Final Examination in Property

Spring, 2008

Professor Perritt

Model Answer


  1. Krebs conveyed an express affirmative easement in gross to Berrysohn. His best argument is that Berrysohn is using the easement outside its scope and that such use constitutes a trespass on his property. The scope of easements is determined according to the expressed or implied intent of the grantor and the purpose of the easement. Krebs made it clear that he was granting the easement for the purpose of net-neutral connectivity to the public Internet. When Berrysohn began using the optical fiber for connectivity to its private network it acted inconsistent with the purpose of the easement and for a use outside its terms.

Berrysohn has a number of arguments that it is acting within the scope of the easement and thus nothing that it is doing constitutes a trespass. First, it will argue that the easement was for the physical placement of an optical fiber cable, not for the bits flowing thorough it. The optical fibers are Berrysohn’s property and what bits it chooses to send through its own property is within its privileges as a property owner. The cable itself is exactly where the easement permitted it to be and thus there is no trespass. If Berrysohn loses this argument, it can fall back on three others: first that the level of traffic with its new restricted terms actually is less than before; second, that it still is providing members of the public with access to the Internet, albeit only those with under contract with it; and third, that the migration of Internet connection facilities to private networks is necessary due to changed circumstances regarding the character of the Internet.

Berrysohn’s arguments are weaker than Krebs’ because he was so clear about the purpose of the easement and the character of the use permitted.

It does not matter whether the burden on Krebs property has been increased or decreased by the new use. The scope of easements cannot be changed willy nilly at the whim of the easement holder as long as the burden does not increase; to allow such change inconsistent with the terms of the easement would ignore the rights of a property owner granting the easement to decide, even whimsically, what uses of his property he wants to permit.

Berrysohn should be entitled to an injunction against the trespassory use of his property outside the scope of the easement.

Krebs has a weaker argument that Berrysohn has engaged in misuse of the easement thus extinguishing it altogether. The misuse part proceeds exactly as his exceeding-the-scope argument. To exceed the scope of an easement is to misuse it. But extinguishment of an easement is disfavored if other remedies can end the misuse. Moreover, the availability of extinguishment is more likely to depend on the owner of the servient estate (Krebs) being able to show that the misuse increases the burden on his property, which he is unlikely to be able to do, as explained supra. Since Krebs should be entitled to an injunction forcing the use of the optical fibers only for general Internet access, he is unlikely to be able to establish the grounds for extinguishment.

  1. Michels wants to challenge the ordinance. To be successful, she must be able to establish either that it is ultra-vires or that it is unconstitutional. We would want to check the New Jersey statutes granting municipalities zoning power to see if we have any arguments that the ordinance exceeds the scope of the municipality’s power. It likely does not, given the general nature of state zoning statutes.

We have two related constitutional arguments, first that the ordinance violates substantive due process under the Fourteenth Amendment generally and, second, that the ordinance constitutes an unconstitutional taking under the Fifth Amendment as incorporated into the Fourteenth.

To establish a due process violation, she must extablish (1) that the state (2) deprived her of a property interest, (3) without due process of law. State action is undeniable her because it was a municipal government that acted.

Whether she suffered a deprivation of property is trickier because it depends on whether the ordinance deprived her of any property rights that she had. If the easement was valid as against her, and if Berrysohn was using it within its scope, she had no right to exclude Berrysohn and thus the ordinance took nothing from her. Whether the easement was valid against her is considered in the answer to part (C) of this question. But even if the easement was valid against her, to the extent that Berrysohn was using it outside its scope (see the answer to part (A) of this question), it was invading her property rights and the zoning ordinance took away those rights to exclude.

Having established state action and a deprivation of property, she must show that the ordinance violates due process. She could do this if she could show that the ordinance is unrelated to a legitimate state interest, under Euclid. This will be tough because of the deference courts owe to the judgments of municipal exercises of legislative judgments and because of the plausibility of furthering Internet access as a legitimate state interest.

