IN THE SUPREME COURT OF
CALIFORNIA
TATANA SPICAKOVA ROMERO et al.,
Plaintiffs, Cross-defendants and Appellants,
v.
LI-CHUAN SHIH et al.,
Defendants, Cross-complainants and Respondents;
U.S. BANK NATIONAL ASSOCIATION,
Cross-defendant and Respondent.
S275023
Second Appellate District, Division Eight
B310069
Los Angeles County Superior Court
EC064933
February 1, 2024
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Jenkins, and Evans concurred.
ROMERO v. SHIH
S275023
Opinion of the Court by Kruger, J.
This dispute over a residential driveway in Sierra Madre
raises a significant question about the law of easements. Under
California law, the parties to a sale of real property may grant
or reserve easements as part of the transaction. This may be
done expressly, in a written instrument, or impliedly, based on
clear evidence of the parties’ intent. In this case, the trial court
concluded that the parties to a 1986 division and sale of two
adjacent residential properties intended to create an implied
easement over an eight-foot-wide strip of land that belonged to
one parcel, but that had been used as the driveway to the home
on the neighboring parcel. As a consequence, the current
owners of the neighboring parcel may continue to use that strip
of land as a driveway.
The Court of Appeal reversed. The court concluded that
regardless of what the parties to the 1986 sale might have
intended, the law prohibits a court from recognizing an implied
easement that precludes the property owners from making all
or most practical uses of the easement area. Because
recognizing the neighbors’ nonpossessory right to use the land
as a driveway would effectively prevent the property owners
from using the land for their own purposes, the Court of Appeal
concluded that the easement could have been created only in a
written instrument and not by implication.
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Opinion of the Court by Kruger, J.
We took this case to decide whether the law imposes such
a limitation on the recognition of implied easements. We now
conclude that it does not. The evidentiary standard for
recognizing an implied easement is a high one, and that
standard will naturally be more difficult to meet where, as here,
the nature of the easement effectively precludes the property
owners from making most practical uses of the easement area.
But if there is clear evidence that the parties to the 1986 sale
intended for the neighboring parcel’s preexisting use of the area
to continue after separation of title, the law obligates courts to
give effect to that intent.
We reverse and remand for the Court of Appeal to consider
whether substantial evidence supports the trial court’s finding
that an implied easement existed under the circumstances of
this case.
I.
In the early 1940’s, Edwin and Ann Cutler (the Cutlers
purchased adjacent parcels of property on West Alegria Avenue
in Sierra Madre. Soon after, the Cutlers built a home on the
parcel lying to the east, at 643 West Alegria Avenue (the 643
Property). In the years that followed, the Cutlers built a brick
garden planter in the front left corner of the yard and next to it,
a driveway running along the western edge of the property for
its entire length. The planter and driveway encroached by about
eight feet onto the Cutler’s other parcel, which lay directly to the
west at 651 West Alegria Avenue (the 651 Property). A chain-
link fence marked the western edge of the driveway and planter,
separating the 643 Property and the encroachments from the
remainder of the 651 Property. The encroaching area consisted
of a strip of land measuring about 8 feet wide by about 157 feet
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Opinion of the Court by Kruger, J.
long, for a total area of almost 1,300 square feet, or about 13
percent of the 651 Property’s 10,000-square-foot lot.
Aside from the encroachments, the 651 Property remained
undeveloped for several decades. In 1985, the Cutlers allowed
their son Bevon and a family friend, David Shewmake, to build
a house on the 651 Property so that it could be sold for profit.
According to their arrangement, once the house was built and
sold, Bevon and Shewmake would use the proceeds from the sale
to pay the Cutlers for the land and would retain the profits on
the house for themselves.
In furtherance of this project, Edwin Cutler applied to the
city to adjust the boundary between the 643 Property and the
651 Property to the line marked by the chain-link fence. The
Sierra Madre Planning Commission approved his request,
subject to a city engineer’s review of the parcel map and
boundary line adjustment. But for reasons that are not clear
from the record, the process was never completed and the legal
boundary line remained as before.
Although the lot line adjustment had not been completed,
the Cutlers, Bevon, and Shewmake proceeded much as if it had
been. They obtained building permits from the city and
completed construction on the house, and the chain-link fence
separating the 651 Property from the 643 Property was replaced
with a concrete block wall.
In 1986, the Cutlers conveyed the 651 Property to Bevon
and Shewmake, and on the same day, Bevon and Shewmake
sold the property to another family. Both grant deeds described
the 651 Property according to the original boundary lines,
without mentioning or accounting for the encroachments on the
strip of land along the property’s eastern edge. In the years that
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Opinion of the Court by Kruger, J.
followed, the Cutlers executed several grant deeds for the 643
Property that included a legal description of the eight-foot-wide
strip. Because the lot line adjustment had not been completed,
the Cutlers did not actually own that strip of land; those grant
deeds were therefore “wild deeds,” outside the chain of title and
ineffective to convey title to the area. (See 3 Miller & Starr, Cal.
Real Estate (4th ed. 2023) § 8:58, p. 8-175 [“If a deed purports to
convey property that is not owned by the grantor, it is ineffective
to convey the property, and it is a ‘wild deed’ that can have no
effect on title of the person who holds real title to the property”]
fn. omitted.
The properties remained in this configuration, with the
643 Property making use of the encroaching area as a garden
planter and driveway, during the next three decades. The 651
Property was sold once during this period, in 2005. Plaintiffs
Cesar and Tatana Spicakova Romero (the Romeros) then
purchased the 651 Property in 2014. That same year,
defendants Li-Chuan Shih and Tun-Jen Ko (the Shih-Kos
purchased the 643 Property from Ann Cutler’s estate.
At the time they purchased their respective properties,
neither the Romeros nor the Shih-Kos were aware of any
easements, encroachments, or boundary disputes. None had
been disclosed by the sellers in the respective purchase
agreements or advertising materials, and neither party had
taken steps to verify that the concrete block wall separating the
properties conformed to the true boundary line. The Romeros
did not discover that anything was amiss until about a year after
purchasing the 651 Property, when Cesar Romero was taking
measurements in his front yard for a landscaping project and
realized that the yard was not as wide as he expected. The
Romeros commissioned a survey, which confirmed that the 643
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
Property’s garden planter and driveway were encroaching on
the 651 Property.
