Romero v. Shih

Filed 5/5/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TATANA SPICAKOVA ROMERO B310069
et al.,
(Los Angeles County
Plaintiffs, Cross-defendants Super. Ct. No. EC064933)
and Appellants,

v.

LI-CHUAN SHIH et al.,
Defendants, Cross-
complainants and Respondents;

U.S. BANK NATIONAL
ASSOCIATION,
Cross-defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis A. Kin, Judge. Affirmed in part, and
reversed in part.
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 by Cross-defendant and Respondent.
_________________________
 After a bench trial, the trial court resolved a property line
dispute between two neighbors by creating an easement in favor
of respondents, the encroaching property owners. It granted
respondents an exclusive implied easement and, alternatively, an
equitable easement over the entire 1,296-square-foot
encroachment. Appellants appeal the judgment.
We reverse the judgment on the cause of action for implied
easement, and affirm the judgment on the cause of action for
equitable easement.

FACTUAL AND PROCEDURAL BACKGROUND
A. The Two Properties at Issue
The two neighboring properties at issue are located next
door to each other at 643 West Algeria Avenue (643 property) and
651 West Algeria Avenue (651 property) in Sierra Madre,
California.
Tatana and Cesar Romero (appellants) own 651 property.
Li-Chuan Shih and Tun-Jen Ko (respondents) own 643 property.
At times we refer to the 651 address as appellants’ 651 property
and the 643 address as respondents’ 643 property.
B. Prior Owners’ Application for a Lot Line Adjustment
In 1941, Edwin and Ann Cutler (the Cutlers) purchased
both properties. At the time of purchase, the 643 property was
improved with a home, while 651 property was a vacant lot. The
Cutlers resided in the house located at the 643 address with their
son Bevon.1

1
When referring to Edwin, Ann, or Bevon Cutler
individually, we use their first names to avoid confusion.

2
 More than 40 years later, on February 4, 1985, Edwin
submitted to the Planning Commission of the City of Sierra
Madre (the City) an application for a variance, seeking a property
lot line adjustment. The lot line adjustment would have
increased the width of respondents’ 643 property from 50 to 58
feet, and reduced the width of appellants’ 651 property (the
vacant lot) from 63 to 55 feet. The application asked, “How are
other owners able to use their property that cannot be done on
this lot at present?”—to which Edwin provided, “Driveway and
fence line.”
On February 21, 1985, the City’s Planning Department
recommended approval of the variance as requested. The
minutes from the Planning Commission’s meeting held that day
provide: “Mr. Cutler told the Commission that the driveway is
extremely narrow and he intended at the time of purchase to
divide the property and adjust the width of the driveway.” The
minutes further provide: “In order to adjust the boundary line,
Mr. Cutler will need an engineer-surveyed parcel map and must
meet county regulations.” Finally, the minutes note Edwin’s
application is “[a]pproved; subject to city engineer review of
parcel map and boundary line adjustment.” (Some capitalization
omitted.)
Edwin thereafter retained the services of registered civil
engineer John B. Abell (Abell) of John B. Abell, Inc., who
prepared a survey and new legal description for the two
properties, dated May 8, 1985.
The new legal description for respondents’ 643 property,
post lot line adjustment, included additional language: “The west
50 feet of Lot 15 of Wheeler Heights, in the City of Sierra Madre,
County of Los Angeles, State of California, as per Map recorded

3
in Book 8, page 5 of Maps, in the office of the county recorder of
said County. [¶] Together with the easterly 8.00 feet of Lot ‘B’ of
Gurhardy Heights, as per Map recorded in Book 13, page 188 of
Maps, in the office of the county recorder of said County, lying
south of the easterly prolongation of the north line of Lot 12 of
said tract.” (Italics added; boldface and some capitalization
omitted.)
Similarly, the legal description for appellants’ 651 property,
post lot line adjustment, contained additional language: “The
east 35.2 feet of Lot 12 of Gurhardy Heights, in the City of Sierra
Madre, as per Map recorded in Book 13, page 188 of Maps, in the
office of the county recorder of said County, and all that portion of
Lot ‘B’ of said tract lying south of the easterly prolongation of the
north line of said Lot 12. [¶] Except therefrom the easterly 8.00
feet, (measured at right angles to the easterly line), of said Lot
‘B.’ ” (Italics added; boldface and some capitalization omitted.)
The problem at the root of the parties’ dispute is that there
is no evidence the City ever reviewed or approved the survey and
new legal description. A certificate of compliance was never
executed by the City. Similarly, there is no evidence the lot line
adjustment was ever recorded. But the Cutlers later acted as if
the new legal description was operative.
C. Prior Owners’ Improvements on 651 Property
Later that year, in 1985, the Cutlers’ son Bevon partnered
with David Shewmake (Shewmake) to build a house on the
vacant lot (appellants’ 651 property) and sell it for profit. During
construction of the house, Bevon and Shewmake built a six-foot-
tall block wall between the two properties, along the new legal
boundary line surveyed and described by Abell, but never
certified by the City.

4
 In May 1986, a Notice of Completion was issued and
recorded for construction of the house on appellants’ 651
property. The Notice stated a legal description of 651 property
identical to the original legal description for the 63-foot-wide lot
and not the reduced 55-foot-wide lot proposed in Edwin’s
application for variance. The legal description specified in the
Notice did not include the additional language post lot line
adjustment in the legal description/survey prepared by Abell:
“Except therefrom the easterly 8.00 feet, (measured at right angles
to the easterly line), of said Lot ‘B.’ ” (Italics added, boldface and
some capitalization omitted.)
D. Transfers of Title from 1986 until 2014
On May 9, 1986, the Cutlers recorded a grant deed
transferring title to appellants’ 651 property to Bevon and
Shewmake, each receiving an undivided ½ interest as tenants in
common. The legal description provided in the grant deed did not
contain the additional language per Abell’s legal description after
the tentatively approved lot line adjustment. The legal
description specified in the grant deed was again identical to the
original legal description for the 63-foot-wide lot and not the
reduced 55-foot-lot Edwin requested in his variance application.2
That same date, on May 9, 1986, Bevon and Shewmake
executed a grant deed transferring title to 651 property to

2
After conveying their interest in 651 property to Bevon and
Shewmake in 1986, the Cutlers executed a series of wild deeds in
1989, 1992, and 1998 as to the “easterly 8.00 feet of Lot ‘B’.”
These wild deeds were ineffective and not within the chain of title
as the Cutlers no longer owned the property when they executed
the deeds.

5
Manfred and Elizabeth Leong (Leongs). The legal description on
the grant deed again did not contain the additional language
reflecting a lot line adjustment.
Twenty years later, on January 20, 2006, a grant deed was
recorded transferring the 651 property from the Leongs to Dawn
Hicks. The legal description in the grant deed for the original
63-foot-wide larger lot was used again.
On April 9, 2014, a grant deed with the original lot
dimensions was recorded transferring title of the 651 property to
appellants.
Before closing escrow on the 651 property, appellants
executed the California Residential Purchase Agreement, which
includes the following provisions. “Buyer acknowledges that the
square footage of the Property has not been measured by Seller
. . . (including the square footage of the lot and home) and the
square footage quoted on any marketing tools . . . is deemed
approximate and not guaranteed. . . . Buyer is buying the
Property AS IS, . . . WITH ALL FAULTS AND LIMITATIONS
and Buyer acknowledges Buyer’s responsibility to perform all due
diligence and investigation regarding Buyer’s acquisition of the
Property, including the measurement or confirmation of the
square footage of the Property.”
On July 1, 2014, a grant deed was recorded transferring
title to the 643 property to respondents Tun-Jen Ko and Li-
Chuan Shih. The legal description in the grant deed did not
contain the additional language increasing their square footage
as reflected in Edwin’s lot line adjustment application.
The Seller Property Questionnaire—received, initialed, and
signed by respondents on June 24, 2014—provided there are no
“[s]urveys, easements, encroachments or boundary disputes”

6
regarding 643 property. The Buyer’s Inspection Advisory
initialed and signed by respondents on May 20, 2014 provided:
“The physical condition of the land and improvements being
purchased is not guaranteed by either Seller or Brokers. For this
reason, you should conduct thorough investigations of the
Property personally and with professionals who should provide
written reports of their investigations.” The Buyer’s Inspection
Advisory further provides: “YOU ARE ADVISED TO CONDUCT
INVESTIGATIONS OF THE ENTIRE PROPERTY, INCLUDING
BUT NOT LIMITED TO . . . Square footage, room dimensions, lot
size, age of improvements and boundaries. . . . Fences, hedges,
walls, retaining walls and other natural or constructed barriers
or markers do not necessarily identify true Property boundaries.
(Professionals such as appraisers, architects, surveyors and civil
engineers are best suited to determine square footage,
dimensions and boundaries of the Property.)” (Boldface omitted.)
E. Appellants’ Civil Complaint
On February 10, 2016, appellants initiated a civil action
against respondents. The operative third amended complaint,
filed on May 22, 2019, alleged causes of action for wrongful
occupation of real property, quiet title, trespass, private nuisance,
wrongful disparagement of title, and permanent injunction.
The complaint alleged the following: “One of the main
reasons [appellants] purchased [the 651] property was because it
was advertised to have an approximately 10,000 square foot lot.”
In June 2015, appellants retained licensed land surveyor James
Kevorkian (Kevorkian) to prepare a survey of the boundaries of
their property. Appellants were then made aware that
respondents were “encroaching” onto their property. The total
area encroached upon is a strip of land measuring approximately

