美国财产法Chapter 9 Private land use planning.doc

PKU-STL HuChapter 9 Private land use planningA. Easements1. Basic easements recognized under the modern law(1) Express easement(2) Implied easement by prior existing use(3) Easement by necessity(4) Prescriptive easement(5) Easement by estoppel (or irrevocable license)2. Some terms:(1) Dominant tenement or dominant land: the land benefited by the easement(2) Servient tenement or servient land: the land burdened by the easement(3) Appurtenant easement: connected to the dominant land(4) Easement in gross: not connected to the dominant land, personal to the holder(5) Affirmative easement: allow the holder to perform an act on the servient land (most easements are affirmative)(6) Negative easement: allow the holder to prevent the servient owner from performing an act on the servient land3. Creating easements(1) The most common type of easement is the express easement which is voluntarily created by the servient owner, usually in a deed.(2) Express easement may arise by either grant or reservation.a. Express easement by grant: the servient owner grants an easement to the dominant ownerb. Express easement by reservation: the dominant owner grants the servient land to the servient owner, but retains or reserves an easement over the property. ( traditionally, it could be only reserved in favor of the dominant owner; most modern decisions allow this easement to be reserved in favor of a third party)(3) Millbrook Hunt Inc. v. Smith (1998) express easementa. Facts: Smiths predecessor (landlord) and Hunt (an organization) entered into an agreement which permits the Hunt to use the land for the purpose of fox hunting for a term of 75 years. After 8 years, Smith ejected members of Hunt while they were performing routine maintenance of their fox-hunting trails. Hunt claimed an easement, while Smith claimed a revocable license.b. Issue: whether the agreement granted an easement or a revocable licensec. Rule: 1) An easement implies an interest in land ordinarily created by a grant, and is permanent in nature. 2) A license does not imply an interest in land , but is a mere personal privilege to commit some act or series of acts on the land of another without possessing any estate.d. Reasoning: 1) To determine the true character of an interest, a court must examine the nature of the right rather than the name given to it by the parties.2) Then the court listed the definition of easement and license.3) According to the agreement, although grantor may relocate the Hunts improvements or redirect their trails, the grantor does not have the right to completely exclude the Hunt from the property.4) An essential feature of the type of easement, which distinguishes it from a license, is that the interest in the land is for some definite period.(75 years in this case)5) Thus, the Hunt has an easement rather than a revocable license.e. Points for discussion1) What happens to an easement when the servient land is conveyed to a new owner? The easement remains attached to the land like any other encumbrance, unless the grantee is a bona fide purchaser.2) Because an appurtenant easement is seen as attached to land, the transfer of the dominant land automatically transfers the benefit of the easement to the grantee.3) The modern trend is to allow the transfer of an easement in gross unless the parties had a contrary intent( The easement in this case is an easement in gross)(4) Van Sandt v. Royster(1938) an implied easement by prior existing usea. Facts: The action was brought to stop D from using an underground lateral sewer drain through and across Ps land. D and Ps land were both Baileys land many years ago. When Bailey transferred one of the land(Ps) to Jones several years ago, there was no express easement.b. Issue: whether there was an implied easement by prior use in the transaction between Bailey and Jones and was P a bona fide purchaserc. Rule: Three elements are usually required for an implied easement by prior existing use:1) Severance of title to land held in common ownership2) An existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance3) Reasonable necessity for that used. Reasoning:1) First element: Bailey owned all the lands before transferred to Jones. So they were held in common ownership. And she severed the title by transferring one land to Jones.2) Second element: When Bailey sold the land to Jones, a sewer pipe ran underneath Ps land, linking Ds land to the public sewer. It is an existing and continuous use of one parcel for another. And Jones actual notice made it apparent.3) Third element: Otherwise Bailey would have been required to install an expensive new sewer line.4) Notice issue: When P purchased the property, he and his wife made a careful and thorough inspection of the property. They had the notice of the sewer.e. Points for discussion1) Policy justifications for the implied easement by prior existing use: recognition of such an easement honors the presumed intent of the parties by correcting an oversight, and also ensures productive use of land2) Definition of reasonable necessity: means that alternative access or utilities cannot be obtained without a substantial expenditure of money or labor. The easement must be beneficial or convenient for the use of the dominant tenement, but need not be essential.(for example, homeowners may have reasonable necessity to access the lake for recreation.)