The Romeros filed a lawsuit against the Shih-Kos,
requesting that the Shih-Kos be ordered to remove all
encroachments and pay damages. The Shih-Kos filed a cross-
complaint alleging that when the Cutlers separated the 643 and
651 Properties in 1986, they created an implied easement over
the disputed area in favor of the 643 Property. In the
alternative, the Shih-Kos asked the court to create an equitable
easement in favor of the 643 Property over the disputed area,
which would entitle the Romeros to compensation for the burden
imposed on their property.
The matter proceeded to a bench trial focusing on the
easement issue. The parties presented evidence regarding the
history of the two properties and the circumstances surrounding
their separation in 1986, discussed above, as well as evidence of
the effect that the alleged easement would have on each
property. As relevant here, the Shih-Kos’ appraisal expert,
Daniel Poyourow, testified about the uses of the disputed area
that would remain to the Romeros’ 651 Property if the trial court
were to award an easement in favor of the 643 Property.
Poyourow explained that the Romeros could continue to use the
easement area for “setback purposes” — i.e., to calculate how far
any structure must be set back from the true property line —
and for “FAR uses” — apparently referring to the “floor area
ratio,” or the permissible floor area of a building in relation to
the size of the lot where the building is located. He also testified
that certain subsurface uses remained to the 651 Property —
e.g., for the running of underground pipes or cables. On cross-
examination, however, Poyourow acknowledged that his
appraisal report had characterized the easement as “effectively
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
exclusive” and that the potential for the 651 Property to take
advantage of any remaining uses was “remote.” Overall,
Poyourow estimated that the “residual value” of the uses of the
property to the 651 property represented approximately 2
percent of the value of the disputed area.
After the bench trial, the trial court entered judgment for
the Shih-Kos, concluding that they possessed an implied
easement over the disputed strip of land. The court found that
it was “clear under the circumstances” that when the Cutlers
separated and sold the two properties in 1986, “the parties to
the transaction intended the 643 Property’s encroachment on
the 651 Property would continue after the division.”
Specifically, the court noted that “all the Cutlers, the
Shewmakes, and every successive owner of either property
(until now) [have] allowed for and/or behaved as if the 643
Property has the right to encroach upon the disputed strip of
land with the driveway, planter, and block wall — all of which
have remained unchanged in their use and function since at
least the initial property separation.” The court also determined
that the encroachment was reasonably necessary to the
beneficial enjoyment of the 643 Property because without the
easement, the 643 Property’s driveway would be too narrow for
normal use.
In finding an implied easement, the trial court rejected the
Romeros’ argument that California law prohibits the recognition
of an implied easement that would effectively exclude the
property owner from any practical use of the disputed area. The
trial court reasoned that “the focus of the [implied easement]
analysis is what the parties intended at the time of the division
or conveyance; whether their intended use was exclusive or not
is beside the point.” The trial court ordered that the implied
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
easement would run with the land and, “consistent with the
original grantor and grantee’s intent in 1986, shall terminate if
the 643 Property ceases its continued use of the easement for a
driveway, planter and wall/fence.”
In the alternative, the trial court created an equitable
easement over the disputed area in the event the implied
easement was overturned on appeal. The court relied on a series
of appellate decisions permitting courts in certain situations to
exercise their powers in equity to fashion an interest in the
owner’s land that will protect an innocent encroacher’s use of
the property, on the condition that the encroacher pay damages
to the property owner. (See generally Hirshfield v. Schwartz
(2001) 91 Cal.App.4th 749, 764–765 (Hirshfield).) The court
determined that even if the Shih-Kos were ultimately found to
have no preexisting right of use, they could continue to use the
disputed property but would be obligated to pay damages to the
Romeros in the amount of $69,000.
The Court of Appeal reversed on the implied easement
issue. (Romero v. Shih (2022) 78 Cal.App.5th 326, 362
(Romero).) The critical question, the appellate court concluded,
was whether the easement was “exclusive.” (Id. at pp. 349, 350.
Here, according to the Court of Appeal, the implied easement
was “exclusive” in the sense that the easement “essentially
divests [the Romeros] of nearly all rights that owners
customarily have in residential property, including access and
practical usage.” (Id. at p. 354.
The appellate court acknowledged that California law has
recognized similarly “exclusive” easements in cases where the
easement was created by express grant and the written
instrument either explicitly provided or clearly implied a right
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
to exclusive use of the easement area (for instance, by indicating
that the easement is “ ‘ “for parking and garage purposes” ’ ”).
(Romero, supra, 78 Cal.App.5th at p. 350, citing Blackmore v.
Powell (2007) 150 Cal.App.4th 1593, 1599–1600 (Blackmore).
But the court held that the same rule should not obtain for
easements implied by law.
The appellate court relied for its conclusion on a line of
cases concerning prescriptive easements, which are easements
acquired through the open, continuous, and hostile use of
another’s land. (Romero, supra, 78 Cal.App.5th at pp. 350–352.
In those cases, several appellate courts have held that a court
cannot recognize a prescriptive easement that has the effect of
leaving the fee title holder with no practical use of the land
subject to the easement. (Ibid.) To recognize such a prescriptive
easement, the courts have reasoned, would undermine the
integrity of the statute governing the acquisition of a real
property estate by adverse possession by permitting claimants
“ ‘to obtain the fruits of adverse possession’ ” without satisfying
the statutory requirements, including the payment of taxes. (Id.
at p. 350, quoting Hansen v. Sandridge Partners, L.P. (2018) 22
Cal.App.5th 1020, 1033 (Hansen).) The Court of Appeal in this
case found this rationale “based on the distinction between
estates and easements — equally applicable to exclusive implied
easements.” (Romero, at p. 352.)1
1
The court noted that some courts have recognized implied
“exclusive” easements for encroachments that are either “ ‘de
minimis’ ” or “necessary to protect the health or safety of the
public or for essential utility purposes,” but neither description
applies to the disputed easement at issue here. (Romero, supra,
78 Cal.App.5th at p. 352.
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Opinion of the Court by Kruger, J.