7
8.25 feet by 157.14 feet, totaling 1,296 square feet, “or
approximately 13% of [appellants’] total land area which they
legally own and on which they have paid and continue to pay
property taxes.” The encroaching area include the block wall
between the two properties, respondents’ planters near the front
sidewalk, and a portion of respondents’ driveway parallel to the
misplaced wall. Respondents’ purchase of the neighboring 643
property did not include any easement, as “the Seller’s Transfer
Disclosure Statement and other sale documents . . . did not
disclose any encroachments or easements.” In July 2015,
appellants asked respondents to remove the encroachments and
“share in the cost of building a new fence on the property line”
but respondents “refused to do so.”
Appellants argued respondents’ encroachments prevent
them from entering or using approximately 1,296 square feet of
their land; this “continuing trespass” continues to result in
damage “on a daily basis” depriving appellants of their “right to
exclusive possession and peaceful enjoyment” of their property.
Respondents have “no right, title or interest” in or to appellants’
property that “would lawfully allow them . . . to enter upon and
use any portion of” appellants’ property. Appellants believed
they “are entitled to a permanent injunction” requiring
respondents to remove all encroachments. As a result of
respondents’ actions, appellants have suffered and continue to
suffer general, compensatory, and consequential damages in an
amount no less than $300,000.

8
F. Respondents’ Cross-Complaint
On May 5, 2016, respondents filed a cross-complaint
against appellants for implied easement, equitable easement,
quiet title, and declaratory relief.3
The cross-complaint alleged appellants’ and respondents’
neighboring properties “were in the past owned by the same
owner(s)” who “installed pavement and built a wall, planters and
other improvements on the properties, which currently exist on
the properties.” The prior “owner(s) made a variance request
with the City of Sierra Madre to create two parcels and widen the
driveway for [respondents’ property].” The improvements “have
existed since 1985, and [respondents] and their predecessors in
interest have used the [i]mprovements without complaint since at
least that time.” Appellants “threaten to remove the
[i]mprovements and build a new fence on the property line . . .
which would impact [respondents’] use and enjoyment of [their
property].” Respondents “will suffer irreparable harm if they are
not granted an easement” over the improvements located on
appellants’ property “because the value of [respondents’ property]
would be significantly diminished and the driveway . . . would not
be wide enough to access [respondents’ property].” Respondents
argued this created an equitable easement over appellants’
property in the area of the improvements.
Respondents also argued the “acts of the prior owner[s]” of
the properties “created an implied easement,” referring to the
variance request, the separation of title to the properties, the

3
Respondents also named appellants’ lender, U.S. Bank
National Association, as a cross-defendant so it would be bound
by any judgment awarding an easement.

9
“obvious and permanent use of the [i]mprovements for the benefit
of” respondents’ property, and “[r]easonable necessity of the use
giving rise to the easement.”
Respondents sought “to quiet title to an equitable easement
and/or an implied easement” over appellants’ land; they
requested the easement run with the land and be binding on all
successors-in-interest. They requested “a judicial determination
of their rights and remedies . . . relating to the parties’ claims.”
In addition, respondents requested appellants pay for
respondents’ “out-of-pocket expenses and other administrative,
investigative, and ancillary expenses incurred.”
G. Trial
A five-day bench trial took place on March 9, 10, 11, 12,
2020 and June 30, 2020.
An important exchange took place between the parties and
the court on the second day of trial. The court stated: “It seems
to me that everybody is in agreement that if the easement were
either—if there were an easement in favor of the 643 property,
that is essentially for exclusive use. [¶] . . . [¶] . . . I mean, it
would be, with regard to an easement, an exclusive use. It’s not
like the Romeros are going to every so often hop over the fence
and walk along there because they own the property.” Counsel
for respondents responded: “I agree with that statement, your
honor.” The court further stated, “I’m not really thinking you are
getting much pushback on the factual matter that if an easement
were to arise by implication, generally speaking the use of that
easement by the property owners of 643 have it for largely
exclusive purposes.”
The evidence at trial established no real dispute about the
basic historical facts; the evidence fell into two categories.

10
Besides establishing the City’s zoning and variance requirements
and the extent of the encroachment, the testimony focused on the
effect of the encroachment on the parties. This was developed
through the testimony of appellant and several expert witnesses.
1. Zoning and Variance Requirements and Extent of
Encroachment
Vincent Gonzalez (Gonzalez), the Director of Planning and
Community Preservation for the City, described the procedure for
obtaining a lot line variance in 1985: “[T]he matter would go
before the Planning Commission. They would make the decision
to deny or recommend. Once that is done, then the applicant
submits for the lot line adjustment or subdivision. [¶] And the
documents would include a recorded survey and, also, a legal
description of the intended division of lots at the conclusion of the
subdivision, and, also, a certificate of compliance would be
required to be completed and signed by the property owner, the
Director of Public Works, the Director of Planning and
Community Preservation, and the city engineer.” “Usually what
occurs is the property owner or city engineer, the public works
director, and, in some cases, the planning director, will sign a
certificate of compliance stating that everything—the legal
description has been prepared, the plat map has been prepared,
and has been reviewed and evaluated by the city [engineer],
confirmed all those findings. [¶] The certificate of compliance is
signed [and] given to the property owner for recordation of the
county.”
Gonzalez confirmed he found in the City’s files a copy of
Edwin’s 1985 application for a variance request. He confirmed
the application requested a lot line adjustment. He confirmed
the Planning Commission recommended approval of the variance,

11
subject to conditions. “[B]efore the [variance], the granting of the
lot line adjustment is the first step in the process, and then the
property owner subsequently obtains a survey, a record of survey,
legal description. And that would ultimately be reviewed by the
city engineer.” The property owner “would need to obtain [a civil]
engineer to survey the parcel.” The property owner “would have
submitted [the record of survey and legal description], after it
was prepared by the civil engineer, to the public works
department to the city engineer for review.”
Gonzalez did not know “whether the city engineer ever
reviewed . . . the site plan and the legal description” prepared by
Abell. He stated: “It appears that there was a survey completed.
There is also that a legal description was prepared. But I see no
evidence that the certificate of compliance was ever signed and
recorded.” He confirmed no lot line adjustment was recorded;
however, he also confirmed he did not see anything in the City’s
files indicating Edwin had withdrawn his variance application.
In 2014, the City required new construction to have a
driveway width of 10 feet; this remains the driveway width
requirement for the City. The City “consider[s] a 10-foot-wide
driveway reasonable.”
In terms of parking space requirements, this residential
zone requires “[t]wo spaces per dwelling unit in a garage or
carport.” Respondents’ 643 property, thus, must have two
parking spaces in a garage or carport. In terms of parking,
James Guerra, a building inspector for Building and Safety for
the City for approximately 22 years, confirmed that the City’s
overnight parking ordinance allows residents to obtain overnight
parking permits for the annual fee of $97.

12
 Yuchi David Tsai (Tsai) was respondents’ real estate agent
in connection with their purchase and management of 643
property. He showed the property to respondent Ms. Shih
sometime in May 2014. He believed the property line was where
the “block wall [was] up.” He also believed the front planter box
was part of 643 property because “the planter box material [was]
the same thing, consistent throughout the 643 [property].” Tsai
recalled explaining the seller’s purchase agreement and real
estate transfer disclosure agreement to respondents, and “after
[he] explained, Ms. Shih sign[ed] the agreement.” Tsai confirmed
reviewing the preliminary title report with respondents; he also
confirmed the preliminary title report specified 643 property lot
was 50 (not 58) feet wide. He was not aware of any
encroachments or easements affecting either property at the time
respondents finalized the transaction.
Tsai discovered the property line issue when appellants
came to his office in 2015 and informed him of the survey
findings. The next day, Tsai went to the City and “learned the
same owner owned the other side, and then there was a
subdivider to build the other property.” He saw the Planning
Commission’s meeting notes and recalled “it described the
variance was approved” and thus, he concluded “the block [wall]
was built on the new property line.” When he informed
respondents of the circumstances, they were “surprised.”
David Knell (Knell), a licensed land surveyor, researched
the L.A. County Surveyor’s website, viewed the survey history
and historical maps, reviewed Kevorkian’s record survey of 651
property, and conducted a field survey of the two properties. He
concluded the following improvements on respondents’ 643
property encroach onto appellants’ 651 property: portion of the

