Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

/ Easements, Servitudes

In a case applying what appears to be the majority rule, the Seventh Circuit held that an easement for power lines included the right to install lines for other purposes — in this case fibre optic cables. West v. Louisville Gas & Electric Co., 951 F.3d 827 (7th Cir. 2020). The Texas Supreme Court rejected this approach, finding this kind of use to exceed the scope of the original easement, see Marcus Cable Associates v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002), but most courts that have addressed the question have agreed that a right to pass electric lines over property includes the right to pass lines for other purposes, such as cable television. This was true even though the original easement stated in its text that the easement was to place lines “for the transmission, distribution and delivery of electrical energy” — a type of use that does not extend to Internet …

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Bank has standing to foreclose despite inability to produce the note on which the mortgage was based

/ Mortgages, Real Estate Transactions

The New Jersey Supreme Court allowed a bank to foreclose on property without direct evidence that it had the right to foreclose. Ordinarily, the foreclosing entity must produce the note that memorializes the underlying debt. The UCC allows foreclosure when notes have been lost, UCC 3-309, if a “lost note affidavit” is filed with the court. In Investors Bank v. Torres, 2020 WL 3550701 (N.J. July 1, 2020), the homeowner borrowed money from one lender who filed a foreclosure action but subsequently dismissed that action and later executed a lost note affidavit. It then assigned the note and the mortgage to a second lender who brought foreclosure proceedings based on the lost note affidavit of the prior lender. Some courts have held that a lost note affidavit must state that the party attempting to enforce the note is the party that lost the note. See Dennis Joslin Co., LLC v. Robinson Broadcasting …

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Resolving conflicts between tenant with allergies and those needing support animals

/ Antidiscrimination Law, Fair Housing Act

In a case typical of a property law class, the Supreme Court of Iowa confronted a conflict between one tenant who needed an emotional support animal and another who was allergic to dogs. Cohen v. Clark, 945 N.W.2d 792 (Iowa 2020). The lease for both tenants contained a “no pets” clause. The question was whether the landlord had a duty under fair housing laws to make an exception to that policy as a “reasonable accommodation” for a tenant with a disability. In this case, however, two tenants arguably had disabilities and the means of enabling one to enjoy housing would have deprived the other of housing. The court resolved the conflict by using the time-honored property law doctrine of “first in time, first in right.” Since the tenant with pet allergies moved into the building first, and did so because of its no-pets policy, the court held that the landlord had no …

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Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

/ Easements, Servitudes

In a case applying what appears to be the majority rule, the Seventh Circuit held that an easement for power lines included the right to install lines for other purposes — in this case fibre optic cables. West v. Louisville Gas & Electric Co., 951 F.3d 827 (7th Cir. 2020). The Texas Supreme Court rejected this approach, finding this kind of use to exceed the scope of the original easement, see Marcus Cable Associates v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002), but most courts that have addressed the question have agreed that a right to pass electric lines over property includes the right to pass lines for other purposes, such as cable television. This was true even though the original easement stated in its text that the easement was to place lines “for the transmission, distribution and delivery of electrical energy” — a type of use that does not extend to Internet …

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City can enforce ban on pit bulls against resident who needs emotional support animal when he had other dogs that might serve that purpose

/ Antidiscrimination Law, Fair Housing Act

The Nebraska Supreme Court faced a claim by a resident that he had a right under fair housing laws to a reasonable accommodation of a city law that prohibited residents from owning pit bulls due to their perceived dangerousness. Wilkison v. City of Arapahoe, 926 N.W.2d 441 (Neb. 2019). Because the resident had other dogs, and he could not prove that they could not serve the same purpose, the court found that he did not have a right to an exemption from the ordinance.

Horizontal wells are a trespass even if one has the right to drill for minerals on that land

/ Trespass

In a complex and narrow holding, the West Virginia Supreme Court held that an oil and gas company had no right to drill horizontal wells from one parcel to another even if it owned mineral rights on the second parcel. EQT Prod. Co. v. Crowder, 828 S.E.2d 800 (W.Va. 2019). While a mineral owner has the right to use the surface of a tract in any way that is reasonable and necessary to withdraw minerals from beneath that tract, it has no right to use the surface to withdraw minerals from other land by means that involve physical intrusion without obtaining the consent of the surface owner of the first parcel since such actions exceed the scope of the rights that had been granted to the company.

Easement by necessity available if the difficulty or expense of using a legally available route renders the land unfit for its reasonably anticipated use

/ Easements, Servitudes

The Pennsylvania Supreme Court granted an owner an easement by necessity even though the land contained a small strip connecting the land to a public way. Bartkowski v. Ramondo, 219 A.3d 1083 (Pa. 2019) (applying the Private Roads Act, 36 Pa. Stat. §§2731-2891. It did so on the ground that access need not be strictly necessary to get to the land for an easement by necessity to exist. All the owner need show is that access is not available that would allow ordinary uses of the property if the easement by necessity is not recognized. In this case, While mere inconvenience is not enough to show necessity, neither must the land be completely landlocked to take advantage of the doctrine of easement by necessity. “The central inquiry is whether, absent the recognition of an easement, the … dominant estate will be left without a means of ingress and egress, rendering the …

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Covid-19 temporary business closures do not effect regulatory takings

/ Takings

Several courts has addressed the question of whether temporary business closure orders to protect the public from Covid-19 constitutes regulatory takings of property. So far, the answer has been “no” as evident in a prominent decision of the Pennsylvania Supreme Court. Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020) (relying on Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)).

Encroaching tree trunk and roots constitute a trespass under Montana law

/ Trespass

The Montana Supreme Court reaffirmed the traditional rule that trees on one’s own land do not unreasonably interfere with the use and enjoyment of neighboring land even if they block the neighbor’s view and so are not nuisances Martin v. Artis, 290 P.3d 687 (Mont. 2012). However, the court held that it is a trespass for the tree’s roots to encroach on the neighbor’s land, at least when they are causing harm as they are here by buckling the neighbor’s fence. The court seems to hold that the mere intrusion of the tree’s roots are sufficient to constitute a trespass. Most courts would disagree, relegating the victim to self-help, although the encroaching tree trunk might well constitute a trespass when it damages the neighbor’s fence, as seemed to be the case here.

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