Opinion
B310069
08-13-2024
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.
McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie; Tatana Spicakova Romero and Cesar Romero, in pro. per, 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.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. EC064933 Curtis A. Kin, Judge. Affirmed.
McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie; Tatana Spicakova Romero and Cesar Romero, in pro. per, 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.
STRATTON, P. J.
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 a nearly exclusive implied easement and, alternatively, an equitable easement over the entire 1,296-square-foot encroachment. Appellants challenged the judgment.
This opinion is in response to a remand from the California Supreme Court. In our initial opinion, we held that because the implied easement divests appellants of nearly all practical uses of their land and is essentially exclusive to respondents, the easement could not be implied by law. Accordingly, we reversed the judgment on the cause of action for implied easement and affirmed the judgment on the cause of action for equitable easement.
The California Supreme Court granted respondents' petition for review, reversed our decision, and held that highly exclusive easements that divest the servient tenement owner from most practical uses can be implied by law so long as there is clear evidence the parties involved with the creation/conveyance of the easement intended that the existing use continue. (Romero v. Shih (2024) 15 Cal.5th 680, 687, 699-701.) The Supreme Court remanded the matter to us with clear instructions to resolve, in the first instance, whether substantial evidence supports the trial court's conclusion that an implied easement exists under the circumstances of this case. (Id. at pp. 688, 704-705). We are bound by these instructions. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701.)
FACTUAL AND PROCEDURAL BACKGROUND
A. The Two Properties at Issue
The two neighboring properties at issue are located next door to each other in Sierra Madre, California, at 643 West Algeria Avenue (the Shih/Ko Property) and 651 West Algeria Avenue (the Romero Property).
Appellants Tatana and Cesar Romero (the Romeros) own the 651 property. Respondents Li-Chuan Shih and Tun-Jen Ko (the Shih/Kos) own the 643 property.
B. Prior Owners' Application for a Lot Line Adjustment
In 1941, Edwin and Ann Cutler (the Cutlers) purchased the two adjacent properties. At the time of purchase, the Romero Property was a vacant lot, while the Shih/Ko Property was improved with a home, where the Cutlers lived.
More than 40 years later, on February 4, 1985, Edwinsubmitted 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 sought to increase the width of the Shih/Ko Property from 50 to 58 feet and reduce the width of the Romero Property 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."
When referring to Edwin, Ann, or the Cutler's son Bevon individually, we use their first names to avoid confusion.
On February 21, 1985, the City's Planning Commission recommended approval of the variance as requested. The Planning Commission's meeting minutes provide: "Mr. Cutler told the Commission that the driveway [of the Shih/Ko Property] 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 was "[a]pproved; subject to City engineer review of parcel map and boundary line adjustment."
Edwin 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 the Shih/Ko 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 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 the Romero Property, post lot line adjustment, contained new 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 Abell's survey and new legal description. A certificate of compliance was never executed by the City. The property lot line adjustment was never recorded. But the Cutlers acted as if the new legal description was operative and the lot line adjusted.
C. Prior Owners' Improvements to the Romero Property
Later that year, in 1985, the Cutlers' son Bevon partnered with David Shewmake (Shewmake) to build a house on the vacant lot at the 651 address (later the Romero Property) and sell it for profit. In June 1985, Bevon applied for a permit to build a six-foot-tall block wall, which replaced the chain-link fence separating the two properties. The driveway and brick garden planter between the properties were not altered in any way when Bevon and Shewmake built the house at the 651 address.
In May 1986, a Notice of Completion was issued and recorded for construction of the house (the Romero Property) at the 651 address. The Notice stated a legal description of the Romero property identical to the original legal description for the 63-foot-wide lot and not the reduced 55-foot-wide lot specified in Edwin's application for variance. The legal description in the Notice did not include the additional language reflecting any lot line adjustment.
D. Transfers of Title from 1986 until 2014
On May 9, 1986, the Cutlers recorded a grant deed transferring title to the Romero Property to Bevon and Shewmake, each receiving an undivided one-half interest as tenants in common. 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 had requested in his variance application.
That same date, on May 9, 1986, Bevon and Shewmake executed a grant deed transferring title to the Romero property to another family. The legal description on the grant deed again did not contain the additional language reflecting a lot line adjustment reducing the square footage of the property.
