Common owner severed the property Use was in place, AND visible/apparent (Quasi-easement) prior to severance Includes anything discoverable by reasonable inspection (Van Sandt) Sewage in home from upstream. Lateral sewer easement. Van Sandt v. Royster – Quasi-easement sewer burdened one part of property for benefit of – O’s another part Apparent If carefully inspects, modern plumbing had to drain somewhere – Π Necessary Plumbing is necessary for enjoyment of home – Δ’s Easement by Prescription Elements Actual Use Only affirmative easements – Open and Notorious Servient owner must have notice – Hostile permission Without – ≠ Acquiescence. Permissive possession can become adverse if claimant acts beyond scope Continuous and uninterrupted Consistent with reasonable easement holder – Exclusive Concurrent use with servient owner is consistent – Minority must be distinguishable from general public, landowner – can’t use the property in a way that interferes with the easement For statutory period NOTE: Very hard to do with co-tenants, requires more than just ouster!!! Scope of Easements Intensity RTP §4.10 Manner, frequency, and intensity may change over time to take – advantage of new technology, and accommodate normal development of dominant. Cannot unreasonably damage servient estate or interfere w/ enjoyment. Consider how the easement was created in arguing for/against expansion Non-dominant Property Dominant owner buys adjacent lot expanding his estate Brown v. Voss – Liability rule vs. Property Rule Liability rule Restricts dominant to single family home – Holding: Extension of a parcel that enjoys an easement appurtenant is a misuse of the easement. Selection of a rule depends on the facts. Sterk: Is there a case for estoppel? Location Servient owner can locate within reason ex ante – Once fixed, need dominant owner permission Ex Post Davis v. Bruk – – RTP §4.8 cmt f Servient owner can at his expense if it lessen utility of – Δ doesn’t the easement, increase burden on dominant, or frustrate purpose of easement
Common owner severed the property Use was in place, AND visible/apparent prior to severance (Quasi-easement) Includes anything discoverable by reasonable inspection (Van Sandt) Van Sandt v. Royster – Sewage in home from upstream. Lateral sewer easement. Quasi-easement – sewer burdened one part of O’s property for benefit of another part Apparent – If Π carefully inspects, modern plumbing had to drain somewhere Necessary – Plumbing is necessary for enjoyment of Δ’s home Easement by Prescription Elements Actual Use – Only affirmative easements Open and Notorious – Servient owner must have notice Hostile – Without permission ≠ Acquiescence. Permissive possession can become adverse if claimant acts beyond scope Continuous and uninterrupted – Consistent with reasonable easement holder Exclusive – Concurrent use with servient owner is consistent Minority – must be distinguishable from general public, landowner can’t use the property in a way that interferes with the easement For statutory period NOTE: Very hard to do with co-tenants, requires more than just ouster!!! Scope of Easements Intensity RTP §4.10 – Manner, frequency, and intensity may change over time to take advantage of new technology, and accommodate normal development of dominant. Cannot unreasonably damage servient estate or interfere w/ enjoyment. Consider how the easement was created in arguing for/against expansion Non-dominant Property Brown v. Voss – Dominant owner buys adjacent lot expanding his estate Liability rule vs. Property Rule Liability rule – Restricts dominant to single family home Holding: Extension of a parcel that enjoys an easement appurtenant is a misuse of the easement. Selection of a rule depends on the facts. Sterk: Is there a case for estoppel? Location – Servient owner can locate ex ante within reason Ex Post – Davis v. Bruk – Once fixed, need dominant owner permission RTP §4.8 cmt f – Servient owner can Δ at his expense if it doesn’t lessen utility of the easement, increase burden on dominant, or frustrate purpose of easement
Property_Outline_Sterk_Spring_2012.docx