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Judges and Judiciary,
Constitutional Law

May 29, 2024

Takings by the judiciary

The California Supreme Court’s recognition of an implied exclusive easement was a radical and unprecedented change in the law of easements, and effectively transferred the fee simple title to the trespasser, leaving the title owner with only the tax burden. The U.S. Supreme Court ordered a brief in opposition from the respondent, indicating some interest in the case.

Michael M. Berger

Senior Counsel, Manatt, Phelps & Phillips LLP

2049 Century Park East
Los Angeles , CA 90067

Phone: (310) 312-4185

Fax: (310) 996-6968


USC Law School

Michael M. Berger is senior counsel at Manatt, Phelps & Phillips LLP, where he is co-chair of the Appellate Practice Group. He has argued four takings cases in the U.S. Supreme Court.


Earlier this year, the California Supreme Court decided Romero v. Shih (2024) 15 Cal.5th 680. The case involved a dispute over the boundary between two residential lots in Sierra Madre. When the dust settled after litigation at all three court levels, the Supreme Court held that one of the neighbors may hold an exclusive (albeit implied) easement over thirteen percent of the neighboring lot. The upshot of that exclusive easement was that th...

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