Having concluded there could be no implied easement over
the disputed strip of land in favor of the 643 Property (Romero,
supra, 78 Cal.App.5th at p. 353), the court did not address the
Romeros’ alternative argument that the implied easement
finding was not supported by substantial evidence (id. at p. 355).
The court did, however, affirm the trial court’s imposition of an
equitable easement and upheld the award of $69,000 in
damages to the Romeros (id. at p. 362).
Both sides petitioned for review. We granted the Shih-
Kos’ petition to decide whether, as the Court of Appeal held, the
law forbids recognition of an implied easement that would
effectively exclude the property owners from most practical uses
of the easement area.
II.
“Interests in land can take several forms, including
‘estates’ and ‘easements.’ ” (Hansen, supra, 22 Cal.App.5th at
p. 1032.) “An estate is an ownership interest in land that is, or
may become, possessory.” (Ibid.) “An easement,” by contrast,
“gives a nonpossessory and restricted right to a specific use or
activity upon another’s property, which right must be less than
the right of ownership.” (Mehdizadeh v. Mincer (1996) 46
Cal.App.4th 1296, 1306 (Mehdizadeh).
The law recognizes several methods of creating an
easement. Among other methods, the parties to a real property
transaction may grant or reserve an easement as part of the
conveyance of land; an individual may acquire an easement by
prescription, through the continuous, hostile, and adverse use of
the property; or a court acting in equity may order that an
easement be created under specified circumstances. (6 Miller &
Starr, Cal. Real Estate, supra, § 15:13, pp. 15-70–15-72.) The
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Opinion of the Court by Kruger, J.
scope of the easement, like the scope of any servitude on land,
“is determined by the terms of the grant, or the nature of the
enjoyment by which it was acquired.” (Civ. Code, § 806.
When an easement is granted or reserved as part of a real
property transaction, the grant or reservation may appear
expressly in the terms of a written instrument. (See, e.g., Gray
v. McCormick (2008) 167 Cal.App.4th 1019.) But even without
a writing, California law recognizes the grant or reservation of
the easement by implication in appropriate cases. (See, e.g.,
Fristoe v. Drapeau (1950) 35 Cal.2d 5 (Fristoe); see generally 6
Miller & Starr, Cal. Real Estate, supra, § 15:19, pp. 15-94–15-
95.) “ ‘The doctrine of implied easements is applied by the courts
to carry into effect the intention of the parties as manifested by
the facts and circumstances of the transaction.’ ” (Horowitz v.
Noble (1978) 79 Cal.App.3d 120, 132 (Horowitz).
California has codified the doctrine of implied easements
in Civil Code section 1104 (section 1104). Section 1104, which
has remained unchanged since its 1872 enactment, provides: “A
transfer of real property passes all easements attached thereto,
and creates in favor thereof an easement to use other real
property of the person whose estate is transferred in the same
manner and to the same extent as such property was obviously
and permanently used by the person whose estate is
transferred, for the benefit thereof, at the time when the
transfer was agreed upon or completed.” In other words, when
a grantor conveys a portion of an estate to another party but
fails to expressly grant an easement in the written instrument,
the law infers that the grantor and grantee intended the
conveyed portion of the property to enjoy any preexisting uses of
the grantor’s remaining estate that were “obvious[] and
permanent[],” and the law accordingly implies an easement.
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
(§ 1104; see, e.g., Kytasty v. Godwin (1980) 102 Cal.App.3d 762,
768 [§ 1104 “creates an implied easement as an exception to the
general rule that interests in real property can only be created
by an express writing or by prescription”].) “In such cases, for
purposes of identification, the portion or parcel that is being
used is called the ‘quasi-servient tenement,’ and the portion or
parcel benefited by the use is called the ‘quasi-dominant
tenement.’ ” (6 Miller & Starr, Cal. Real Estate, supra, § 15:20,
p. 15-98, fn. omitted.) Where the statutory conditions are
otherwise satisfied, “if the owner conveys the quasi-dominant
tenement, the grantee receives an implied easement for the use
and benefit of his or her property over the quasi-servient
tenement retained by the owner-grantor.” (Id. at p. 15-99.
Though recognized in statutory law, the doctrine of
implied easements is at least equally a product of the common
law as elaborated in judicial decisions. The cases make clear
that the law of implied easements is broader than section 1104,
read in isolation, might suggest. For instance, “[a]lthough the
Civil Code speaks only in terms of implying an easement in favor
of a grantee, ‘California also recognizes easements by implied
reservation. The result is that a purchaser may take not only
the obvious benefits but the obvious burdens as well.’ ”
(Horowitz, supra, 79 Cal.App.3d at p. 133.) In a similar vein,
this court has explained that “[t]he factors enumerated in
section 1104 of the Civil Code are not exclusive of other possible
factors which may have a bearing in ascertaining the extent of
an easement created by implication. Section 1104, which relates
to the creation of easements by implied grant, must be read with
section 806 of the Civil Code, which defines the extent of all
servitudes, and also in the light of the common law rules
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
governing easements by implication.” (Fristoe, supra, 35 Cal.2d
at p. 9.
Synthesizing the statutory text and common law
elaboration of the doctrine, California appellate courts have
summarized the elements of an implied easement as follows:
“[A]n ‘easement will be implied when, at the time of conveyance
of property, the following conditions exist: (1) the owner of
property conveys or transfers a portion of that property to
another; (2) the owner’s prior existing use of the property was of
a nature that the parties must have intended or believed that
the use would continue; meaning that the existing use must
either have been known to the grantor and the grantee, or have
been so obviously and apparently permanent that the parties
should have known of the use; and (3) the easement is
reasonably necessary to the use and benefit of the quasi-
dominant tenement.’ ” (Thorstrom v. Thorstrom (2011) 196
Cal.App.4th 1406, 1420 (Thorstrom).
