I wrote four exam questions for my two sections Property II. Here is the fourth question. Feel free to take a stab at the answer in the comments.
Instructions: You are a law clerk and your judge asks you to prepare a bench memo of no more than 500 words based on the following set of facts. You are in a jurisdiction that, for the most part, adopts the rules of the Restatement (First) of Property, but is gradually moving towards the Restatement (Third) of Property. The jurisdiction has a “Notice” recording statute. Here are all the facts. If you draw any inferences beyond these facts, please explain why you drew those inferences.
In the city of Springfield, there is a crazy cast of characters with perplexing property problems.
Aggie, who always acts quite young for her age and never seems to grow up, owns Wetacre. Bart, her mischievous neighbor, raises chickens on Dryacre, which is adjacent to Wetacre.
In 1991, Bart acquired Dryacre in fee simple from Carl with a general warranty deed. Carl told Bart that there were no encumbrances on the title. Bart did not conduct a title search.
In 1995 after her father Domer died, Aggie inherited a life estate in Wetacre with the remainder to Aggie’s heirs. When Aggie inherited the land, she was not aware of any encumbrances on the title.
Back in 1990, Carl and Domer, who were at the time the owners of Dryacre and Wetacre, respectively, reached a set of covenants. First, because the farm on Dryacre did not have any natural source of water, Domer gave Carl written permission to enter Wetacre, and water his chickens on the lake on Wetacre. Second, because Wetacre did not have access to a reliable source of power, Carl gave Domer written permission to install solar panels on Dryacre, which would be used to power Wetacre. Third, because Wetacre was surrounded on all sides by the lake, except for a narrow passageway across Dryacre, Carl gave Domer permission to walk across Dryacre to get to the main road. All three of these covenants were recorded in 1990.
Fast-forward to the present, and the situation between Aggie and Bart is quite bad. First, the lake on Wetacre became contaminated due to toxic waste runoff from the nearby nuclear power plant operated by Monty–a curious species of three-eyed fish has emerged. Bart, no longer willing to water his chickens in the contaminated lake demanded that Aggie honor the intent of the original promise between Carl and Domer, and provide him access to the creek on Wetacre, which had not been polluted. Without access to the creek, all of Bart’s chickens will die. Second, in retaliation, Bart disconnects the solar panels that were powering Wetacre. Third, Bart puts up a road-block blocking Aggies’s car from accessing the road to Springfield.
Aggie, unable to drive, walked across Dryacre, and traveled on foot to the Town Hall to do some research. First, she discovered that in 1970, Springfield passed an ordinance that prohibited “all farming activities” within city limits. Second, Aggie discovered that when Domer acquired Dryacre from Edna in 1985, Edna inserted a covenant into the deed so that the land could only be used for “agricultural purposes.” However, the clerk erroneously wrote “Homer” instead of “Domer” on the covenant. Third, Aggie discovered that Monty had been dumping toxic waste into the lake since the early 1980s.
Aggie informed Bart that she would be filing a lawsuit against him for disconnecting the solar panels and blocking vehicular access to the road to Springfield. Bart, responded that he would file a counterclaim against Aggie for denying him access to the creek on Wetacre, and for trespassing across Dryacre.
Your judge, who does not like to be surprised by woeful briefing, asks you to write a 500 word bench memo addressing the following questions based on the facts above:
Will Aggie’s claims against Bart be successful? Will Bart’s claims against Aggie be successful? Are there any other foreseeable suits against Carl, Edna, Monty, or Domer’s estate? What should the outcome be for those suits?