After conveying their interest in the Romero property to Bevon and Shewmake in 1986, the Cutlers executed a series of "wild deeds" in 1989, 1992, and 1998, which included in their legal descriptions for the Shih/Ko Property language reflecting a completed lot line adjustment ("Together with the easterly 8.00 feet of Lot 'B' "). Having sold their interest in the Romero Property and because the lot line adjustment was never completed and recorded, the Cutlers did not own that portion of the land at the 651 address/Romero Property and could not 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 hold real title to the property."] fn. omitted.)
On April 9, 2014, a grant deed for the original 63-foot-wide larger lot dimensions was recorded transferring title of the Romero Property to appellants (the Romeros).
Before closing escrow on the Romero Property, the Romeros 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 Shih/Ko Property to respondents (the Shih/Kos). 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 the Shih/Kos on June 24, 2014-provides there are no "[s]urveys, easements, encroachments or boundary disputes" for the Shih/Ko Property. The Buyer's Inspection Advisory initialed and signed by the Shih/Kos on May 20, 2014 provides: "The physical condition of the land and improvements being purchased is not guaranteed by either Seller or Brokers."
E. The Romeros' Civil Complaint
On February 10, 2016, the Romeros initiated a civil action against the Shih/Kos. 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 [the Romeros] purchased [the 651] Property was because it was advertised to have an approximately 10,000 square foot lot." In June 2015, the Romeros were made aware that respondents were "encroaching" onto their property after having retained licensed land surveyor James Kevorkian (Kevorkian) to prepare a survey of the boundaries of the Romero Property. The total area encroached upon is a strip of land measuring approximately 8.25 feet by 157.14 feet, totaling 1,296 square feet, "or approximately 13% of [the Romeros'] total land area which they legally own and on which they have paid and continue to pay property taxes." The encroaching area includes the block wall between the two properties, the Shih/Ko's planters near the front sidewalk, and a portion of the Shih/Ko's driveway. In July 2015, the Romeros asked the Shih/Kos to remove the encroachments but they "refused to do so."
The Romeros contend the encroachments prevent them from entering or using approximately 1,296 square feet of their land; this "continuing trespass" deprives them of their "right to exclusive possession and peaceful enjoyment" of their property. The Romeros believe they "are entitled to a permanent injunction" requiring the Shih/Kos to remove all encroachments.
F. The Shih/Kos' Cross-Complaint
On May 5, 2016, the Shih/Kos filed a cross-complaint against the Romeros for implied easement, equitable easement, quiet title, and declaratory relief.
The cross-complaint alleges the 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 [the Shih/Ko Property]." The improvements "have existed since 1985, and [the Shih/Kos] and their predecessors in interest have used the [i]mprovements without complaint since at least that time." The Romeros "threaten to remove the [i]mprovements and build a new fence on the property line . . . which would impact [the Shih/Ko's] use and enjoyment of [their property]." The Shih/Kos "will suffer irreparable harm if they are not granted an easement" over the improvements "because the value of [the Shih/Ko Property] would be significantly diminished and the driveway . . . would not be wide enough to access [Shih/Ko Property]." The Shih/Kos argue this created an equitable easement over the Romero Property in the area of the improvements.
The Shih/Kos 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 "obvious and permanent use of the [i]mprovements for the benefit of" the Shih/Ko Property, and "[r]easonable necessity of the use giving rise to the easement."
The Shih/Kos sought "to quiet title to an equitable easement and/or an implied easement" over the disputed portion of the Romero Property; 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."
G. Trial
A five-day bench trial took place on March 9, 10, 11, 12, 2020 and June 30, 2020.
The evidence at trial concentrated on the history of the encroachment and the two properties; the City's lot line adjustment process and Edwin's application; the impact on the Shih/Kos should the encroachment be removed; and the effect of the encroachment on the Romeros. This was developed through the testimony of many witnesses, including the Romeros, Shewmake, representatives/employees of the City, and several expert witnesses. We recite the testimony relevant to the issue on appeal.
1. The Two Properties and the Encroachment
Shewmake was the only witness at trial with firsthand knowledge of 1) the state of the adjoining properties at the time of the transfer of title from the Cutlers to Bevon and Shewmake; and 2) the intended use of the encroachment area at that time.