Implied easements are not favored in the law. Because an
implied easement deprives the property owner of the exclusive
use of that property, courts do not lightly infer that the parties
intended to create one. (Orr v. Kirk (1950) 100 Cal.App.2d 678,
681.) Moreover, given the ordinary rule that courts should
construe a reservation in any grant against the grantor, a court
“will imply an easement in favor of the grantee more easily than
it will imply an easement in favor of a grantor.” (Ibid.; see Civ.
Code, § 1069 [“A grant is to be interpreted in favor of the
grantee, except that a reservation in any grant . . . is to be
interpreted in favor of the grantor.”].) In either case, courts
exercise substantial caution in recognizing implied easements,
requiring “ ‘clear evidence’ ” of the parties’ intent, taking into
account “ ‘ “the circumstances attending the transaction, the
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Opinion of the Court by Kruger, J.
particular situation of the parties, and the state of the thing
granted.” ’ ” (Thorstrom, supra, 196 Cal.App.4th at p. 1420;
accord, Walters v. Marler (1978) 83 Cal.App.3d 1, 21,
disapproved on other grounds in Gray v. Don Miller &
Associates, Inc. (1984) 35 Cal.3d 498, 507; Orr, at p. 681.
The question before us concerns the recognition of what
the Court of Appeal had described as “exclusive” implied
easements, by which the court meant an implied easement that
“only permits the dominant owner to use the easement area.”
(Romero, supra, 78 Cal.App.5th at p. 349.) Some clarification of
this usage is helpful. In general, the term “ ‘exclusive’ ” in the
context of easements and other servitudes simply refers to “the
right to exclude others.” (Rest.3d Property, Servitudes (2000
§ 1.2, com. c, p. 14.) The exclusivity of an easement is not so
much a binary attribute — either an easement is exclusive or it
is not — as a matter of degree. (Ibid. [“The degree of exclusivity
of the rights conferred by an easement . . . is highly variable.”].
Exclusivity in this context “includes two aspects: who may be
excluded and the uses or area from which they may be
excluded.” (Ibid.) At one end of the spectrum, easement holders
may be limited to narrow, specific uses of the property, and may
have “no right to exclude anyone from making any use that does
not unreasonably interfere” with those narrow uses. (Ibid.) At
the other end of the spectrum, easement holders may possess
“the right to exclude everyone, including the servient owner,
from making any use of the land within the easement
boundaries.” (Ibid.) When the Court of Appeal in this case used
the term “exclusive” easement, it was referring to easements
that sit closer to the latter end of this spectrum — to what we
might consider “highly exclusive” or “broadly exclusive”
easements.
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Opinion of the Court by Kruger, J.
Though an easement may be broadly exclusive, it is
nonetheless necessarily limited in scope. An easement is
“considered a nonpossessory interest in land because it
generally authorizes limited uses of the burdened property for a
particular purpose,” leaving the property owner “the right to
make all uses of the land that do not unreasonably interfere
with exercise of the rights granted by the [easement].” (Rest.3d
Property, Servitudes, supra, § 1.2, com. d, pp. 14–15.) Broadly
exclusive easements “may involve uses that make any actual use
of the premises by the transferor unlikely, but they are still
considered nonpossessory interests if the transferor is not
excluded from the entire parcel and retains the right to make
uses that would not interfere with the easement.” (Id. at p. 15.
When an exclusive easement has been established, a dominant
tenement owner may use the easement area only for a limited
set of purposes, and the easement may be terminated if the
dominant tenement owner ceases to use the area for those
purposes. (6 Miller & Starr, Cal. Real Estate, supra, § 15.77,
pp. 15-282–15-284; McCarty v. Walton (1963) 212 Cal.App.2d
39, 45.
The easement the trial court recognized here fits this
model: It was broadly exclusive, in that it gave the Shih-Kos a
right to use the easement in a manner that effectively excluded
the Romeros from most practical uses of the surface area, if not
the areas below and above the surface, but it was nonetheless
limited in that it preserved the Romeros’ property rights not
inconsistent with the Shih-Kos’ usage, including the right to
terminate the easement if the Shih-Kos ceased to use it for the
specified limited purposes.
The question now before us is whether, as the Court of
Appeal held, an implied easement that excludes the servient
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Opinion of the Court by Kruger, J.
tenement owner from making most practical uses of the
easement’s surface area is impermissible as a matter of law. As
the Court of Appeal acknowledged, effectively exclusive
easements are not impermissible as a general matter. Courts
have upheld granted or reserved easements of comparable scope
where the parties have expressly granted or reserved a
restricted right of use as part of the transaction. (Romero,
supra, 78 Cal.App.5th at p. 350; see, e.g., Gray v. McCormick,
supra, 167 Cal.App.4th at p. 1029; Blackmore, supra, 150
Cal.App.4th at pp. 1599–1601.) The Court of Appeal held,
however, that California law prohibits courts from recognizing
effectively exclusive implied easements, as distinct from express
easements.
The Court of Appeal relied for this conclusion on a line of
cases pertaining to easements acquired by prescription. The
cases begin with Raab v. Casper (1975) 51 Cal.App.3d 866, in
which the defendants had built a house near the boundary line
dividing their property from the plaintiffs’ property and
inadvertently built “part of their driveway, utility lines, yard
and landscaping on plaintiffs’ land.” (Id. at p. 876.) The trial
court awarded the defendants a prescriptive easement over the
land containing the encroachments, but the Court of Appeal
reversed. (Id. at p. 878.) The appellate court understood the
trial court’s judgment as “designed to exclude plaintiffs from
defendants’
domestic
establishment,
employing
the
nomenclature of easement but designed to create the practical
equivalent of an estate.” (Id. at p. 877.) “Achievement of that
objective,” the court held, “required proof and findings of the
elements of adverse possession, not prescriptive use.” (Ibid.
Because the defendants had not established the necessary
elements of adverse possession — in particular, the requirement
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Opinion of the Court by Kruger, J.
that the defendants paid taxes on the disputed land (see Code
Civ. Proc., § 325) — the court reversed the judgment. (Raab, at
pp. 877–878.
