MoreLaw Virtual Receptionists

When a landowner grants someone permission to use her

land, she generally retains the right to revoke that license at any

time. (Emerson v. Bergin (1888) 76 Cal. 197, 201.) The

landowner may nevertheless be estopped from revoking that

license—and the license will accordingly become irrevocable for

“so long a time as the nature of it calls for”—if the person using

the land has “expended money[] or its equivalent in labor”

improving the land “in the execution of the license.” (Cooke v.

Ramponi (1952) 38 Cal.2d 282, 286 (Cooke); Stoner v. Zucker

(1906) 148 Cal. 516, 520 (Stoner).) Critically, however, the

expenditure of money or labor can make a license irrevocable only

if that expenditure is “‘substantial,’” “considerable” or “great.”

(Richardson v. Franc (2015) 233 Cal.App.4th 744, 756

(Richardson); Dinsmore v. Renfroe (1924) 66 Cal.App. 207, 211-

212 (Dinsmore); Stepp v. Williams (1921) 52 Cal.App. 237, 240,

257 (Stepp).) Here, we conclude that the trial court’s grant of an

irrevocable license was an abuse of discretion because the court

construed the “substantial expenditure” requirement too

permissively and used the wrong legal standard in declaring the

license to be forever irrevocable. For these reasons, we reverse

the grant of the irrevocable license and remand for further

proceedings on the private nuisance claim.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The disputed area

Lilli Shoen (Shoen) and Juliet Zacarias (Zacarias) are

neighbors whose backyards consist primarily of steep upward

hillsides. At the top of Zacarias’s hillside and midway up Shoen’s

is a flat patch of ground. The property line zigzags through this

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flat patch. Of this patch, 490 square feet are on Shoen’s side of

the line; the remainder is on Zacarias’s.

Before either Shoen or Zacarias bought their parcels,

someone had leveled out the flat patch, poured three concrete

“meditation pads,” and placed ornamental gravel on the patch.

The prior owner of Zacarias’s parcel had also installed steps

made of railroad ties leading all the way up to the flat patch,

while the prior owner of Shoen’s parcel had installed railroad-tie

steps leading two-thirds of the way to the flat patch but stopping

about 20 to 30 feet shy of the patch.

B. Zacarias improves the flat patch while believing

it was part of her property

Zacarias bought her parcel in 2003. She mistakenly

believed that the entire flat patch was on her land. Over the next

two years, she (1) brought in contractors to grade the patch to

make it flatter, (2) removed stacks of bamboo and cleared

overgrown brush from the patch, (3) installed new ornamental

gravel, (4) planted a low, 18-inch-tall hedge and built a foot-tall

wooden fence around the perimeter of the patch, (5) populated

the patch with a 10 foot-by-10 foot cloth cabana, a chaise lounge,

a table and chairs, none of which is affixed to the ground and

each of which remains movable, (6) installed underground

electrical conduit from her house to the patch, and (7) installed

sprinklers and then replaced them with a drip system in order to

water the hedges on the patch. Each of these improvements was

made in 2003, 2004 or the early part of 2005.

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C. Zacarias learns that a portion of the patch is

not hers, and continues to maintain it

1. Zacarias learns she does not own the entire

patch

In October 2005, the prior owner of Shoen’s land did a

survey of his property line and discovered that 490 square feet of

the flat patch belonged to him (“the disputed area”). The prior

owner shared this discovery with Zacarias, but told her she could

continue to use the entire flat patch. The prior owner told

Zacarias that his willingness to let her keep her furniture in the

disputed area lasted only as long as he owned the property, and

Zacarias understood as much.

2. The Shoen family buys the property and allows

Zacarias’s use of the disputed area to continue

In 2006, the Shoen family trust acquired the parcel now

owned by Shoen. At that time, the prior owner disclosed

Zacarias’s encroachment of the flat patch. Both Shoen and her

father admitted knowing that the disputed area was on their

land. From that time until April 2011, and in an effort to be a

“good neighbor,” neither the trustees of the Shoen family trust

nor Shoen (who was living on the property) told Zacarias to stop

using the disputed area.

In the latter part of 2011 and the early part of 2012, Shoen

acquired the property from the Shoen family trust. In a series of

letters sent first by Shoen’s father in April 2011, then Shoen in

April 2012, then Shoen’s attorney in May 2012, the authors asked

Zacarias to vacate the disputed area because Shoen desired to

landscape the area. Zacarias ignored all of the letters.

