Property

Fact pattern

Whiteacre and Blackacre are adjoining residential tracts. A owns Whiteacre and B owns Blackacre. Whiteacre lies between Blackacre on one side, and a beautiful view of the nearby mountains on the other. Thus, for B to enjoy the view of the mountains from Blackacre, B must look across A’s property. The mountain views contribute substantially to the value of both tracts.

In Year One, A and B execute a writing that says: “A hereby promises that A will never erect any structure on Whiteacre that would interfere with the view of the mountains from Blackacre.” B records this document in the appropriate county recorder’s office, which maintains all records relating to interests in land. 

In Year Two, B gives A written permission to enter Blackacre to gather firewood. The document reads as follows: “A shall have the nonexclusive right to enter upon Blackacre to cut and remove firewood for A’s personal use.” A records this document in the county recorder’s office.

In Year Three, B sells Blackacre to C. Soon after, A sells Whiteacre to D. Immediately, D erects a swing set on Whiteacre for D’s children. The swing set is directly in the middle of the view of the mountains from Blackacre. C asks D to remove the swing set, but D refuses. 

At the same time, A files a document in the county recorder’s office that says: “I hereby assign my right to cut firewood on Blackacre to D, E, and F.” Subsequently, D, E, and F enter Blackacre to cut firewood. Each of them cuts the same amount of firewood that A had cut previously. C quickly realizes that if the cutting continues, Blackacre will become deforested. 

The jurisdiction where Whiteacre and Blackacre are located follows the common law of property.

Questions

1. Can C force D to remove the swing set? Explain.
2. Can C prevent D, E, and F from cutting any more firewood on Blackacre? Explain.