Several courts have since followed Raab in prohibiting the
acquisition of an easement by prescription where the easement
would deprive the property owner of all or most practical uses of
the easement area. (See Hansen, supra, 22 Cal.App.5th at
p. 1034 [rejecting prescriptive easement for farming that would
not allow the owner “to use the [d]isputed [l]and for any
‘practical purpose’ ”]; Mehdizadeh, supra, 46 Cal.App.4th at
pp. 1305, 1308 [rejecting prescriptive easement that was limited
to “landscaping and recreation” because the easement would
leave the owner with “only a minimal right to use it”]; Silacci v.
Abramson (1996) 45 Cal.App.4th 558, 564 (Silacci) [rejecting
prescriptive easement for an enclosed yard that would
“amount[] to giving [the true owner’s] land completely, without
reservation, to [the encroacher]”]; Harrison v. Welch (2004) 116
Cal.App.4th 1084, 1093 [rejecting prescriptive easement for use
as a woodshed because “ ‘as a practical matter [such use] . . .
prohibits the true owner from using his land’ ”].
The concern underlying this line of cases — that claimants
could “obtain the fruits of adverse possession under the guise of
a prescriptive easement” — arises because of the high degree of
similarity between the elements of a prescriptive easement and
the elements of adverse possession. (Hansen, supra, 22
Cal.App.5th at p. 1033.) Both the law of prescriptive easements
and the law of adverse possession permit a party to acquire
rights to property through their own unilateral conduct — that
is, by using or occupying the property — and, generally
speaking, the elements of the doctrines closely resemble each
other. (Id. at pp. 1032–1033.) Crucially, however, adverse
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Opinion of the Court by Kruger, J.
possession requires claimants to prove that they have paid taxes
assessed against the property in order to claim title. (Ibid.; Code
Civ. Proc., § 325, subd. (b).) The creation of easements by
prescription does not. To ensure adherence to this statutory tax
requirement, the courts in the Raab line have considered it
“especially important to maintain the distinction between
easements and estates in the context of prescription. (See Code
Civ. Proc., § 325, subd. (b).) That is, if courts allowed claimants
to obtain by prescription a functional estate without satisfying
the statutory requirements of adverse possession, then Code of
Civil Procedure section 325, subdivision (b)’s tax requirement
would be nullified.” (Hansen, at p. 1036.)2
The Court of Appeal in this case believed the logic of the
exclusive prescriptive easement cases equally applicable to
implied easement cases. We are not convinced. Prescriptive
easement cases like Raab and Hansen are grounded in a concern
for maintaining the integrity of the adverse possession statute
and its demanding standard for the acquisition of another’s
2
The appellate case law is not uniform in forbidding
broadly exclusive prescriptive easements. (See Otay Water Dist.
v. Beckwith (1991) 1 Cal.App.4th 1041, 1048 [granting
prescriptive easement that excluded servient tenement owner
where uses of the property were limited to “reservoir purposes
only”]; cf. Hirshfield, supra, 91 Cal.App.4th at p. 769, fn. 11
[questioning breadth of rule stated in the Raab line of cases:
“Since the scope of a prescriptive easement is determined by its
historical use [citations], and since exclusive easements, while
rare, are possible [citation], we believe the holdings [of the cases]
may be overbroad.”].) We do not decide here whether Otay,
Raab, or any of the other so-called exclusive prescriptive
easements were decided correctly. The only question now before
us concerns the law of implied easements, which are materially
different from easements acquired by prescription.
17
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
property through occupation. (Hansen, supra, 22 Cal.App.5th
at p. 1036.) But as Hansen itself recognized, not all easement
claims raise the same concerns. (Ibid.) Hansen acknowledged
that courts have permitted exclusive express easements, for
instance. (Id. at p. 1035.) But it explained that, unlike in
prescriptive easement cases, express easement cases involve no
danger that the claimant could shoehorn what is in reality a
claim for adverse possession, which has nothing to do with the
terms of a land transaction, into a cause of action for an express
easement, which has everything to do with the terms of a land
transaction and nothing to do with the claimant’s hostile use of
the property. (Id. at p. 1036.) In other words, “permitting
express exclusive easements does not create the same statutory
nullification issue that prescriptive exclusive easements do.”
(Ibid.
In this regard, implied easements are similar to express
easements; to recognize an implied easement creates none of the
statutory nullification concerns underlying the Raab line of
cases. To establish the existence of an implied easement, a
plaintiff must allege and prove a specific set of circumstances
surrounding a particular land transaction: that a common
owner of property conveyed a portion of that property to another,
that the parties to the transaction must have intended to
maintain the benefits and burdens between the newly divided
estates after the separation of title, and that the resulting
easement was reasonably necessary to the dominant estate.
(See 6 Miller & Starr, Cal. Real Estate, supra, § 15:20, pp. 15-
97–15-102; accord, Thorstrom, supra, 196 Cal.App.4th at
p. 1420.) Those circumstances bear little resemblance to the
elements of adverse possession, which, again, does not concern
the terms (either express or implied) of a land transaction. For
18
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
that reason, there is little reason to fear that claimants might
seek an implied easement merely as a means of circumventing
the statutory tax requirement or some other adverse possession
element. Thus, while it may be necessary to prohibit courts from
recognizing prescriptive easements that effectively exclude the
property owner from the easement area, the same is not true in
express or implied easement cases. (Cf. Hirshfield, supra, 91
Cal.App.4th at pp. 768–769 [distinguishing equitable easements
on the same ground].
Unlike in prescriptive easement cases, the court’s primary
duty in cases involving easements created by grant or
reservation — whether express or implied — is to give effect to
the intent of the parties to the relevant land transaction. In
cases involving express easements, at least, courts have long
recognized this duty, even when following the parties’ intent
produces unusually expansive rights of use. As the Court of
Appeal in this case acknowledged, courts have generally held
that even when a written instrument does not explicitly state
that a granted easement is to be exclusive, courts may
nevertheless recognize an exclusive easement where there is a
clear indication of such an intention. (See, e.g., Romero, supra,
78 Cal.App.5th at p. 350; cf. Pasadena v. California-Michigan
etc. Co. (1941) 17 Cal.2d 576, 578–579 [case involving an express
easement noted that “[n]o intention to convey such a complete
interest [that would permit the dominant tenement owner to
exclude others from the easement area] can be imputed to the
owner of the servient tenement in the absence of a clear
indication of such an intention”].