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3. Zacarias’s work on the disputed area between

2006 and 2011-2012

During the period between the Shoen family trust

acquiring the disputed area and its (and Shoen’s) letters asking

Zacarias to stop using that area, Zacarias spent time and money

to keep the entire flat patch usable. In particular, she (1) kept

the trees near the patch trimmed, (2) cleared the brush on her

hillside every year, (3) replaced the plants comprising the low

ficus hedge when it died, (4) watered the hedges, (5) sometimes

used the cabana’s lighting or other electricity, and (6) reupholstered

the top of the cabana and the furniture. Zacarias

paid the gardener who trimmed the trees $130 per month for the

upkeep of her entire parcel of land. She paid laborers $700 per

year to clear the brush on all of her land. The new ficus hedge

cost $2,350 to replace ($2,000 for the plants and $350 in labor).

Zacarias’s average monthly electric and water bill for her house,

swimming pool and entire yard was $1,200.

II. Procedural Background

A. Complaint and cross-complaint

In June 2012, Shoen sued Zacarias for damages, injunctive

and declaratory relief on theories of (1) trespass, (2) nuisance, (3)

ejectment, and (4) negligence. Zacarias answered and countersued

for damages and injunctive relief on theories of (1)

prescriptive easement, (2) equitable easement and (3) nuisance

based on Shoen’s placement of two video cameras on Shoen’s

property that overlooked the disputed area as well as portions of

the flat patch on Zacarias’s property.

B. First trial on equitable easement and reversal

Pursuant to the parties’ stipulation, the case went to trial

solely on the existence of an equitable easement. The trial court

granted Zacarias an equitable easement over the disputed area,

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but we reversed after concluding that Zacarias had not proven

that the hardship she would experience in moving her portable

patio furniture was “greatly disproportionate” to the hardship on

Shoen in losing use of her own property. (Shoen v. Zacarias

(2015) 237 Cal.App.4th 16, 17-18 (Shoen I.)

C. Second bifurcated trial on irrevocable license

and nuisance

On remand, Zacarias asserted that she had an irrevocable

license to use the disputed area based on Shoen’s acquiescence to

her use of the disputed area. Pursuant to stipulation, the case

went to bifurcated trial, first on the issue of whether Zacarias’s

license to use the disputed area should be deemed irrevocable

and, if so, second on the issue of whether Shoen’s continued use of

cameras to view that area would constitute a private nuisance.

1. Irrevocable license trial and ruling

During the bifurcated trial on the existence of an

irrevocable license, the trial court did a site visit to the flat patch,

heard testimony from Shoen, Zacarias and the former owner of

Shoen’s property, and admitted the prior testimony of Shoen’s

father. During her testimony, Zacarias “estimate[d]” that from

2003 onward she spent “[a]t least” $15,000 to $25,000 “to improve

[and] maintain” the disputed area.” This amount included

$8,638.55 for the cabana and other portable furniture on the flat

patch. It also included a portion of her monthly gardening,

electrical and water bills that Zacarias calculated by dividing the

square footage of her entire property (6,928) by the square

footage of the disputed area (490).

The trial court ruled that Zacarias should be awarded an

exclusive irrevocable license to use the disputed area and that

this license would last forever, even after Zacarias sold the

property. Although acknowledging that “some significant portion

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of” Zacarias’s estimate of the $15,000 to $25,000 “was spent

before” Shoen acquiesced to Zaracias’s use of the disputed area,

the court nonetheless concluded that Zacarias had “spent

substantial sums and physical labor for . . . landscaping,

maintenance and care of the [d]isputed [a]rea” during the “six

and possibly seven years” that Zacarias had used it with Shoen’s

acquiescence. The court further ruled that “the equities”

“favor[ed]” granting the license not only to Zacarias but also in

perpetuity to her successors-in-interest because the disputed area

was “accessible from the Zacarias property” but did not “appear”

to “provide any benefit to the Shoen property” because it was not

viably accessible from that property. The court lastly ruled that

this permanent license would also be exclusive due to the

physical layout of the parcels and the parties’ bad relationship.

2. Nuisance trial and ruling

Following further briefing, the court ruled that Shoen’s two

video cameras amounted to a private nuisance because they

“constitute[d] a substantial and unreasonable interference with

Zacarias’s right to the use and enjoyment of” both the disputed

area and the other portion of the flat patch owned by Zacarias.

