Private Land Use Controls

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  1. Private Land Use Controls

  1. Easements

Chapter 20 (pp. 909-923)

Upham’s favorite part: raises fundamental questions about human society and law’s role in it. Does it in a more focused way and in a way that is recognizable to all of us. How society structures living arrangements or the use of land, not just residential.

2 big ways society structures use – cities, condos, apartments, organize how physical assets are going to be allocated, under what rules. Forces people to cooperate

  1. Public Zoning Requirements: have society determine what the rules are going to be, pass through political process. Includes other public controls over land use: building/construction standards, environmental laws.

  2. Private land use: Contracts Principles. Have the government not intervene, and instead have individuals enter into consensual agreements, contracts, about how they are going to share the use of land. Book includes concurrent estates here, Upham disagrees, not a major tool in land use development. Group of tools individuals can use. See Wheeler/Morse, agreements created by individuals for their individual purposes.

Defeasible Fees: Get into the use of these tools for private land development. Already encountered in the Wolf case: exemplifies one tool for private land use, defeasible/determinable fees. Hallenbeck put in each deed that every grantee had to build a house of a certain price by a certain date. Wanted to control how the development was going to develop. Didn’t want to just sell the lot and hope it would develop in a way that would make it easy for him to sell unsold lots. Wanted to be able to tell anybody coming in was that everybody in the development would live in an expensive house. Required that they be built by a certain date. Back then he chose a defeasible fee, he wouldn’t do that today. Can lead to a forfeiture, that’s what he wanted. Ran up against a court that would interpret his deed against his interest, driven by the nature of the times and the universal policy that courts will avoid forfeitures, particularly when it comes to land.

Easements: Cushman case, have a classic situation of a right of way, easement situation. One lot is landlocked so lot 2 and 3 had no other way of getting to the public road in 1929. At the partition, the owner of lot 2 and 3 wanted to get a right of way over lot 1. Traditional use of easements, a right of way to get to a water source to take cattle to water, or to get water for self. Or a right of way to get to a public highway. Now used for many different things. Gated community, the roads in the community are private roads, every owner of a lot has an easement to use the roads to get to the gate. Fairly straightforward.

Equitable Servitudes v. Covenants: Agreements enforced in law v. those in equity. Enforced according to the terms and contract interpretation. Equitable servitude, the court will either interpret a document according to what it thinks is fair and impose an equitable solution to the conflict.

Private land use is similar to the estate system in that formal rules are very important:

  • Conveyance structures still important. Will see lots of straws in real estate development transactions. In order to comply with formalities which were set up before covenants would be enforced by the courts.

  • Easements/covenants/servitudes: bind people to covenants or agreements they didn’t make and give others to whom that promise was not made the ability to enforce the promise. In covenants and servitudes it runs with the land.

  • Learning how you can make arrangements with an existing set of parties that will continue long after those parties are no longer in the picture. Want to be able to say to people later that all are bound by certain restrictions to use their land in a certain way. Inherent in the land, run with the land. Part of the land, binds people to use the land in a certain way that didn’t agree to the promise.

Originally only available with easements. Very old, considered to be real property interest. Cushman, a prime example. Doesn’t require a lot of formality to set up easements. Considered part of property law regime.

  • To create an easement have to have a writing have to be registered in the registry of deeds, like fsa.

  • Don’t have to have consideration.

Easement: privilege without a profit such as the right to walk over the land of another but not take anything from it.

Positive Easement: confers a right to do something on the land of another.

Negative Easement: imposes a restriction on the use which the owner of the servient tenement may make of his land.

Covenants: restrictions/obligations put on land for the benefit of an individual. Sometimes not a covenant – Johnson v. Whiton, to control land after death. Sometimes a situation like in Wheeler/Morse, landowners want to use a particular resource, want to make sure if one sells to other, the new owner will be responsible for the upkeep of the agreement. A particular deal which was not intended to be permanent, didn’t enhance the value of the land, but enabled a group to exploit it in a coordinated fashion.

Courts were hostile to the enforcement of covenants:

  • dead hand would continue to control

  • cluttered up conveyances, had to find out about or take the risk of getting less than they thought they were getting.

  • Wheeler/Morse, might work for them but don’t want to burden the land for others. Want it to be as unfettered as possible, to enter into commerce.

Courts set up formalities to make covenants run with the land, and enable to enforce promises not made. Archane

  • Intent

  • Touch/Concern

In Wheeler/Morse Cases, old style covenant regime.