13
driveway, the planter, and the air conditioner unit attached to
the side of the garage located at the back end of the driveway
behind the house. The width of the encroachment totals 8.7 feet,
and the total square footage of the encroachment is 1,296. The
distance from the side of the garage on 643 property to the true
property line is 0.8 feet, i.e., about 10 inches. The air conditioner
“sticks out from” the side of the garage “into the 651 property,
and that dimension is 1.2 feet.” Should the property line reflect
what is in the deeds, the width of the driveway on respondents’
643 property at its narrowest point is 7.2 feet.
Knell confirmed that the survey map prepared for Edwin
by Abell did not have Abell’s stamp or seal on it. Every parcel
map that Knell has ever prepared and recorded in any county
recorder’s office in California “had to have the stamp or seal for
the licensed surveyor or the civil engineer who is taking
responsibility for that document,” as that is “clearly stated in the
Subdivision Map Act.” A completed lot line adjustment requires
a recorded parcel map/deed, and recordation requires the stamp
or seal on the map/deed. Knell has never seen a parcel map or
subdivision map without a stamp or seal for the licensed civil
engineer or land surveyor who had signed it. He referred to
Abell’s survey map as a “draft,” that is, “it just was not a finished
product, so I think ‘draft’ is an appropriate word.”
Catherine Connen (Connen), the president and principal
civil engineer at John B. Abell, Inc., is a registered civil engineer
and has worked with her father, John B. Abell, since 1982. Her
father’s business maintained accounts receivable records in the
ordinary course of business. It was the custom and practice of
the company in 1985 to maintain records reflecting amounts
billed, amounts owed, and amounts paid by customers.

14
Payments received from customers were recorded in the accounts
receivable ledger.
Connen brought with her to court “the actual original
ledgers for the period of 1985.” A page from the ledger provided
the job number (“2-1452”), the client (“Ed Cutler”), the site
address or street (“Alegria Ave”), the amount billed (“$165”), and
the date billed (“6-4-85”). It also provided space to specify the
amount paid by the client and the date paid, but those areas were
left blank next to Cutler’s name, possibly meaning the amount
owed was not paid.
2. Effect of the Encroachment
Then a battle of expert witnesses ensued.
Steven McCormick (McCormick), a licensed commercial
general contractor, analyzed the feasibility of the property line
easement being vacated and its effects “on the viability of the
home.”
The City had enacted a 10-foot minimum driveway width
for properties located in R1 zones in the City. The 643 property
is located in an R1 zone. The City also had setback requirements
for properties in R1 zones: “The front-yard setback is 25 feet, the
side-yard setbacks are 5 feet, and the rear-yard setback is
15 feet.” Additionally, zoning ordinances in R1 zones in the City
required two covered parking spaces.
McCormick gave his opinion on how respondents’ 643
property would be impacted if it did not have use of the entire
encroachment area: “Well, obviously, the width of the driveway
would be reduced. The section going along the length of the home
would be down to 7.2 feet,” which did not comply with the City’s
current zoning codes. If the driveway width was 7.2 feet, “[y]ou
would be very limited on the cars that can get through there. It

15
would really boil down to subcompacts and . . . a certain
percentage of compact cars. But midsize and full size cars either
[w]on’t fit or would be extremely tight getting through there.” He
determined the foregoing by looking up car dimensions on the
website automobiledimension.com. He concluded that a Toyota
Prius would fit through a 7.2-feet-wide driveway, a Tesla Model S
(the smaller Tesla) would just barely fit with the side-mirrors
retracted, but the Tesla Model X (the largest Tesla) would not fit.
Additionally, he believed one would be unable to open the doors
and exit a car in a 7.2-feet-wide driveway. “[E]ven with a Toyota
Prius, you could not get out of the car between the house and the
wall, but . . . once you get back to the garage, there is room back
there.”
He opined on alternative ways to widen the driveway for
respondents’ 643 property in the event the block wall was moved
to reflect actual property lines. He came “up with the possibility
of tearing off the side of the house and moving the footings and
[to] reframe the house back about 4 feet from its existing
position.” He believed respondents “certainly would be able to
widen the driveway, but it creates a couple of problems. The first
problem, besides cost, is the fact” that moving the wall over
would cause the secondary bedroom to “shrink down to the point
where it violated the L.A. County habitability requirements.” To
constitute a bedroom, the room must be at least 100 square feet,
but moving the wall over would cause the secondary bedroom to
be less than 100 square feet. Per McCormick, the total cost of the
demolition and rebuild was $99,120.27.
McCormick also offered his opinion on how the garage on
643 property would be impacted. “[I]f the easement area was
removed and a new wall was put up along . . . the property line

16
that’s in contention here, essentially, you would have just a few
inches between that fence and the left-side exterior wall of . . . the
garage.” Thus, “two things would occur. One, there is an area for
parking. [There] was a camper trailer unit there before. You
would lose that [parking area].” Two, “[t]here is an air-
conditioning unit that’s been mounted on the side of the [garage]
wall, which you can see on the left-hand side, protrudes into that
space. So the fact that there is only a few inches, you cannot
repaint or maintain that exterior wall.” If the block wall was
moved to the property line, the distance between the block wall
and the garage wall would not comply with the City’s five-foot
setback requirements.
He performed a cost estimate to move the garage over to
accommodate the five-foot setback requirement of the City and
reached the total cost of $73,343. The garage would need to move
“somewhere between 5 and 6 feet” to comply with the five-foot
setback requirement. The effect of moving or shrinking the
garage by five or six feet would result in the garage “being about
like 12 to 14 feet wide,” which would be enough to comfortably fit
one vehicle, but not two. He determined another alternative
would be to “do a carport in front of the garage, but you end up
essentially parking tandem. So one [parking spot] would be
inside the garage and one [parking spot] would be outside in the
carport.” Finally, he provided a cost estimate of $2500 for
relocating the air-conditioning unit from the side of the garage.
Next, licensed professional land surveyor Kevorkian
determined the width of the encroachment area as 8.25 feet and
the length as 157.13 feet from front to rear. The total square
footage of the encroachment totaled 1,296.32 square feet.

17
 He confirmed the land survey he prepared for appellants
had his stamp on it. When asked why he put his stamp on it, he
answered, “Because it’s legal. It makes it legal.” ~(RT 401; 4AA
520)~
Steve Helfrich (Helfrich), a licensed general contractor,
civil engineer, and geotechnical engineer, also testified about the
width of the driveway. The driveway width at its narrowest is
7.2 feet for a length of about 27.5 feet—where the driveway
borders respondents’ residence. The driveway gets wider as it
approaches the back garage and is wider at the sidewalk near the
planter box.
Helfrich opined that a 2018 Toyota Prius (with a width of
69.3 inches) would be able to make a multipoint turn in the
20-foot-by-20-foot area in front of the garage and then go back
down to the street via the driveway. If the property line were
moved to reflect true lot lines, “the width of the driveway is 86
inches, and the width of the Prius without the mirrors is 69
inches. So you have—it depends on how wide the mirrors are,
but I think that there’s more than a few inches on each side.”
Besides the 20-by-20 area where a car may maneuver around, the
only other way to get in and out of the garage would be to back
out of the driveway. When asked why he chose only to
concentrate on a 2018 Toyota Prius in his analysis, Helfrich
answered: “That was, I felt, representative of a compact car.”
Gidon Vardi (Vardi), a certified building inspector and
construction and safety consultant with a general contractor’s
license, reviewed McCormick’s cost estimate report. which
essentially “calls for complete demolition and rebuilding of
[respondents’] property and dwelling” as well as “the garage and

18
adjacent structure.” Vardi believed McCormick’s estimates were
simply “excessive and unreasonable.”
Daniel Poyourow (Poyourow), a licensed real estate
appraiser and real estate broker, had prepared diminution in
value appraisals, including in the Sierra Madre area.
A diminution in value appraisal is based upon the before and
after condition of a property.
Poyourow analyzed and valued appellants’ 651 property
“before, and then after, [he] considered the loss in land use, and
valued the land separately. [He] [a]llocated a certain portion of
the land to the easement area, and . . . diminished the value
based upon a loss of certain rights and uses.” He collected
comparable sales data on land and improved properties, prepared
an adjustment grid, analyzed the data, and drew the following
conclusions.
Using the sales comparison approach, he set the value of
appellants’ 651 property, including the area of the encroachment,
at $1.310 million. He placed the land value of the property at
$710,000. He calculated the diminution in value from losing the
encroachment area measured at 1,224 square feet as $68,264.
Relying on Kevorkian’s square footage of 1,296 square feet, the
diminution in value increased to $71,000.
Poyourow “examined what rights or uses would remain to
[appellants’] 651 property.” He opined some uses do remain, even
though the property is used primarily by respondents. He set the
diminution in value as a result of the encroachment at $67,000;
thus, the net value of appellants’ 651 property, after subtracting
out the diminution in value, was $1.243 million. He added that
appellants’ 651 property could support another 300 square feet of

19
structure which is “really important and a big value to the
651 property.”
As for respondents’ 643 property—with a lot size of
7,853 square feet without the encroachment and 9,072 square
feet with the encroachment—Poyourow used the sales
comparison approach and set the value of the property with the
encroaching area at $915,000. He calculated the value of the
encroachment area itself at $67,000. He valued respondents’
property without the encroachment area at $782,000, with a total
diminution of $133,000 (or $137,000 for 1,296 square feet).
Poyourow looked at the hardship or burdens that
respondents’ 643 property would experience as a result of losing
the encroachment. “[T]hey would lose some parking because the
driveway would become so narrow.” “They would also lose that
open third parking space.” He opined the cost to replace a second
and third open parking space would be $19,000 each; he opined
loss of the garage parking resulted in a $15,000 reduction in
value for the two spaces, totaling $53,000 for loss of parking. He
conceded a resident can park on the street overnight with an
annual permit costing less than $200. He also conceded the loss
of the planter box “is primarily an aesthetic issue, just the
planter boxes themselves. [He was] more concerned with the
driveway issues.” Finally, he estimated $2,500 as the cost of
relocating the air conditioning unit on the side of the garage.
In his appraisal, Poyourow stated the subject encroachment
area is “effectively exclusive.” “The surface area is being
exclusively used [by respondents] right now.” The potential for
any remaining use by appellants “is remote.” He stated that the
prospect of appellants installing new pipes underneath the
encroachment area “would be remote, but it is possible to do.”