The court ordered Shoen to remove the cameras and prohibited

her from installing any other equipment that would track the

disputed area or Zacarias’s property.

D. Judgment and appeal

Following entry of judgment, Shoen filed this timely

appeal.

DISCUSSION

Shoen argues that the trial court erred in granting Zacarias

a perpetual irrevocable license and in declaring her placement of

the two video cameras to be a private nuisance. We review the

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trial court’s ultimate decision to grant an irrevocable license and

the duration of that license for an abuse of discretion, but review

any subsidiary factual findings for substantial evidence and any

subsidiary legal questions de novo. (Richardson, supra, 233

Cal.App.4th at p. 751; Zellers v. State (1955) 134 Cal.App.2d 270,

275 (Zellers); City of Oakland v. Oakland Police & Fire

Retirement System (2014) 224 Cal.App.4th 210, 226.) We review

a trial court’s factual findings in support of its private nuisance

ruling for substantial evidence, but the scope of any injunctive

relief for an abuse of discretion. (Vanderpol v. Starr (2011) 194

Cal.App.4th 385, 397; Van Klompenburg v. Berghold (2005) 126

Cal.App.4th 345, 349.)

I. Irrevocable License

A. Pertinent law

When a landowner allows someone else to use her land, the

owner is granting a license. (Emerson, supra, 76 Cal. at p. 201.)

A license may be created by express permission or by

acquiescence (that is, by “tacitly permit[ing] another to

repeatedly do acts upon the land” “with full knowledge of the

facts” and without objecting). (Gravelly Ford Canal Co. v. Pope &

Talbot Land Co. (1918) 36 Cal.App. 717, 737; Lusk v. Krejci

(1960) 187 Cal.App.2d 553, 555.) Although a license may

generally “be revoked at any time at the pleasure of the licensor”

(Emerson, at p. 201; Bryant v. Marstelle (1946) 76 Cal.App.2d

740, 746), a court may declare the license to be irrevocable “for so

long a time as the nature of it calls for” if the licensee “‘has

expended money, or its equivalent in labor’” while reasonably

relying on the existence of the license. (Cooke, supra, 38 Cal.2d

at p. 286; Stoner, supra, 148 Cal. at p. 520; Hammond v. Mustard

(1967) 257 Cal.App.2d 384, 389 (Hammond); Belmont County

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Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 18

(Belmont County).)

Critically, courts may exercise their power to declare a

license irrevocable only if the expenditures in reliance on the

license are “substantial,” “considerable” or “great.” (Richardson,

supra, 233 Cal.App.4th at p. 756 [“substantial”]; Noronha v.

Stewart (1988) 199 Cal.App.3d 485, 490 (Noronha) [same];

Broads v. Mead (1911) 159 Cal. 765, 768 (Broads) [“substantial

loss”]; Dinsmore, supra, 66 Cal.App. at pp. 211-212

[“considerable”]; Stepp, supra, 52 Cal.App. at pp. 240, 257

[“great”]; Stoner, supra, 148 Cal. at p. 518 [“large and

expensive”]; cf. McCarthy v. Mutual Relief Asso., (1889) 81 Cal.

584, 588 [“trivial” expenditures will not suffice].) This particular

requirement exists for two reasons. First, it mirrors a similar

requirement in the doctrine of equitable estoppel, the doctrine

that forms the “principal” rationale for our Supreme Court’s

recognition of a judicial power to declare licenses irrevocable.

(Cooke, supra, 38 Cal.2d at p. 286 [“The principal basis” of this

power “is the doctrine of equitable estoppel.”]; Stoner, at p. 519

[same].) Just as a party seeking to invoke the doctrine of

equitable estoppel must prove that she “seriously . . . change[d]

[her] position in reliance” on the other party’s conduct (Monarco

v. Lo Greco (1950) 35 Cal.2d 621, 623, italics added; Byrne v.

Laura (1997) 52 Cal.App.4th 1054, 1072; City of Hollister v.

Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 500 [“change of

position” must be “of sufficient gravity to justify the intervention

of equity”]), so too must the party seeking an irrevocable license

prove that she seriously changed her position in reliance on the

license by showing that her subsequent expenditures were

significant. Second, the requirement of significant expenditures

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ensures that courts use their power to create irrevocable licenses

sparingly. (Accord, Brevard County v. Blasky (Fla. Dist. Ct. App.