20th Century real estate transactions: about producing wealth from land by residence. To organize a development so that all the houses look the same, uniformity. Far from hindering the entry of the land into commerce, made the land more valuable for residences. Guarantee that the developments won’t change in important ways. Prevents unpleasant surprise. When courts came to these they were burdened by common law restrictions built up to knock down covenants.

Relaxation of doctrine in different ways.

Neponsit: is the most important case that says lets not take these formalities central to Wheeler/Morse, too seriously, look at the substance of what they were trying to do. Marks the beginning of the decline of formalism in land use law. Sticking with the formalities, just going to look beyond them to determine in an equitable way what they meant, destroys formalism.

Tulk v. Moxhay: less formal regime for covenants, will say even though not a covenant, to allow someone to disobey this promise would be unfair so a court of equity will not allow him to do it. Started equitable servitudes. Didn’t bind according to the necessary formalities. Used a straw, said I didn’t make any promises, I’m remote so the covenant can’t run. The court said you knew about the promise, so you bought the land knowing about it so it would be unfair to let you disregard. Created equitable servitude. Similar to laches doctrine. Can’t win at law, iron clad rules, but clearly deserve to win, same relationship between covenants and equitable servitude.

Easements have existed from time immemorial as real property interest rather than contract/covenant. Had important consequences. Difference between easements and covenants broken down in different ways, sometimes treated similarly but to do so have to go down different doctrinal streams. The courts like to keep them separate:

  1. In remedies available if someone violates a contract v. violating real property interest, trespass. Trespass remedies would get equitable relief and damages. Having an easement was preferable to having a contract. Doesn’t make much different anymore.

- Eminent domain: when the state takes property from you, and provides compensation. If part of the property is your easement you will be compensated. The state can take it as long as for a public purpose and they pay you fair market value, only have to pay if it’s a property interest, not if it’s a contract interest. Contract rights don’t get much protection. Easements treated differently by court when determining who gets money.

- Conservation covenants: set up regime to force landowners to use it in an ecologically friendly way. Covenants to allow certain things to be done on the land, doesn’t cost money.

- Conservation easements: would like it treated in a certain way. Convey to a third party an easement. If the government comes in later and takes the entire area and puts in a nuclear waste facility. The contract rights are gone, the easement is compensated. New kind of easement, novel, would have been approached by covenant, not by easement.

- Easements are assumed to last forever unless it says they don’t. Contracts/covenants are not assumed to last forever. Extinguished after a certain type of use has occurred.

  1. Difference between easements as a property right and covenant as a contract right.

- Easements limited by types: right of way, etc. Covenants came in to do things that easements couldn’t cover.

- Easements limited to commercial uses. Private, recreational, non commercial uses not covered by easements, used covenants.

- Covenants used in negative restrictions. Easements usually allowed one party to do something on another person’s land, not restrictions on the use of the servient tenement.

- Only easement available at common law, easements for light and air, affirmative, have to allow the light and air to come over to my land. But interpreted negatively, you can’t build on your land to stop light from coming onto my land. Most rules about land are things you can’t do.

- Couldn’t use easements to create affirmative obligation on the owner of a servient tenement. A and B could not create an easement where A had to go onto B’s land to water the flowers or to mow the lawn, affirmatively. Neponsit: good example of affirmative duties, you could force someone to pay dues to a homeowner’s association.

3) Typically used in different situations:

  • easements were unilateral, did not have to part of an agreement.

  • Easements could be created by implication, Cushman midway. Farm divided up into different part, even if there had not been a recitation of specifics, if lots 2/3 had no other access to the public roads, the court would imply access to that road, courts will not imply covenants, have to be there.

  • Buffalo academy: concept of a uniform building plan. A land developer has a large acreage, in there have all of the agreements, but forgets to put it in the deed. Can’t imply it, what can you do? Uniform building plan, imply restrictions throughout. The court comes close to implying a covenant.

  • Can gain or lose an easement by prescription. If you use a right of way and do it according to the 3+1, absent possession, you get it. If you have an easement and someone else uses it, you can lose it by adverse use. Not true for covenants, had to be some kind of agreement. Rhue v. Shyann Homes. People building certain kind of homes, others came in and build new kind of home. Didn’t have a right to do it, close to creating a covenant by prescription.


Easement In Gross: to an individual person, if A gave B an easement engross to walk across the land, could continue to walk across the land once its sold to C.

