Easements - Millbrook Hunt, Inc. v. Smith

Easements Easements non possessory right to use another’s land Right to cross, right to use – positive easements Keeping someone from doing something –negative easements Must be conveyed in writing and therefore subject to Statute of Frauds Types of Easements 1. Express easement - (most common) 2. Implied easement (by prior existing use) 3. easement by necessity 4. prescriptive easement 5. easement by estoppel (aka irrevocable license) Modern easements Conservation & Wildlife Easements Air light & Wind Easements Noise, Odor & Particulate Easements Telecommunications Easements Cell Phone Tower Siting Special Terminology Property the land benefitted by the easement is called the Dominant tenement or Dominant land the land which is burdened by the easement is the servient tenement or servient land Parties the easement holder is called the dominant owner the owner of the servient tenement is the servient owner Appurtenant or in gross an appurtenant easement benefits the holder in their use of a specific parcel of land, the dominant tenement. An easement in gross is not connected to the holder’s use of any particular land; rather it is personal to the holder does not benefit any particular piece of property, but benefits an individual or group of people Affirmative or negative an affirmative easement = holder can perform and act on the servient land a negative easement = holder can prevent the servient owner from performing an act on the servient land. Creating Easements Express easement an easement which is voluntarily created by the servient owner, usually ina a deed Express easement by grant – when the servient owner grants an easement to the dominant owner Express easement by reservation – when the dominant owner grants the servient land to the servient owner but retains or reserves an easement over the property. Millbrook Hunt, Inc. v. Smith Millbrook Hunt, Inc. v. Smith Berge v. State of Vermont Berge v. State of Vermont easement by necessity is always about access was the property owned by one person at one time and then sold off in the process of selling off did any of the sold portions lose access to their property absent an easement force other property owners to give an easement to the landlocked property but only if it is necessary. strict necessity is not required. test in AZ is strict necessity however, we still require access to a public road (only semantic) Van Sandt v. Royster Van Sandt v. Royster quasi easement = using one part of your land to benefit another part of your land something that looks like an easement but is just on one persons land (quasi because you can’t have an easement against yourself) example = house on hill above the beach owner of house and hill walks down the hill to get to the beach using the hill to benefit the house owner of land sells part down the hill to someone else, (severance) does the owner of the house have an easement across the land they just sold Implied easement Elements 1. All of the land has to have been owned by one person at one point in town and then that land must have been severed (split off and sold to other people) 2. existing, apparent, and continuous quasi easement during the time it was all held by one person was there an existing, apparent and continuous quasi easement 3. Reasonable necessity Least cost avoider who could have avoided this at the lowest cost - we put liability on them often explains when court decisions don’t clearly fit within the delineated rule Prescriptive Easements assuming permission & the nature of the neighbors adverse possession without the exclusivity requirement of the owner adversely possessing a use on someone’s land, not the ownership everything required for adverse possession but sharing the property with the owner. A person claiming a prescriptive easement must prove each of the following elements: (1) the adverse use of another’s land; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was actually known to the owner of the land, or so open, notorious and visible that a reasonable owner of the land would have noticed the use; and (4) the reasonably identified starting point, ending point, line, and width of the land that was adversely used, and the manner or purpose for which the land was adversely used. O’Dell v. Stegall O’Dell loses because no one joined the actual owner to the dispute so there is no way they can prove the adverse element O’Dell could have permission In this case, O’Dell (P) failed to show that his use of the gravel lane was adverse. In part, this is because he wholly failed to show that the Stegalls (D) owned the land upon which the gravel lane rests. Furthermore, O’Dell (P) failed to show that the prior use of the gravel lane was in any way wrongful toward, or without the express or implied permission of, the owner. Nothing in the record suggests that the use of the gravel lane was anything more than a neighborly accommodation by the owner of the gravel lane. Pyle v. gilbert drainage question - who can drain onto who’s land. Easements in the 21st Century Implied Easement Van Sandt v. Royster Case Test 1. All land was owned by 1 person who subdivided 2. Before subdivision, there was a quasi-easement (was it existing, apparent, and continuous) 3. Reasonably necessary Also look to least cost avoider Easement by Necessity ALWAYS about access to land Standard 1. On person has to own all of the land at one time 2. they have to subdivide it and in this subdivision must land-lock a former parcel of the state 3. that landlocked parcel will be given an easement by necessity 4. Reasonable Conservation Easements quintessential negative easement must have a public purpose Easement By Estoppel someone made you a promise you reasonably relied upon it you substantially changed your position in reliance to your detriment (or prejudice) Kienzle v. Myers Kienzle v. Myers AN EASEMENT MAY BE CREATED BY ESTOPPEL An easement by estoppel may be found when an owner of property misleads or causes another in any way to change the other’s position to his or her prejudice. The rule simply states that if an owner misleads or causes another in any way to [substantially] change his or her position to that party’s prejudice, the owner is estopped from denying the existence of an easement. In order to establish an easement by estoppel, the party claiming the easement must show not only use with the permission of the property owner, but he must show that he or she changed his or her position because of that permitted use. It is only when the person claiming the easement changes position —such as by expending a considerable sum of money to take advantage of the easement—that the possibility of an easement by estoppel arises. Best counter argument is reasonableness Terminating Easements Abandonment non-use + some evidence of intent not to use again OR - evidence of an ongoing use that is inconsistent with the nature of the easement Release or Merger buying back an easement or the land on which the easement Elimination by estoppel by necessity disappears the minute the necessity disappears Recorded agreement to terminate the easement Preseault v. United States - Abandoning an easement Preseault v. United States An easement will be deemed abandoned when the owner of the easement stops using it, and takes actions that conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence. An easement will be deemed abandoned when the owner of the easement 1. stops using it, 2. and takes actions that conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence. Non-use alone will not suffice to extinguish an easement. Common law Abandonment stopping using intended to stop using it continuously Fee Ownership - Fee Simple (symbol) absolute = you own all of the sticks “i own it in fee” = i own the vast majority of the sticks Drafting and Interpreting Easements Marcus Cable Assosciates, L.P. v. Krohn Marcus Cable Assosciates, L.P. v. Krohn THE USE OF AN EASEMENT MUST BE SIMILAR TO THE PURPOSE SET OUT IN THE GRANT While the common law recognizes that certain easements may be assigned or apportioned to a third party, the third party’s use cannot exceed the rights expressly conveyed to the original easement holder. The manner, frequency, and intensity of an easement’s use may change over time to accommodate technological development. But such changes must fall within the purposes for which the easement was created, as determined by the grant’s terms. 3 most important things about being a lawyer according to Prof. Larsen 1. be a good person 2. be a good reader and good writer 3. be a good negotiator a. control the pen - the first person to get the first document out has the advantage (set the terms of engagement)