In answering this question, consult the diagram attached to this exam

Gloria Swanson owned a 330 acre parcel of land that is surrounded on the north, west and south sides by a state park. Running along the entire east side of the parcel is state highway 59. Swanson’s house was on the west side of the property equidistant from the north and south boundaries. In going to and from her house she usually used a gravel drive that curved to the south and east from her house and crossed a creek just before reaching the highway. In the spring the bridge crossing the creek was often under water, and Swanson then used her 4 wheel drive vehicle to cross the extreme northern part of her land out to the highway. There was no road over this part of the property other than the path that she cut, but it was higher, dry land that was passable even in wet weather. There was no way to go to the highway between the bridge that crossed the creek on the south part of the property and the dirt path on the northernmost part of the property because in between was a dropoff from her property to the highway ranging from 12 to 25 feet. No road could be built over this part of the property.

In 1993 Swanson sold the southern 1/3 of the parcel (Part Z) to Veronica Lake. The deed made no mention of an easement, but Swanson expected to and did continue to use the gravel drive that crossed part of Part Z. The deed contained the following promise.

“Grantee promises for herself and her assigns that she will maintain the bridge on the property in a condition that meets the standards of (here was referenced a county bridge maintenance specification). Grantee further promises for herself and her assigns to not keep or maintain livestock other than cats and dogs on the premises.”

Lake immediately recorded this deed.

In 1994 Swanson sold the northern 1/3 of the parcel (Part X) to Joan Crawford. Swanson offered to discount the price by 5% if Crawford agreed to an easement across the extreme north side of Part X. Crawford orally agreed and paid the discounted price, but the deed that Swanson delivered to Crawford contained neither a reservation of an easement nor any covenants. Crawford immediately recorded her deed to Part X.

In 1995 Swanson decided to go into the nursery business. She built two large greenhouses on her retained property (Part Y) and planted much of it in perennial plants she planned to cultivate commercially. She opened for business in 1996, and every weekend had numerous customers coming to and from the highway via the gravel drive. When the bridge flooded in the spring, many of her customers stayed away, but others drove over Part X by the way that Swanson herself used. Crawford, who had not yet developed Part X, did not object to this use, but was probably unaware of it because she lived in the city and spent little time on her new property.

In January, 2000, Crawford sold her Part X to Gary Cooper who soon announced his plans to raise hogs in a large scale operation. The property was zoned agricultural by the county, and this was a permitted use. He built the necessary buildings and brought in the first hogs in March. There were other hog farms in the vicinity, but the odors from Cooper’s farm were much stronger on Parts Y and Z than those from the more distant operations. Much of the time the odors were so bad that it was impossible to remain outdoors for long on either Y or Z. Swanson saw an immediate drop in her business.

On April 20, 2000, Lake died suddenly. Her will gave Part Z to her nephew, Jimmy Stewart. Shortly thereafter a unusually large flood damaged the bridge severely, making it unusable without repair. By phone Crawford asked Jimmy to make the necessary repairs, but he refused. He lived in a distant state and had no intention of spending any money on Part Z until he moved there. He planned to do that only upon retirement many years in the future. Unable to use the gravel drive, Swanson resumed driving on the dirt path across the extreme north part of Cooper’s Part X. A few days later Cooper piled some large rocks on the dirt path at the point where she usually crossed from her land to his. She drove around the pile at first, but Cooper then sent her a letter demanding that she stop crossing his land and threatening legal action if she did not.

This question has three parts. Respond to each fully.

3) You have been retained by Swanson to determine how she can maintain her access to Highway 59 from her house and business. She wants to know whether she can continue to use either the gravel drive over Jimmy Stewart’s property (Part Z ) or the dirt path over Part X now owned by Cooper. Discuss her rights with respect to both the gravel drive and the dirt path.

5) Swanson also wants to know if she can enforce Lake’s promise to maintain the bridge against Stewart.

6) Can either Swanson or Stewart prevent Cooper from raising hogs on his property or at least get him to pay for the harm he is doing to them and their property? Be sure to address the rights of both Swanson and Stewart in this part of the question.

QUESTION II (45 minutes)

Nola Emeril owned a two story building in the old warehouse district of the City. In recent years redevelopment of this area had become fashionable, and she decided to renovate the building and put in shops and restaurants. One of her first tenants was Joe Brennan who signed a five year lease to run a restaurant in space on the second floor of the building. The lease contained the following two provisions:

“Tenant agrees not to assign or sublet the leased premises without first obtaining the written permission of Lessor.”

“Lessor covenants not to lease any part of the building at 11 Water Street to any person, persons or entity that will engage in a restaurant business during the time of the lease made herein.”

Brennan immediately opened his restaurant, but it was never very successful. It specialized in rich, heavy food that was out of style. By the end of the first year it was apparent that his business was failing. He heard that a chef friend of his, Paul Prudhomme, was looking for space to open a restaurant specializing in hot, spicy food. Brennan approached Prudhomme about taking over the lease, and Prudhomme agreed at once. Brennan assigned his interest in the lease to Prudhomme with Nola’s written approval.