(5) Berge v. State of Vermont (2006) an easement by necessitya. Facts: Davis subdivided her estate, conveying 7001 acres to the State of Vermont, and reserved a parcel of land locked by the land transferred to the State. No express easement was in the agreement. Then Davis transferred her locked land to Berge. Berge need to cross the land of the State to reach his land, even though he could avoid it by using the boat. The State placed a gate which prevented Berge from crossing the land to his own land.b. Issue: whether necessity exists if the property can be reached by boatc. Rule: 1) Two basic requirements for an easement by necessity: there was a division of commonly owned land, and the division resulted in creating a landlocked parcel.2) Lack of reasonably practical access is required to find an easement by necessity. (middle position between mere inconvenience and strict necessity)d. Reasoning:1) Outline the two requirements2) Recall strict necessity( in which water access bars a finding of necessity) in some prior decisions3) Draw a distinction between prior distinction, give the standard in this case: a lack of reasonably practical access4) The standard has three dimensions: ease, frequency, scope.5) Ease: Court points out that water access is insufficient because of the constant vicissitudes of motor boats, weather, and water conditions.6) Frequency: Court also points out the need for constant access - without road access, Berge would have virtually no access for those periods of the year when the pond could not be safely traversed because of ice and snow7) Scope: court implies that access suitable for automobiles (e.g., rather than for hikers or horseback riders) is required: We depend on roads and automobiles for transporting not only our family and friends, but all of our basic necessities to and from our homes . . . .e. Points for discussion1) Two justifications for the easement by necessity: the implied intent of the parties and the public policy favoring the productive use of land.2) The justifications still make sense today. It is unreasonable to assume that the parties to a conveyance intended to landlock any parcel, whether it is land conveyed to the grantee or land retained by the grantor. The more likely explanation for a landlocked parcel is mistake: either (1) the parties intended to create an easement and didnt; or (2) the parties never thought about the issue, but would have created an easement if they had considered it. The utilitarian theory of property is still strong, and as the US population grows, there will be more emphasis on using land productively.3) The law is clear that an easement by necessity will not rise if this would contradict the actual intent of the parties. 4) Two general elements for an easement by necessity: severance of title to land held in common ownership and strict necessity for the easement at the time of severance5) Strict necessity: when the owner has no legal right of access to her land.6) A minority of courts require only reasonable necessity: the easement must be beneficial or convenient for the use of the dominant parcel.(Restatement approach)7) Traditionally, the easement by necessity doctrine applied in only one situation: road access to a landlocked parcel.8) An easement by necessity lasts only so long as the necessity continues.(6) ODell v. Stegall (2010) a prescriptive easementa. Facts: P used a gravel lane as an additional access to his property. D does not own the gravel lane, but is obligated to repair it. P claims a prescriptive easement.b. Issue: whether P could establish a prescriptive easementc. Rule: four elements1) adverse use of anothers land2) the adverse use was continuous and uninterrupted for at least 10 years3) 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 use4) proof of 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 usedd. Reasoning:1) Distinguish between a prescriptive easement and adverse possession: an adverse possession claimant occupies or possesses the disputed land while one seeking a prescriptive easement makes some easement-like use of the disputed land.2) Then the court tried to set out the definitions of the elements necessary to establish a prescriptive easement and gave a four elements test.3) Early cases in this court simply presumed that a claimants use of anothers property was adverse if he had proven the remaining elements.4) Adverse use is measured by the observable actions and statements of claimants and the land owners. Subjective intent does not determine.5) Definition: an adverse use of land is a wrongful use, made without the express or implied permission of the owner of the land.6) Then the court listed some disadvantages of easements by prescription, like does little to encourage civility between neighbors. And because of these advantages, the court overruled the early assumption and hold that the burden of proving adverse use is upon the party who is claiming a prescriptive easement.7) Finally, the court held that P failed to establish a prescriptive easement for lack of evidence. First, as D did not own the land, P did not find a right D. Second, no evidence to prove that Ps use of the lane is adverse.e. Points for discussion1) Should the law presume adversity or consent? The court lays out certain policy arguments for shifting the states default standard from adversity to consent: It argues that easements by prescription are not favored in the law, because they: rewarding a trespasser, taking of anothers property without compensation, discouraging civility between neighbors encouraging expensive litigation, using self-help to defend property.Counterarguments: court brushes aside the traditional policy justification for the prescriptive easement doctrine - promoting productive land use - says it is a relic from the past when boundaries were unknown and vast tracts were owned by individuals who never set foot on the land.2) A simple way for land owner to avoid a prescriptive easement is to put a sign to express