PROPERTY (Section 1)
Spring Semester 2013

Class Discussion Questions — Pages 553-582
Easements — Scope, Termination, and Relocation

1. Consider the problem in the Lawyering Exercise on page 555. How should the court allocate maintenance responsibility for the easement between Litton and Mitchell? What additional information would you want to discover, and how would it influence your analysis?

2. In the hypothetical in the Lawyering Exercise, suppose that after buying the riverfront lot, Litton changed his mind. Instead of building a home, he built an enormous bed and breakfast on the riverfront parcel capable of housing 20 guests per night. Would use of the road by Litton's be within the scope of the easement, or would it be excessive use that Mitchell could obtain an injunction against? Why?

3. Whether an easement is "divisible" (or "apportionable"), and the distinction between "exclusive" and "nonexclusive" rights, comes from the law of profits. An "exclusive" profit is divisible; a "nonexclusive" profit is not divisible. The concern is that if the servient owner granted a "nonexclusive" right to cut timber, for example (thus reserving to herself the right to cut timber as well), the recipient of that nonexclusive profit should not have the right to split that profit up with others, as multiple parties coming onto the land and cutting trees could pose a threat of exhaustion of the resource, threatening the owner's retained rights to share in the resource. By contrast, if the profit is "exclusive," even versus the servient owner, the holder of the profit should be able to divide it up as he/she sees fit (since the recipient will bear the consequences of any excessive use).

This makes sense as applied to profits. Does it make sense as applied to easements generally? Does it make sense as applied to the situation in Heydon v. MediaOne?

4. Do you agree with the court's analysis in the Heydon v. MediaOne case? Or do you think that the Missouri decision (Ogg v. Mediacom, LLC, page 559) gets the issue correct?

5. While the cable company in Ogg (page 559) lost in trying to establish it had a valid prescriptive easement, the cable company in Henley (note 3, page 562) won a similar case involving apportionment of an express easement. Is the distinction in these results justified? Suppose that the neighborhood association board in Henley had decided to buy a commercial satellite system and to provide satellite TV to the entire neighborhood at a price to be built into the neighborhood association fees, with connections to be made over the same area where the cable company's existing lines were running. Could the board do that? Why or why not?

6. In Brown v. Voss, why should the law characterize the Browns' use of the driveway as an "excessive" use, given that the effective burden on the servient estate is identical (i.e., the Browns are now using the road in the exact same fashion as they were before acquiring Parcel C)? Given the court's conclusion that the Browns' use of the easement to benefit Parcel C was excessive, is there any way to justify the court's conclusion to deny an injunction to Voss?

7.  Restatement of Servitudes § 4.8(3) provides:

Unless expressly denied by the terms of an easement ..., the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

As note 1 on page 581 indicates, while a number of courts have adopted § 4.8(3), several courts have refused, including AKG Real Estate LLC v. Kosterman. Do you agree with the Kosterman court that the Restatement § 4.8(3) is a dangerous threat to property rights? Why or why not?

8. Is the court in Graves v. Dennis correct to conclude the easement had been abandoned? If mere nonuse is not equivalent to abandonment, what other evidence of abandonment is there in the case?