Prudhomme’s restaurant was a huge success. Its popularity brought in many persons and was a boon to all of the businesses in the building. After two years, however, the business was so good that Prudhomme decided he needed more space and a new facility. He told Nola of his plans to move, but she told him that she planned to hold him to the lease for its remaining two years. Undaunted, Prudhomme proceeded to develop new space and moved there with 20 months remaining on the lease with Nola.

Without Nola’s approval, Prudhomme assigned his interest in the lease to Antoine Domino who opened his restaurant, Antoine’s, on June 15, 1998, with 18 months remaining in the lease term.

Antoine’s was a success at first, but on October 1, 1998, Nola opened a new Creole restaurant she called NOLA on the first floor of the building. NOLA soon rivaled Prudhomme’s new place as the most popular restaurant in town. Antoine’s business suffered and got worse when the only elevator in the building broke down in December, 1998. Despite Antoine’s numerous requests, Nola did not have the elevator fixed, and Antoine sent her a letter on January 1, 1999, informing her that he would not pay any rent until she fixed it. He withheld the rent for January, February and March. Although Nola finally fixed the elevator on March 28, 1999, Antoine closed his restaurant and vacated the premises on April 1, 1999.

Nola advertised the space for rent but had no offers. When the lease expired on December 15, 1999, she filed suit against Antoine, Brennan and Prudhomme for unpaid rent from January, 1999, to December 15, 1999. Antoine in turn sued Nola for damages claiming lost profits as a result of both Nola’s failure to repair the elevator and her violation of her covenant not to compete with his restaurant business.

You are the judge assigned to the case. Write your opinion, explaining your rationale fully.

QUESTION III (60 minutes)

Owen Othello owned a large tract of undeveloped land in Marshall County in northwestern Minnesota that he used for hunting. He had built several deer stands and duck blinds, but otherwise the land was totally undeveloped. He often hunted the land with his best friend, Arnold Allen. They were virtually inseparable during the hunting season in the Fall of every year. In 1997 Othello learned that he had cancer. Faced with his own mortality he told Allen that he wanted to do something to assure that Allen would be able to continue to hunt the land even if Othello could not.

On November 16, 1997, after a particularly nice day of hunting, Othello gave Allen a deed that had been prepared by his lawyer. It read in part:

“Grantor grants to grantee, his heirs and assigns a permanent easement to hunt and fish the property described as [here was an accurate legal description of the property].”

This deed was signed by Othello and acknowledged before a notary. Allen recorded the deed the next day, but the clerk in the recorder’s office who made the entry for the deed in the grantor-grantee index made a mistake and entered it under the name “Allen Arnold” thus listing the last name of the grantee as Arnold.

Othello died in June of 1998 leaving his son, Bert, as his sole heir. Bert knew of the grant of the easement to Allen, but the decree entered by the probate court in Othello’s estate made no mention of it. It decreed the property to Bert without noting any limitations.

Allen hunted the land in the fall of 1998 but found that being on the land without his old friend depressed him. In February, 1999, Allen sold his easement to his friend, Clare Carter, for $500. She was an avid hunter who had known Othello slightly. Allen thought that at least someone would enjoy the property in the way that Othello intended. Clare did not record this deed.

Bert, who lived in Missouri, did not like to hunt but investigated whether he would be able to develop the land in some other way. He discovered that he could not because the land was not tillable and had no use other than recreational. On June 1, 1999, Bert sold the property to Don Davis for $40,000. Davis planned to use it for hunting initially but thought that he might build a motocross track on it at some later date. Davis recorded his deed from Bert the next day.

In November, 1999, Clare was driving from her home in Duluth to hunt on the land when she was killed in an automobile accident. Her sole heir was her daughter, Ellen Evers, and the decree of the probate court in Duluth awarded all of Clare’s property, including the easement to hunt the land, to Ellen. Ellen recorded this decree in the Marshall County recorder’s office in June of 2000.

In the fall of 2000 Don Davis was out hunting on the land when he saw Ellen on the property. When he told her that she was trespassing and demanded that she leave, she told him that she was entitled to be there. Furthermore, not only did she plan to continue to hunt the land herself, she had begun plans for a hunting club. She was going to sell memberships to individual hunters that would give them the right to hunt the property during one week in each hunting season. She had already advertised the club’s formation in a state hunting magazine.

Section 507.34 of Minnesota Statutes reads in part as follows:

“Every conveyance of real estate shall be recorded in the office of the county recorder of the county where such real estate is situated; and every conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any part thereof, whose conveyance is first duly recorded, . . .”

Davis has come to you for advice. He has told you that until he saw Ellen on the land he had never heard of any claim that Ellen or anyone else had on the property although he did admit that he had done no title search before buying the property from Bert. He wants to know whether he can keep Ellen from using the land herself. He also wants to know if he can stop her from allowing others to use it. Advise him fully, explaining your reasoning.