consent.3) Traditional view was that the public could not acquire a prescriptive easement. However, many modern courts recognize public prescriptive easements.4. Terminating easements(1) Preseault v. United States (1996) abandonmenta. Facts: D acquired the rights-of-way from P. Then D operated the railroad. The railroad stopped service in 1970 and the tracks and other equipment were removed in 1975. In 1985 D leased the rights-of-way to the city to use as a hiking and biking trail. P claimed that the easement terminated by Ds abandonment.b. Issue: whether D abandoned the easementc. Rule: nonuse of the easement plus acts by the owner manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence (mere nonuse is not enough)d. Reasoning:1) Court first talked about the scope of the railroads easement and held that the nature of usage is clearly different. So the use for recreational purposes is not in the scope of the original easement.2) Then gave the standard of abandonment. That D removed all the railroad equipment in 1975 amounted to an abandonment of the easements.e. Points for discussion1) Most jurisdictions agree that mere nonuse of an easement is not abandonment.2) The easement may be terminated by its own terms, condemnation, estoppel, merger, misuse, and release.5. Negative easements(1) Negative easements entitle the dominant owner to prevent the servient owner from performing acts on the servient land.(2) Common negative easement is the conservation easement: restricts the development and use of the servient land in order to preserve open space, farm land, historical sites, or wild, undeveloped land.B. Land use restrictions1. Real covenants(1) A real covenant is a promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors.(2)(3) Terms: a. Touch and concern: The covenant must relate to the enjoyment, occupation, or use of the property.b. Notice: The successor must have notice of the covenant. This requirement is satisfied by actual notice, record notice, or inquiry notice.c. Horizontal privity: concern the relationship between the original parties: three kinds of standard:1) Mutual interests( like landlord and tenant, cotenants, owners of the dominant and servient lands for an easement)2) Successive interests( grantor-grantee relationship)3) No requirement: modern trendd. Vertical privity: concern the relationship between an original party to the promise and his successor. Like the original party sold the land to the successor.(4) Deep Water Brewing, LLC v. Fairway Resources Ltd. (2009)a. Facts: The restaurant and D entered into an agreement by which D got the right-of-way but agreed to a height restriction on his future building houses for exchange. Then P bought the restaurant. D then breached the covenant and P sued. b. Issue: whether the real covenant is enforceablec. Rule: P as the successor wants to get the benefits from the covenant, so generally P just needs to prove four elements: statute of frauds, intend to bind successors, touch and concern, and vertical privity. But in this jurisdiction, horizontal privity is also required.d. Reasoning:1) Touch and concern: enhance the value of the restaurant.2) Intent to bind the successors: First, because the covenant touched and concerned the land, the benefits and burdens are not limited to the contracting parties only. Second, the intent to confer a benefit to one property and impose a burden on another is clear.3) Vertical privity: The Kenagys purchased from Ahlquist. So Kenagys received all the interests of Ahlquist.4) Horizontal privity: successive interest: the transfer of some interest in land between covenantor and covenantee. Here, height restriction was made to exchange the easement for Ds benefits.2. Equitable servitudes(1) Definition: a covenant regarding land use that will be enforced against equity (i.e., via injunction) against a successor to the burdened estate who acquired it with notice of the covenant.(2) Real Covenants vs. Equitable Servitudesa. Main difference is that the traditional remedy for a breach of a real covenant is damages, while the equitable servitude is enforced by an injunction.b. Another difference is that equitable servitudes are generally easier to create than real covenants.(3)(4) Common plan exceptiona. A special exception to the Statute of Frauds exception developed by courts - the common plan exception -where a developer has manifested a common plan to impose uniform restrictions on a subdivision, all lots are burdened and benefited by the restrictions even if they do not appear in the chain of title to every lot.b. Sales literature, statements by the developer and most importantly the percentage of deeds containing restrictions are used to determine whether a common plan exists.(5) Tulk v. Moxhay (1848)a. Facts: P transferred a parcel of land with a covenant to Elms. Then Elms transferred the land to D and D had notice of the covenant. Then D wanted to breach the covenant and P sued.b. Issue: whether a party shall be allowed to use the land in a manner inconsistent with the contract entered into by his vendor and with notice of which he purchased.c. Rule: recognize equitable servituded. Reasoning: The price would be effected by the covenant and nothing would be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price.3. Restatement approach(1) Combine the real covenant and equitable servitude into 1 doctrine: the covenant that runs at law.(2) A servitude arises when:a. the owner of the property to be burdened intends to create a servitudeb. he enters into a contract or conveyance to this effect that satisfies the Statute of Fraudsc. the servitude is not arbitrary, unconstitutional, unconscionable, or violative of certain public policies(3) Touch a