Chapter 11: Servitudes: Easements, Profits, Licenses Flashcards
Express Easement
-Can A use the dirt road across White’s property to reach the public highway on the theory that White’s email gave Xavier an express easement that complied with the statute of frauds?
-The statute of frauds requires that the property in question be sufficiently described, the grant contain the material terms, and the writing is signed by the party to be charged.
Statute of Frauds: Description of Property
-When A sent B the email, did the sentence, “Drive across the dirt road,” constitute a sufficient description of the easement so as to comply with the Statute of Frauds?
-To comply with the Statute of Frauds, the grant’s description must use language sufficient to designate with reasonable certainty the land over which the easement extends.
Statute of Frauds: Signature
-Assuming that the email was a sufficient description of the easement to satisfy the Statute of Frauds, was the email “signature” (“White”) in satisfaction of it?
-Traditionally, the signature of the grantor, the party to be charged, was in his own handwriting.
Easement Implied by Prior Use
-Can B use the first road on the theory that there was an easement implied by prior use?
-An easement implied by prior use arises when (1) there is a common grantor who conveys a part and keeps a part; (2) prior to the conveyance there was a use of the two parts by the common grantor, which use is called a quasi-easement (because one cannot own an easement in land that he owns in fee); (3) that after the severance, there is necessity; and (4) that the use by the common grantor was apparent and continuous
Easement Implied by Prior Use: Necessity
-Did B have necessity to use the first road when B and A used it to get to a public highway, without which he would have had to have traveled an additional 100 miles to get to a town hall meeting?
-Necessity means either absolute or strict, meaning that there is no other access; or it means just reasonable necessity, meaning substantial increased cost. Traditionally, for a prior use easement created by implied reservation (not the case here), strict necessity was required; for a prior use easement created by implied grant (this case), reasonable necessity traditionally has been the rule. I will discuss here only reasonable necessity; strict necessity is discussed in the easement by necessity below.
Easement Implied by Prior Use: Continuous
-Was A’s use of the first road continuous when he used it twice a year for thirty years to get to public town hall meetings?
-Continuous means permanent, and not temporary
Easement Implied by Necessity
-Can B use the first road on the theory that he obtained an easement by necessity from A, which but for the easement, B would have to drive 100 miles out of his way to get to the town hall meetings?
-An easement by necessity arises when a common grantor conveys a part and keeps a part and immediately after the conveyance there is a necessity to reach a public road. Necessity in easement by necessity traditionally means strict necessity.
Irrevocable License
-Did B receive an irrevocable license from A when A told him to drive across the first road to get to the public highway and the town hall meeting?
-A license can become irrevocable by an estoppel. For an estoppel to arise there must have been misleading conduct on the person sought to be estopped along with detrimental reliance on the part of the other.
Express Profit: Statute of Frauds
-Did Olivia reserve an express profit appurtenant when she conveyed to Xavier, “Sand as needed” and Xavier did not read but accepted the deed?
-A profit is an interest in land that allows one to go on the land of another and remove a product of the land or a part of the land. An express profit must comply with the Statute of Frauds, which requires a description of the property interest
Profit Implied from Prior Use
-Did Olivia reserve an implied profit from prior use?
-An implied profit by prior use requires a common grantor who conveyed a part and kept a part; prior to the conveyance there was a quasi-profit; there was necessity at the time of the conveyance; and the profit was apparent and continuous
Profit Implied from Prior Use: Common Grantor
-Can Olivia and Olivia, INC be deemed to be one person for purposes of establishing the common grantor requirement of an implied profit?
-A common grantor requires that there be one person who owned both the servient and dominant estates prior to the conveyance.
Profit Implied from Prior Use: Quasi Profit
-Assuming that there was a common grantor, did Olivia have a quasi-profit when she took sand from Southacre to build a barrier across Northacre to prevent flooding?
-A quasi-profit exists when prior to the conveyance there was a usage of the two parts which, had it been severed, could have been the subject of a profit with a dominant estate and a servient estate.
Profit Implied from Prior Use: Necessity (Reasonable)
-Assuming there was a quasi-profit, did Olivia have necessity for the profit to remove sand when her house would have been flooded without the sand barrier?
-Necessity means either absolute or strict, meaning that there is no other alternative; or it means just reasonable necessity, meaning substantial increased cost. Traditionally, for a prior use profit created by implied reservation (the case here), strict necessity was required; for a prior use profit created by implied grant, reasonable necessity traditionally has been the rule. Modernly, however, reasonable necessity may be used for a profit created by implied reservation, the latter just being one of several factors to determine what standard to use. I will discuss only reasonable necessity; strict necessity is discussed in the profit by necessity, below.
Profit Implied from Prior Use: Continuous and Apparent
-Was Olivia’s use of the quasi-profit once for the preceding year continuous and apparent, especially when Xavier’s remarked about how tall Olivia’s san barrier was?
-Continuous means permanent, not temporary, and apparent means reasonably discoverable.
Profit Implied from Prior Use: Necessity (Strict)
-Was Olivia’s taking of the sand to prevent flooding of her house a implied profit by necessity?
-A profit by necessity arises when a common grantor conveys a part and keeps a part and immediately after the conveyance there is a necessity to take part of the servient land. Necessity in profits by necessity traditionally means strict necessity.
