05-06 Spring - Property
Terms
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- What is an externality?
- A factor that is outside the reasoning that goes into deciding how natural resources are used.
- Who absorbs the cost of an externality?
- Someone other than the person deciding the use of a natural resource.
- What are 3 elements of a nuisance?
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1. Unreasonable injury to âˆ
2. Caused by ∆
3. ∆ knew or should have known his actions would cause the harm ∠complained of - Describe the "balancing of the equities" test for determining reasonableness of a potential nuisance.
- Whether the gravity fo the harm (to âˆ) outweighs the utility fo the actor's (∆)conduct
- Can a court ever simply assume that a nuisance exists?
- Yes, (High Penn)... They probably shouldn't just assume a nuisance exists though.
- For the "balancing of the equities" test, what level must the gravity of the harm rise to to establish a nuisance?
- The gravity fo the harm has to go beyond a societal norm.
- Where does the difference between private and public nuisances lie?
- The difference lies in the interest protected.
- When does a Private Nuisance exist?
- When one makes an improper use of his own property that injures the land or some right of his neighbor.
- What type of nuisance arises when one makes an improper use of his own property that injures the land of some right of his neighbor?
- A Private Nuisance.
- When does a Public Nuisance exist?
- When one makes an improper use of his own property that causes an unreasonable interference with a right common to the general public
- What kind of nuisance is created when one makes an improper use of his own property that causes an unreasonable interference with a right common to the general public?
- A Public Nuisance
- Who may bring a suit for a private nuisance? Why?
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Only owners of interests in land can bring suit for private nuisance.
Because a private nuisance can only arise from the interference with the use and enjoyment of land. - Who may bring a suit for a public nuisance? Why? With what caveat?
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Any member of the public can bring suit.
A public nuisance arises with the interference with public rights.
Usually a person may bring a public nuisance action only if that person can show injury different (above) than that suffered by the general public. - Describe the "Coming-to-the-Nuisance" Doctrine.
- When a nuisance already exists, but a âˆ, by "coming to the nuisance," causes the area to become populated, thereby creating a public nuisance, private nuisance, or both.
- What are possible remedies for a nuisance?
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1. Injunction
2. Past Damages
3. Permanent Damages - What is the most sought after remedy for a nuisance?
- A Permanent Injunction
- What is the fountainhead case in the area of "coming to the nuisance?"
- Spur v. Del Webb
- What result can be expected from a coming to the nuisance situation?
- The ∆ may be enjoined from operation, but the ∠may be expected to absorb some of the costs incurred by ∆ in relocation or ending operation.
- What factors are taken into account in the "Balancing of the Equities" test?
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- extent and character of the harm
- social value of âˆs use
- social value of ∆s use
- suitability to the locality
- burden on ∠of avoiding the harm
- impracticability of the ∆ preventing harm - What are some of the "problems" with nuisance law?
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- in many cases harm to potential âˆs is slight.
- it isn't economical for many âˆs, slight reward, expensive lawsuit, difficult proof problems
- Judges prefer to leave large environmental issues up to the legislature. - What do Servitudes deal with?
- Shared interests in property
- What are the two "flavors" of easements?
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- Easement Appurtenant
- Easement in Gross - What is an Easement Appurtenant?
- An easement which benefits the land of another through the use of land belonging to the grantor.
- What is an easement which benefits the land of another through the use of land belonging to the grantor?
- An Easement Appurtenant.
- What is an Easement in Gross?
- An easement which benefits the owner of the easement without regard to ownership of the land.
- What is an easement which benefits the owner of the easement without regard to ownership of the land?
- An Easement in Gross.
- Describe an Affirmative Easement.
- An easement, granted by a servient owner, which gives a neighbor the right to enter or perform an act on the servient land.
- Describe a Negative Easement.
- The right of the dominant owner to stop the servient owner from doing something on the servient land.
- What kind of easement occurs when there is an easement, granted by a servient owner, which gives a neighbor the right to enter or perform an act on the servient land?
- an Affirmative Easement.
- What type of easement occurs when a dominant owner forses the servient owner to stop doing something on a tract of land?
- A Negative Easement.
- Can someone hold an easement in his own land?
- No.
- Under the traditional rule, once the location of an easement is fixed by the parties can it be changed by the servient owner?
- No, not without permission of the dominant owner.
- What is The (current) Restatements view on a servient owner changing the location of an easement?