2004) 875 So. 2d 6, 12 [irrevocable license “only arises under very

narrow circumstances”].) This is critical because such licenses

are functionally indistinguishable from easements (Barnes v.

Hussa (2006) 136 Cal.App.4th 1358, 1370) and because courts are

rightly reluctant to exercise “what is, in effect, the right of

eminent domain by permitting [the licensee] to occupy property

owned by another” (Christensen v. Tucker (1952) 114 Cal.App.2d

554, 560; see generally U.S. Const., 5th Amend. [“private

property” “shall” not “be taken for public use, without just

compensation”]; Cal. Const., art. I, § 19, subd. (a) [same]).

Courts have faithfully limited the exercise of their power to

declare a license to be irrevocable to those situations in which the

licensee has expended substantial amounts of money or labor in

reliance on a license. Nearly every case where a license has been

declared irrevocable has involved the licensee’s permanent

alteration of the land and the ensuing upkeep, whether by

building, altering or upgrading a roadway (Cooke, supra, 38

Cal.2d at pp. 285-287; Dinsmore, supra, 66 Cal.App. at pp. 211-

212; Ricioli v. Lynch (1923) 65 Cal.App. 53, 58), constructing a

ditch, canal or levee to transport water (Stoner, supra, 148 Cal. at

pp. 517-519 [ditch]; Gravelly Ford, supra, 36 Cal.App. at pp. 718,

721-722, 736-737 [canal]; Stepp, supra, 52 Cal.App. at pp. 239-

240 [levee]), erecting a wall (Noronha, supra, 199 Cal.App.3d at

p. 491), or raising living quarters (Hammond, supra, 257

Cal.App.2d at pp. 386-387 [cabins]). The high-water mark in this

regard is Richardson, supra, 233 Cal.App.4th 744, which upheld

an irrevocable license based upon the licensee’s extensive acts of

landscaping that entailed the installation of irrigation and

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lighting systems; the purchase, planting and replanting of

several large and expensive trees for more than two decades; and

the daily watering and lighting of that landscaping. (Id. at pp.

748-749, 753, 756.)

B. Analysis

The trial court abused its discretion in granting Zacarias a

perpetual irrevocable license for two reasons.

1. Insufficient evidence of substantial expenditures

in reliance on Shoen’s implied license

Although substantial evidence supports the trial court’s

findings that the prior owner of Shoen’s property expressly

granted Zacarias permission to use the disputed area and that

Shoen (or her father) acquiesced to Zacarias’s continued use of

the area from 2006 to 2011 or 2012, substantial evidence does not

support the court’s finding that Zacarias expended substantial

amounts of money or labor in the execution of either license. The

sole evidence of Zacarias’s expenditures was Zaracias’s estimate

that she spent “at least” $15,000 to $25,000 in improving and

maintaining the flat area between 2003 and the present along

with a handful of receipts to support her estimate.

Zacarias’s estimate does not constitute substantial evidence

of a substantial expenditure of money for two reasons. First, the

estimate is over-inclusive temporally. The estimate includes all

of Zacarias’s initial improvements to the flat patch, even though

Zacarias freely admitted that those improvements were made

while she labored under the mistaken belief that the whole patch

belonged to her and thus the improvements were not made in

reliance on any license. Zacarias testified that the patio

furniture and cabana cost her $8,638.55, but made no effort to

quantify the other initial improvements, which, as noted above,

also included hiring contractors to grade the patch, removing

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bamboo and overgrown brush, replacing the ornamental gravel,

installing sprinklers, installing four different types of lighting

(electric and solar-powered), and buying and planting the first

hedge. The trial court acknowledged that “some significant

portion” of Zacarias’s $15,000 to $25,000 estimate was incurred

before Zacarias had any license, but the court did not explain how

or why the remaining expenditures—that is, the portion

attributable solely to upkeep after the license—was also

significant.

