A short one from the California Supreme Court. In Romero v. Shih, No. S275023 (Feb. 1, 2024), the court was presented with the question of whether Property Owner A had an implied easement over the driveway of Property Owner B.

The court held that easements may be created by implication, and “if there is clear evidence that the parties to the 1986 sale intended for the neighboring parcel’s preexisting use of the area to continue after separation of title, the law obligates courts to give effect to that intent.” Slip op. at 2. The court remanded for evidentiary findings.

Check out the opinion for all the reasons why.

But for a touch of takings, skip forward to page 28 where the court disposed of Owner B’s argument that deciding whether the driveway is subject to an easement worked a judicial taking. First, the court noted that the party “did not raise this issue below and therefore [has] forfeited the objection.” Slip op. at 28. A bit of a note here: if indeed an appellate court did change the law such that it could be deemed a taking, then the old raise-it-below-or-lose-it requirement doesn’t seem to apply. 

Maybe that’s why the court took the belt-and-suspenders approach and also concluded that “the argument is without merit in any event.” Slip op. at 29.

The trial court’s implied easement finding did not result in the creation of any new property rights; it instead clarified the respective rights of the neighbors as determined by the intentions of the parties at the time the two adjacent parcels were severed and sold to third parties. (See § 1104 [providing that the implied easement passes at the time of the transfer that divides the grantor’s estate].) In other words, the trial court’s finding means the Romeros purchased the 651 Property subject to the implied easement; their bundle of property rights never included the right to make practical use of the easement’s surface area. This is not a taking. (Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (2010) 560 U.S. 702, 715 (plur. opn. of Scalia, J.); id. at p. 727 [“And insofar as courts merely clarify and elaborate property entitlements that were previously unclear, they cannot be said to have taken an established property right.”].)

Id.

Romero v. Shih, No. S275023 (Cal. Feb. 1, 2024)