Defn of property; Justifications

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Non-possessory Interests

Affirmative – can enter upon someone’s (burdened) land

Negative – like covenants – promise not to do something on the burdened


When grant is ambiguous - cts favor appurtenant easements

Determinable easement – subject to a condition for keeping it; don’t have to

use it all the time to keep it – just don’t violate the cond.


explicit – needs to be in writing (SofF)/ implied

  1. by estoppel

– temporary or permanent

  • when access is necessary to exercise another interest (like a profit)

  • AND/OR when a party has been using it and invests in owner-inducedreliance of being able to continue (then it’s irrevokable) (owner can’t change her mind later – Holebrook v. Taylor)

  • OR grantor didn’t complete all the formalities but intended the easement

  1. by implication - seems like grantor intended to allow it

  1. by prior use:

  1. estates were together

  2. owner used one estate to benefit the other

  3. apparent and continuous prior use

- when necessary uses that can be found by reasonable investigation = apparent (Van Sandt v. Royster)

  1. easement implied later for the same use necessity:

  1. necessity arose when 2 parcels were divided

  2. easement is necessary for use of dominant estate

  3. If it creates land-lock – the easement is across the formerly-joined parcel

  4. Stricter when grantor wants it – b/c they could have reserved it

  5. mostly don’t have to pay for it

seller is taking easement into account in the sale price

  1. sometimes you do

  1. by grant – owner keeps all rights but grants easement

  2. by reservation – grants all but the easement and keeps it

  • common law – can’t reserve an easement for a 3rd party but could grant top whoever

  • Now you can reserve an easement for a 3rd party (Willard v. Church of Christ Scientist)

  1. PrescriptiveAP of an easement

  • owner can defeat by interrupting use (have to physically, successfully bar people)

  • or giving permission (maybe implied permission – where the owner saw the person and waived to them all the time)

  • Requires:

  1. open and notorious use

  2. exclusive use (by 1 person or the public as a whole)

  3. without permission (adverse) and under claim of right

  4. continuous, uninterrupted

  • Sometimes when req’ments not met – ct will enforce it anyway – easement to access pubic beaches (Matthews v. Bayhead Improvement)

Passing to successors:

Burdens running with the servient parcel: (so that all successors have it)

  1. Directory: sites -> default -> files -> upload documents
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    upload documents -> Federalism – The Structure of Government
    upload documents -> General Info About Property law
    upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
    upload documents -> Property with Professor Vicki Been
    upload documents -> Property Outline – Professor Upham, Spring 2000
    upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
    upload documents -> Complex federal investigations
    upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
    upload documents -> Pricing v. Sanctions

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