EXPLANATORY MEMO FOR SAMPLE QUESTION 1
I.
Callahan v. Worly
A.
Nuisance
Worly could bring a nuisance claim against Callahan, both for the noise and the sawdust. Most
students correctly defined a nuisance as an unreasonable and substantial interference with another’s use and
enjoyment of their own property. Many students listed the factors that courts often consider in making this
determination: the manner in which the activity is conducted; the place in which the activity is conducted;
the priority of the activity; the nature of the activity being harmed; the gravity of the harm; the ease of
abating the harm; and the utility of the conduct. Because this is very much an open-ended balancing test,
and because the fact situation was a close one, there was no identifiably “correct” answer – opinions on
either side were acceptable. Rather the focus was on how well you justified and supported your conclusion
with the available facts.
Applying the standard to the noise caused by Callahan’s sculpting, many students correctly noted
that Worly’s use predated Callahan’s use for several years, and that the harm to his psychiatry practice
seemed somewhat significant, or at least non-trivial. In addition, a residential subdivision is perhaps not
the most appropriate place for the large-scale sculpting that Callahan undertakes. At the same time,
however, a residential subdivision is perhaps not the most appropriate place for a psychiatry practice.
Moreover, such a use could be deemed hypersensitive. Many students attempted to assess the relative
utility of the two activities. In the end, my own personal opinion is that it is somewhat more likely that a
court would find no nuisance, but the issue is close enough that I wouldn’t be surprised by the opposite
conclusion.
II.
Callahan v. Evans
A.
Express Easement
Although this was implicit in nearly all of the answers, a number of answers expressly noted that
Callahan had no claim for an express easement based on Evans’s oral statement that Callahan could use the
land “as long as he wanted”, since an express easement must be in writing.
B.
Adverse Possession
Callahan could try to claim ownership over the three-foot strip of driveway through adverse
possession, though such a claim would probably not be successful. Most students correctly identified the
elements: (1) actual possession; (2) that is open and notorious; (3) exclusive; (4) continuous; (5) adverse or
hostile; and (6) for the statutory period – in this case 10 years. In addition, in most jurisdictions, proof of
adverse possession must be by clear and convincing evidence. Finally, to satisfy the statutory period,
periods of adverse possession by successive owners can be “tacked” together, if such owners are in privity
(e.g. if the property has been sold or otherwise conveyed from successive owner to owner.)
Applying the facts to the legal standard, many students noted that Callahan had permission to use
the 3-foot strip after 1998, thus defeating the hostility requirement, and that any use after permission was
withdrawn fell well short of the 10-year period.
Many students also noted, however, that it was possible that previous owners could have adversely
possessed the strip for the statutory period, and that they could have conveyed their interest to Callahan in
1998 (see, e.g., Brown v. Gobble – query, though, whether the subsequent permission somehow affects
Callahan’s ability to assert this claim, an interesting question to which I have no immediate answer). Under
this theory, the paving of the driveway by the previous owners in 1991 clearly satisfies all of the
requirements of adverse possession, except that it falls approximately three years short of the statutory
period. Accordingly, the success of this claim depends on whether the three-foot strip was used from 1988
to 1991. Here, we don’t have any information. Moreover, since adverse possession sometimes requires
proof by “clear and convincing evidence,” it seems unlikely that Callahan would be able to provide
sufficient proof of adverse possession for that three-year period.
C.
Prescriptive Easement
Callahan could claim the right to use the three-foot strip through a prescriptive easement. The
elements of this claim are essentially the same as adverse possession, except that the scope of the right
claimed is an easement rather than title. Accordingly, there need not be actual or exclusive possession.
Rather, Callahan must show that the three-foot strip was actually used in an open, notorious, continuous,
and hostile manner for the statutory period.
Here, the statutory period runs into the same problem mentioned above, namely the three-year
period from 1988 to 1991 when the driveway was unpaved, but appears to have been used by previous
owners. Here, Callahan may have a better claim, however, since it might be easier to show use of that
three-foot strip, even if unpaved, during that three year time period. In addition, a court will probably be
less hesitant to find a prescriptive right of way (as opposed to a transfer of title over the three-foot strip).
Thus, in the end, Callahan has a decent chance of proving a prescriptive easement.
Many students identified both the adverse possession and prescriptive easement claims, though
only a few discussed ways in which the two claims might differ.
D.
Easement by Estoppel
Callahan probably has a good claim for an easement by estoppel. Ordinarily a license to use
someone’s property can be freely revoked at any time. However, the owner may be estopped from
revoking the license if he or she induces the other party to reasonably rely, to their detriment, on the
license. Under such circumstances, it may be unfair to permit the land owner to revoke permission to use
the land.
Here, it is pretty clear that Callahan relied on Evans’s permission to use the 3-foot strip of
driveway in deciding whether to purchase the home for use as a residence and as a studio. One issue,
which few students spotted, is whether this reliance was reasonable. On the one hand, it could be argued
that such a significant investment (the purchase of a home) cannot be reasonably made based on the oral
assurances of a neighbor. On the other hand, it could also be argued that Callahan offered to purchase the
land and was brushed off with reassurances, and that he was not reasonably required to do any more. In the
end, my sense is that he has a decent claim for an easement by estoppel.