20
 David Harding (Harding), a licensed real estate appraiser
in central California, also calculated the diminution in value for
each property. Using the sales comparison approach, he
appraised appellants’ 651 property including the 1,296 square
foot encroaching area at $1.375 million. Without the disputed
area, his appraised value was $1,264,840. He attributed
$110,160 as the value of the 1,296-square-foot encroachment
area.
Harding took his diminution in value calculation one step
further by analyzing the “diminution of value to the property over
and above the value of the land.” He calculated a diminution of
value for appellants’ property of 15 percent, which amounted to
an even lower total appraised value of $1.075 million. And the
“total difference between the value in the before condition and
the value in the after condition” is $300,000. When asked how he
reached the figure of 15 percent, he stated: “This is too
convoluted. I come across this type of thing a lot in my
diminution of value analysis appraisals. They’re complicated
issues, and admittedly there’s unfortunately no way to support
them accurately with market data. [¶] So I thought about it a lot,
and I came to—you know about 10 percent, that seems a little
low. I think that’s more than that. 20 percent seemed high.
15 percent is in the middle of that. It seemed like a comfortable
figure. I calculated what that equated to in terms of a dollar
value.”
Finally, appellants Cesar and Tatana Romero testified
about their damages. The advertised lot size for the 651 property
was very close to 10,000 square feet. The lot size was appellants’
main criteria and they would not have purchased the 651
property if it had been advertised as an 8,500-square-foot lot.

21
 The fact that there was an encroachment from the adjacent
property was never disclosed to appellants when they purchased
the 651 property.
Before purchasing the property, Cesar noted the house was
“in bad condition” so his inspection of the property and “main
focus was on the house”; he did not look at the block wall or the
neighboring property. A year after purchasing 651 property,
Cesar “was doing some work in the front to improve [his] yard,
and [had] to do some measurements to order some building
materials.” “When [he took] the measurements, it didn’t seem
like the right width of the yard.” Appellants hired James
Kevorkian who prepared a survey and informed them of the
encroachment. Appellants wanted to resolve the encroachment
issue without court intervention. They contacted Tsai about the
issue, but Tsai was “dismissive.” The next day, Tsai informed
appellants of his findings from the Planning Commission
meetings and the lot line adjustment request.
Since appellants’ purchase of 651 property, they have paid
property taxes on the property, including the nearly 1,300-
square-foot disputed land. Since their purchase of the property,
they have not been able to use that 1,300 square feet for any
purpose; they are, in fact, physically prevented from using or
accessing it because of the block wall. As things stand now,
appellants have conceived no plans for use of the disputed area.
However, they have ideas for use of the disputed land should they
get it back. Cesar testified, “[W]e would like to be able to have
more area there so that we can increase our privacy. We would
like to plant . . . in the front. . . . My wife wants to plant an
orchard. I would like to place a pool in the back.” Appellants
have “been in this lawsuit for—going on almost five years now

22
and spent maybe close to $300,000 in order to actually be able to
assert the rights of something that I’ve actually bought. [¶] I
mean, I bought a lot of almost 10,000 square foot, and it was
important to us to have a large lot, and it’s still important to us.
Because it’s our land, and I believe in property rights.”
Tatana echoed her husband’s testimony. She testified,
“13 percent of [her] property” is being exclusively used by the
occupants of 643 property. “I believe in our constitutionally
protected property rights I have bought, paid for, and legally own
the approximate 10,000-square-foot lot.” As it currently stands,
she is “precluded” from utilizing the 1,296 square feet in any way.
Yet, she and her husband would be exposed to the potential of
unlimited and perpetual liability for “any injuries that might
happen on an area over which I have no control.” She gave an
example of how there are a lot of young children living on West
Algeria Avenue between “the ages from zero, newborns, to 5, 6, 7
years old, and they play a lot on West [Algeria] Avenue. They are
running around, learning how to ride a bicycle, tricycle. They are
using the sidewalk quite a bit.” “[W]hat could happen is that the
young child could trip over a loose brick or something that the
tenants of the 643 property would do, and if that child happens to
trip and suffer, God forbid, a catastrophic brain injury or
paralysis, I will be exclusively personally liable for being
responsible for those injuries because I’m the legal owner of that
particular strip of land, and that is a huge problem.”
Appellants had title insurance with First American Title
Insurance Company. After respondents filed their cross-
complaint, First American Title Insurance Company paid
appellants $95,000 for their loss of use of the encroachment area.

23
H. Statement of Decision
On August 24, 2020, the trial court issued its proposed
statement of decision. Respondents requested one clarification,
which the court adopted. Appellants raised 53 objections to the
proposed statement of decision and requested additional and
alternative findings. We note appellants’ Objection No. 22, where
they objected to trial court’s granting of the easement as it is
“essentially permanent” and “not narrowly drawn to promote
justice.”
On September 28, 2020, the trial court filed its statement of
decision and concluded respondents “possess an implied
easement over the eight-foot strip of land.” The court further
concluded that if there were no such implied easement, an
equitable easement should arise, which would entitle appellants
to compensation of $69,000.
The court’s lengthy statement of decision provided, in
relevant part:
Implied Easement
The court found “all the conditions exist for an implied
easement in favor of the 643 Property over the eight-foot strip of
land.” The easement “shall 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.”
The court also found “the continued encroachment onto the
disputed strip of land is reasonably necessary” and referred to the
fact that the 643 property’s driveway would measure 7.2 feet at
its narrowest point, which fell several feet short of the City’s
minimum driveway width requirement of 10 feet.

24
 The court found the implied easement “is not necessarily
‘exclusive,’ as various subsurface uses (e.g., running underground
pipes or cables) are available to the 651 Property.”
Equitable Easement
The court found “all three factors for the creation of an
equitable easement are present” and exercised its discretion to
impose a “judicially created, equitable easement over the strip of
land . . . for the 643 Property to maintain a driveway, planter and
wall/fence [that] should run with the land, but should terminate
if the 643 Property were to cease its continued use of that land
for a driveway, planter and wall/fence.”
The court found respondents were “innocent parties with no
knowledge of the encroachments and no basis to know of them.”
The court further found appellants “would not suffer any
irreparable harm from such continued encroachment.” While
appellant Cesar Romero “testified generally that removal of such
encroachments would afford him greater privacy and the ability
to plant trees and/or build a pool in his backyard, there was no
evidence at trial of any actual plans [appellants] had to increase
privacy, landscape, or construct a pool that their lot in its current
state would prevent or adversely affect in some substantial
manner.”
While appellants argued “the continued encroachment . . .
burdens them because they continue to pay property taxes for
land being used by another”, there was “no evidence . . .
concerning property taxes [appellants] actually pay for the 651
Property and what, if any, unfair tax burden [they] assume for
the strip of land they cannot fully use.” Regarding the “potential
legal liability for the strip of land,” the court believed “any such
liability (or pecuniary damage flowing therefrom) is too

25
speculative and uncertain to carry much weight.” “Largely, it
appears to the Court that any harm to [appellants] is emotional
or psychological. . . . [W]hile the hardship to [appellants] may be
felt substantially by them, it is greatly outweighed by the actual
harm [respondents] would suffer absent an easement over the
strip of land.”
The court referred to McCormick’s testimony about “the
impracticality and great expense of alternatives to the easement”
and found there is no “viable, reasonable alternatives to an
easement.” The court “rejects the testimony of . . . Helfrich, who
opined that the driveway on the 643 Property could continue to
be used even if it were narrowed to the actual property line” as
his opinion “was based solely on . . . one car—a 2018 Prius.” The
court also “found unhelpful the testimony of . . . Vardi” as he “did
not meaningfully explain how he arrived at [construction and
repair] costs.” The court found Harding’s testimony about the
diminution in value to the properties “wholly unreliable and
entirely unconvincing” as he “had never previously appraised any
property in Sierra Madre” and had “only conducted two
diminution in value appraisals involving encroachments ever.”
The court found Harding’s testimony “either should have been
excluded or stricken in its entirety for lack of foundation and
reliability or should be disregarded and afforded no weight to the
extent it was admissible.”
The court considered the diminution in value to the
respective properties. The court viewed Poyourow’s testimony
“the only competent evidence of such diminution in value.” The
court referred to Poyourow’s conclusion that the “effect of an
easement over the disputed area would be a diminution of value
to the 651 Property of $67,000, or an additional $4,000 if using

26
the slightly greater square footage calculation of [appellants’]
survey for the area of encroachment” and $133,000 as the
diminution in value to the 643 property without the easement.
“[T]he balance of hardships greatly favors [respondents].”
The court found appellants entitled to compensation if
subject to the equitable easement, and found “the best measure of
damage . . . is the diminution in value to their property.” The
court credited Poyourow’s calculations and split the $4,000
additional amount based on the square footage difference, and
“conclude[d] that $69,000 would constitute just compensation to
[appellants] for the creation of an equitable easement.”
Remaining Claims
Having found an implied easement in favor of respondents’
643 property, the court found the easement dispositive of the
remaining claims in the third amended complaint and the cross-
complaint.
On October 26, 2020, the trial court filed its judgment and
appellants timely appealed.