Second, the estimate’s calculation of the upkeep costs

incurred in reliance on Shoen’s license rests on faulty factual

premises. Zacarias calculated the upkeep portion of her estimate

as including (1) her monthly gardening bill of $130, (2) her

annual brush clearing bill of $700, and (3) her monthly average

electrical and water bill of $1,200, all proportionately reduced by

the percentage of the size of the disputed area (490 square feet)

over the size of her entire lot (6,928 square feet). The method

Zacarias used to apportion her property expenditures was both

mathematically and factually inaccurate. It is mathematically

inaccurate because the mathematically correct way to determine

the percentage of her bills attributable to the disputed area is to

assess the size of disputed area (490 square feet) vis-a-vis the size

of her entire lot plus the disputed area (7,418 square feet) because

the bills necessarily included the cost to garden, water and light

that area as well; the larger denominator makes the percentage

attributable to the disputed area smaller. Zacarias’s method was

also factually inaccurate because it assumes that the use (and

hence the cost) of gardening, electricity and water was spread

evenly across her property. But this was simply not true as to, at

a minimum, the electricity and water expenses: The disputed

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patch would only use electricity for lighting at night or when

Zacarias (or her tenants or guests) plugged something in, as

compared with the main house and the pool which would use

electricity for innumerable purposes and all the time; similarly,

the disputed patch had a drip system to water the hedge, as

compared with the main house (which would use water for

bathing, washing clothes and dishes) and the pool. Although our

review for substantial evidence requires us to view the evidence

in the light most favorable to the prevailing party (Oregel v.

American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100), it

does not require blind acceptance of anything uttered during

trial. We must still assess whether the evidence is

“substantial”—that is, whether it is “reasonable, credible and of

solid value” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th

634, 651)—and an opinion that “does not rest upon relevant facts

or which assumes an incorrect legal theory cannot constitute

substantial evidence” (Smith v. Workers’ Comp. Appeals Bd.

(1969) 71 Cal.2d 588, 593).

Once Zacarias’s estimate is discounted to correct its

temporal and logical defects, what remains of the upkeep

expenses is the share of the monthly gardening and annual brush

clearing bills attributable to the disputed area, the even smaller

share of the monthly electric and water bills attributable to the

disputed area, occasionally replacing sprinkler heads, and the

one-time $2,350 replacement cost of the ficus trees. These

upkeep costs are akin to other expenditures that courts have

determined not to be “substantial.” (See, e.g., Belmont County,

supra, 65 Cal.App.3d at p. 18 [cost of preparing plans and route

surveys for construction; not substantial expenditure]; Broads,

supra, 159 Cal. at p. 768 [cost to remove signs from outside of

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building; not substantial expenditure]; Heinkel v. McAllister, 113

Cal.App.2d 500, 503-504 [cost to lay underground pipe; not

substantial expenditure]; Kaler v. Brown (1951) 101 Cal.App.2d

716, 717, 719 [pouring two concrete strips used as a driveway; not

substantial expenditure].) We do not consider the labor Zacarias

claims to have invested in gardening because she did not testify

to when or how much labor, and we do not consider the cost to retop

the cabana or reupholster some of the furniture because those

costs inured to Zacarias’s benefit (because the furniture is

movable and can be used elsewhere), not the disputed area itself.1

In holding that Zacarias’s modest costs of upkeep do not

constitute “substantial” expenditures warranting an irrevocable

license, we leave Richardson as the outer boundary of

substantiality. In our view, this result is not only consistent with

the legion of case law that precedes Richardson but also with the

careful boundary staked out by those cases that runs between the

sanctity of private property rights and the occasional need to do

equity in derogation of those rights.



1 The trial court also seemed to find that Zacarias did not

install permanent electrical wiring until 2007 or 2008 because

Shoen only saw the cabana light attached to a “surge protected

extension cord” when she visited the disputed area during that

time frame, but the court’s suggestion is not supported by

substantial evidence because Zacarias testified that she installed

all of the electrical before 2005 and because Shoen also testified

that she saw electrical wiring up to the patch during the 2007 or

2008 visit. Construing the testimony in the light most favorable

to the trial court’s finding, Shoen’s testimony indicates that

Zacarias at some point after 2007 or 2008 ran a different wire

from the patch’s border to the top of the cabana, but this minor

additional improvement does not alter our analysis.

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Zacarias raises three arguments in response.

First, Zacarias argues that our prior conclusion in Shoen I

that she was not entitled to an equitable easement is not

dispositive of whether she is entitled to an irrevocable license.

We agree. (Accord, Richardson, supra, 233 Cal.App.4th at pp.