Shewmake testified he first became familiar with the two properties in the early 1960's, and he most recently visited the properties "yesterday." The planter and driveway at the Shih/Ko Property have been in place and have not changed in any meaningful way since the 1960's. The driveway width is the same as it was in the 1960's. There was no intent to remove the driveway or planter in 1985 when he and Bevon improved the vacant lot at the 651 address with a home (the Romero Property) to sell for profit.
There was a chain link fence between the two properties since the 1960s, which was replaced by a block wall in 1985. The block wall stands at exactly where the chain link fence previously stood. In Shewmake's view, the property line between the two properties was where the chain-link fence, and later the block wall, stood. Edwin paid for the construction of the block wall.
David Knell, a licensed land surveyor, concluded that the following improvements on the Shih/Ko Property encroach onto the Romero Property: a portion of the 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 the Shih/Ko 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 [Romero] Property, and that dimension is 1.2 feet." Should the property line reflect what is in the deeds, the width of the driveway on the Shih/Ko property at its narrowest point is 7.2 feet.
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.
2. The City's Lot Line Adjustment Process and Edwins Application
Vincent 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." "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, 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 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 stated 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 also confirmed nothing in the City's files indicate Edwin had withdrawn his variance application.
Knell confirmed the survey map prepared for Edwin did not have Abell's stamp or seal on it. Every survey map "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, and recordation requires the stamp or seal. 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, the president and principal civil engineer at John B. Abell, Inc., has worked there since 1982. It was the custom and practice of the company in 1985 to maintain records reflecting amounts billed, amounts owed, and amounts paid by customers. Payments received from customers were recorded in the accounts receivable ledger. Connen brought 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.
To Shewmake's knowledge, Edwin's application for a lot line variance with the City "was taken care of" and Edwin "did all the paperwork and everything."
3. Impact on the Shih/Kos of Removing the Easement Expert witness testimony was elicited.
Steven 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 required a driveway width of 10-feet minimum and specific setback minimums. "The front-yard setback is 25 feet, the side-yard setbacks are 5 feet, and the rear-yard setback is 15 feet."
McCormick gave his opinion on how the Shih/Ko Property would be impacted if it could not use the 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 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 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 sidemirrors 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 the Shih/Ko Property in the event the block wall was moved to reflect actual property lines. He proposed "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." Per McCormick, the total cost of the demolition and rebuild was $99,120.27.
McCormick also offered his opinion on how the Shih/Ko Property's garage would be impacted. "[I]f the easement area was removed and a new wall was put up along . . . the property line 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." "[Y]ou 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 to comply with the City's five-foot setback requirement would total $73,343. Finally, he provided a cost estimate of $2,500 for relocating the airconditioning unit from the side of the garage.
Daniel Poyourow, a licensed real estate appraiser and real estate broker, prepared a diminution in value appraisal for the two properties.
A diminution in value appraisal is based upon a comparison of the before and after condition of a property.
Poyourow analyzed and valued the Shih/Ko Property with a lot size of 9,072 square feet with the encroachment and 7,853 square feet without the encroachment. Poyourow set the value of the property with the encroachment at $915,000 and the land value at $655,000. He valued the Shih/Ko Property without the encroachment area at $782,000, with a total diminution of $133,000.
4. Impact on the Romeros from Continued Encroachment
Poyourow analyzed and valued the Romero 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 set the value of the Romero Property (including the disputed area) totaling 9,904 square feet at $1.310 million and the land value at $710,000. He calculated the diminution in value from losing the easement area, totaling 1,224 square feet, as $68,264. He calculated a "residual value . . . that remains with the [Romero Property], even though the [Shih/Ko Property] is using the bulk of the property" and allocated a 98 percent loss of land use, reaching the diminution in value of $67,000 to the [Romero Property] because of the encroachment ($68,264 x 98 percent = $67,000). Thus, the net value of the Romero Property, after subtracting the diminution in value, was $1.243 million.
In his appraisal, Poyourow stated the encroachment area is "effectively exclusive." "The surface area is being exclusively used [by the Shih/Kos] right now" as there is a block wall "physically inhibit[ing] [the Romeros] from using the property for many uses." Poyourow opined some "rights or uses" still remain to the Romero Property, including possible subsurface uses. He stated the prospect of the Romeros installing new pipes underneath the easement area "would be remote, but it is possible to do." He added that the Romero Property could still use the easement area and true property lines "for setback purposes and also for FAR calculations."
