Professional Documents
Culture Documents
CALIFORNIA
S275023
February 1, 2024
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
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ROMERO v. SHIH
Opinion of the Court by Kruger, J.
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ROMERO v. SHIH
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.
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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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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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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.
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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
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KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Court: Superior
County: Los Angeles
Judge: Curtis A. Kin
__________________________________________________________
Counsel:
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