Kowal Law Group Logo
Decorative -Lady justice. Statue of Justice in library


Tim Kowal     April 24, 2020

In a recent property-dispute opinion, the Second District in Shoen v. Zacarias came to the perfectly sensible decision that equity is not aroused by a trespasser's inconvenience in relocating $275 in lawn furniture. As is so often interesting (and frustrating) about the law is that reasonable minds can disagree. In fact, the trial court had ruled otherwise, and the sage Professor Shaun Martin agrees. At bottom, however, I think the trial court and the good professor lean on appeals to equity more than established legal rules. In the latter respect, the reviewing court got it right.

Professor Martin's blog fairly lays out the facts and legal doctrines. In short, the dispute was over a small flat patch on a steep slope between two neighbors' homes. One neighbor owned the flat patch, but the slope made it inaccessible. The other neighbor, oddly, happened to have stairs on her property reaching the patch. She used the stairs to put some tables and deck chairs, and proceeded to enjoy her neighbor's property. After a time, the owner decided she wanted to build a wall on her property and needed the patch back.

The trial court awarded the trespasser an equitable easement for 15 years upon payment of the patch's $5,000 value. The trial court concluded the balance of hardships tipped in favor of the trespasser, reasoning that the owner had enough land already and the trespasser would be out $275 and probably wouldn't like the owner's new wall. From the vantage of a brooding omnipresence in the sky, one can follow the basic logic. On the other hand, one can almost hear the owner muttering "what business is it of yours how much land I have or what I do with it?"

The Court of Appeal reversed, holding that the equitable principle requires more from the trespasser than merely establishing the hardships "tip" in her favor. Rather, they must "tip disproportionately," and even "greatly disproportionate[ly]," in the trespasser's favor. Moreover, because equitable easements effectively give the trespasser the right of eminent domain, courts must "resolve all doubts against their issuance." Merely depriving her stairs and patio furniture of their purpose did not rise to that standard.

After initially agreeing, Professor Martin ultimately sides with the trial court. He observes that the owner had no way to enjoy the patch as much as the trespasser did (though he ignores the owner's desire to use it for a wall), and so the trespasser was, in effect, making the highest and best use of it, a "socially optimal result."

To reach that conclusion, the professor argues that the trespasser's harm of $275 is greatly disproportionate to the owner's harm. That's because, the professor continues, the owner cannot use the patch, making it worth nothing. And because $275 - or any amount - is "infinitely greater" than zero, the trespasser's harm is greatly disproportionate.

But this approach, though clever, ignores three important facts. First, the trespasser's harm is not $275; it is zero. After all, she gets to keep the furniture. Second, even if the patch is worthless as a spot for the owner to retreat with a cup of chamomile, it is apparently quite suitable as a site for a wall or other conceivable uses. Children, for example, tend to enjoy scaling and barreling down hills and would not find the patch so inaccessible as an adult looking for a place to enjoy afternoon tea. Third, $275 is a trifling sum anyway, and the law disregards trifles. (Civ. Code § 3533.)

Were I mediating the case, I would probably urge the result adopted by the trial court and endorsed by the good professor. But courts are provided to enforce the rules as already established, not as we would like them to be. An old, cynical Italian saying goes, "The moment a law is passed, the way around it is found." There are enough people looking to find ways around the law without jurists and practitioners pitching in.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"A judge is a law student who grades his own papers."

— H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram