E
Easement
An interest in land that does not include ownership. Easements are typically rights to use a portion of another’s land, e.g., a path or an unpaved road crossing the land. The easement holder has a right to use the land specified in the easement for the purposes set out in the easement but cannot sell the land or otherwise enjoy any benefit other than its use.
Typically, easements "run with the title", i.e., if the owner sells the easement continues after the buyer takes possession. For this reason, buyers should always check the public records to know if an easement runs with the title.
An example of an easement that runs with the title is the easement for utilities, e.g., water mains or power lines. Other easements include public easements like those provided for sidewalks; the owner holds title to the land, but others may use the sidewalks.
If an easement does not already exist, the landowner may refuse to allow an easement to be established by keeping people off his property by trespass warnings and legal enforcement. Ownership of title in land normally means "quiet enjoyment" and "exclusive use".
Some public easements and utility easements may not be resisted. If the party seeking an easement is an individual or business, the land owner may be able to negotiate to be paid for the easement. If the easement sought is a public easement, payment may be denied in the public interest.
See title.
Economic Crime
Crime that deals exclusively with money and thus affects people only in their pocketbooks, as opposed to crimes that injure people physically or destroy property. An example is embezzlement or securities fraud.
Economic Loss Rule
The economic loss rule prevents plaintiffs from double-dipping. Many times plaintiffs file an action for breach of contract and also for negligence in performance of the contract. The economic loss rule prevents plaintiffs from collecting for both.
For example, a case involving a contract between a strawberry farmer and a chemical company was filed in Florida when a batch of fertilizer the farmer ordered turned out instead to contain herbicide that killed all his strawberry plants. The farmer’s case had a count for breach of contract and another count for negligence. Since the farmer contracted for fertilizer and received herbicide instead, he sued for breach of contract. Since the packaging of herbicide in fertilizer bags could only result from bone-headed negligence, the farmer also sued for negligence damages. The farmer won, and the economic loss rule did not apply.
In another case, however, a farmer sued a tractor manufacturer for breach of contract and negligence when a negligently designed part on the tractor caused the tractor to fail, and the farmer couldn’t get his crops in on time. The faulty tractor resulted from negligence. The court said in this case, however, that the bargained-for consideration was a tractor, not crops safely gathered into the barn. When the tractor failed to work it was only the tractor that was damaged by the defendant’s negligence. The farmer&rss contract for a working tractor was breached by delivery of a faulty tractor, and the farmer won on his breach of contract count. The tractor did not directly damage the farmer’s crops, however, so the farmer was not permitted to recover for negligence. Since the damages were not to property other than property the farmer contracted for (a working tractor) the courts restricted his recovery to breach of contract and denied the negligence count. The economic loss rule barred his recovering for lost crops.
In the first case, a negligently delivered chemical damaged other property, and the economic loss rule did not prevent recovery for both breach of contract and negligence damages. In the second case a negligently manufactured tractor damaged itself, and the court applied the economic loss rule to bar the farmer from recovery on his negligence count for crops left to rot in the field.
The idea of the economic loss rule is that when one is prevented from enjoying the benefit of his contract bargain by negligence that only affects the thing bargained for, recovery must be by a breach of contract action alone. The negligence count will not be heard unless the defective thing bargained for also damaged other property. You cannot double-dip. Since the negligently manufactured tractor damaged only itself and not the farmer’s crops, the farmer was required to seek recovery in court solely on his breach of contract count. When the negligently packaged herbicide destroyed fields of strawberries, however, the farmer was permitted to recover damages both for breach of his contract (he paid for fertilizer) and for the negligent delivery of herbicide that destroyed his crop.
The economic loss rule applies to restrict recovery only to the contract count when negligence damages the thing bargained for. In such cases the injured party is said to have lost only the economic value of his bargain. If the injured party also suffers damages to other property, however, the economic loss rule does not apply. Both contract and negligence law may be used to get a judgment for damages if something other than the bargained-for thing is damaged by the defendant’s negligence.
Ejectment
An action for ejectment is the proper method for obtaining a court order determining boundary disputes, to remove structures from real property, or to require persons occupying the property without lawful title (i.e., deed, lease, or license to be upon the property). The action may also recover money damages for the plaintiff, who must prove to the court that he or she is the lawful owner entitled to exclusive use and possession. If the plaintiff prevails, the court will issue a writ of possession directing the Sheriff (or other officer of the law) to put the plaintiff into exclusive possession and remove all others and their structures and personalty.
Elements of Causes of Action
Every cause of action is comprised of essential elements that must be stated in the complaint and proven on the court’s record. Different causes of action have different elements. In a breach of contract case, for example, the cause of action must state sufficient ultimate facts to allege the following essential elements: (1) formation of a contract, (2) breach of the contract, and (3) damages proximately resulting from the breach. If a party fails to state in his complaint sufficient ultimate facts to allege all essential elements of his cause of action, his complaint can be dismissed for failure to state a cause of action. If he succeeds in stating a cause of action but cannot prove each and every one of the essential elements of his cause of action by the greater weight of admissible evidence, he loses the case.
Simplicity itself!
Embezzlement
This is an economic crime that most commonly occurs where one person entrusts another with money (or access to it, which is, of course, the same thing), and the person entrusted steals the money or otherwise appropriates it improperly to his own use. An example would be a bank president dipping into the till. Another would be a lawyer using his clients’ retainer funds to pay gambling debts or fly to Las Vegas for a weekend of fun. In short, it is theft arising from a situation of trust.
