The Concept of Nonpossessory Interests
Facts: Between 1923 and 1947, Arkansas Power & Light (AP&L) constructed dams on two Arkansas lakes, Hamilton and Catherine. The company obtained “flood easements” on property adjoining the lakes. The easements permitted AP&L to “clear of trees, brush and other obstructions and to submerge by water [the adjoining land].” AP&L properly recorded its easements.
In May 1990, extraordinarily heavy rains fell, and water reached the highest levels ever recorded. AP&L opened the gates of one dam, called Carpenter, causing water to rise 25 feet. This flood caused massive damage to the landowners’ real estate. Several dozen landowners sued, claiming that AP&L was negligent in opening the dam and in failing to warn homeowners of their intended action. The United States District Court granted summary judgment for AP&L, and the landowners appealed.
You Be the Judge: Did the easements relieve AP&L from liability for flooding? The case study above will assess how well you understand the concept of nonpossessory interests. Begin by reading the facts of the case (Carvin v. Arkansas Power and Light), then decide: Did the easements relieve AP&L from liability for flooding? Read the arguments for both sides carefully before beginning your case study. Present your decision in writing in a 3 page (double-spaced) decision. The case may be found using Google Scholar.
● What rights does a landowner have and how are they affected by an easement?
○ In this case what were the responsibilities of all parties?
○ What rights did AP&L purchase with the easement?
○ Did subsequent owners know of the easement and if they did not, are they still bound by it?
○ Is it fair to have the landowners pay for the actions of a large corporation?
● Was AP&L negligent in their actions?
○ Should they have provided notice to the homeowners?
○ Were there other actions that AP&L could have taken?
○ Should AP&L have foreseen that this type of flooding was possible and constructed an alternative holding area for the waters?
● What was the effect of AP&L recording
● Respond to the questions in this Assignment providing support or evidence for your point of view or argument you are trying to make.
● Tell your readers what action they should take, or provide a summary of what the reader should takeaway from reading/learning about the topic.
● Write your paper in a clear and articulate manner using Standard English.
● Write the paper in your words without using quotations.
● Ensure it is well-organized, logical, and unified, and that your work is original and insightful.
● Use the 7th edition APA formatting and citation style for your paper.
● Respond in a least a 3-page paper with a separate title and reference page.
● Have at least two quality references or law cases in addition to the textbook, for a total of at least three.
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