avested estate of a lesser quantity than that of the vestedestate which he has.

Examples. Example: “O to A for life.” O has a reversion inthe property.

Example: “to A for life, then to B and his heirsif B survives A.” O still has a reversion interesthere of some degree. B has a contingent remainderin fee simple absolute. A reversion is transferable during life and descendibleand devisable at death. A reversion always follows a contingent remainder. Thisis because the condition precedent may not happen, and inthe event it does not, O gets his reversion. A reversion is not a remainder because it is notreceived by anyone other than the transferor.

Additional Examples. “O to A for life, then to B if B gives A aproper funeral.” – B has an executory interestbecause he must act to divest O. O will be divestedin this case if B gives A a proper funeral. “O to A for life, then, one day after A’s death,to the heirs of A.” – Creates a springing executoryinterest in those who will be A’s heirs. “O to A and his heirs five years from the dateof this deed.” – A owns a springing executoryinterest. “O to A and his heirs, but if A marries X, to Band his heirs.” – B owns a shifting executoryinterest. “O to A for life, then to B in fee, but if B orhis successors sell liquor on the premises, then toC in fee.

– A has a life estate. B has a vestedremainder in fee subject to an executorylimitation.

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C has a shifting executory interest infee. An executory interest is a future interest in atransferee that can take effect only by divestinganother interest. The difference between takingpossession as soon as the prior estate ends and divestingthe prior estate is the essential difference between aremainder and an executory interest.General Future Interest Rules. An executory interest must follow a vested remainder.

It cannever follow a contingent remainder.Acontingent remainder must follow another contingent remainder. Destructibility of Contingent RemaindersRule Against Perpetuities (intended to destroy contingent futureinterests)a. “No interest is good unless it must vest, if at all, not later thantwenty-one years after some life in being at the creation of theinterest”i.

If a grant fails the Rule Against Perpetuities then the contingency isvoid at the outset (even if it is very likely to vest within the requiredtime)b. When do we apply the Rule?i. Consider the interest when the grant is made:1. At the time of conveyance (for inter vivos transfers), OR2. At death (for a will)ii. Ask what might happen don’t worry about what does happenc. Age doesn’t matter when considering RAPi.

Any living female is capable of having children1. Fertile octogenarian & precocious toddlerd. Interests covered by RAP.i. Contingent remaindersii.

Executory interestsiii. Class gifts1. Vested remainders subject to open (the class is open)Approach to RAP1.

Identify interest subject to rule.2. Identify when interest will vest (or when it will fail to vest)3.Identify everyone associated with that vesting event (they might notall be alive).4. Determine if any of them are currently alive5. Must the vesting (or failing) even occur within 21 years of thatperson’s deatha. If person’s death has no effect on whether the gift vests or fails tovest, there is no reason to consider that personb. When does the interest vest?i. Contingent remainders – when condition precedent occurs and/or theperson is ascertainedii.

Executory interests – when the limitation (or condition subsequent)occursiii. Class gifts – when all people in class diec. If individuals directly connected to vesting event are not yetalive AND the gift does not contain a specific 21-year (or less) limitationit most certainly fails the RAPi. “to A for life, then to the first child of A to land on the moon”(FAILS)ii. “to A for life, then to the first child of A to reach 21 years of age”(GOOD)d. Who are lives in being? (Potential Validating Lives)i.

Someone specifically mentioned in the conveyance who is alive at thetime of the conveyance (either inter vivos or will)ii. Someone not specifically mentioned, but who is necessarily a part ofthe conveyance, who is alive at the time of conveyancee. Charity-to-Charity Exception (public policy consideration)i.

If both gifts are to charity then RAP isn’t appliedE.g. “to the Moscow School District so long as it is used for schoolpurposes, otherwise to the Latah County Conservancy.”a. This gift violates the RAP but we’ll allow it. Common Law Concurrent InterestsCONCURRENT OWNERSHIP:. Tenancy in Common: basic form of co-ownership. Presumed in ambiguous cases – it is presumptive.

No magic words necessary to create tenancy in common. Tenants in common own a separate butundivided interest in a piece ofland/property.

Freely alienable, descendible, and transferable(no survivorship rights). Only need unity of possession. Ex: If Blackacre is given to A&B. Adevises property through will to E&F. A & B are tenants in common. E, F, & B would be tenants in common, withE&F having a quarter share a piece. Joint Tenancy:.

Two differences of form:. Must have unity of the following: Ifone of the unities is severed, so is thejoint-tenancy.

Tenants are made tenants incommon. Benefits easement owner personally rather than in connectionwith the use of land which that person owns. There is no dominant estate, only a servient state (nobenefit to any land).