DISCUSSION
Appellants make three primary arguments on appeal.
First, they argue the trial court’s judgment “should be reversed
because, as a matter of law, the court cannot create an exclusive
implied easement.” Second, appellants argue “[a]ssuming
implied exclusive easements are permissible, the court erred in
creating an implied easement.” Appellants believe substantial
evidence does not support the court’s findings as to the elements
for implied easement. Third, appellants contend the court
abused its discretion and “erred in creating an equitable
easement” which “is not narrowly tailored to promote justice and

27
is significantly greater in scope and duration than what is
necessary to protect [respondents’] needs.”
We address appellants’ first two contentions in part B and
their third contention in part C.
A. Easements, Generally
An easement is a “ ‘restricted right to specific, limited,
definable use or activity upon another’s property, which right
must be less than the right of ownership.’ ” (Scruby v. Vintage
Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702, first italics added
(Scruby).) An easement gives a nonpossessory and restricted
right to a specific use or activity upon another’s property.
(McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174.) An
easement “is not a type of ownership, but rather an ‘incorporeal
interest in land . . . “ ‘which confers a right upon the owner
thereof to some profit, benefit, dominion, or lawful use out of or
over the estate of another.’ ” ’ ” (Hansen v. Sandridge Partners,
L.P. (2018) 22 Cal.App.5th 1020, 1032 (Hansen).) The key
distinction between an ownership interest in land and an
easement interest in land is that the former involves possession
of land whereas the latter involves a limited use of land. (Ibid.)
Civil Code section 801 provides a list of 18 types of “land
burdens, or servitudes upon land . . . as incidents or
appurtenances . . . called easements” including, among other
things, the right of pasture; the right of fishing; the right of
taking game; the right-of-way; the right of taking water, wood,
minerals, and other things; and the right of using a wall as a
party wall. (Civ. Code, § 801.)
“The general rule is clearly established that, despite the
granting of an easement, the owner of the servient tenement may
make any use of the land that does not interfere unreasonably

28
with the easement.” (Pasadena v. California-Michigan etc. Co.
(1941) 17 Cal.2d 576, 579 (Pasadena).) The owner of the
dominant tenement must use his/her easements and rights in
such a way so as to impose as slight burden as possible on the
servient tenement. (Scruby, supra, 37 Cal.App.4th at p. 702.)
B. The Court Erred in Granting an Exclusive Implied
Easement that Amounted to Fee Title.
1. Standard of Review
The party claiming an implied easement has the burden of
proving each element of the cause of action by a preponderance of
the evidence, and the factual findings of the trial court are
binding on the appellate court if supported by substantial
evidence. (Thorstrom v. Thorstrom (2011) 196 Cal.App.4th
1406, 1419 (Thorstrom); Tusher v. Gabrielsen (1998)
68 Cal.App.4th 131, 145; Orr v. Kirk (1950) 100 Cal.App.2d 678,
684 (Orr).) The court looks to all facts, the situation of the
parties and the properties, and the circumstances surrounding
the transaction to determine, as a question of fact, whether the
parties intended to create the easement. (Tusher, at pp. 144–145;
George v. Goshgarian (1983) 139 Cal.App.3d 856, 861–863;
Piazza v. Schaefer (1967) 255 Cal.App.2d 328, 332.)
2. Applicable Law
Under certain circumstances, the law implies that the
parties intended to create or transfer an easement by a grant or
reservation when there is no written document evidencing their
intent and, in some cases, even when there is no oral agreement
regarding the easement; thus, implied easements are “an
exception to the general rule that interests in real property can

29
only be created by an express writing or prescription.” (Kytasty v.
Godwin (1980) 102 Cal.App.3d 762, 768.)
Implied easements are not favored. (Thorstrom, supra,
196 Cal.App.4th at p. 1420; Horowitz v. Noble (1978)
79 Cal.App.3d 120, 131 (Horowitz).) The factual circumstances
that permit the creation of implied easements are fairly well
established and the implication can only arise where certain facts
are present. (County of Los Angeles v. Bartlett (1962)
203 Cal.App.2d 523, 529–530; Orr, supra, 100 Cal.App.2d at
p. 681; Navarro v. Paulley (1944) 66 Cal.App.2d 827, 829
(Navarro).) The courts jealously guard against any unreasonable
or inequitable extensions of these rules beyond their original
objectives. (6 Miller & Starr, Cal. Real Estate (4th ed. 2021)
§ 15:19.)
Civil Code section 1104 provides the circumstances under
which the law implies the existence of an easement: “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.” (Civ. Code, § 1104.)
In contrast to a non-exclusive easement, wherein the
servient owner (in this case, appellants) may continue to use the
easement area so long as such use does not unreasonably
interfere with the use by the dominant owner (here,
respondents), an exclusive easement only permits the dominant
owner to use the easement area. (Scruby, supra, 37 Cal.App.4th
at pp. 702–703.) Granting an exclusive easement in effect strips

30
the servient estate owner of the right to use the land for certain
purposes, thus limiting the fee title; therefore, exclusive
easements generally are not favored by the courts. Prior courts
have referred to exclusive easements as “rare” (Hirshfield v.
Schwartz (2001) 91 Cal.App.4th 749, 769, fn. 11 (Hirshfield)) and
as “an unusual interest in land; it has been said to amount
almost to a conveyance of the fee.” (Pasadena, supra, 17 Cal.2d
at p. 578.)
Until recently, exclusive easements were found principally
in older utility easement cases. (See, e.g., Salvaty v. Falcon
Cable Television (1985) 165 Cal.App.3d 798, 804.) However, more
recent cases have upheld exclusive easements in situations where
the express language of the granting instrument either uses the
phrase “exclusive easement” (Gray v. McCormick (2008)
167 Cal.App.4th 1019, 1025–1026 (Gray)) or the parties intend
that the dominant owner’s use necessarily must be exclusive (e.g.,
an easement “ ‘for parking and garage purposes’ ”). (Blackmore v.
Powell (2007) 150 Cal.App.4th 1593, 1599–1600 (Blackmore).)
Thus, so called “exclusive easements” are not prohibited under
California law so long as the language of the creating instrument
clearly expresses an intention that the use of the easement area
shall be exclusive to the dominant owner. (Gray, at p. 1032.) In
other words, an easement is nonexclusive unless it has been
made exclusive by the express terms of the instrument creating it
or the parties have evidenced their clear intent that it is
exclusive. (Pasadena, supra, 17 Cal.2d at p. 578–579; Otay Water
Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1047 & fn. 4 (Otay);
6 Miller & Starr, Cal. Real Estate (4th ed. 2021) § 15:65.)

31
 3. Analysis
We note this is a case of first impression as we have found
no case that permits or prohibits exclusive implied easements.
We have reviewed case precedent regarding exclusive easements
generally, and note the following.
In most cases involving prescriptive easements, the courts
have not allowed the easement owner exclusive use (equivalent to
fee title) of the servient tenement. (See, e.g., Mehdizadeh v.
Mincer (1996) 46 Cal.App.4th 1296, 1305–1307 (Mehdizadeh);
Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562–564 (Silacci);
Hansen, supra, 22 Cal.App.5th at pp. 1033–1035; Raab v. Casper
(1975) 51 Cal.App.3d 866, 876–877.) “The notion of an exclusive
prescriptive easement, which as a practical matter completely
prohibits the true owner from using his land, has no application
to a simple backyard dispute . . . . An easement, after all, is
merely the right to cross the land of another . . . is not an
ownership interest, and certainly does not amount to a fee simple
estate.” (Silacci, at p. 564, italics added; see Pasadena, supra,
17 Cal.2d at pp. 578–579.) Similarly, an adjoining property
owner cannot obtain the equivalent of adverse possession (and
exclusive use of neighboring property) by alleging the elements of
a prescriptive easement. (Hansen, at p. 1033.) “Unsurprisingly,
claimants have often tried to obtain the fruits of adverse
possession under the guise of a prescriptive easement to avoid
having to satisfy the tax element. [Citations.] That is, they seek
judgments ‘employing the nomenclature of easement but . . .
creat[e] the practical equivalent of an estate.’ [Citation.] Such
judgments ‘pervert[ ] the classical distinction in real property law
between ownership and use.’ ” (Ibid.)