In Gray v. McCormick, supra, 167 Cal.App.4th at
page 1022, for example, the court enforced the express terms of
a residential development’s Master Declaration of Covenants,
19
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
Conditions, Restrictions and Reservation of Easements (Master
CC&Rs), which granted an “exclusive easement” to Lot 6, the
dominant tenement, over a 16-foot-wide by 90-foot-long strip of
land on Lot 3, the servient tenement. The dominant tenement
owners sought to improve the strip of land with a driveway,
perimeter walls, and landscaping, and to prohibit the servient
tenement owners from making any use of the easement area.
(Id. at p. 1023.) The servient tenement owners conceded that
the Master CC&Rs expressly created an easement, but they
objected to the dominant tenement owners’ characterization of
its scope. Specifically, they argued that the label “exclusive” did
not evince an intent to exclude them from their own property.
(Id. at p. 1025.) A contrary interpretation, they asserted, would
violate the law by effectively “grant[ing] the owners of the
dominant tenement fee ownership over the easement area.” (Id.
at p. 1029.) The appellate court rejected the argument. The
court reasoned that the easement provision “repeatedly uses
language of exclusivity,” and that any uncertainty about the
meaning of that language was dispelled by the surrounding
context, which imposed on the dominant tenement owners the
costs of improving and maintaining the easement area and
required them to indemnify the servient tenement owners for
any liability resulting from the exclusive use of the easement.
(Id. at p. 1026.
Similarly, in Blackmore, supra, 150 Cal.App.4th at
page 1597, the court construed an express easement “for
‘parking and garage purposes’ over a defined area” on the
servient tenement, holding that the dominant tenement owner
could construct a garage on the easement area for the owner’s
exclusive use. The court concluded that “exclusive use of the
garage” was “ ‘a necessary incident’ of the easement,” because “a
20
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
shared garage would generate disputes about allocation of
parking spaces, security, and maintenance costs.” (Id. at
p. 1599.
In such cases, California appellate courts have recognized
that exclusive easements, while rare, can exist where the
parties’ intent is sufficiently clear in the written instrument
creating the easement. (See also Heath v. Kettenhofen (1965
236 Cal.App.2d 197, 206 [dominant tenement owner entitled to
exclusive use of 10-foot-wide strip within easement area for
parking].) Implied easement cases are not fundamentally
dissimilar. Just as in cases where a court must interpret the
terms of a written conveyance, the court’s duty in an implied
easement case is to give effect to the intent of the parties.
(Fristoe, supra, 35 Cal.2d at p. 8.) As we explained in Fristoe,
this principle accords with the overarching instruction in Civil
Code section 806, that “ ‘the extent of a servitude is determined
by the terms of the grant.’ ” (Fristoe, at p. 9.) We observed:
“Under this section . . . , the controlling factor is the terms of the
grant. When the grant is implied, its terms must be inferred
from all of the circumstances of the case. The effect of section
806 is to establish intent as the criterion, and this is in accord
with the rationale of the rules governing easements by
implication.” (Ibid.) Nothing in the language of the statutes
suggests a limitation to this principle whereby the parties must
preserve a certain quantum of practical uses for the owner. (See
Civ. Code, §§ 806, 1104.) The scope of the burden imposed on
the servient tenement is determined by the parties’ intent
(ibid.), even if that intent was to create a privilege to use the
property in a way that effectively precludes the property owners
from making their own use of the easement area.
21
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
Although the parties have not cited, and we have not
found, any cases directly addressing the question presented here
concerning implied easements, California appellate courts have
generally measured the scope of an implied easement by
following the intent of the parties, regardless of whether giving
effect to that intended scope would mean precluding the servient
tenement owner from making most practical uses of the land.
In Dixon v. Eastown Realty Co. (1951) 105 Cal.App.2d 260, for
example, the court recognized an implied easement over a small
area of the plaintiffs’ land that contained an encroaching portion
of the defendant’s garage, which effectively excluded the
plaintiffs entirely from the disputed area. (Id. at pp. 263–264.
Likewise, in Zeller v. Browne (1956) 143 Cal.App.2d 191, the
court recognized an implied easement over a strip of land on the
defendants’ property that contained a concrete walkway,
stairway, and retaining wall, providing the plaintiff an
apparently exclusive pathway to access a higher elevation at the
rear of their house. (Id. at pp. 194–195.) In Thorstrom, by
contrast, the court reversed a trial court judgment “that granted
defendants an implied easement for exclusive use of water from
a well on” the plaintiff’s property. (Thorstrom, supra, 196
Cal.App.4th at p. 1411.) The court concluded that “the scope of
the easement granted to defendants is excessive” (ibid.) — but
not because implied easements that prevent the servient
tenement owner from using the easement are impermissible as
a matter of law. Rather, the court held that the scope of the
easement was impermissibly broad only because there was no
evidence in the record suggesting that the well “was drilled,
constructed and used to benefit defendants’ parcel alone.” (Id.
at p. 1423.) Accordingly, the plaintiffs retained the right, as the
owners of the servient tenement, to use the well on their
22
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
property in any manner that did not interfere with the
defendants’ own reasonable residential uses. (Id. at pp. 1423–
1424; see Scruby v. Vintage Grapevine, Inc. (1995) 37
Cal.App.4th 697, 702 [“Every incident of ownership not
inconsistent with the easement and the enjoyment of the same
is reserved to the owner of the servient estate.”].) The reasoning
of these cases suggests that an implied easement, like an
express one, may effectively exclude the servient tenement
owner from the easement area in rare cases where the
circumstances show that the relevant parties clearly intended
that result.