She has stronger arguments that the ordinance is not rationally related to the goal of increased Internet access because it is arbitrarily overbroad and underinclusive. It is overbroad because it could be read to authorize almost any kind of Internet access facility—say the construction of a network operations management facility with dozens of personnel in a landowner’s basement. To further the municipal goal, it could be more narrowly tailored to focus only on network connection cables. It is underinclusive because it singles out only one part of the municipality (assuming that zone I-1 does not include the whole municipality) to shoulder the burdens and it does not burden anyone to accommodate other means of providing Internet access, such as wireless towers, pole lines, and the like. It also is underinclusive because as construed and applied in her case, it allows a private entity to burden her land with a private network connection rather than a public Internet connection. This argument overlaps the public-use criterion analysis in the next part of this answer.

Her general due process argument is not frivolous, but it is not as strong as her takings argument, considered next.

She should have no difficulty establishing a taking. The ordinance compels a physical invasion of her land, nearly indistinguishable from that found to be a categorical taking in Loretto. There is nothing about the ordinance that suggests that the invasion that it authorizes it is anything other than permanent.

But takings are constitutional if they are for a public purpose and if just compensation is paid. She has good arguments that neither of these criteria is satisfied though both are required.

The ordinance is being applied to her, not for a public purpose, but for Berrysohn’s private purposes, since the cable no longer facilitates public access to the Internet. The Supreme Court in Kelo gave municipalities a lot of elbow room to determine how to serve public purposes, however, and Berrysohn and the municipality may be able to argue successfully that its private network does serve the public—those who are willing to pay Berrysohn.

Michels’ ace in the hole is that she has not been compensated justly. This is not an exercise of eminent domain followed by a jury trial on the value of the property taken; it is a zoning ordinance and nothing in the question suggests that it authorizes compensation. Absent compensation, the categorical taking is unconstitutional.

  1. Michels has a strong argument that her propery is not encumbered by the easement because she was a bona-fide purchaser without notice. The question says that the property was sold to her. To sell means to exchange for value. She did not have actual notice because her deed said nothing about the easement and there is no indication that Krebs told her about it. She did not see the trucks or ask the Berrysohn employees about the easement under after she bought the property. What counts is whether she had notice when the property was conveyed to her. She did not have record notice because the easement was not recorded. The only remaining question is whether she had inquiry notice. To establish inquiry notice, Berrysohn would have to point to something that should have alterted her to the possibility of a cable under her property. Because a WitchDitch was used to bury the cable, there was no disturbance of the surface that she could have seen. Surely someone purchasing property is not obligated to dig all over the property to a depth of one foot or greater to see if anything is buried. That leaves the possibility under the sewer case that her knowledge of her own Internet connection (assuming she had one) and the likely Internet connectivity of her neighbors should have put her on notice that they connected through a cable under her property. Unlike sink and toilet connections, which must occur through underground pipes, Internet connections can occur in may ways, including wirelessly, so the mere presence of Internet connections in the neighborhood does not suggest the presence of an optical fiber cable under her property.

Michels has a very strong argument that she took free of the easement. Thus the presence of the cable was a trespass and she was privileged to remove it.

Of course, she also has the same arguments Krebs did about Berrysohn’s exceeding the scope of any easement if it existed which also would have privileged her self-help against trespass.

The trend against landlord self help against tenants is irrelevant to this analysis. Tenants have a possessory interest; here it was Michels who had the possessory interest.

As a side note, I would urge her to race to the courthouse to record her deed. If she gets there first she will conclusively extinguish the easement in either a race or a race-notice jurisdiction.

  1. The granddaughter is likely to lose her lawsuits. Her cutting of the cable is a trespass on Notbell’s easement. One possibility is that the easement was found to be valid as against Michaels, in which case it ran with the land. The granddaughter may not have been a bona fide purchaser because she inherited or was given the property (the question does not say). If she bought it she was a bona fide purchaser but she probably had notice, either because of the judgment in the Michels case gave her constructive notice, or because she heard the stories of her grandmother’s controversies before the granddaughter came into possession.

But even if Notbell’s easement did not run with the land for these reasons, it arose against the granddaughter by prescription or by adverse possession. Easements in gross may arise by prescription and under modern law they are alienable, especially when they are for commercial purposes, as here, and when the original grantor, Krebs, indicates his intent that they be alienable, which he did (“successors and assigns”). Periods of prescriptive or adverse use may be tacked, at least in the commercial setting, so Berrysohn’s 15-year use and Notbell’s 10-year use can be combined to total 25 years, which is greater than any known statute of limitations for this purpose. But Berrysohn’s use may not have been adverse for the full 15 years, as discussed infra, which might bring the total period below the likely 20-year limitation period. I would be sure to check New Jersey law to determine that exact limitation period in that state.

For either a prescriptive easement or adverse possession, the use by Berrysohn and Notbell must have been adverse or hostile. It may not have been because it arose under an express easement granted by predecessor-in-title Krebs. The first time it became adverse or hostile was either when the express easement was extinguished upon conveyance to Michels, as discussed in the answer to Part (C) or when Berrysohn lost in the litigation with Michels, if it did. Michels, brandishing her pruning shears, surely did not give express or implied permission to Berrsohn. We would have to know more about the dates to know whether we can subtract some of the 25 years on the ground that the adverse or hostile element was not met for some of them.

Also, to be prescriptive or adverse, the use must be open and notorious. This may be more difficult for Notbell to establish since the cable was underground, But the granddaughter had “heard stories” and yet did nothing to terminate the use of the subsurface of her property, so the use was sufficiently notorious that she knew about it, and the purpose of the notorious requirement is to give notice to the landowner whose property is burdened by the adverse or prescriptive use.

Notbell and its predecessor Berrysohn probably can satisfy the claim of right because, at least in the early days, it thought it had an easement.

The granddaughter’s only remaining non-frivolous arguments are that the adverse or prescriptive use was not hostile because it arose under an express grant. That argument is weakened because at some point in the story, the express easement was extinguished, or else prescriptive easement or adverse possession are unnecessary.

That leaves only the question whether Notbell can establish adverse possession or only a prescriptive easement, assuming it has one of the two, which seems likely under the analysis so far. The main difference is that adverse possession requires exclusive use, while prescriptive easement does not. Notbell has a good argument that the cable itself exclusively occupied the narrow tunnel of property through which it ran. Thus is probably can establish ownership through adverse possession of that little piece of property the extent of which is determined by the length and diameter of the cable. If it owned that property, it is privileged to put whatever digital bits through it that it wants. Failing that, it can establish a prescriptive easement for the bits that actually flowed during the prescriptive period.


A.     Tempa Tite has a claim for ouster. The four band members were tenants in common. There is no language suggesting an intent to create a joint tenancy, and they are not married, so there can be no tenancy by the entireties. But it does not matter because any of these three types of concurrent owners are entitled to an undivided share in the entire property. When the other band members denied Tite entry, they deprived her of her undivided share and ousted her.

She can elect among several remedies. First, she can sue for an accounting, in which case she is entitled to reasonable rent from the ousting co-tenants. She can sue for partition, which may be done either in kind or by sale. The law prefers in-kind partition. She might seek some defined part of the property, where she could study, or else lease it to the other band members, as the only fee-simple owner of this part. Or, if it is more advantageous economically, she could seek partition by sale, to which she would be entitled only if she could show why partition in kind is impracticable, as for example if she would be unable to make effective use of any part because the band would be making so much noise on the other part.

The only conceivable counterargument is that the band owned the property as an entity, and that any ownership interest by Tite was extinguished when she was expelled from the band. The question says “the band members,” plural, record the deed to “them,” which suggests that they owned it as individual tenants in common rather than the entity owning it.

B.     When the father conveyed to the museum, he did so through a general warranty deed, which contains six covenants. His liability to the museum depends on what he had. He did not have anything at all, unless the text message from his son to him was valid. It probably was not. It may not have satisfied the Statute of Frauds, even if electronic instant messages constitute “writings.” It is not clear that Bosworth “signed” it, and the other band members certainly did not sign it. It also may not have described the property with sufficient particularity. If it nevertheless is valid under the Statute of Frauds, it is void under the Rule Against Perpetuities. The father’s interest is a springing executory interest—springing because it would cut short the interest of Bosworth—and possibly that of the other band members, and Bosworth and possibly the other band members are the grantors. Executory interests are subject to the Rule. There is a possibility that the interest would rest remotely. The instant message grant says “if there is ever any drug use on the property.” This might occur well after the death (certainly more than 21 years after) of the father and of all four band members—the only conceivable measuring lives. His executory interest is void

Since the father had no interest, he breached the covenant of seisin and the covenant of the power to convey.