32
 In Kapner v. Meadowlark Ranch Assn. (2004)
116 Cal.App.4th 1182, a survey showed that some of Kapner’s
improvements including portions of his driveway, gate, and
perimeter fence encroached on another’s parcel. (Id. at p. 1186.)
The Court of Appeal affirmed that Kapner could not acquire an
exclusive prescriptive easement over neighboring land by
enclosing that land with a fence. (Id. at pp. 1186–1187.) The
court further found Kapner’s use of the neighboring land was not
in the nature of an easement; instead, the landowner had
enclosed and possessed the land. (Ibid.) The landowner could
not establish adverse possession because he had not satisfied the
necessary requirement of paying taxes for the enclosed land.
(Id. at p. 1187.) “[A]dverse possession may not masquerade as a
prescriptive easement.” (Id. at p. 1185.)
Mehdizadeh is similar to the facts of the case before us, as
it also involved a dispute between neighbors after discovery that
a fence built many years earlier was not located on the legal
boundary between their properties. In Mehdizadeh, a prior
owner of property A built a fence between property A and
property B in 1967. (Mehdizadeh, supra, 46 Cal.App.4th at
p. 1301.) The owner of property B, who purchased the property
after the fence was built, paid half of the cost, even though the
parties did not know whether the fence was located on the
property line. (Ibid.) Property A was sold in 1985 to the current
owners, who “knew from plot maps” that the fence was not on the
property line. (Ibid.) After property B was sold to the current
owners in 1990, the owner of property A obtained a survey that
showed the fence was 10 feet within the property line of
property A. He constructed a new fence on the surveyed
boundary. (Ibid.) The 10-foot area between the properties was

33
used by the owner of property B for vegetation, a
sprinkler/irrigation system, and the owner’s dog. (Id. at
pp. 1301–1302.) The owner of property B filed an action to
establish a prescriptive easement over the 10-foot strip. (Id. at
p. 1302.)
The Court of Appeal held that the owner of property B
could not establish title by adverse possession to the disputed
parcel because he had not paid the taxes for the parcel.
(Mehdizadeh, supra, 46 Cal.App.4th at p. 1305.) He could not
acquire an easement by prescription if the easement were to be
exclusive and would grant rights tantamount to a fee title. (Ibid
[the easement granted by the trial court “would divest [property
A owner] of nearly all rights that owners customarily have in
residential property. A fence will bar [their] access to the
property, and they cannot build on, cultivate, or otherwise use
it.”].) The easement included a fence that barred the owner of
property A from physical access and excluded his use of the
property, except minimally for light and air. (Id. at p. 1308.)
Owner of property B could not acquire a prescriptive easement
which is substantially equivalent to a fee title, by satisfying the
lesser requirements for prescription. “To affirm the creation of
this novel ‘fencing easement’ would dispossess an unconsenting
landowner of property while circumventing readily available,
accurate legal descriptions.” (Ibid.)
Prior decisions recognize two exceptions where exclusive
prescriptive easements have been allowed. The first is an
exception in cases involving utility services or important
essential public health and safety purposes. (See Otay, supra,
1 Cal.App.4th at p. 1046.) However, at least one court has
declined to follow Otay, holding that the exclusive easement

34
found by the court “was the practical equivalent of an estate and
should only have been permitted upon satisfaction of the
elements of adverse possession.” (Hansen, supra, 22 Cal.App.5th
at p. 1035.)
The second involves the de minimis rule. In some cases,
courts have denied a mandatory injunction to compel the removal
of an encroachment by an adjoining landowner if the
encroachment comes within the de minimis rule. For instance,
where the encroachment of the wall of a building on the adjoining
property was from one-half to five-eighths of an inch, the court in
McKean v. Alliance Land Co. (1927) 200 Cal. 396 (McKean),
sustained a judgment denying a mandatory injunction and
instead awarded damages of $10 where there was no direct
evidence that the less-than-an-inch encroachment caused any
actual damage to the plaintiff. (Id. at p. 399.) The court stated
that where the injury was so slight as to bring it within the
maxim “de minimis,” a mandatory injunction should not be
issued. (Ibid.)
We find the rationales for precluding exclusive prescriptive
easements—based on the distinction between estates and
easements— equally applicable to exclusive implied easements.
Unless the language of the creating instrument expressly
provides the intention that the easement be “exclusive” to the
dominant owner (see Gray, supra, 167 Cal.App.4th at p. 1021
[“[t]he express easement in question clearly provides that the
easement is for the exclusive use of the owners of the dominant
tenement”]), we are hard-pressed to infer the granting of an
exclusive implied easement which precludes a property owner
from any practical use and is nearly the equivalent of a fee
interest. Based on the foregoing, we hold, in the first instance,

35
that an exclusive implied easement which, for all practical
purposes, amounts to fee title cannot be justified or granted
unless: 1) the encroachment is “de minimis” (see McKean, supra,
200 Cal. at p. 399; see Rothaermel v. Amerige (1921) 55 Cal.App.
273, 275–276); or 2) the easement is necessary to protect the
health or safety of the public or for essential utility purposes.
(Mehdizadeh, supra, 46 Cal.App.4th at p. 1306).
Here, there was no express grant of an exclusive easement.
And the encroachment, totaling 1,296 square feet of appellants’
9,815-square-foot property, cannot reasonably be qualified as de
minimis as it amounts to approximately 13.2 percent of
appellants’ property. Additionally, nothing in the record suggests
the encroachment is necessary for essential utility purposes or to
protect general public health or safety.
Moving on to whether the implied easement was in fact
exclusive, appellants argue the trial court’s decision awards
respondents “exclusive use and possession of 13% of [appellants’]
property [which] is not . . . legally permissible” and amounts to
fee title. Whether an exclusive easement constitutes fee title or
amounts to ownership in fee, rather than an easement, depends
on the circumstances of the case, including the terms of any
applicable conveyance. (Blackmore, supra, 150 Cal.App.4th at
p. 1593.) In determining whether a conveyance creates easement
or estate, courts look to the extent to which the conveyance limits
the uses available to the grantor; an estate entitles the owner to
the exclusive occupation of a portion of the earth’s surface; that
is, the property owner “would not be able to use the [d]isputed
[l]and for any ‘practical purpose.’ ” (Hansen, supra,
22 Cal.App.5th at p. 1034, italics added; see also Silacci, supra,
45 Cal.App.4th at p. 564 [“as a practical matter,” easement

36
completely prohibited true owner from using his land].) We
review the relevant facts and evidence.
First, we note that while the trial court’s statement of
decision provides the implied easement “is not necessarily
‘exclusive,’ as various subsurface uses (e.g., running underground
pipes or cables) are available to 651 property,” that is not what
was stated and agreed-upon by the court and respondents’
counsel during the second day of trial (“It seems to me that
everybody is in agreement that if . . . there were an easement in
favor of the 643 property, that is essentially for exclusive use.”)
Second, the three cases cited by the court in the statement of
decision are inapposite. Neither Horowitz, supra, 79 Cal.App.3d
120, nor Rosebrook v. Utz (1941) 45 Cal.App.2d 726, involve
implied easements that were exclusive to the owner of the
dominant tenement. And the facts in People v. Bowers (1964)
226 Cal.App.2d 463, an eminent domain action to condemn
property for state park purposes, are distinguishable from the
case before us.
Third, and most significant, there is no evidence in the
record that appellants could utilize the subsurface of the 1,296
square feet for any “practical purpose.” There is no evidence
suggesting that appellants could run underground pipes or cables
for any meaningful purpose or any conceivable use. The evidence
at trial was that appellants’ property already has all the
necessary utilities and water pipes, and appellants could not
foresee any practical subsurface use. We agree with appellants
that the theoretical possibility of running a pipe under the
easement does not render the easement non-exclusive.