FAR, or floor area ratio, is the permissible floor area of a building in relation to the lot size where the building is located.
The Romeros testified about their damages. The advertised lot size for the Romero Property was very close to 10,000 square feet. The lot size was their main criteria and they would not have purchased the property if it had been advertised as an 8,500-square-foot lot. The fact that there was an encroachment from the adjacent property was never disclosed to them at the time of purchase.
Before purchasing the property, appellant Cesar Romero 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 the Romero 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." The Romeros hired Kevorkian who prepared a survey and informed them of the encroachment -- "13 percent of [their] property" is being exclusively used by the Shih/Kos.
Since their purchase of the Romero Property, the Romeros have paid unspecified property taxes on their property lot, which includes the 1,296-square-foot disputed land. Since purchasing the property, they have not been able to use those 1,296 square feet for any purpose; they are, in fact, physically prevented from accessing it because of the block wall. As things stand now, the Romeros have no plans for use of the disputed area. According to Tatana Romero, they have "been in this lawsuit for-going on almost five years now and spent maybe close to $300,000 in order to actually be able to assert the rights of something that I've actually bought. [¶] . . . Because it's our land, and I believe in property rights."
Tatana testified they are 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 "ages from zero, newborns, to 5, 6, 7 years old, and they play a lot on [their street]. They are running around, learning how to ride a bicycle, tricycle. They are using the sidewalk quite a bit." "[W]hat could happen is the young child could trip over a loose brick or something that the tenants of the [Shih/Ko 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."
The Romeros had title insurance with First American Title Insurance Company. After the Shih/Kos filed their crosscomplaint, First American Title Insurance Company paid the Romeros $95,000 for their loss of use of the encroachment area.
H. Statement of Decision
On September 28, 2020, the trial court filed its statement of decision and concluded the Shih/Kos "possess an implied easement" over the disputed strip of land. The court further concluded that if there were no such implied easement, an equitable easement should arise, which would entitle the Romeros to compensation of $69,000.
The court found "all the conditions exist for an implied easement in favor of the [Shih/Ko] Property over the eight-foot strip of land." The court found in "view of all the surrounding circumstances, [Edwin's] failure to complete the lot line adjustment process is most reasonably viewed as an oversight or lack of follow through." The court further found that Edwin, Bevon, and Shewmake all "shared the same intent and understanding," i.e., that the driveway, planter, and fence/block wall continue to remain, during their 1986 transaction. The court also found "the continued encroachment onto the disputed strip of land is reasonably necessary" and referred to the fact that the Shih/Ko 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.
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 [Romero] Property."
The implied easement over the disputed strip of land "shall run with the land, and, consistent with the original grantor and grantee's intent in 1986, shall terminate if the [Shih/Ko] Property ceases its continued use of the easement for a driveway, planter, and wall/fence."
While the Romeros 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 [the Romeros] actually pay for the [Romero] 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 trial court believed "any such liability (or pecuniary damage flowing therefrom) is too speculative and uncertain to carry much weight." "Largely, it appears to the [c]ourt that any harm to [the Romeros] is emotional or psychological....[W]hile the hardship to [the Romeros] may be felt substantially by them, it is greatly outweighed by the actual harm [the Shih/Kos] would suffer absent an easement over the strip of land."
The court considered the diminution in value to the respective properties. 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 [Romero] Property of $67,000, or an additional $4,000 if using the slightly greater square footage calculation of [the Romeros'] survey for the area of encroachment" and $133,000 as the diminution in value to the Shih/Ko Property without the easement. "[T]he balance of hardships greatly favors [the Shih/Kos]."
Having found an implied easement in favor of the Shih/Ko Property, the court found the easement dispositive of the remaining claims in the third amended complaint and the crosscomplaint.
On October 26, 2020, the trial court entered its judgment and the Romeros timely appealed.
DISCUSSION
A. Standard of Review
The party claiming an implied easement bears 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 (Tusher); 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.)
