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Property I
University of Denver School of Law
Marsh, Lucy A.

 
Property
Professor Marsh
Midterm & Final Outline
Spring 2015
 
 
 
1.      Easements
a.       Classification of easements
                                                               i.      Easement in gross
1.      Granted to benefit a particular person
                                                             ii.      Easement in appurtenant
1.      Most easements; The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate
b.      Types of easements/cases
                                                               i.      Sakansky v. Wein
1.      Land given by deed
a.       YOU CAN’T CHANGE THE LOCATION OF AN EASEMENT-once it’s fixed
b.      Rule of reason-applies to building up and around the easement.
                                                             ii.      Prescriptive easement
1.      Continuous, actual, open and hostile use for the statutory period
a.       Like adverse possession but with an easement
b.      Does not need to be exclusive
2.      Shrull v. Rapasard
a.       Drainage ditch; explosives
                                                                                                                                       i.      When you give your neighbor permission to use your land as an easement, and they do it, then you can’t revoke that permission. Permission can turn into an easement (after an appreciable time).
                                                                                                                                     ii.        As long as the owner of the dominant estate does not inconvenience the owner of the servient estate and the use of the easement is not expanded, the owner of the dominant estate can use a reasonable amount of land on either side of the easement for maintenance purposes.
1.       Marsh notes: It’s reasonable to dynamite the easement every 3 years.
b.      The use of explosives shows that money was spent on easement
                                                                                                                                       i.      You can lose it if you fail to maintain
                                                           iii.      Estoppel
1.      Good faith, reasonable detrimental reliance on permission by a servient estate holder may create an easement by estoppel to prevent unjust enrichment.
2.      Licenses
a.       General rule is that licenses may be revoked at any time and are automatically revoked upon the death of the licensor or upon an attempt to transfer the interests
                                                                                                                                       i.      Not revocable if the licensee has invested substantial money and/or labor in reliance of the reasonable expectation that the license would not be revoked.
b.      Holbrook v. Taylor
                                                                                                                                       i.      House was built and road was used as easement; money was put in to build house and pave road
1.      an easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil, and with his knowledge and acquiescence, used a way over the lands of another
2.      A roadway over the lands of another may be established by estoppel.
3.      It is the established rule that where a license is not a bare, naked right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense.
4.      The right of revocation of the license is subject to the qualification that where the licensee has exercised the privilege given him and erected improvements or made substantial expenditures on the faith or strength of the license, it becomes irrevocable and continues for so long a time as the nature of the license calls for. In effect, under this condition the license becomes in reality a grant through estoppel.
5.      The law recognizes that one may acquire a license to use a pass-way or roadway where, with the knowledge of the licensor, he has in the exercise of the privilege spent money in improving the way or for other purposes connected with its use on the faith or strength of the license. Under such conditions the license becomes irrevocable and continues for so long a time as its nature calls for. This in effect becomes a grant through estoppel.
                                                                                                                                     ii.      You can get estoppel if you put in enough money or labor into the land.
1.      In the present case, house was enough
 
3.      Miller v. Lutheran Conference & Camp Ass’n
a.       Water company; Brothers own estate wants to sell part of the stock to a church
                                                                                                               

nce the necessity ends. Only if the creation was by operation of law
8.      Condemnation of the Servient Estate
a.       A governmental taking of the servient land by eminent domain serves to extinguish the easement. Owner is entitled to just compensation
9.      Misuse
a.       The owner exceeds his or her rights under the easement, the owner of the servient estate will entitled to injunctive relief to prevent continued misuse.
2.      Covenant
a.       Promise concerning the use of land that benefits and burdens the original parties AND their successors (because it runs with the land). The traditional remedy for breach of a covenant is damages.
b.      In interpreting the meaning of a covenant, we first apply the plain language interpretation, then consider the intention behind the covenant, and denying or upholding plans/requests in accordance with covenants must be reasonable and done in good faith.
c.       Equitable servitude you own the land; they have to build with in the owners specifications
 
                                                               i.      Glenealge v. Hardin
1.      An owner submits his or her plans to the association when they are “delivered” to the association.  “Delivery” means “the formal act of transferring something, such as a deed; the giving or yielding possession or control of something to another.”
a.       Thus the word “delivered” means that delivery is complete, which, in this context, means that the plans must have been received by the association.
2.      A “writing” is defined as “any intentional recording of words in a visual form, whether in the form of handwriting, printing, typewriting, or any other tangible form.”
a.       Email is counts as a writing
3.      When interpreting a covenant, courts resolve all doubts against the restriction and in favor of free and unrestricted use of property.  But, this presumption against restriction “has no application when the language is definite in its terms.  One must follow the dictates of plain English.”  Where possible vagueness exists, we must look to the intention of the parties “to be ascertained from the entire language of the covenant agreement.”