May be alienable or inalienableFive Types of Servitudes:i. Easement – A is given the right to enter upon B’s landii. Profit – A is given the right to enter upon B’s land andremove something attached to the landiii.

Negative easement – A is given the right to enforce arestriction on the use of B’s landiv. Real covenant/Equitable Servitude – A is given the right torequire B to perform some act on B’s land (depending onremedy sought)v. Equitable Servitude/Real Covenant – A is given the right torequire B to pay money for the upkeep of specified facilities(depending on remedy sought)2. Creation of Easementsa. First Church of Christ, Scientist– former land owner sold land with agreement that adjacentchurch be allowed to use unoccupied lot for parking (easement).

P wasunaware of easement, which was not on deed and brought suit to quiettitle.i. Common law rule rejects conveyances that vests interest in third parties(court abandons this rule)ii. Courts primary objective in construing a conveyance is to give effectto intent of the grantor deduced from “the four corners” of thedocumentiii.

Courts examine the injustice of refusing to give effect to thegrantor’s intent versus the result of failing to give effect to anindividual’s reliance on old common lawiv. Rule: A grantor may, in a deed to real property, reserve an interest inthat property for third partiesb. Reservation – a provision in a deed creating some newservitude which did not exist before as an independent interest1.

E.g., O conveys Blackacre to A reserving a 20-foot-wideeasement of way along the south boundary of Blackacre. The easement did notexist as an independent interest prior to the conveyance by Oii. Exception – a provision in a deed that excludes from the grantsome preexisting servitude on the land1.

E.g., A conveys Blackacre to B, except for the easementpreviously reserved by Oiii. Regrant theory – an easement “reserved” by the grantor was nota reservation at all (which would be void), but a regrant of aneasement by the grantee to the grantor1. Convey land, then regrant it back, but it worked like an easementiv. License – oral or written permission given by the occupant ofland allowing the licensee to do some act that otherwise would be atrespass1. A license is revocable whereas an easement is not3.

Easement Created by Estoppela. Easement created by estoppel – if a licensor grants a license onwhich the licensee reasonably relies on to make substantial improvement tothe property, equity requires that the licensor be estopped from revokingthe license.b. License made irrevocable through estoppel continues to exist until thereasonable expectations of the parties have been satisfiedc. Taylor – Ppermitted D to use roads across his land to access another property where Dis building a house.

D widened road and graveled part of it to help useiti. No easement by prescription – no prior adverse use; use was with Pspermissionii. Easement by estoppel – licensee reasonably relied on P’s permission,and made improvements, so “ can’t revoke the license giveniii.

Rule: An oral license is just as valid, binding, and irrevocable as adeeded right of way4. Easement Created by Implicationa. Quasi-easement – you can’t have an easement on your own property,but you can make use of one part of your land for the benefit of anotherpartb. Implied easement – arises where the prior use was or might havebeen known of by the parties and it is reasonably necessary to the use ofland such that the parties can be assumed to have contemplated itscontinuancei. Elements necessary to establish an easement implied from prior use:1.

Common owner prior to division2. Prior use must be reasonably necessary for the use and enjoyment of the“quasi-dominant” estate3. Prior use must be continuous, not sporadic4.

Property Dukeminier 8th Edition

Parties must intend, at time of division, to continue the prior use5. Prior use must be existing at the time of division6. Prior use must be apparent, but doesn’t necessarily mean that it isvisiblec. Royster – Pdiscovered his basement filled with sewage from D’s house. D had beendraining sewage across P’s land.

P sued to stop this practice.i. Prior owner of both lots had created a quasi-easement, so easement byreservation implied from prior use had been validly created when sheconveyed title to each of the purchasersii. Rule: if dominant and servient tenement come into same ownership,easement is extinguished, and will not be revived by the land being dividedagainiii. But new easement by implication may be created, if intended5. Easement by Implied Necessitya.

Easement by Implied Necessity – where a common owner has dividedproperty in such a manner that an easement for access is necessary (ifyou’re landlocked)i. Only permitted for right of way – ingress & egress betweenlandlocked parcel & public roadii. Common owner prior to division1. An easement implied by necessity cannot burden property never owned bythe common grantor who created the problemiii. Necessity must exist at the moment the property isdivided. No prior use is neededb. Rosier – Hill owneda large parcel of land, which he divided up & sold.

One of the parcelswas landlocked and acquired by Othen (P), who would cross Rosier’s (D) landto reach a public roadi. When Hill had conveyed parcel to Rosier, he had owned other land thatwas contiguous to Othen’s parcel and a public roadway.

