(145 Points/75 Minutes)

INSTRUCTIONS

1. This part consists of two essay questions. BEFORE you begin to write your answer, read the question carefully. Be sure you correctly understand the facts. If you believe essential facts are missing or are not clearly stated, answer as well as you can, stating explicitly what you believe is missing or vague and what assumptions you are making in order to compensate.

2. Read, think, and outline your answer BEFORE you begin to write. Your answer should provide a concise, well-organized analysis of the situation. Avoid discussion of unrelated rules of law.

3. Write legibly in your blue book, writing only on the right hand page. Leave appropriate margins. Use correct spelling and proper rules of grammar. Do not use pencil or red ink.

4. Observe the recommended time allocations!

QUESTION 1 (120 points/60 minutes)

Edna owned and operated a small nursery on Parcel 42. Her neighbor, Glen, owned a 10 acre walnut orchard adjoining his home all on Parcel 41. Although an old, rarely traveled, county road abutted Parcel 42 along its western edge, for as long as anyone could recall, Edna, her suppliers, and her customers had been using a road across Parcel 41 as access to and from the county highway along the eastern border of Parcel 41. In 1985, because his walnut trees were no longer producing marketable nuts, Glen, the owner of Parcel 41, decided to go out of the walnut business. That same year, he purchased Parcel 42 from Edna together with her nursery business.

(PICTURE NEEDS TO BE ADDED)

After 5 years of operating the nursery himself, in 1990, Glen duly executed a 30 year lease to Parcel 42, together with an option to purchase, to Flowerland which agreed to continue the operation of a nursery on the premises throughout the lease term and to repaint the facade of the nursery every three years to maintain its appearance. For his part, Glen, an expert arborist, agreed annually to prune and otherwise maintain the rare and valuable ornamental trees he had planted in 1985 in front of the nursery.

In 1992, Dan, an urban expatriate and aspiring developer, persuaded Glen to sell him Parcel 41. Soon after closing that deal, Dan moved into the home on Parcel 41. Not long after noticing the traffic to and from the nursery across the now dormant orchard on his land, Dan wrote to Flowerland advising it that it would have to cease and desist its use of that road when Dan commenced construction of the 40 unit residential subdivision which he planned to place on the site of the old orchard.

In 1995, in anticipation of residential sprawl, Flowerland sublet Parcel 42 to Spendway, a nationwide chain of supermarkets, for a term of 10 years with an option to renew for the balance of Flowerland's term. Since then, Spendway has allowed the premises to remain unoccupied apparently planning to open a supermarket only after most of the 40 units Dan plans to build have been sold. To that end, in 1997, Spendway acquired title to Parcel 37, adjoining Parcel 42 to the north. Parcels 37 and 42 together will afford Spendway the necessary space for its new supermarket.

Because Dan experienced difficulties securing adequate financing for the 40 unit subdivision he had planned, and for which he now has the necessary plans and permits, construction was postponed until just recently.

Glen, who since 1992 has lived about 2 miles away, faithfully pruned and maintained the trees in front of the nursery from 1985 until 1996, when he stopped. Those trees have since died and will have to be removed.

Last month, Dan commenced construction of the planned subdivision and immediately placed a fence on the property line between Parcels 41 and 42 blocking all access to the road across his land to the county highway. Dan also wrote to Spendway complaining that the nursery is no longer being operated and that the facade has not been repainted for over 6 years and has fallen into unsightly disrepair.

Spendway has consulted you. Spendway desires to learn what rights it may have to cross Parcel 41, what obligations it may have to operate a nursery on Parcel 42, what obligations it may have regarding the painting and maintenance of the facade, and what rights it may have regarding the ornamental trees which died in front of the store. Write a well organized memorandum fully advising Spendway of its rights and liabilities.

QUESTION 2 (25-points/15 minutes)

You were each asked to read Should Trees Have Standing? plus two of the following books: (1) Cadillac Desert, (2) In The Absence Of The Sacred, (3) Lies My Teacher Told Me. Circle the titles you read.

Set forth any insightful perspectives on Property Law you learned from the books you selected to read. Write no more than three (3) pages in your blue book.

MEMORANDUM

TO: Students in Property I, Sections X and Y
FROM: Professor Goetzl
DATE: May 25, 1999
SUBJECT: Comments on final exam, May 14, 1999
-------------------------

I would like to share with those of you interested enough to read this some comments on the answers I read to the main essay question which was on your final examination. I do not intend these comments to provide a "model answer". I will put on reserve copies of a couple very good papers.

First, it is not diff icult to see who of you followed the directions and who did not. The instructions warned that the questions would be "difficult for those who would answer without thinking". Otherwise they would "prove to be relatively straightforward".

Thus, for example, the better papers began the easement analysis by observing that whatever easement might have been possessed by Edna, it would have been extinguished by merger when Glen acquired her Parcel. Far too many of you prattled on and on for as much as 5 or 6 pages about how Edna might have acquired an easement. It is irrelevant; it simply does not matter. The facts tell you Glen came to own both the servient and dominant tenements. That would have extinguished any right of way that might have existed. Now, move on to examine whether a new easement by implication arose when Glen leased to Flowerland. And, note, the requisite "prior use" must have been by Glen, not by Edna or by Flowerland.

When the facts tell you that the putative dominant tenant has acquired a second lot (Parcel 37), the question whether any easement appurtenant to Parcel 42 may be used to benefit a nonappurtenant lot should jump out at you. This is a "scope" issue and must be addressed.

Most of you grasped that whatever easement Flowerland had would have passed to Spendway; and, that Dan would have acquired only such estate as Glen had, i.e., a servient tenement.

Too many of the discussions of the covenant issues failed adequately to identify which covenant was under consideration: whether the issues concerned the running of the burden of that covenant or its benefit or both, and whether enforcement was being sought at law or in equity. As constantly harped on in class, it is essential to ask "who is suing whom?" and "what for?". In other words, who is the plaintiff and who is the defendant? Since the covenants were in the lease between Glen and Flowerland and Glen owned both a reversion in the demised parcel as well as the adjoining lot, you must articulate whether you believe the benefit was intended for Parcel 41 or 42. And, to conclude that the burden of Glens covenant to prune the ornamental trees was personal os not resolve the question whether the benefit of that covenant might have run from Flowerland to Spendway.

While it is true that failure to comply with the statute of frauds may prevent the enforcement of a contract otherwise required to comply, nevertheless, a covenant, unsupported by consideration, is not rendered enforceable simply by being in writing.

Many of your covenant analyses were difficult to follow because too many of you relied on pronouns throughout your answers and I was never able to discern which covenant you were discussing and whose rights and liabilities you were assessing.

As I have tried to admonish all of you throughout our time together, time invested by you in thinking and organizing your responses before writing will pay off big time. Persuasive writing must be preceded by clarity of thought. Those of you who think you haven't time to outline your answers still don't get it; you don't have enough time to write without first outlining your answer. You must learn to outline. It will save you time by making your writing so much more efficient.