E.
Implied Easement or Easement by Necessity
A number of students noted that Callahan probably did not have a claim for an implied easment
(from prior use) or an easement by necessity. Both of these easements require some common prior
ownership, and there is nothing in the record to suggest such common ownership during the relevant time
period. Moreover, the easement by necessity clearly fails since there is plenty of access to Callahan’s lot –
the only piece missing is the three-foot strip, which clearly does not give rise to a claim of necessity.
Because these claims were clearly not applicable, they either warranted only the briefest mention, or no
mention at all.
III.
Callahan v. Norton
A.
Common Law Lateral Support
Norton could try to bring a claim for common law lateral support. Under the common law,
adjoining landowners have an absolute duty to support their neighbors’ land in its natural condition.
However, there is no absolute duty to support structures built upon that land, if the land in its natural
condition would not support such structures. Rather, neighbors have only a duty not to act negligently in
removing support for structures.
Here, there is an initial question as to whether a swimming pool is a “structure” within the
meaning of the common law. Since it is not a natural feature of the landscape, it is probably safe to assume
that a court might find it to be a structure. The next question, then, is whether Norton’s land in its natural
state could have supported the weight of the swimming pool. Callahan suggests that the cracks in the wall
were caused by the additional weight of the swimming pool. If this can be proven, then Norton will have
no claim based on strict liability. Moreover, Norton will probably have no negligence claim, since there is
no evidence that Callahan was negligent in failing to maintain the retaining wall.
B.
Covenant
Norton could seek to enforce the covenant, which imposes an affirmative obligation on Callahan
to maintain the wall and to support any “buildings” built on Norton’s land. The first question, which most
students identified, is whether the covenant runs with the land. To run, the covenant must satisfy the
following requirements: (1) it must be in writing; (2) the parties must intend for it to run; (3) there must be
notice; (4) the covenant must touch and concern the land; and (5) there must be privity of estate (both
horizontal and vertical).
Here, the covenant clearly satisfies the first four requirements: it was in writing; it expressly noted
that it was to run with the land; Callahan had both constructive and actual notice of the covenant; and the
obligation clearly touches and concerns the land. Vertical privity was probably satisfied, since there were
sales or other conveyances of both the benefited and burdened lands. However, horizontal privity was
missing, since there is no indication that the original covenanting parties had any relationship to each other,
aside from being neighbors. That is, there is no evidence of mutual covenants, or any conveyance of
property from one party to the other. Rather, it appears that the two were merely neighbors, and such a
relationship generally does not satisfy the horizontal privity requirement. Accordingly, the covenant does
not run, and Norton cannot bring a claim for damages. However, Norton may still be able to enforce the
obligation as an equitable servitude, since all of the other requirements were met. Thus, Norton could get
an injunction, forcing Callahan to repair the wall (which is probably what she wants anyway).
Even if the obligation in the deed can be enforced as an equitable servitude, there is still a question
of interpretation, i.e. whether a swimming pool is a “building” within the meaning of the covenant.
Callahan could make a reasonably strong argument that a swimming pool is simply not a “building” under
any interpretation of that term. Accordingly, there is a decent chance that the covenant, even if
enforceable, is not applicable to this fact situation.
Finally, a number of students suggested that Callahan might be able to defend based on undue
burden or changed circumstances. While these can be defenses to enforcement of a covenant, there isn’t
much in the record that supports either of these two defenses.
IV.
Callahan v. Homeowners’ Association
The Homeowners’ Association may be able to bring a claim to enforce the restrictions. Although
Callahan’s deed does not specifically mention these restrictions, the Association may be able to argue that
they are implied negative reciprocal covenants arising from the common plan of development for the entire
subdivision. Courts have found such restrictions enforceable, even when they do not appear on the deed,
where there is a common plan for the development of an entire subdivision and where the particular
homeowner had either actual, inquiry, or constructive notice of the restriction.
Here, there is some evidence of a common plan, given that all of the other properties in the
subdivision reference the restrictions in the master plan. The key question is whether Callahan had notice,
and this is a close question. It is clear that Callahan did not have actual notice; however, the Association
may argue that he was on inquiry or constructive notice. In particular, the uniform character of the lots
could have placed Callahan on notice that there were some restrictions regarding the maintenance of the
yards. However, it could also be argued that the mere uniform appearance of the yards could just as
reasonably be attributed to conscientious maintenance by individual homeowners. In addition, it is hard to
see how Callahan could have been placed on notice of the rental restriction, since this would not be visible.
It could be argued, however, that even if Callahan was not on notice as to the specific restrictions, he
should have been on inquiry notice that some restrictions existed in a master deed, given the uniformity of
the subdivision. Again, this is a close question, and the result would probably depend on additional facts.