Othen had aneasement implied by necessity across some other property, but notRosier’sc. Easement by necessity lasts as long as the necessity exists; ifnecessity is removed (by creating a new public road), the easement isterminatedd. The servient estate owner is permitted to select a reasonably convenientlocation for the easement because he can best minimize the damage to theservient estate6.

Easement by Prescriptiona. Easement by Prescription – adverse use for a sufficient period oftime can ripen into an easement by prescriptioni. Required to establish prescriptive use: adverse use under a claim ofright that is open and notorious, and continuous for the prescriptiveperiod1. Adverse – when owner objects, some courts say that owner musteffectively interrupt or stop the adverse usea. A permissive use can become adverse if user does things that areinconsistent with permission2. To be open & notorious, the adverse use must be conducted so thatthe use may be discovered by any reasonable inspection (not in secret orconcealed)3. Continuous use – use has to be consistent, not constant4.

Prescriptive period – same time period as adverse possession (20years)ii. Exclusive use of the property (in Othen, not exclusivebecause both landowners used the road, so it wasn’t an easement byprescription)1. Exclusivity doesn’t require that only claimant made use of the land, butthat his claim doesn’t depend upon a like claim in others.

So in moststates, can get this even if servient owner uses it toob. Public prescriptive use – can be acquired by the public atlargei. Owner must be put on notice that that adverse right is being claimed bygeneral public, not by individualsc. Custom – beach front property owners own the dry sand part of thebeachi. Common law held that public acquired a customary right to use dry sandpart if that use has gone on so longii.

To establish this customary right the public must prove immemorialusage without interruption that is peaceable, reasonable, certain andconsistent with other customsiii. Prescriptive easement of beaches not likely because courts presume theuse of beaches is at owner’s permissioniv. Implied Dedication – where the owner intends to dedicate hisproperty to public use.

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Evidence of intent is inferred from long-standingpublic use and owner’s failure to halt the usev. Public Trust Doctrine – beach access – state holds in publictrust the beach from the water to high tide line (set sand area). Thisis to enable the public use of tidal waters and landsd. Bay Head Improvement Association– Dry sand beaches were owned by a non-profit thatrestricted access of dry sand beaches to residents of Bay Head and theirguestsi. Court ruled private beachfront landowners organized as a“quasi-public” entity must give general public access to and useof privately-owned dry sand areas as reasonably necessaryii. Court said under public trust doctrine members of public must begiven “reasonable access ” to foreshore and be permitted to useprivately owned dry sand areas of beach when such use is “essential orreasonably necessary” for enjoyment of the ocean7.

Assignability of Easementsa. Appurtenant – passes automatically with the dominant interestb.

Easement in gross (general rule) – not transferable unless it isfor commercial purposesc. Lutheran Conference & CampAssociation– Pocono grants to Frankand heirs & assigns the exclusive right to fish and boat in the lake.Frank granted Rufus ¼ interest in right to fish, boat and bathe in thelake. Rufus dies and his estate granted licenses to Lutheran to boat, fishand bathe in the lake. Frank sued to stop Lutheran from use of the lakei. Since Frank never had bathing rights his conveyance of them was void1. Court said bathing right acquired by prescriptive use, so there was aneasement in gross acquiredii.

If there were bathing rights, they were in gross, so neither divisiblenor alienable1. Since this was a commercial easement, it was intended to betransferable2. But, even though they were transferable, they were not divisibled. Recreation easements in gross are not assignable – intended to bepersonal, and we don’t want to burden the servient land beyond the originalcontemplation of the partiese. Easement in gross is divisible when the creating instrument so indicatesor when the easement is exclusive (or it would create a burden onservient estate)8. Scope of Easementsa. To determine scope look at intention of parties creating theeasementb.

Extension/Enlargement – an easement cannot be used for thebenefit of land that is not the dominant estatec. Voss – easementexisted between parcel A (servient) and parcel B (dominant). B subsequentlyacquired another parcel of land and used the easement for both parcels ofland. There was no increase in burden to the servient estate by thisuse.i. Rule: When and easement is created by an express grant, the extent ofthe right acquired is to be determined from the terms of the grant properlyconstrued to give effect of the intention of the partiesii. Grant gave easement to parcel B, not parcel C. Doesn’t matter that C isnow combined into same ownership with dominant estate: have to look at whatparties intended to agree on when easement was creatediii.

Rule: An easement appurtenant to one parcel of land may not beextended by the owner of the dominant estate to other parcels owned by him,whether adjoining or distinct tracts, to which the easement is notappurtenantiv. Rule: Just because there is no added burden on the servient estate,doesn’t mean that there’s no misuse of the easement. If an easement isappurtenant to a particular parcel of land, any extension to other parcelsis a misused.