Even if the executory interest is valid, as it might be in a jurisdiction that has a relaxed interpretation of the Statute of Frauds, and that uses wait-and-see for the Rule Against Perpetuities (the condition for the executory limitation was triggered by the drug use by Half-Inch Tacks within everyone’s lifetime and thus would validate the interest in a wait-and-see jurisdiction). The most the father probably had was Bosworth’s ¼ interest in the tenancy in common. So when he conveyed a fee simple absolute apparently in the entire property, he also breached the covenant of seisin and the covenant of the power to convey. In addition, he breached the covenant against encumbrances because the other co-tenancies represent encumbrances as does the lease to Half-Inch Tacks. Any change in ownership of the fee did not terminate the lease to Half-Inch Tacks.

The only way he did not breach these covenants is if the Statute of Frauds and the Rule Against Perpetuities are not problems and if Bosworth was the agent for the other three band members when he communicated the executory limitation to his father.

He may not have breached the covenant of quiet enjoyment because Biet was not under his control, although she had superior title.

The museum had constructive notice, or at least inquiry notice, because no interest of the father was recorded, and the museum could have seen that Half-Inch Tacks was hanging out in the premises doing drugs. I would have to do further research to see whether such notice vitiates the covenants of seisin and power to convey. It likely would vitiate the covenant against encumbrances. Conceptually, the grantor and grantee have the power to define what is being conveyed. If the grantee has notice that something has been “subtracted” from the property via an encumbrance, it is logical to conclude that she takes subject to the encumbrance and there is no breach of the covenant against encumbrances.

C.     Tive’s best plan is to sue Half-Inch Tacks for copyright infringement. He must register his copyright before the federal court would have subject matter jurisdiction to hear his lawsuit.

Tive and the other band members have a copyright in their song. It was an original musical work, entitled to copyright, and the copyright arose when they fixed it in the form of the leadsheet. When Half-Inch Tacks created a derivative work by adding their own value to the music represented by the leadsheet, they infringed the exclusive right to create derivative works. When they recorded it, they infringed the reproduction right. When they performed it publicly, they infringed the public performance right.

Half-Inch Tacks may argue that any copyright was abandoned when the leadsheet was left behind, and that they had a fair-use privilege to do what they did. Fair use is unlikely because they used the whole song for commercial purposes and their sale of their song likely diminished any market value the original band might have had in the original song. Abandonment is trickier, and Tive must be prepared to present evidence that the band did not intend to abandon the song because it merely left behind one copy of a leadsheet.

Merely because Tive has a slam-dunk case for infringement does not mean, however, that he will get all of the remaining half-million dollars. First, Half-Inch Tacks is entitled to a copyright on the derivative work, the value of which is the market value of what they added to the original song. Second, Tive is a joint owner of the copyright with the other three band members, so he will have to account to them for any damages he recovers.

D.     Knau should worry about potential liability as Half-Inch Tack’s landlord. To be sure it wasn’t Knau who leased the premises; it was Bosworth Terrier, “unbeknownst to the other band members.” So Knau has a strong argument that Half-Inch Tacks only got a ten-year lease of what Terrier had—an undivided one-fourth interest in the property, and that only Terrier is Half-Inch Tack’s landlord.

Knau is a landlord only if the law imputes that status to other co-tenants from the power of one co-tenant to lease the entire property. (I would have to do more research into this possibility.) Even then, he is liable for breach of the covenant of quiet enjoyment only for interferences with possession under his control. Terrier was the one who created the executory interest which led to the museum’s actual thuggish eviction of Half-Inch Tacks. Knau was not responsible for that, unless Terrier was his agent, as discussed in the answer to subpart (B) of this question.

I would advise Knau that he does not have much to worry about in terms of liability to Half-Inch Tacks.

He does, however, have a strong cause of action against Half-Inch Tacks for copyright infringement, as a joint owner of the copyright in the song (see the answer to subpart (C) of this question).

He also has a good claim for waste against Half-Inch Tacks. During their lease, they were co-tenants with Knau. By letting the premises fall into disrepair, they adversely affected the value of his co-tenancy and are liable for damages to Knau for that adverse affect. Moreover, by smoking and snorting, they triggered the executory limitation which threatened to deprive Knau of his interest (see the answer to subpart (B) of this question).