Here’s the latest in a case we’ve been following.

In Romero v. Shih, the California Supreme Court recognized the doctrine of an “implied exclusive easement” (which sounds an awful lot like a fee simple interest, doesn’t it?) in a private easement disputed between Owner A and Owner B.

The owner on the losing end of the California decision has now filed a cert petition asking the U.S. Supreme Court to take up the case on judicial takings grounds. 

Here are the Questions Presented:

1. Whether a court order that excludes landowners from their real property and allows other private parties to permanently physically invade and occupy the owners’ land without compensation either effects a taking in violation of the Fifth Amendment to the U.S. Constitution or violates the landowners’ due process rights under the Fourteenth Amendment to the U.S. Constitution?

2. Whether the newly decreed judicial doctrine of “implied exclusive easement,” which excludes Landowners from their real property and appropriates (without compensation) a right to permanently physically invade and occupy Landowners’ property for the enjoyment of third parties either effects a per se taking in violation of the Fifth Amendment to the U.S. Constitution or violates Landowners’ due process rights under the Fourteenth Amendment to the U.S. Constitution?

Follow along on the Court’s docket here.

Petition for a Writ of Certiorari, Romero v. Shih, No. 23-1153 (U.S. Apr. 23, 2024)