Notes, Questions and Problemsi. Easement owner can use servient estate as reasonable, even if changedfrom original use because of normal development, but must be reasonableii. A private easement of way usually doesn’t permit the easement ownervto install on the easement utilities like electrical lines or sewer pipesbecause such uses are not reasonably foreseeable by the parties – theeasement was created to give a way in and off the property.iii. Location – the location of the easement, once fixed by the parties,cannot be changed by the servient owner without permission of the dominantowner1. Restatement – permissible for servient owner to change location, at hisexpense, as long as it doesn’t lessen the utility of the easement, orincrease burdens on easement owner’s use and enjoyment, or frustratepurpose for which easement was created.iv. Scope of prescriptive easement – use not confined to the usesmade during prescriptive period.

But, uses made must be consistent with thegeneral kind of use by which the easement was created and what servientowner might reasonably expect9. Termination of Easementsa.

Easements are extinguished in a number of waysi. Release – a waiver; generally it must be written to comply withstatute of fraudsii. Expiration – expires by its terms if by grant e.g. Stated periodof time or when purpose of easement has ceased1. Necessity – easement by necessity expires when the necessity iseliminated2.

Purpose – purpose of easement expires (“so long as”)3. Estoppel – expires when licensee gets full value of expendituresmade in reliance on the licenseiii.

Merger – if dominant and servient estate merge (have sameowner), easement is extinguishediv. Estoppel – if servient owner relies upon a statement orrepresentation by easement ownerv. Abandonment – if easement holder manifest a clear and unequivocalintention to abandon the easement ( Preseault)1. Mere nonuse will not suffice2. Abandonment is established by either (1) a present intent to relinquishthe easement or (2) a purpose inconsistent with its future existence3.

Can be abandonment if not used within a statutory period4. Act of obtaining alternative means of access to the dominant parcelcould constitute an intent to abandonvi. Condemnation – if the government exercises their eminent domainpowervii. Prescription – if servient owner wrongfully and physicallyprevents easement from being used for prescriptive period, the easement isterminatedb.

United States –RR had a right of way easement on Ps property for its rail line. RR ceasedoperations over that portion, & removed tracks. RR then entered intoagreement with U.S.

For the lines to be used as a public trail. P suedbecause government taking their property.i. Since estate was acquired solely for RR’s needs it was an easement not afee tail1. Intent was to grant an easement for RR lines and it was not reasonablyforeseeable that it would be used as a public trailii. There was also a different, not foreseeable, nature of use (scope ofconveyance)1.

I.e., private, RR v. Public, non-commercial use2.

Also different degree and nature of burden on Ps landiii. RR intended to abandon easement when they removed RR tracks;there was no intent to revive use of easement1.

Mere nonuse will not suffice to prove abandonment2. Abandonment is established by either:(1) A present intent to relinquish the easement or(2) A purpose inconsistent with its future existencea. Can be abandonment if not used within a statutory periodb.

Act of obtaining alternative means of access to the dominant parcelcould constitute an intent10. Negative Easementsa.

A negative easement is the right of the dominant owner to stopthe servient owner from doing something on the servient landi. Common law (England) traditional negative easement – right to stopneighbor from interfering with light, air, support of home (walls), andwaterii. English courts don’t like creation of new negative easements so courtsdecide no more than 4 traditional.iii.

Today negative easements are usually treated as equitableservitudesb. American courts accepted the English restriction on creating new typesof easementsc. Sometimes a new easement is recognized as an equitable servitude11. Conservation and Other Novel Easementsa. Conservation easement – developed to preserve historic or scenicareas; prevents servient owner from building on the land except asspecified in the grant.i. Statutes enacted in almost all states authorizing conservationeasementsii.

Perpetual, transferable and can be in grossiii. Owner will give the easement to a non-profit/ public/charitableorganization for free, and usually gets tax deductionsXXIV. Covenants Running with the Land; HistoryXXV.

Termination of CovenantsCovenants, like easements, can be terminated in a number of ways. Thefollowing reasons apply. Merger. Release. Acquiescence.

Abandonment. Unclean hands. Laches. Estoppel. Express terms. Prescription.

Condemnation. Foreclosure/Bankruptcy. Changed conditions. After a reasonable timeWestern Land v. TruskolaskiFacts: Subdivision of development outside of Reno, Nevadacontained covenants restricting subdivision to single family dwellings andprohibited commercial development. These lots were subjected to thecovenants in 1941 but since substantial changes have occurred affecting thecharacter of the neighborhood since that time.