Easement Appurtenant: goes with the property, give B a right to walk across the property, C no longer has a right to walk across A’s land.

- Sidewalk: a public way, a right to walk over it by anybody.

- Playground in subdivision: the people who are members of the housing development can use it. The assoc are the owners of the servient tenement

Servient tenement: the land burdened by the easement.

Dominant tenement: the land the homes are on.

Who owns the playground? The developer would have originally owned the land. The association owns the playground. Homeowners assoc owns it as a servient tenement the dominant tenements are all the home lots. These are appurtenant leases, whoever buys it has the right to use the playground.

Rights others have over your property:

  • utility wires, easements in gross, above or below the ground.

  • Normally the presumption is that they are non-transferable.

  • Most common, they are transferable. Commercial easements in gross are transferable. ATT – Baby Bells.

Hypos in syllabus about Mary Watson and horse Sally,

a. permission for “Mary Watson to exercise her horse Sally on the other lots.” Mary gets an easement engross to exercise her horse, she can bring her horse back to exercise it but can’t sell it. Its not transferable in principle.

Cushman Virginia Corp. v. Barnes

Facts: one big property, midway, divided into 3 lots and given to three siblings. Only one lot had access to the main road. The others used access through lot 1 to get to the road.

Issue: want to enjoin the person with ownership of lot 2 from interfering with the use of the road. Lots 1, 2 still landlocked

The basic question: Cushman wants to divide the premises, won’t make money by selling it to two people as the trial court wants. What are lots 41 rights to the easement? As long as it doesn’t pose too great a burden for lots 1 and 2 to bear, lot 1 can drive over their land. Lot 1 has the same rights as 41, before divided, lot 3 had the same rights. Lots 1 through 42 all have identical rights, and identical to the rights of the dominant tenement undivided. An easement appurtenant always goes with any conveyance of land unless there is a clear statement that it is not being conveyed. Every one of those lots has a right to use the easement.

Easement Appurtenant: the case here. Lot 3 clearly affects the use of lots 1 and 2. Useful for the land, before 1929/30 it was necessary to make use of the land. Cushman wanted to use it for their business purposes to drive things back and forth over the land. They were a corporation, using the road more than it had been used. 1895 easement came about, no motorized traffic, wagons.What is Cushman going to use land for? Building a housing subdivision.

Rule: Trial court wanted to limit use to what it was used for before, a farm, residences. Cushman claimed that it should be given the width of a public road. The court disagreed because it wasn’t a public road and the court shouldn’t try to make it one now.

Cushman not happy: wants it to be a public road and the people living there to be able to use it to get to the highway.

Did he win? Unclear who won. If its divided up, a percentage.

Is this a green light for Cushman? What happens after this case? Not a complete victory, a 15 foot road.

Are there any limitations on the use of the road that may mean that Cushman can not fully develop?

  • the court did not widen the road, not wide enough for 2-way vehicular traffic

  • partial victory for both sides. Maybe just have 1-way road.

  • Don’t know whether the road is paved. Could be a burden on lots 1 and 2, permanently alters the property.

What kind of limitations on using any kind of appurtenant easement are there?

  1. If the use of all those lots requires some change to the easements, paving/grading. 1895, the type of road that would have sustained horse drawn traffic might not be capable of sustaining use by heavier autos, even if not more frequent.

  2. Could the owner of lot 3 in 1906 when he brings back the first auto for the area, no question about using for horses, brother in lot 2 says get that off my land? Not a horse, now it’s a car. Not foreseen in the original easement.

  3. Some right in the servient tenement in the road being maintained in a certain way. Why should the servient tenement care? May be able to use it, easements are non exclusive in general. Anybody coming on to lot 3 would be able to use it. The people on lot 1 have a right to go on to the easement. The dominant tenement does not have the right to exclude the rights of the servient tenement from going on to the easement.

  4. Does dominant tenement have a right to complain about the servient tenement’s use of the easement? Has to get to the point where it increases the burden of the easement.

  5. Reasonable Use: P. 918, if the instrument creating the easement does not limit it…called it a right of way, that’s it. (Gordon v. Hoy, putting in pipe lines on a right of way, a different use, not a right of way.) Then to any use it can reasonably be devoted. Any reasonable use of the dominant tenement, but subject to the qualification that no use different from when it was created that imposes additional burden on the estate. (Gordon v. Hoy, not much add’l burden, would have come out the same way if the owners of the easement had said we will extinguish the right of way just want to put in pipes. Now have no burden, but that’s not what burden means here).