Entireties
Entireties is a term used to describe a form of tenancy in property shared by married persons. Tenancies by the entireties are reserved to married couples only. When one dies the other owns all, but both own all in the first place. Entireties title treats the property as if it were held by one person, i.e., the marriage unit.
Equitable
Of or relating to equity or the exercise of the court's power to let what's right and fair overrule (under the proper circumstances) what’s technically "legal" but wrong. See equity.
Equity
Equity is the soul of justice. It is its heart. It is the goodness that justice works for. It is the goal for which all good men and women strive. It is the sum and substance of due process and gives wisdom to the Rule of Law.
Black’s Law Dictionary (2nd Edition, 1910) puts it best. "Equity is the spirit and habit of fairness, justness, and right-dealing which should regulate the interactions of men and women -- the rule of doing unto others as we desire them to do to us. As expressed by Justinian, equity is ‘to live honestly, to harm nobody, and to render to everyone what’s due.’ It is therefore the synonym of natural right or justice. It is grounded in precepts of the conscience, not in any sanction of written law."
Equity derives from the same root word as "equal" and thus is the guide that always points our legal systems toward that path whereon all stand before the law and its courts without preference. Each of us is entitled to our day in court, entitled to be heard, entitled to receive every protection the state affords to others. This is what equity demands.
Equity appears where love and wisdom dispense justice together.
May all of us purpose in our hearts to work tirelessly for that day when equity is more perfectly obeyed in all our courts -- and justice is truly secured for the benefit of all.
Estop
Prevent from proceeding by virtue of the estoppel doctrine.
Estopped
Prevented from proceeding by virtue of the estoppel doctrine.
Estoppel
Estoppel is a handy term with a peculiar and often misunderstood meaning. One party or the other may be said to be "estopped" (i.e., prevented by law) to deny some fact or point of law the party has previously admitted. For example, if you as party to a lawsuit seek to recover damages from the driver of a car that ran over your dog, you may be said to be estopped to deny that your dog was out of the house that day (unless the car came crashing into your living room to run over the dog). Estoppel arguments can advance your case, making it unnecessary to prove certain facts that are "undeniable".
et.al.
And others. Usually set off by commas and seldom capitalized, since the term makes no sense at the start of a sentence or by itself. It is used to indicate that there are "others" in addition to the item or items immediately preceding it. Sometimes used in pleading captions to indicate there are parties to the suit other than those whose names appear in the caption. For example, "Jones v. Smith, et.al." indicates there are defendants other than Smith. In other words, the case is Jones versus Smith and others whose names are not listed in the caption.
Every
All. Omitting none. Without exception.
Evidence
That which is competent, credible, and relevant to prove or disprove a fact in controversy. Evidence can be clearly seen. Things that cannot be clearly seen should not be permitted to be considered by the court as evidence. All evidence is fact, as opposed to fanciful conjecture or insidious innuendo. Every civil lawsuit should be a search for truth, and the outcome should not be decided upon mere possibilities or suspicions but upon solid evidence, i.e., evident facts, upon which reasonable persons cannot disagree.
There are two kinds of evidence: direct fact evidence and circumstantial fact evidence. Direct fact evidence is evidence of facts that tend directly to prove or disprove a disputed issue. Circumstantial fact evidence is evidence of facts that do not in themselves tend to prove or disprove a disputed issue except by the drawing of an inference. The quality of the inference should determine the admissibility of circumstantial evidence. For example, if a locked house is robbed without any visible signs of forced entry, a jury may be persuaded to believe the robber had a key. At the same time, one could infer the robber knew how to pick locks. This circumstantial evidence is susceptible of two separate inferences and is, therefore, not as reliable as direct fact evidence. Some jurisdictions have ruled that unless an inference drawn from circumstantial evidence is incontrovertible, i.e., not susceptible of any contrary reasonable inference, it should not be presented.
Further, most jurisdictions have ruled that one inference cannot be piled upon another, e.g., inferring from the preceding circumstances that the homeowner must have robbed his own house because he was the only one who had a key. In this example, the direct fact evidence is the absence of any signs of forced entry. The first inference is that the robber had a key. The second inference, built upon the first, is that the owner must be the robber because he is the only one with a key. Such pyramiding of inferences in forbidden in most jurisdictions to prevent the obvious, "Henny Penny said that Chicken Licken said that Turkey Lurkey said the sky is falling, and we must tell the king." Such evidence is neither competent nor credible and should never be relied upon to reach a verdict.
An example of direct fact evidence in the preceding example is that there were no visible signs of forced entry, a matter that needs no inference or conjecture but stands on its own ... i.e., evident.
Evident
That which can be clearly seen, plain, apparent, obvious. This word is the root of evidence, q.v.
Evidentiary
An adjective that describes a proceeding as one in search of evidence, as an "evidentiary hearing".
Exculpate
To free from guilt, fault, or blame.
Exculpatory
An adjective frequently applied to evidence that tends to prove innocence, rather than guilt - absence of liability, rather than liability. Comes from the Latin ex meaning from or out of and culpa meaning guilt, fault, or blame.
Executor
Person appointed by the court to administer the probate estate of deceased persons. In some states the term used is personal representative, to denote that the person appointed "represents" the dead person with the obligation to satisfy the claims of creditors and distribute the remainder to beneficiaries.
Executrix
The feminine of executor. Seldom used today.
Ex Parte
Literally, "without the party". Ex parte communications with the court are communications made by one party in the absence of the other and is generally forbidden.
- # -
|