Taking a different view, the Court of Appeal posited that
implied easements are essentially different from easements
where “the language of the creating instrument clearly
expresses an intention that the use of the easement area shall
be exclusive to the dominant owner.” (Romero, supra, 78
Cal.App.5th at p. 350.) But the court did not explain why it
thought that such an intention must be memorialized in the
creating instrument and may not be found elsewhere. Perhaps
the court believed that in order to convey an interest as
comprehensive as an exclusive easement, a party should have to
do so in writing, much as if the party were conveying ownership
of the land. (Cf. Civ. Code, § 1624, subd. (a)(3) [the Statute of
Frauds, which requires a contract “for the sale of real property,
or of an interest therein,” to be made in writing].) But the
doctrine of implied easements is a settled exception to the
Statute of Frauds. (1 Miller & Starr, Cal. Real Estate, supra,
§ 1:74, pp. 1-277–1-278.) Courts have recognized this exception
as necessary to avoid injustice when the circumstances of the
transaction have mitigated the evidentiary concerns underlying
the general rule that interests in land must be transferred in
23
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
writing. (See Rest.3d Property, Servitudes, supra, § 2.11, com.
c, p. 155.
Or perhaps the appellate court’s concern was simply a
practical one: If a court is to recognize an easement so
comprehensive as to effectively preclude the property owner’s
practical use of the land, it should be very certain that this is
what the parties intended. If this was indeed the court’s
concern, we share it. But an express statement requirement
goes farther than necessary to respond to the concern. Given
the consequences of recognizing an easement where the parties’
intent to create one appears only by implication rather than
expressly in a written instrument, the common law already
requires claimants seeking to establish such implied intent to
clear a high bar: The preexisting use of the quasi-servient
tenement must have been “ ‘so obviously and apparently
permanent’ ” that the law may conclude “ ‘the parties must have
intended or believed that the use would continue’ ” after the
division of the property. (Thorstrom, supra, 196 Cal.App.4th at
p. 1420, italics added.
Again, easements by implication are not favored in the
law. But where the circumstances of a land transaction clearly
evince an intent to continue the quasi-dominant tenement’s
preexisting uses of the quasi-servient tenement, and where the
circumstances also clearly evince an intent that the easement
be comprehensive in scope, the bar is cleared and the relevant
legal requirements have been satisfied. (Cf. Rest.3d Property,
Servitudes, supra, § 2.11, com. c, p. 155 [“servitude burdens are
established by implication only . . . where the evidentiary
concerns underlying the Statute of Frauds have been met”].) In
discerning the intended scope of an easement, we see little
reason to distinguish between an intent clearly expressed in
24
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
writing and an intent clearly inferable from “all the facts and
circumstances.” (Fristoe, supra, 35 Cal.2d at p. 8.
To give effect to implied easements, even when those
easements may be comprehensive in scope, protects the
reasonable expectations of the parties to land transactions in a
manner consistent with the usual presumption that the parties
“ ‘contract[ed] in reference to the condition of the property at the
time of the sale.’ ” (Rosebrook v. Utz (1941) 45 Cal.App.2d 726,
729 (Rosebrook).) Here, for example, the trial court concluded
that any reasonable person observing the two properties in
1986, when the Cutlers divided them, would have assumed the
643 Property retained at least some continuing interest in the
disputed strip of land. The trial court further found that the
Cutlers’ successors made just that assumption: For almost 30
years, between the original separation of the properties in 1986
and the Romeros’ discovery of the encroachments in 2015, “every
successive owner of either property (until now) has allowed for
and/or behaved as if the 643 Property has the right to encroach
upon the disputed strip of land with the driveway, planter, and
block wall — all of which have remained unchanged in their use
and function since at least the initial property separation.” The
question of whether the trial court’s findings are supported by
substantial evidence remains to be considered. But if these are
indeed the facts of the case, they offer a concrete illustration of
why a blanket prohibition on exclusive implied easements would
encourage litigation to upset long-standing and until-now
settled uses of the property.
The Romeros suggest, on the flip side, that our conclusion
will create uncertainty in land titles. The argument is that by
permitting the recognition of exclusive implied easements, we
will undermine the ability of buyers to rely on readily available
25
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
and accurate legal descriptions of property contained in
recorded deeds. (See Mehdizadeh, supra, 46 Cal.App.4th at
p. 1308.) The same concern inheres to some extent in every case
involving an implied easement, because an implied easement by
definition is not expressly set out in any written conveyance.
The law, however, treats that concern as outweighed by the
interest in protecting the reasonable expectations of landowners
and purchasers by giving effect to what the parties “ ‘must have
intended’ ” given the “ ‘obvious[] and apparently permanent’ ”
nature of the preexisting use. (Thorstrom, supra, 196
Cal.App.4th at p. 1420; see also Rosebrook, supra, 45 Cal.App.2d
at p. 729.)3
Contrary to the Romeros’ argument, our conclusion does
not “pervert[] the classical distinction in real property law
between ownership and use.” (Silacci, supra, 45 Cal.App.4th at
p. 564.) As we have already explained, there remain important
differences between an easement with even this degree of
exclusivity and an estate or ownership interest. The trial court’s
judgment granted the Shih-Kos the right to maintain the
preexisting use of the disputed strip of land as a driveway,
garden planter, and concrete block wall; it did not give the Shih-
Kos the right to make any other use of the disputed area. And
although the trial court determined the easement would run
with the land, it ordered that the easement would terminate if
the 643 Property ceased to use the disputed area for those
3
Here, the “obviously and apparently permanent” nature of
the use in question means that the Romeros could have
discovered the existence of the easement with reasonable
diligence at the time they purchased the 651 Property.
26
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
preexisting, limited uses. The Romeros benefit from this
limitation because they are provided certainty that the
easement area will never be used for any activity that might
have a more intrusive impact on their property. Moreover, as
the Shih-Kos’ appraisal expert testified at trial, the Romeros
retained any rights to use the strip of land that would not
interfere with the 643 Property’s easement — namely, the right
to any subsurface uses, however often there might be a need for
them, and the right to use the easement area to calculate the
minimum setback from the property line and the maximum floor
area ratio of their home under applicable zoning laws.
The easement therefore is not so comprehensive in scope
as to extinguish the servient tenement owner’s property rights
in the disputed area. Though the Shih-Kos possess a right to
exclude the Romeros from the driveway, they are not permitted
to exclude the Romeros from all potential uses of the easement.
