In Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, the trial court was asked to exercise its inherent equitable power to fashion an equitable easement rather than to enjoin an encroachment as in Linthicum v. Butterfield (2009) 175 Cal.App.4th 259. "The courts are not limited to judicial passivity as in merely refusing to enjoin an encroachment. Instead, in a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner's land which will protect the encroacher's use." (Hirshfield, supra, 91 Cal.App.4th at p. 765.)

In Tashakori, as in Linthicum, one of the parties was innocent. The Tashakoris bought a parcel "with the innocent belief that an easement to the public road existed." (Tashakori, supra, 196 Cal.App.4th at p. 1010.) They later subdivided the parcel into two, but both parcels shared a common driveway. They sold one of the parcels, which, unbeknownst to them, left their remaining lot landlocked. (Id. at p. 1005.)

The trial court found that the owners of the other parcel would "suffer virtually no harm at all from the Tashakoris' use of the shared driveway to access Lot 18, and that the Tashakoris would be irreparably harmed if their sole means of accessing their property were denied." (Tashakori, supra, 196 Cal.App.4th at p. 1010.) The court granted an equitable easement over the common driveway, and the Court of Appeal affirmed. (Id. at pp. 1005-1006.)