In a substantial evidence challenge to a judgment, the appellate court will consider all the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable interference, and resolving conflicts in support of the findings. (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102.) We must also bear in mind the fundamental principle of appellate review "that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609; see also Cal. Const., art. VI, § 13.)
B. 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 (Scruby).) In other words, the easement provides the easement owner with a nonpossessory and restricted right to a specific use or activity upon another's land/property. (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174.) The key distinction between an ownership interest in land and an easement interest in land is that the former involves estate and title to land whereas the latter involves a limited use of land. (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032; Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36.)
The parcel or land benefited by the easement is called the dominant tenement, and the land burdened by the easement is the servient tenement. (See Civ. Code, § 803, italics added; see Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562; see also 6 Miller & Starr, Cal. Real Estate (4th ed. 2023) §§ 15:6 and 15:7.)
Further undesignated statutory references are to the Civil Code.
The conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even if the easement is not specifically mentioned in the deed. (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568.) The owner of the dominant tenement "may do that which is reasonably necessary to enjoy the easement and, as an incident thereto, keep it in repair and fit for use." (Scruby, supra, 37 Cal.App.4th at p. 707.) The use of an easement by the dominant tenement owner, however, "cannot be altered to impose an unreasonable or unintended burden on the servient tenement." (Thorstrom, supra, 196 Cal.App.4th at p. 1422.) The easement must be used in such a way so as to impose as slight a burden as possible on the servient tenement. (Scruby, at p. 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. (Scruby, supra, 37 Cal.App.4th at p. 702.) The servient tenement owner "may make any use of the land that does not interfere unreasonably with the easement." (Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, 579.)
C. Implied Easements
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 only be created by an express writing or prescription." (Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 768 (Kytasty).) The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances. (Fristoe v. Drapeau (1950) 35 Cal.2d 5, 8 (Fristoe); see Thorstrom, supra, 196 Cal.App.4th at p. 1420.) An easement by implication will not be found absent clear evidence that it was intended by the parties. (Thorstrom, at p. 1420.)
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." (§ 1104.) There is an "additional element usually required at common law for the creation of an easement by implication, i.e., that the easement should be reasonably necessary for the enjoyment of the property conveyed." (Fristoe, supra, 35 Cal.2d at p. 8, italics added; see also § 806 ["The extent of a servitude is determined by . . . the nature of the enjoyment by which it was acquired."].)
Implied easements are not favored by the law. (Thorstrom, supra, 196 Cal.App.4th at p. 1420; Horowitz v. Noble (1978) 79 Cal.App.3d 120, 131.) 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 (Bartlett); 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. 2024) § 15:19 (Miller & Starr).)
D. Substantial Evidence Supports the Trial Court's Order Granting an Implied Easement
The Romeros contend that the evidence and the facts of this case do not support a finding that the Shih/Kos have an easement by implication. We disagree. We find substantial evidence supports each of the elements necessary to establish that the Shih/Kos have an implied easement over 1,296 square feet of the Romero Property.
An easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement. (Tusher, supra, 68 Cal.App.4th at p. 141; Larsson v. Grabach (2004) 121 Cal.App.4th 1147, 1151-1152 (Larsson).)
We consider each element in turn.
1. Common Source of Title
As a general rule, an easement is implied only when a property was at one time in common ownership and then divided or a portion of that property is conveyed or transferred to another. (Leonard v. Haydon (1980) 110 Cal.App.3d 263, 266 (Leonard).) When the owner of two properties sells one of the parcels, or the owner of a parcel sells a portion of the parcel, the purchaser acquires the property sold with all the benefits and subject to all of the burdens that were apparent at the time of the sale. (Orr, supra, 100 Cal.App.2d at p. 681.) There is no easement while the seller owns all of the property, but on a severance of a part or parcel, benefits are conferred and burdens are assumed in the manner in which they existed openly and visibly at the time of the transaction. (Miller & Starr, supra, § 15:20.)
Here, the record includes substantial evidence that the Cutlers purchased the two adjacent properties in 1941 and transferred title to the Romero Property to Bevon and Shewmake on May 9, 1986. The Cutlers remained owners of the Shih/Ko Property. The record includes the deeds of these transfers as well as Shewmake's testimony on the matter.
The first element is met.