And because the Shih-Kos may only use the land for a driveway,
a garden planter, and a concrete block wall, the Romeros retain
the right to terminate the easement if the property is used for
another purpose. These differences are sufficient to distinguish
the rights accorded to the Shih-Kos by the trial court from a fee
interest. (See Gray v. McCormick, supra, 167 Cal.App.4th at
p. 1031 [“Here, the owners of Lot 6 have not acquired fee title to
the easement area; rather, their use of the [exclusive] easement
area is limited to access, ingress and egress purposes, not all
conceivable uses of the property.”]; Blackmore, supra, 150
Cal.App.4th at p. 1600 [noting that the exclusive use of a garage
on the easement area “does not rise to fee ownership” because
the rights given to the easement holder were “circumscribed”
and the exclusivity was “intended solely to protect these
restricted rights”]; see also Rest.3d Property, Servitudes, supra,
27
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
§ 1.2, com. d, p. 15 [“Easements and profits may authorize the
exclusive use of portions of the servient estate, and may involve
uses that make any actual use of the premises by the transferor
unlikely, but they are still considered nonpossessory interests if
the transferor is not excluded from the entire parcel and retains
the right to make uses that would not interfere with the
easement or profit.”].
The Romeros also argue that our conclusion “contravenes
the fundamental maxim of jurisprudence that equity must
follow the law.” They argue that the Legislature has created an
exclusive path to obtaining title to property through adverse
possession, in Code of Civil Procedure section 325, and we may
not circumvent those requirements by recognizing an
alternative means of accomplishing the same end. (See Marsh
v. Edelstein (1970) 9 Cal.App.3d 132, 140–141.) But the Shih-
Kos are not seeking to obtain title to property through adverse
possession. As we have explained, section 1104, which codifies
the doctrine of implied easements, addresses a wholly different
set of circumstances than the adverse possession statute. In
holding that exclusive implied easements are not impermissible
as a matter of law, we do not “lend [our] aid to accomplish by
indirection what the law or its clearly defined policy forbids to
be done directly.” (Marsh, at p. 141.) Instead, we interpret and
apply section 1104 “in the light of the common law rules
governing easements by implication.” (Fristoe, supra, 35 Cal.2d
at p. 9.
Finally, in their answering brief, the Romeros argue that
the trial court’s judgment recognizing an exclusive implied
easement violates the Due Process and Takings Clauses of the
Fifth Amendment. The Romeros did not raise this issue below
and therefore have forfeited the objection. (Cal. Rules of Court,
28
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
rule 8.500(c)(1); see, e.g., Lewis v. Superior Court (2017) 3
Cal.5th 561, 578.) But the argument is without merit in any
event. The trial court’s implied easement finding did not result
in the creation of any new property rights; it instead clarified
the respective rights of the neighbors as determined by the
intentions of the parties at the time the two adjacent parcels
were severed and sold to third parties. (See § 1104 [providing
that the implied easement passes at the time of the transfer that
divides the grantor’s estate].) In other words, the trial court’s
finding means the Romeros purchased the 651 Property subject
to the implied easement; their bundle of property rights never
included the right to make practical use of the easement’s
surface area. This is not a taking. (Stop the Beach
Renourishment, Inc. v. Florida Dept. of Environmental
Protection (2010) 560 U.S. 702, 715 (plur. opn. of Scalia, J.); id.
at p. 727 [“And insofar as courts merely clarify and elaborate
property entitlements that were previously unclear, they cannot
be said to have taken an established property right.”].
Our conclusion does not end the proceedings in this case.
As noted, the Romeros contend that even if the law permits
exclusive easements by implication, substantial evidence does
not support the trial court’s conclusion that an implied easement
exists in this case. Based on its conclusions on the exclusivity
issue, the Court of Appeal declined to evaluate the evidentiary
support for the trial court’s finding. We now remand for the
Court of Appeal to consider the question.
To the extent the Romeros challenge the evidentiary
showing of intent to create an easement across their property,
the issue for the court to consider is whether the evidence shows
that the parties clearly intended for the preexisting use of the
quasi-servient tenement to continue after the separation of title.
29
ROMERO v. SHIH
Opinion of the Court by Kruger, J.
Remarking on this issue, the Court of Appeal suggested, without
formally deciding, that this question may be answered by
evidence indicating that “the original grantor Edwin Cutler’s
intent was . . . to effectuate a variance/lot line adjustment
between the 643 and 651 properties.” (Romero, supra, 78
Cal.App.5th at p. 354.) We note, however, that considered in the
abstract, evidence that a party intended to effectuate a variance
does not eliminate the possibility that the parties also intended
for the preexisting use of the quasi-servient tenement to
continue after the separation of title. We express no view on the
issue as it arises in this case, nor do we express any view on the
weight or significance to be given to the evidence of the
uncompleted lot line adjustment among the other relevant facts
presented here. The matter is for the Court of Appeal to resolve
in the first instance.
III.
We reverse the judgment of the Court of Appeal as to the
cause of action for the implied easement and remand for further
proceedings consistent with this opinion.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
30
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Romero v. Shih
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 78 Cal.App.5th 326
Review Granted (unpublished)
Rehearing Granted
Opinion No. S275023
Date Filed: February 1, 2024
Court: Superior
County: Los Angeles
Judge: Curtis A. Kin
Counsel:
McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie
for Plaintiffs, Cross-defendants and Appellants.
Songstad Randall Coffee & Humphrey, Janet E. Humphrey and Elyn
C. Holt for Defendants, Cross-complainants and Respondents.
No appearance for Cross-defendant and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Scott M. Reddie
McCormick, Barstow, Sheppard, Wayte & Carruth LLP
7647 North Fresno Street
Fresno, CA 93720
(559) 433-2156
Janet E. Humphrey
Songstad Randall Coffee & Humphrey LLP
3200 Park Center Drive, Suite 950
Costa Mesa, CA 92626
(949) 757-1600
Opinion Information
| Date: | Docket Number: |
| Thu, 02/01/2024 | S275023 |