Burden: a new kind of servitude, new limitation to the freedom to exclude on the part of the tenement owner.

  1. The court said, Gordon v. Hoy, the pipeline is a new burden and the different use of the road is not. Intensity of use, as long as it is the same use, defined broadly. If it was a right of way in 1895, that right of way/easement will continue to be available for a right of way for any reasonable use that tenement owner can put it to. No limitation in the easement, if you’re dividing real estate, just because it is one lot now doesn’t mean it always will be.

  2. Implied Easement: If divided into 2/3 lots, all would have an easement otherwise landlocked, have to imply an easement by necessity.

Anomaly between Cushman and Gordon v. Hoy.

- Note 1: easement of unlimited reasonable use. What would you want to know to be able to evaluate this case. Where is the building? Reciprocal easements, like driveways. Is it on the lot that is benefited by that easement or some adjoining lot that the person now owns. If the lot is beyond the property, the restrictions on time and use seem reasonable, and they should not be able to use it at all using to get to another lot that was not part of the original deal.

- In Cushman, suppose he gets the easement, then buys another lot and decides to subdivide? Can the people on the new lot use the easement? Increasing the use of the road, but so did the first lot. Cushman’s development conveys the easement to the new easement to use the private roads, but do they have a problem when they get to lot 2. The new Lot 4 is not a dominant tenement, unless you get an agreement by lots 1 and 2, the people in lot 4 won’t have an agreement to use the easement.

Review easements, then go into cases that start covenant (2), 934-946, Wheeler and Morse. Easier to understand these cases if you read the material after the cases, 942-946 before you read the first two cases, explains it better.


Cushman Hypos:

  1. What kinds of easements would be created by the following language in the partition document;

  2. Which would survive the failure of Mary Watson to mention them in her deed to Cushman;

  3. Which would not survive conveyance of lot 3 even if mentioned?

  1. permission for “Mary Watson to exercise her horse Sally on the other lots”

Easement in gross: specifically for MW to exercise a specific horse. Reference to specific individual. No indication its suppose to extend to other people.

Arguments for easement appurtenant: on the other lots, wouldn’t be an easement at all if it didn’t mention the lots. Would you have a partition in 1895, based on Cushman. Discussing Durette Road, now hypothetically adding discussion of Mary Durette Watson and her horse Sally. Strong inclination to find it appurtenant because its in the partition document. MW is at that time receiving lot 3 which has an easement over 2 and 1, hard to imagine her using the road except as Road 3.

What about when Mary moves to Ohio, comes back with her horse Sally, does the easement in A still exist? It still exist if it’s a legitimate easement in gross, its her easement. Survives recreational problem, more necessary.

What if Mary shows up and the current owner of lot 3 buys Sally, what happens if the new owner wants to ride Sally. She would need to get her own easement because can’t transfer personal easements in gross. Limited to that person, limited to time, a life and being.

  1. permission for “Mary Watson to exercise her horses on the other lots”

If her property was a horse farm, easement appurtenant, run with the land because it’s a benefit to property.

Why when you mention Sally its not appurtenant, but when you generalize it to her horses it is? Permission for a single horse could not possibly run with the land, the horse will die. The fact that the lifetime of a horse is limited, Mary could stand for her heirs and assigns, or owner of the piece of property. The shift from an individual horse to her horses as a horsing business. Covers the recreational problem if it’s a business.

  1. permission “for the owners of all three lots to use the other lots for the purpose of fox hunting”

Easement appurtenant: because referring only to the lots and whoever owns them and not to any specific name. Fox hunting could be done by anybody, doesn’t require that you own foxes or land. In order to avail yourself of this easement you have to own one of the lots. Goes with the lots. Owner sells to someone else, the new owners would be able to fox hunt on the lots, and the former owner would not be able to.

Any problem with this easement under traditional interpretations of easements? Problems when for pleasurable purposes instead of for business purposes, the problem between c and d. Easement typically does not run. That has changed but historically easements for pleasure were failed. Fox hunting becomes a mere license, permission to do something which can be withdrawn. An easement cannot be withdrawn, it’s a real property right.

  1. permission “for the owners of all three lots to use the other lots for the purpose of grazing their horses”

More commercial, taking your horses or cows over someone else’s land to get the water, benefits the land.

Easements still benefit land rather than just the owner.

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