37
 Respondents’ own expert Poyourow testified that the
subject encroachment area is “effectively exclusive” and that the
potential for any remaining use by appellants is remote.
Poyourow also testified that the prospect of appellants installing
new pipes underneath the encroachment area “would be remote,
but it is possible to do so.”
Similar to the fence in Mehdizadeh, supra, 46 Cal.App.4th
at p. 1308, which barred the owner of property A from physical
access and excluded his use of the property, except minimally for
light and air, the block wall between the 651 and 643 properties
completely precludes appellants from accessing 1,296 square feet
of their land. The easement granted by the trial court essentially
divests appellants of nearly all rights that owners customarily
have in residential property, including access and practical
usage. (See id. at p. 1305 [property owner cannot access, “build
on, cultivate, or otherwise use” their land].) Though respondents
label the 1,296-square-foot encroachment as a nonexclusive
implied easement, the remedy they seek ousts appellants for all
practical purposes.
Respondents’ reliance on Dixon v. Eastown Realty Co.
(1951) 105 Cal.App.2d 260 is misplaced, as it involves a “slight
encroachment of defendant’s garage building on plaintiffs’
property.” (Id. at p. 261.) The garage wall encroached upon
plaintiff’s property “a distance of 0.35 of a foot at its northwest
corner and 0.15 of a foot at the northeast corner.” (Id. at p. 262.)
Thus, it comes within the de minimis rule. Respondents’ reliance
on Navarro is also misplaced, as the court found the defendant’s
garage that extended “approximately five feet north into”
another’s property was not reasonably necessary based on
“testimony that it could be moved from its location straddling the

38
boundary line to a location entirely on defendant’s property.”
(Navarro, supra, 66 Cal.App.2d at pp. 828, 830.) Nothing in that
case suggests an implied easement can be exclusive.
During oral argument, respondents emphasized that the
focus of our analysis should be on what the parties intended, as
the purpose of implied easements is to give effect to the actual
intent of the parties involved with the creation/conveyance of the
easement. (Thorstrom, supra, 196 Cal.App.4th at p. 1420.) We
find, however, that this undercuts, rather than helps, their case
because the evidence relied upon by respondents demonstrates
the original grantor Edwin Cutler’s intent was not to create or
convey an easement, but to effectuate a variance/lot line
adjustment between the 643 and 651 properties. We cannot say
an application for variance resulting in a change to fee
title/ownership of a portion of property, demonstrates an intent to
create an easement for use of a portion of property. To do so
would be inappropriate given substantial case precedent
differentiating between ownership interest in land and an
easement interest in the limited use of another’s land (see
Scruby, supra, 37 Cal.App.4th at p. 702; see Hansen, supra,
22 Cal.App.5th at p. 1032) and the general constitutional
prohibition against the taking of private property (see U.S.
Const., 5th Amend.; Cal. Const., art. I, § 19, subd. (a)).
Thus, we reverse that portion of the judgment awarding an
exclusive implied easement to respondents. Because we reverse
the trial court’s imposition of an exclusive implied easement, we
find moot appellants’ second contention that the implied
easement is not supported by substantial evidence.

39
C. We Affirm the Trial Court’s Creation of an Equitable
Easement.
1. Standard of Review
We review a court’s decision whether to recognize an
equitable easement under the abuse of discretion standard.
(Nellie Gail Ranch Owners Assn. v. McMullin (2016)
4 Cal.App.5th 982, 1005–1006 (Nellie Gail).) We defer to the trial
court’s factual findings so long as they are supported by
substantial evidence, and determine whether, under those facts,
the court abused its discretion. (Id. at p. 1006.) Under that
standard, we resolve all evidentiary conflicts in favor of the
judgment and will not disturb the court’s decision so long as it is
“fashioned on the evidence and equities presented, and [is]
narrowly tailored to promote justice.” (Hirshfield, supra,
91 Cal.App.4th at pp. 771–772.)
2. Applicable Law
Where there has been an encroachment on land without
any legal right to do so, the court may exercise its powers in
equity to affirmatively fashion an interest in the owner’s land
which will protect the encroacher’s use, namely, a judicially
created easement sometimes referred to as an “equitable
easement.” (Hirshfield, supra, 91 Cal.App.4th at pp. 764–765;
Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008
(Tashakori).) In making its determination, the court engages in
equitable balancing to determine, on the one hand, whether to
prevent such encroachment or, on the other hand, permit such
encroachment and award damages to the property owner.
(Hirshfield, at p. 759.)

40
 California courts have “discretionary authority to deny a
landowner’s request to eject a trespasser and instead force the
landowner to accept damages as compensation for the judicial
creation of an [equitable] easement over the trespassed-upon
property in the trespasser’s favor, provided that the trespasser
shows that (1) her trespass was ‘ “innocent” ’ rather than ‘ “willful
or negligent,” ’ (2) the public or the property owner [seeking the
injunction] will not be ‘ “ ‘irreparabl[y] injur[ed]’ ” ’ by the
easement, and (3) the hardship to the trespasser from having to
cease the trespass is ‘ “ ‘greatly disproportionate to the hardship
caused [the owner] by the continuance of the encroachment.’ ” ’ ”
(Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 (Shoen); accord
Tashakori, supra, 196 Cal.App.4th at pp. 1008–1009 [factors
apply to both physical encroachments and disputed rights of
access over neighbors’ properties].)
Unless all three elements are established, a court lacks
discretion to grant an equitable easement. (Shoen, supra,
237 Cal.App.4th at p. 19; see Ranch at the Falls LLC v. O’Neal
(2019) 38 Cal.App.5th 155, 184–185.) This is true even if the
court believes the imposition of an equitable easement is fair and
equitable under all circumstances. (Shoen, at pp. 19–21.) Thus,
the court’s focus must be on the three elements, rather than “a
more open-ended and free-floating inquiry into which party will
make better use of the encroached-upon land, which values it
more, and which will derive a greater benefit from its use.”
(Id. at p. 21.)
“ ‘Overarching the analysis’ ” is the importance of the legal
owner’s property rights and “ ‘the principle that since the
[encroacher] is the trespasser, he or she is the wrongdoer;
therefore, “doubtful cases should be decided in favor of the

41
[property owner with legal title].” ’ ” (Nellie Gail, supra,
4 Cal.App.5th at p. 1004; accord Shoen, supra, 237 Cal.App.4th at
pp. 19, 21.) Equitable easements give the trespasser “what is, in
effect, the right of eminent domain by permitting him to occupy
property owned by another.” (Christensen v. Tucker (1952)
114 Cal.App.2d 554, 560 (Christensen).) Such a right is in
tension with the general constitutional prohibition against the
taking of private property (U.S. Const., 5th Amend. [private
property shall not be taken for public use, without just
compensation]; Cal. Const., art. I, § 19, subd. (a) [same]). (Shoen,
at p. 21.) “This is why courts approach the issuance of equitable
easements with ‘an abundance of caution’ [citation], and resolve
all doubts against their issuance.” (Ibid.) This also “explains
why additional weight is given to the owner’s loss of the exclusive
use of the property arising from her ownership, independent of
any hardship caused by the owner’s loss of specific uses in a given
case. And it elucidates why there must be a showing that the
hardship on the trespasser be greatly disproportionate to these
hardships on the owner. To allow a court to reassign property
rights on a lesser showing is to dilute the sanctity of property
rights enshrined in our Constitutions.” (Ibid.)
3. Analysis
Appellants challenge the court’s ruling with respect to each
element. We address each in turn.
a. Element #1: Trespass must be innocent and
not willful or negligent.
The encroaching party’s innocent intent is “paramount”—if
the encroaching party is “willful, deliberate, or even negligent in

42
his or her trespass, the court will enjoin the encroachment.”
(Hirshfield, supra, 91 Cal.App.4th at p. 769.)
Substantial evidence supports the trial court’s finding that
respondents were innocent and did not have knowledge of their
encroachment on appellants’ 651 property. The Seller Property
Questionnaire executed by respondents provides there are no
“[s]urveys, easements, encroachments or boundary disputes”
regarding respondents’ 643 property. In addition, their agent
Tsai testified that neither he nor his clients knew of the
encroachment at the time of purchase.
Appellants argue documentary evidence established that
respondents were negligent. They refer to the Buyer’s Inspection
Advisory signed by respondents before close of escrow, advising
respondents to conduct a thorough inspection of the entire
property to make sure the lot size and boundaries were accurate.
The document also warns that the square footage, lot size,
boundaries, fences or walls “do not necessarily identify true
property boundaries.” Appellants contend respondents “did not
do what they were advised to do, that is investigate the true
square footage and boundaries” and, as such, were negligent.
Respondents, on the other hand, argue appellants’
transactional documents “contained the same advisory, yet they
too did not conduct an investigation.” Respondents contend
appellants “cannot credibly argue that [respondents] should have
verified lot size and boundaries [to discover] the existence of the
encroachments when [appellants] themselves did no such
investigation and did not discover the encroachments until a year
after purchase.”

