March 9, 1999

Nuisance question on exam should be easy as long as you know general principles and use the facts well.

Trespass:

• actual
• physical
• invasion

Absolute liability

Negligence

1. ran oil refinery
2. damage
3. duty?

Morgan v. High Penn Oil Co. review

No trespass because the focus is not on something that is tangible - focuses on smell

Irreparable injury - no adequate remedy at law

Abatable nuisance - something that can be stopped

Courts treat land as special, which means that the nuisance is usually given an injunction

Nuisance (elements):

• anything that is unlawful is a nuisance per se
• per se illegal
• anything that is intrinsically dangerous
• per accidens:

1. interference with use and enjoyment; economic relationships
2. substantive and unreasonable (balance of the right and reasonableness of locating the refinery in that location)

remedy is also a balance (like liability)

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March 11, 1999

Public/private nuisance

In these types of cases you do a cost/benefit analysis to see what to do…

Boomer v. Atlantic Cement Co.

Neighbor v. Cement plant

Big split in the cases as to what a nuisance is.

D usually argue that it takes more than an impact on property value.

P says that automatic nuisances the closer the activity comes to trespass.

Test for determining if there is a nuisance?

• very hard to define this…

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March 16, 1999

Easements

Modernization of the law

Willard v. First Church of Christ, Scientist

Parking lot

FACTS:

Subject to an easement for the benefit of the Church on the property

On the southwest corner

Issue: whether this is a valid easement

Can a grantor reserve a right to a third party?

Exception - exclusion of an existing interest

Reservation

Should have done:

1. a deed from McG to Church creating the easement
2. McG - Peterson, excepts easement

Just create easement in a separate document and then do a new document transferring the property to the church EXCEPT for the easement

• common law did not like the fact that there was one piece of paper that transmitted two different interests

Modern law:

Deed is Enforceable

Easement in gross: example: an easement held by electric company - entities are usually in gross; does not benefit the owner of the easement in the use of land belonging to the owner, but benefits the owner without regard to ownership of the land

Easement in appurtenant: benefits the owner of the easement in the use of the land belonging to the owner - this is a personal use of an easement

When in doubt law favors easement in appurtenant rather than easement in gross

Holbrook v. Taylor

Has a license with an interest - a right to enter the land and take something out

Dominant estate - estate that is benefiting from the easement

Servient estate - one burdened with the easement

Claims based on prescription: equivalent of adverse possession of an easement

• cannot be prescription if you are there with PERMISSION
• if there is permission to use the easement there is not an argument of prescription

Estoppel - however permission to use the easement may set up an estoppel argument

• detrimental reliance
• easement by estoppel

if transferable, how long does the easement last? Another pertinent question

purchaser can buy easement

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March 23, 1999

More on easements

Check the record to see if the person has the right to the easement

Easement by implication

1. easement by implication by prior use

1. has to have been actual prior use
2. reasonable
3. necessity
4. common grantor

1. easement by implication by necessity

1. strict necessity
2. common grantor

Notice

Implied reservation

Implied grant

Easement arises if at all, at time when one lot is split into several lots - there was a common grantor. This is a very important point. If you don't have this, you don't get easement by implication.

Element for greater good

Common law - no prior use for grantor - no easement by prior use for benefit of grantor

Easement by prescription

1. actual
2. adverse and hostile
3. open and notorious
4. exclusive
5. continuous

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March 25, 1999

Easements on beaches

homes

vegetation

Dry sand

Wet sand

Ocean

Public trust doctrine - tells about how people can use the public lands

Easement by necessity - created if at all when the rights are divided

Easement by Prescription - open, adverse, open, notorious, sign that says keep out

• like adverse possession
• needs to be open and notorious

is an easement in gross asignable? - American approach is to say yes

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March 30, 1999

Liability

Remedy

Injunction

• irreparable injury
• balance of the equities

damages

Scope (of injury)

1. benefit of which parcel -
2. nature of use - can argue that the use violates the scope of the easement which has been granted

servient estate has the duty to maintain the easement

hard to abandon an easement - non-use does not equal abandonment. Must show clear intent to abandon the easement