PROPERTY (Section 1)
Spring Semester 2013

Easements: Affirmative/Negative Easements
Appurtenant Easements vs. Easements in Gross
Prescriptive Easements
Reading Assignment:  Pages 520-534, 542-549

1. How can you determine if a particular easement is appurtenant or in gross?  In the Alft v. Clayton case, why might Mr. Clayton have wanted to grant an appurtenant easement to the Alfts?  Why instead might Clayton have wanted to grant an easement in gross (personal) to the Alfts?  Why do you think the court interprets the driveway easement to be appurtenant? In cases of ambiguity about the grantor's intent, should the court construe an easement to be appurtenant or in gross? Why or why not?

2. Would a negative easement be appurtenant, or could you ever have a negative easement that was in gross?

3. Consider the easement created in note 2(c) on page 560. Would that easement be appurtenant, or in gross?

4. How would the driveway and lake easements in Alft v. Clayton be characterized under the taxonomy used in the new Restatement of Servitudes (note 3, pages 533-534)?

5. If a document creates an affirmative easement but does not state a duration for the easement, the law presumes the easement is perpetual. By contrast, if a document creates a negative easement of view but does not state a duration for the easement, would this Massachusetts statute discussed in Patterson v. Paul mean that the easement would expire after 30 years? Should it? Should the law subject all easements to an implied durational limit? Why or why not?

6. Do you agree with the court's opinion in Patterson v. Paul? What is the rationale behind the Massachusetts statute? Should it apply to easements at all?

7. In the Melendez case, should the use of the driveway by the Melendezes be presumed to be permissive, or hostile? Why?

8. In the Melendez case, are you persuaded by the court’s reasoning with regard to the portion of the driveway used by the owners of both parcels?  How about with regard to the circular portion used only by Melendez?

9. Consider the common driveway problem presented in note 2, page 548. How should that be resolved, and why?

10. As you know if you've ever seen a Cubs home game (live or on TV), many owners of buildings located along Waveland Avenue and Sheffield Avenue (the streets that border the outfield sides of Wrigley Field) have constructed rooftop "bleachers" so that building residents and their guests can see into Wrigley Field to watch Cubs games. Suppose that the Cubs decided to erect 150-foot screens at the back end of the outfield bleachers. These screens, if erected, would prevent persons from watching Cubs games from the rooftops of neighboring buildings. Could the building owners claim a prescriptive easement to prevent the Cubs from doing that? [Assume they've been watching games from their buildings for more than 20 years without interference.] Why or why not? What additional information, if any, might you want to know?