TO: Senior Partner
FROM: Student Law Clerk
DATE: February 21, 2012
RE: Newman Easement Case
Is the Whiteacre easement extinguished by abandonment, and if not, is Mr. Avatar's proposed use cause for extinguishment or injunction? Is the rock pigeon a protected species? I. To abandon an easement by grant, both nonuse and intent to abandon must be shown. The Whiteacre easement wasn't used since 1948, Blackacre was never repaired and Mr. Costanza believes he relinquished the easement in 1986. Was the easement abandoned? II. Use is excessive when it is unduly burdensome, but will not extinguish an easement unless proper use is permanently prevented. Mr. Avatar proposes that up to 400 guests would regularly use the easement. Can this use be enjoined, or extinguish the easement? III. It is illegal to kill birds protected under the Migratory Bird Treaty Act. Rock pigeons nest on Blackacre, and may hinder Mr. Avatar's plans. Are rock pigeons protected birds?
This case arises out of…show more content… Flanagan v. San Marcos Silk Co., 106 Cal. App. 2d 458 (1951). In Flanagan, the defendant Silk Company owned several easements for right of way of water pipes. In 1933, the company went bankrupt and stopped using the pipes for 16 years. Id. at 461. In determining whether abandonment occured, the court focused on intent to abandon. It considered in part that portions of the pipes couldn't carry water, and others were left leaky and exposed. Id. at 464. It concluded that intent to abandon may be predicated upon facts showing that the means of enjoyment of an easement have been in a state of disrepair for a long period of time. Id. at 466. See Ocean Shore R. Co. v. Doelger, 218 Cal. App. 2d 222 (1960) (finding an abandonment after 30 years of nonuse, removal of railroad equipment, and failure to maintain the