43
 We agree. Case law provides that the court may refuse to
enjoin a negligent encroachment “if there is corresponding
contributory negligence by the landowner.” (Hirshfield, supra,
91 Cal.App.4th at p. 769.)
Thus, the first element is satisfied.
b. Element #2: Appellant must not be irreparably
injured by the easement.
If the party seeking an injunction of encroachments “will
suffer irreparable injury by the encroachment, the injunction
should be granted regardless of the injury to [the encroaching
party], except, perhaps, where the rights of the public will be
adversely affected.” (Christensen, supra, 114 Cal.App.2d at
p. 563.) The phrase “irreparable injury” is interchangeable with
“irremedial injury,” “unusual hardship,” and “substantial
hardship.” (See Hirshfield, supra, 91 Cal.App.4th at p. 760.)
The trial court found appellants “would not suffer any
irreparable harm from such continued encroachment” because
“the evidence . . . does not indicate [appellants] would suffer any
concrete, serious harm.” Substantial evidence supports the trial
court’s finding. Appellants’ use of the lot since their time of
purchase has remained exactly the same before and after the
discovery of the encroachment. While appellants testified that
enjoining respondents’ encroachment would allow them to
increase their privacy, plant an orchard in the front, and place a
pool in the back, the record before us does not contain evidence of
any actual plans to do so, either before or after the reveal.
Appellants argue the continued encroachment causes them
irreparable injury because they “will have to continue paying
property taxes on property they cannot even use.” Appellants
“will also be subject to potential civil liability to the extent

44
anyone gets hurt on the 1,296 square foot area because, even
though they cannot use that area, [they] are still the legal owners
of that area.” These are valid arguments indeed. However, they
fail as the record before us contains no evidence, let alone
substantial evidence, about the amount of property taxes
appellants pay for their 9,815-square-foot property and what
amount of their property tax payment is attributed to the 1,296-
square-foot encroachment. Similarly, there is no substantial
evidence indicating the likelihood or existence of premises
liability in connection with the encroachment area other than
appellants’ speculation about children possibly “trip[ping] over a
loose brick.”
Thus, the second element is also satisfied.
c. Element #3: The hardship to the trespasser
from ceasing the trespass is greatly
disproportionate to the hardship caused to the
landowner by the continuing encroachment.
Through the doctrine of “balancing conveniences” or
“relative hardship,” courts may create equitable easements by
refusing to enjoin what otherwise would be deemed an
encroachment or nuisance. (Linthicum v. Butterfield (2009)
175 Cal.App.4th 259, 265 (Linthicum); see also Christensen,
supra, 114 Cal.App.2d at pp. 562–563.) “These labels suggest
that an equitable easement may issue if the conveniences or
hardships merely favor the trespasser, when the doctrine
actually requires that they tip disproportionately in favor of the
trespasser.” (Shoen, supra, 237 Cal.App.4th at p. 20.)
In Shoen, for instance, the court found it was error to
impose an equitable easement where the hardship to a neighbor
in having to spend $300 to remove patio furniture from the

45
landowner’s property was not “greatly disproportionate” to the
hardship on the landowner in losing the use of the property.
(Shoen, supra, 237 Cal.App.4th at pp. 18, 21–22 [finding
deprivation of substantial benefit falls short of imposing
substantial hardship].) The typical hardship required to permit
an equitable easement is where the trespasser “would be forced
to move buildings or be airlifted to their landlocked property.”
(Id. at p. 22.)
Appellants contend respondents cannot demonstrate the
disproportionality of their hardship because “there is no
testimony from them about their trespass or hardship.”
Appellants believe respondents’ “failure to testify is dispositive
and therefore the court abused its discretion in finding an
equitable easement.”
Not so. The record contains substantial evidence
supporting the inference that the hardship experienced by
appellants is greatly outweighed by the actual harm respondents
would suffer if the encroachments were enjoined. McCormick
testified the driveway for respondents’ 643 property would be
reduced to 7.2 feet at its narrowest point (for an approximate
32-foot stretch between the actual property line and the side of
the house on respondents’ property. This would result in a
driveway width of less than 10 feet, the minimum required by the
City. In addition, reducing the driveway width to 7.2 feet would
severely limit most vehicles from using the driveway and would
preclude individuals from opening car doors to exit or enter a
vehicle. There was also expert testimony that the existence of
the encroachment resulted in a diminution of value of $67,000 (or
$4,000 more using 1,296 square footage) to appellants’

46
651 property, whereas the diminution of value to respondents’
643 property without the easement is $133,000.
Thus, the third element is also satisfied, and the trial court
was within its power to grant an equitable easement.
d. The scope and duration of the equitable
easement must be narrowly tailored.
Finally, appellants challenge the terms and scope of the
trial court’s equitable easement, arguing that it is not narrowly
tailored.
Courts limit the rights of the equitable easement holder
both in duration and scope (Hirshfield, supra, 91 Cal.App.4th at
pp. 753, 771 [the equitable easement interest would terminate
when the defendants either “sell or fail to reside in their house”]);
this aligns with “why courts approach the issuance of equitable
easements with ‘[]an abundance of caution’ [citation], and resolve
all doubts against their issuance.” (Shoen, supra,
237 Cal.App.4th at p. 21.) The scope of an equitable easement
should not be greater than is reasonably necessary to protect the
use interest of the purported dominant tenement owner.
(Christensen, supra, 114 Cal.App.2d at p. 563; Linthicum, supra,
175 Cal.App.4th at pp. 267–269 [abundance of caution is
warranted when imposing easement on unwilling landowner].)
So long as the equitable easement is “fashioned on the evidence
and equities presented, and narrowly tailored to promote justice,”
the decision granting the equitable easement will not be
disturbed. (Hirshfield, at p. 772.)
Appellants contend most of the 1,296-square-foot easement
has nothing to do with respondents’ use and interest in
“reasonably necessary” ingress/egress and is far too
encompassing in scope. They argue the equitable easement is not

47
narrowly tailored and is greater than reasonably necessary to
protect respondents’ interest in reasonable ingress/egress via
driveway use; they urged us to modify the equitable easement.
At oral argument, respondents argued this court should not
exercise equity and should not modify the easement.
Respondents contend the evidence with respect to their equitable
easement cause of action considered the entire 1,296 square-foot
encroachment as a whole, and there was no evidence in the
record to suggest a number less than 1,296 square feet. They
cited to testimony from appellant Ms. Romero where she told the
underlying court she did not want to give up any of the disputed
1,296 square feet belonging to her. Respondents believe
appellants have thus waived the issue, i.e., whether the scope of
the easement could be more narrowly tailored to meet the “no
greater than reasonably necessary use” standard.
We agree with respondents.
Although the trial court’s detailed 13-page statement of
decision does not expressly specify the equitable easement is
“narrowly tailored” and not greater than “reasonably necessary”
to protect respondents’ use interest, it does however specify that
the “equitable easement should run with the land, but should
terminate if the 643 Property were to cease its continued use of
that land for a driveway, planter and wall/fence.” (Italics added.)
Thus, the trial court’s judicially crafted equitable easement is
limited in scope and duration such that the current use of the
easement area as a “driveway, planter and wall/fence” must
continue, as is, or else the equitable easement is extinguished.
In addition, appellants made this same argument via their
September 8, 2020 objections to the trial court’s proposed
statement of decision, claiming the equitable easement is “not

48
narrowly drawn to promote justice.” Thereafter, the trial court
filed its final statement of decision on September 28, 2020; it
“decline[d] to address every legal and factual issue raised by
[appellants] or respond point by point to each issue and
contention (however immaterial),” citing to Peak-Las Positas
Partners v. Bollag (2009) 172 Cal.App.4th 101, 112 [“ ‘A
statement of decision need not address all the legal and factual
issues raised by the parties’ ”]. There is nothing in the record
that leads us to conclude the trial court did not consider
appellants’ objections when it crafted an easement that would
extinguish when the area was no longer used for its present
purposes.
Finally, and most importantly, the trial court provided
appellants multiple opportunities to provide evidence and
argument as to how the easement could be more narrowly
tailored. The court asked appellants during trial: “Let me ask,
because I don’t think the number 1,200 is particularly magical.
. . . So what would be less than this?” “[W]hat would be equitable
under the circumstances. It could be greater or smaller than
what is asked for by [respondents].” The court later asked
appellants again: “If in equity I were to find that [respondents]
were entitled to some measure of land so they could have a
functional driveway, . . . do you have an alternative proposal that
would be more narrowly tailored to their need?” The court
repeated its question to appellants later: “Well, again, I asked
you from zero to 1,296 [square feet,] what do you propose, and
you have said zero or 1,296.” “So if there’s some other
formulation of square footage that the Court could reasonably
tailor an equitable easement, then I certainly will hear you out as
to that.”

49
 Despite the trial court’s repeated invitations, appellants
instead doubled down and in the final moments of trial, appellant
Tatana Romero stated: “I just wanted to clarify . . . I heard
something about giving up to two feet. And I want to make sure
I’m not authorizing anyone to give up anything, and we’re not
going to give up any part of the disputed land. That’s it.”
Appellants opted for an all-or-nothing approach; in this case, this
strategy hurt them because they failed to include as part of the
record any evidence about how the easement may have been
more narrowly tailored and not greater than reasonably
necessary for respondents’ use.
We are hard pressed to find the trial court abused its
discretion when it created an equitable easement that merely
maintains the improvements on the disputed land that have been
in use and existence for decades.

50
 DISPOSITION
The judgment is reversed as to the cause of action for
implied easement. The judgment is affirmed as to the cause of
action for equitable easement. Respondents shall recover their
costs on appeal.

CERTIFIED FOR PUBLICATION

STRATTON, J.

We concur:

GRIMES, Acting P. J.

HARUTUNIAN, J.*

*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

51