2. Intended Continued Use or Obvious/Apparent Use
On the sale or division of title, an easement arises by implication when 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. Therefore, the existing use of the owner's property must either have been known to both the grantor and grantee or have been so obviously and apparently permanent that the parties should have known of its use. (Jones v. Sanders (1903) 138 Cal. 405, 411; Leonard, supra, 110 Cal.App.3d at p. 266.) The rationale for such an easement is that the apparent preexisting use of the dominant tenement in such a manner implies that the parties must have intended the continuation of the use after the transfer of title, and the grantee or grantor who holds the quasi-servient tenement after the transfer was on notice of the use of their property. Therefore, if there is no existing use of the quasi-easement at the time of the conveyance, in most cases an easement cannot be implied as a result of the owner's division of title. (Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049 (Moores); People v. Bowers (1964) 226 Cal.App.2d 463, 466.) There are no established guidelines for the length of time the quasi-easement must be used prior to the conveyance or transfer by the common owner; however, the use must" 'be so long continued and obvious as to show it was meant to be permanent.'" (Bartlett, supra, 203 Cal.App.2d at p. 530.)
An easement is not implied unless it is apparent and continuous, or "obviously and permanently" used by the grantor. (§ 1104.) This means that there must be something on the servient estate that is either "visible or in the nature of a permanent artificial structure." (Swarzwald v. Cooley (1940) 39 Cal.App.2d 306, 325; see People v. Bowers, supra, 226 Cal.App.2d at p. 466; Moores, supra, 38 Cal.App.4th at p. 1049 [plaintiffs did not have easement by implication over defendant's property; they failed to show that, before property was divided between plaintiffs' and defendant's predecessors, there was an existing and obvious use of easement over defendant's property]; 25 Am.Jur.2d (2024), Easements and Licenses, § 25 et seq.)
Given the foregoing, we find substantial evidence that the parties at the time of the transaction (that is, Edwin, Bevon, and Shewmake on or about May 9, 1986) intended to maintain and/or continue the use of the driveway, block wall, and planter by the Shih/Ko Property owners.
As already stated," 'In order to determine the intent, the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted.'" (Kytasty, supra, 102 Cal.App.3d at p. 769; Thorstrom, supra, 196 Cal.App.4th at p. 1420.)
Here, the record provides that Edwin used the improvements since the 1960s, long before he sold or transferred the Romero Property. (See Miller & Starr, supra, § 15:20 [Although a person cannot have an easement on his or her own property, an owner may use one portion of land for the use and benefit of another portion. Also, an owner of two adjoining parcels of real property may use one parcel for the benefit of the other.].) Shewmake testified the planter and driveway at the Shih/Ko Property have been in place and have not changed in any meaningful way since the 1960's. He testified the driveway width is the same as it was in the 1960's. The physical division of the two properties has not moved since the 1960's-Shewmake testified there was a chain link fence between the properties (later replaced by a block wall) and, in his view, the property line between the two properties was where the chain-link fence stood.
The record also provides that Edwin paid to build the block wall. That he paid for the building of a permanent artificial structure (the block wall) to take the place of a chain-link fence goes to show Edwin intended for the Shih/Ko Property to continue its highly exclusive use of the disputed area of the Romero Property, as it effectively blocked off the inhabitants of the servient tenement/Romero Property from physically accessing the easement area, now and in the future. The block wall, planter, and widened driveway qualify as a use that is apparent, continuous, obvious, and permanent. (See § 1104.) These improvements are visible and "in the nature of a permanent artificial structure." (Swarzwald v. Cooley, supra, 39 Cal.App.2d at p. 325.)
Grantor Edwin transferred title to the vacant lot at the 651 address (the Romero Property) to grantees Bevon and Shewmake in 1986. Shewmake's testimony provides there was no intent to remove the driveway or planter in 1985 when he and Bevon improved the vacant lot with a home to sell for profit. As he is the only witness who had firsthand knowledge of the transaction that took place in 1986 and its surrounding circumstances, his testimony was deemed credible and afforded great weight by the court below. The Romeros argue the trial court's finding that Shewmake testified credibly is "absurd" because he "is part of a simultaneous same day double escrow money scheme . . . intended to defraud the buyers of the [Romero] Property and enrich the Cutlers and Shewmake." We disagree and will not disturb the court's credibility finding, as it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
In addition, the lot line adjustment application submitted by Edwin is further evidence of his intent for the Shih/Ko Property to continue its use of the disputed area after division of title. He sought to increase the width of the Shih/Ko Property from 50 to 58 feet and reduce the width of the Romero Property from 63 to 55 feet-this is the 8-foot strip of land that is at issue now. 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." The City's Planning Commission minutes provide that Cutler stated "the driveway is extremely narrow" and that he "intended at the time of purchase to divide the property and adjust the width of the driveway." Gonzalez's testimony confirmed that Edwin requested a lot line adjustment, that the Planning Commission recommended approval of the variance, and that nothing in the City's files indicate Edwin withdrew his variance application.
