Property
Class Notes
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
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.
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.