753-754 [denial of equitable easement due to trespasser’s

knowledge of the trespass did not preclude award of irrevocable

license].) However, Zacarias must still establish that she meets

all of the requirements for obtaining an irrevocable license. She

has not done so.

Second, Zacarias contends that one year of expenditures

can be enough to render a license irrevocable. For support, she

cites Zellers, supra, 134 Cal.App.2d 270. Zellers held that a

landowner was entitled to an irrevocable license after he dumped

20,000 cubic yards of dirt on his neighbor’s property and she did

not object for a year. (Id. at pp. 272-275.) Zellers focused on

whether the neighbor had acquiesced to the use of her land by

saying nothing for a year; Zellers did not purport to hold that any

expenditure for more than a year qualifies as substantial. (Ibid.)

Lastly, Zacarias asserts that she is not required to quantify

a “specific dollar amount” of her expenditures. (Richardson,

supra, 233 Cal.App.4th at p. 756.) She is nevertheless required

to prove that her expenditures were substantial (Evid. Code,

§ 500 [party advancing claim or defense bears burden of proof]),

and here she did not for the reasons we have explained.

2. Abuse of discretion in granting an irrevocable

license in perpetuity

In fixing the duration of an irrevocable license, the license

should “‘continue for so long a time as the nature of it calls for.’”

(Cooke, supra, 38 Cal.2d at p. 286.) This means the license

should remain irrevocable “‘for a period sufficient to enable the

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licensee to capitalize on his or her investment.’” (Richardson,

supra, 233 Cal.App.4th at p. 758, quoting 6 Miller & Starr,

Easements 15:2, p. 15-15.) Thus, when a license to operate a mill

or for drainage becomes irrevocable, it should last as long as the

mill is operational or the need for drainage remains. (Stoner,

supra, 148 Cal. at p. 520.)

The trial court abused its discretion in making any

irrevocable license perpetual in duration for two reasons.

First and foremost, the court used the wrong legal

standard. (People v. Knoller (2007) 41 Cal.4th 139, 156 [trial

court abuses its discretion if its decision is based “on . . . an

incorrect legal standard”].) Rather than look to when Zacarias

would obtain the return on the investment of her upkeep

occurring after she obtained a license, the court engaged in a

wholly separate inquiry into who would make better use of the

disputed area by balancing the greater value and utility of the

disputed area to Zacarias (due to her ready access to the area)

against the lesser value and utility of the area to Shoen (due to

her less-than-ready access to the area). Not only is this the

wrong test, but it is precisely the type of “free-floating inquiry

into which party will make better use of the encroached-upon

land, which values it more, and which will derive a greater

benefit from its use” that we condemned as inappropriate in

Shoen I. (Shoen I, supra, 237 Cal.App.4th at p. 21.)

Second, the proper analysis could not have yielded an

irrevocable license that is perpetual in duration. This is not a

case where Zacarias is seeking to obtain a license for long enough

to obtain a return on her major investments in improving the flat

patch because she made all of those improvements before any

license was granted. The only investment to be recovered here is

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Zacarias’s annual investment in upkeep. We decline to hold that

a licensee’s annual cost of upkeep, without more, warrants a

perpetual license to recover the investment in upkeep; if we did,

every irrevocable license would be perpetual. Such a result

effectively rewrites our Supreme Court’s more nuanced and factspecific

test for fixing the duration of an irrevocable license.

In light of our analysis, we have no occasion to reach the

other arguments raised by the parties with regard to the

irrevocable license.

II. Private Nuisance

Although the terms of the parties’ stipulation on remand

(as summarized by the trial court) appear to make the issue of

whether there is an irrevocable license dispositive of whether

Shoen’s cameras constitute a nuisance (because Shoen would

have the right to videotape the disputed area if it was hers to

use),

2 the trial court’s nuisance ruling suggests that the cameras

may constitute a nuisance even if Zacarias is not granted an

irrevocable license (because the cameras are also aimed at the

portions of the flat patch unquestionably belonging to Zacarias).

Accordingly, we remand the nuisance claim for the parties to

clarify with one another and with the trial court the effect of the

stipulation and the scope of any injunctive relief yet to be

granted.



2 The parties did not include the stipulation itself in the

record on appeal.

The judgment is reversed as to Zacarias’s entitlement to an irrevocable license. The judgment is reversed and remanded on Zacarias’s nuisance claim. Shoen is entitled to her costs on appeal.