Post # 426 INCREMENTAL BOUNDARIES

There are certain words which appear to be especially apt for metaphoric illustration of particular themes. The metaphor “du jour”, is the noun, “easement.” The specific term, expresses the (legal) right of a person, or governmental agency, to enter upon, or use property, owned by another. The franchise of an easement, is most commonly established by Contract, Deed, Last Will and Testament or, persuant to certain Statutorily prescribed criteria, by continuous, uninterrupted use,of the land, without overt objection, by the landowner (“adverse possession”). Without the right, granted by a valid easement, the crossing over, use, or entry upon land, owned by another person, would amount to a “trespass”, addressable by legal action.

The most common easements, are those granted, or reserved, in documents of title, typically, affording a utility company, or a municipality, the right, to run power lines, or water pipes, over or through, privately owned land. The simplest instance of an easement, is the agreed, mutual use of a common driveway, by the owners of attached homes.

In contemporary American society, the right to privacy, equality and freedom of action, are legally, unassailable, and justly celebrated, as concomitants of the personhood of every citizen. Provided that a course of action is recognized as lawful, and societally responsible, the individual is completely free to act, as may be desired. Like the rights inherent in the ownership of land, unauthorized infringement of the right to life and liberty, amount to an indefensible trespass upon one’s person.

A common occurrence of unfair trespass on individual rights, as between members of society, has its origin in the faux evaluation of individuals, upon factually unsupported assumptions, as to their quality as citizens, or the extent of their mature responsibility. Such error has its disputable basis in nuanced, or stereotypical appearance, or perhaps, in idle gossip. It is manifestly unfair, and unjust, for society to hold individuals, esteemed as highly responsible, to greater expectations and higher standards of performance, than those, subjectively, perceived as irresponsible.  This is effectively equivalent to granting to the people, deemed, less dependable, a gratuitous easement, on the liberty, life and life, of those who are deemed more responsible, and, by consequence, taxed with the performance of societal obligations. It is often heard, with a measure of knowing amusement, or anger, “I’ll do it, what can you expect of ….?

We may, at times of felt need, choose to rely upon selected others, to act in our behalf. In such matters, relevant details have to be clearly and expressly discussed, and mutually understood; otherwise, an error can occur, consisting of non-performance of an important action, or on the other hand, an undesired, continuance of services; leading to, a felt encroachment upon one’s desire for non-interference. In metaphoric similarity to the grant of easement rights, regarding the use of land, the relegation of someone to act in your behalf, has to be clear, specific, and, especially, limited in nature.

Any merely general, unspecified, ceding of authority, is foolhardy, and will predictably, result in serious misunderstanding and consequent, problems. One, heartbreaking, but frequent, category of such problem typically exists, where a person, usually, an unmarried family member, such as an unmarried niece, consents to accepting the all-consuming responsibility of care, for a disabled, elder relative. The caregiver, maintains the appropriate, expectation of appropriate recompense, for such extensive services; and, more profoundly, for its major incursion into (trespass upon) her private life. The disabled party, and possibly, other relatives, choose to regard the services as consistent with the well- known, caring persona, of the caregiver, and therefore, not relevant to any expectation of remuneration; as if she granted the family, a voluntary easement on her private life. There exist many such cases of record, in State and Surrogate’s Courts, throughout the Nation, where, again, a relative, undertook the unlimited responsibility of care, for an elderly, or otherwise incapacitated relative, in normal expectation of remuneration, for her years of service and sacrifice (remaining unmarried); perhaps, to be bequeathed under decedent’s will, or otherwise, but, in fact, received nothing. The attempted grounds for these lawsuits, were, “implied contract for services,” or some similar contractual theory. The claimants have, typically , been unsuccessful.

The years of nursing and intimate personal services rendered by the unmarried niece, were “taken for granted” (analogous to an unenforceable [because unwritten] assumption of a legally granted, easement in the nurse’s private life), and, not compensable. Sadly, and ironically, in said Court cases, the assets of the Estate, are usually left to another relative; often to a sibling, who may have been entirely disinterested in the elder’s health. Relative to the general theme of this writing, is the view that the services of the caregiver, were offered, by the caregiver, by our analogy, a voluntary, gratuitous, grant of “easement,” on her personal life, and as such, not compensable. The boundaries of the caregiver’s life, in such cases, effectively have been incrementally, eroded, by her own loving action. It is our inarguable position, that the intrusion into, and upon a life, based upon self-serving perception, is decidedly worse, that any analogous trespass on real estate. [ N.B. Under uniform Real Estate Laws, claimed easements to use the land of another person, must be pursuant to a mutually executed writing].

Assumptions, albeit, based upon recalled perceptions, of past performance, should not be a determinant for future, nuanced treatment. For society to prosper and be just, every individual must be treated, as equally capable, and responsible, as evaluated, pursuant an identical normative standard. Prejudgments, are harmful, and may often be, merely, an unreliable and subjective reflection of a skewed or unreliable memory. All members of society should, uniformly, be subject to identical standards of expectation, lest unfairness and injustice be predictably, a better bet, than efficiency of performance. The boundaries of human expectation, and assertion of rights, whether regarding ownership of property, or the liberty of  individuals, should eternally, depend upon reason, fairness and upon mutually accepted and expressly communicated terms.

The famous, Colonial American Revolutionary pennant, memorializing the historically famous admonition, “Don’t tread on me,” seems to be in sync with our selected,  (but unusual) metaphor, as between (“easement”) rights to use the land of another, and the eternal, moral concern, about impinging upon the life and liberty, of another person.

-p.

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plinyblogcom

Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Literature Student and enthusiast.

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