- The servient owner can change the location, at his own expense, if the change does not "significantly lessen the utility of the easement, increase the burdens on the owner of the easement in its use and enjoyment, or frustrate the purpose for which the easement was created.
- In an Easement situation, what are the two tenements created?
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- Dominant Tenement
- Servient Tenement - Which tenement is that land that is allowed access to by the easement?
- the Servient Tenement.
- Which tenemnt is the land [owner] that makes use of an easement on the land of another?
- the Dominant Tenement
- What is a Dominant Tenement?
- The tenement that makes use of an easement upon the land of another.
- What is a Servient Tenement?
- The land that is allowed access to by another landowner through an easement.
- In what ways can an easement be created?
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1. By Grant
2. By Prescription
3. By Estoppel
4. By Necessity
5. By Implication - What is the device by which an easement is created if it is created orally or in writing by the owner of a servient tract to another?
- Easement by Grant
- How is an Easement by Grant created?
- created orally or in writing by the owner of a servient tract to another.
- Easement by ____________ is similar to Adverse Possession?
- Easement by Prescription
- How is an easement by prescription obtained?
- continuous, uninterrupted, notorious use of a dominant tenement for a statutorily established period of time.
- What easement is created by continuous, uninterrupted, notorious use of a dominant tenement for a statutorily established period of time?
- Easement by Prescription.
- Describe the fiction of "The Lost Grant."
- If a use (easement) is proven to have existed in the past, it was presumed that a grant of the easement had been made and that the grant had been "lost."
- How is an easement by estoppel created?
- A license for use of a portion of a tract is given, and considerable expense (of which the licensor knows) is expended by the licensee. The licensor is estopped from revoking the license for so long a time as its nature calls for.
- How is an easement by necessity created?
- An easement is implied when a claimed easement is necessary to the enjoyment of the claimant's land and that necessity arose when the claimed dominant parcel was severed from the claimed servient parcel.
- Can the US Government obtain an easement by necessity? Why?
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No
They have the power of eminent domain. - How is an implied easement created?
- An easement is implied on the basis of an apparent and continuous use of a portion of a tract existing when the tract is divided.
- What easement is created on the basis of an apparent and continuous use of a portion of a tract existing when the tract is divided?
- Implied easement or easement by implication.
- Describe a License
- permission given by the owner of a property interest allowing the licensee to do some act that would otherwise be a trespass
- How is a license differenct from an easement?
- A license is revocable by the grantor, an easement is not.
- Are licenses revoceable?
- Yes (usually)
- When are licenses NOT revoceable? (2)
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1. A license coupled w/ a property interest.
2. A license can transform into an easement through estoppel. - Can an easement be assigned? Traditional and Modern views.
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- Trad: An easement in gross is assignable if of a commercial character.
-Modern: An easement in gross is assignable regardless of commercial character. - Under the modern view, when is an easement NOT assignable? Why?
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- "recreational" easements (hunting, fishing, swimming)
- they are intended to be "personal" and assignability may burden the servient tenement beyond the original contemplation of the parties. -
True or False
An easement appurtenant, created by grant to one parcel of land, may be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts, to which the easement is not appurtenant. - False
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True or Flase
An easement appurtenant, created by grant to one parcel of land, may not be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts, to which the easement is not appurtenan - True
- Is the scope of a prescriptive easement more or less broad than an easement created in other ways?
- Less.
- What must the scope of a prescriptive easement be limited to?
- a prescriptive easement must be consistent with the general use by which the easement was created.
- How can an easement be terminated?
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1. Abandonment
2. Prescription
3. Agreement
4. Grant/Merger - Describe how an easement is terminated by abandonment.
- There must be (a) nonuse and (b) acts by the owner of the dominant tenement conclusively and unequivocally manifesting either (i) a present intent to relinquish the easement or (ii) a purpose inconsistent with its future existence.
- What is the most common way an easement is terminated?
- Abandonment
- What is the leading case on termination of an easement by abandonment?
- Preseault v. US
- Describe how an easement is terminated by prescription.
- When the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, the easement is terminated.
- Describe how an easement is terminated by agreement.
- If the two parties agree to terminate the easement, it is terminated.
- Describe how an easement is terminated through the doctrine of "merger."
- If the dominant tenement and the servient tenement come into the same hands, any easement in relation to the two is "merged" and does not reappear even if the same two tenements are later separated again.