We note, at this juncture, that while Edwin's application was to effectuate a change to fee title/ownership of a portion of the Romero Property, his purpose in doing so remained unchanged-that the Shih/Ko Property continue in its (nearly) exclusive use of that portion of the Romero Property. The purpose of the application was to move property lines so that the Shih/Ko Property could continue its already exiting use of the disputed area of the Romero Property. For some reason, the lot line adjustment was never certified and recorded. But the evidence in the record supports the inference that Edwin intended for the Shih/Ko Property to continue its use of a portion of the Romero Property for the purpose of a widened driveway, block wall, and planter-with or without the lot line adjustment having been completed. Nothing in the record indicates that Edwin's, Bevon's or Shewmake's intent that the Shih/Ko Property maintain its use of a portion of the Romero Property rested upon or was contingent on approval and certification of the lot line adjustment. Indeed, Shewmake testified that to his knowledge, Edwin's application for a lot line variance was "taken care of," Edwin "did all the paperwork," and the Shih/Ko Property could continue using the disputed portion of the Romero Property.
Similarly, the series of wilds deeds executed by Edwin in 1989, 1992, and 1998, which include the additional square footage in the legal description language, further demonstrate Edwin's intent to make sure the ongoing use of a portion of the Romero Property continued.
The Romeros argue Edwin's failure to pay Abell and ensure the stamp on the lot line adjusted parcel map is a sign that he abandoned the property line change and did not intend to create any easement. The trial court concluded Edwin's failure to complete the lot line adjustment process is "most reasonably viewed as an oversight or lack of follow through." The trial court is permitted to draw reasonable inferences from the evidence and upon such inferences base its judgment. (Chichester v. Mason (1941) 43 Cal.App.2d 577, 585.) There is no evidence in the record to support the Romeros' position, and even if we could deduce such an inference from the facts, we are precluded from doing so. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Substantial evidence supports the trial court's finding that the second element for an implied easement is met.
3. Reasonable Necessity
An implied easement may be inferred upon a transfer of real property only where there is a reasonable necessity for its use. (Thorstrom, supra, 196 Cal.App.4th at p. 1419.) "Necessary," as used in this context, does not mean that there must be a strict necessity (like that required for an easement by necessity), but merely that it is convenient for the use of the dominant tenement; the law does not require that an easement by implication be absolutely necessary. (Pipkin v. Der Torosian (1973) 35 Cal.App.3d 722, 730 [only reasonable necessity need be shown)]; McCarty v. Walton (1963) 212 Cal.App.2d 39, 43.) The test is whether the easement is reasonably necessary to the beneficial enjoyment of the property conveyed, meaning, no more than for the benefit thereof. (Larsson, supra, 121 Cal.App.4th at p. 1152; Owsley v. Hamner (1951) 36 Cal.2d 710, 718; Thorstrom, at p. 1419.)
In other words, if all the other conditions are present, an easement may be implied even though it is not essential to the dominant tenement and even though there is another suitable access or easement, or where the grantee could easily establish a substitute for the easement on his or her own property. (Owsley v. Hamner, supra, 36 Cal.2d at p. 717-720; see Fristoe, supra, 35 Cal.2d at p. 8; see Cheda v. Bodkin (1916) 173 Cal. 7, 13; Piazza v. Schaefer, supra, 255 Cal.App.2d at p. 332; see McCarty v. Walton, supra, 212 Cal.App.2d at p. 43.) However, because the implication rests on the parties' intentions, if the quasi-easement is not beneficial to the use of the dominant tenement, and if there is an equally convenient substitute, the court may conclude as a question of fact that the parties did not intend to establish an easement. (Gagnon v. Adamson (1953) 122 Cal.App.2d 253, 260; Navarro, supra, 66 Cal.App.2d at p. 829; Grimmesey v. Kirtlan (1928) 93 Cal.App. 658, 663.)
