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.
1

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.
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

2

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 chainlink 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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

3

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

4

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

5

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 crosscomplaint 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 crossexamination, however, Poyourow acknowledged that his 

appraisal report had characterized the easement as “effectively 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

6

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

7

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

8

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.)
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

9

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 ShihKos’ 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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

10

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. 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

11

(§ 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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

12

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 quasidominant 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
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

13

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. 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

14

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

15

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

16

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

17

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.
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

18

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

19

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, 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

20

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

21

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.
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

22

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

23

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

24

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

25

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 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

26

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 ShihKos 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. 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

27

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, 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

28

§ 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 ShihKos 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, 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

29

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. 
ROMERO v. SHIH

Opinion of the Court by Kruger, J.

30

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.
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