*Private Land Use Limitations (Ch. 9- Negative Easements

Question 1

Nature & Scope

Answer 1

• Tied to common law notion of quiet enjoyment, NE is a way to impose limitation on how someone else can use their own property
o Impairs the owner of the servient tenement to fully use their property
o No right to actually use the land of someone else for the easement holder

Question 2

• No prescriptive negative easements

Answer 2

(must be created by express writing)

Question 3

• Four traditional types:

Answer 3

all appurtenant (no neg easement in gross traditionally) 
o	Air
o	Light
o	Support (subjacent or lateral)
o	Flow of artificial stream

Question 4

• Peterson v. Friedman – CA (1958)

Answer 4

o F: P wants to enjoin D from violating express agreement for light, air, and unobstructed view after D installs TV antenna on roof blocking P’s view
o H: For P
 D argues that antennas were not contemplated by initial easement document (since TV didn’t exist) – Ct. rejects
 Document contemplated any obstruction (can adapt w/ time; scope has not changed here)
• Some juris’d have created solar access easements by statute to promote solar panels

Question 5

Conservation Easements

Answer 5

• Desire to preserve nature; guarantee availability for agriculture, forestry, recreation
• Alternative to zoning (which requires political majority + takings compensation)
• Enforceable, assignable and perpetual in duration
• Contrast w/ defeasible estate restrictions (which would probably fail)
• State could condemn conservation easements through eminent domain (but widespread use might create political backlash)

Question 6

• United States v. Blackman – VA (2005)

Answer 6

o F: Citizens create nonprofit HGSI and donate negative easements in gross in order to conserve historic land; in 1978 HGSI conveys all easements to the United States, and Nat’l Park Service administers the easements; restrictions exist on land and manor house; D buys estate and wants to renovate; US files suit when D removes porch on home in violation of restriction
o H: For P – conservation easement right exists
 D argued that negative easement in gross couldn’t exist until 1988 VCEA (conservation easement legislation); Ct. rejects because 1960s and 70s legislation clearly contemplated land conservation and preservation, and in 1960s VA constitution was amended specifically to address this