In some cases, the test of reasonable necessity was based upon whether the party claiming the easement can, at reasonable cost, create a substitute on the party's own estate. (Leonard, supra, 110 Cal.App.3d at pp. 268-269; Navarro, supra, 66 Cal.App.2d at p. 830.) In Navarro, for instance, the garage encroaching five feet over the boundary line was easily movable, so no easement was implied. (Navarro, at pp. 828, 830.) In Leonard, the court found no reasonable necessity where alternative means of access were available at reasonable cost. (Leonard, at pp. 268-269.)
Here, there is substantial evidence the implied easement is reasonably necessary for the beneficial enjoyment of the Shih/Ko Property.
Expert testimony elicited during trial concentrated on the impact on the Shih/Ko Property of removing the 1,296-square-foot- long easement. Knell, McCormick, and Poyourow all opined that should the property line reflect what is in the deeds, the width of the driveway on the Shih/Ko Property at its narrowest point is 7.2 feet, which is 2.8 feet less than the 10-ft minimum driveway width required by the City. A gross majority of vehicles would not fit in a 7.2 feet-wide driveway and only a small percentage of compact cards, like a Toyota Prius, would fit. McCormick further opined that one would be unable to open the doors and exist a car in a 7.2-feet-wide driveway. The alternative ways proposed to widen the driveway included tearing off the side of the house and reframing the entire house, which would cost around $99,120.27.
Expert testimony also concluded that the garage and the air-conditioning unit of the Shih/Ko Property would all be impacted if the encroached area were returned to the Romeros. "If the wall was moved over to the property line, the distance between the wall and the garage [wall]" would not comply with the City's five-foot setback requirements. Relocating the garage to comply with the City's setback requirement would cost $73,343 and relocating the air conditioning unit would cost $2,500.
In addition, Poyourow valued the Shih/Ko Property with the easement area at $915,000 and without the easement area at $782,000-equaling a total diminution in value of $133,000. Compare this to the diminution in value of the Romero Property as a result of the continued encroachment by Shih/Kos, which totaled $67,000. In light of the different valuations, the easement is reasonably necessary to the Shih/Ko Property as it adds twice the amount of value to the Shih/Ko Property than it does to the Romero Property.
Removing the easement and/or moving the block wall to reflect property lines would not only have a negative physical impact on the Shih/Ko Property, but it would also cause a diminution of value of $133,000. With no reasonable, costeffective alternatives to widen the driveway or move the garage, an implied easement is reasonably necessary for respondents' beneficial enjoyment of the Shih/Ko Property.
The third element is also met. We conclude substantial evidence supports the trial court's finding that an implied easement is supported by the facts and circumstances of this case.
We briefly note the Romeros devoted a great deal of their supplemental briefing on issues not properly before us. They discuss, at length, faults they find with the California Supreme Court's recent decision remanding this matter. They argue the ruling "is inconsistent with Fourth Amendment jurisprudence," "will ratify and encourage fraud and abuse by builders," and "will jeopardize the security of private ownership and inject considerable uncertainty into the real estate industry." It is not within our purview to discuss these issues as they are beyond the scope of our review on remand. (Akins v. State of California (1998) 61 Cal.App.4th 1, 8, fn. 2.)
The Romeros also use their briefing to level accusations against the Shih/Kos and their counsel. They contend opposing counsel has "violated various ethical codes of conduct and rules" and ask us to refer her to the State Bar for formal investigation. They argue "the real owners of the [Shih/Ko] Property are really the Chinese government . . . that by all accounts is at war with the United States." The Romeros liken themselves to the Ukrainians in that they have "lost all control over who, when and for how long will invade, occupy and use their land." These ad hominem attacks on respondents and their counsel are improper and irrelevant to the issues properly before us. (See Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430 ["Ad hominem arguments, of course, constitute one of the most common errors in logic: Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning."].)
DISPOSITION
The judgment is affirmed as to the cause of action for implied easement. Respondents are awarded costs on appeal.
We concur: GRIMES, J., WILEY, J.