Property Class Notes 4/9/04


More on Cordwell


The court held that there was no easement based on preexisting use because the use wasn’t apparent and because for at least some of the people they couldn’t show unity of ownership.  But is there an easement by necessity, that is, not contractual but based on public policy?


Easement by necessity


Here are its characteristics: (1) unity of ownership prior to severance, (2) a necessity that existed at the time of severance, (3) the necessity is great, and (4) this easement lasts only as long as the necessity exists.  The court finds that since the alternative route was reasonably adequate, there was no great necessity and thus no easement by necessity is implied.  It might be that the best way to get to the defendants’ property is through the Cordwell property, but it’s not the only adequate way to get there.  But what if there had been an easement by necessity found?  We want to make land productive, but we’re not going to force one party to give an easement to another without compensation.  In many states, particularly Western states, they have something like private eminent domain statutes.  They eliminate easement by necessity, but they create a process by which a neighbor can acquire a right of way and a cost is established for it.  This probably had something to do with the “big barbeque” (?) where alternating parcels of land were given to the railroads and private parties.  The private parties could get “land-locked” parcels and they would need a way to get in and out.


Where will we place the easement by necessity?  How do we balance best access for the dominant party versus inconvenience to the servient party?  It’s kind of muddy.  There is a famous case in Maine where the only access to land was by sea.  The court there said that a lot of land is like that in Maine and that’s okay.  But in most places, access by water only is not sufficient; you’ll be entitled to a road.  It depends on the location of the land and what it’s used for.  But necessity for the purposes of easement by necessity will usually let you get to a “land-locked” piece of land.


Easements by prescription


These are a lot like adverse possession, though there are some differences.  There is no statute that authorizes prescriptive easements.  Therefore, courts have analogized to adverse possession, including the prescriptive time.


Plettner v. Sullivan


We have a row of chickenhouses and a road to the west of it that would be owned by the Sullivan but for adverse possession and prescriptive easement.  The Plettners have been using the road for the prescriptive period.  What did the Plettners do on the land they’re claiming?  They planted trees and generally did the bare minimum.  The fence put up by the Sullivans was located in the road.  But there was no fence before.  The only activity in terms of adversely possessing the land west of the road was planting trees.  They acquire the ten-foot strip west of the road plus a prescriptive easement in the road.  But the only adverse use seems to be just planting the trees!  I guess that’s sufficient.  But why didn’t they acquire the road by adverse possession?  They didn’t prove that they occupied the road to the exclusion of the Hatchery.


The main difference between adverse possession and prescriptive easements has to do with the requirement of exclusivity, which is different for prescriptive easements than for adverse possession.


What other theory could the Plettners have argued?  Did the Hatchery own both parcels at one point?  Sure.  The Hatchery sold half of the land to the Plettners, then later sold the other half to the Sullivans.  Couldn’t the Plettners have argued for an easement based on preexisting use?  Could be.  The Hatchery used the road to access both parts of the land when they owned the whole thing.


Let’s say that A owns a tract of land adjoining a public road.  Let’s say that A sells the half of his lot that adjoins the public road to B.  There has been a driveway that was used by A to get from the back lot to the public road.  Compare this situation to a similar one except A keeps the lot adjacent to the road and sells the outlying lot to B.  Should there be any difference in the result in these cases?  When A sells off the back lot that doesn’t touch the road and B claims a preexisting easement, what is it that B is claiming that he got as a result of the sale?  He’ll claim that he got land plus an easement.  A gave B a warranty deed.  Does any of this breach any of the warranties in the deed?  No, because when A says to B that B gets the back lot free of encumbrances, that’s true!  A is giving B even more than what the deed states!  On the other hand, if A keeps the back lot and B gets the lot adjacent to the road, we have an implied reservation.  A is reserving to himself something that is not contained in the deed to B.  Does this breach the warranties of the deed or is it inconsistent with the warranties of the deed?  Yes, because B is getting land that is encumbered by an easement.  For this reason, some courts will not permit this situation, and other courts will say that you can have either an implied grant or an implied reservation to create an easement by preexisting use.


The views are changing!  The latest Restatement of Property says that the two cases above should be treated the same.  But most courts now would say that an implied reservation will require more necessity than an implied grant.


Irrevocable licenses – Camp v. Milam


Licenses can become irrevocable!  The Camps owned a bunch of land and they wanted to build a lake on it.  They contracted with Milam to build a lake, and in exchange they were supposed to give Milam some land.  Milam also owned a corporation.  The Camps executed a deed to the corporation in 1965, conveying 25 acres.  We have no idea why it’s 25 instead of 40.  The deed referred to an agreement that had been executed prior to the deed.  Here’s sort of a parol evidence rule deal: when there are earlier agreements and then a deed, the earlier agreements get merged into the deed and don’t have any further significance.


The Milams used the lake with the permission of the Camps.  But then they got a motorboat and used the lake in a way that the Camps didn’t approve of.  But what makes the license for the Milams irrevocable?  There must be expenditures made by the licensee, contemplated by the licensor, and acted upon so as to greatly benefit the licensor.  The licensor here is Camp.  How is Camp benefited by the Milams’ improvements?  Camp is benefited by the dam built by the Milams.  The court finds that this makes the license irrevocable!  The Milams spent $50,000 or so on the dam.


How long with the license last?  This is more or less an easement now.  It’s personal to the Milams.  It will end when the Milams leave.  It doesn’t run with the land and can’t be assigned or conveyed.  They will never acquire an easement by prescription because it will always be permissive now.  Does this make sense, even in the context of the case?  Braunstein thinks that the case isn’t even internally consistent!  We’ve already had one transfer, and it didn’t destroy the license.  Why is it that a second transfer would do so?  The court says that the license is in gross, personal to them, so when they leave, the license will end.  That doesn’t make much sense!  The First Restatement takes the position that the duration of an irrevocable license is measured by the length of time necessary to “reap the fruits of the expenditures”.  In other words, the license lasts as long as the dam lasts.  The Milams are being deprived of the value of alienating the land.  If the parties had bothered to sit down and put their intentions in writing, things would have been a lot simpler.  Once we start implying agreements for the use of real estate, we don’t know what their scope is or who is entitled to use it.  We’re leaving the courts to try to figure it out.


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