Does an Easement over an Unpaved Road Necessarily Include the Right to Pave?
Under California law, every easement includes the right to do such things “as are necessary for the full enjoyment” of the easement. This can include the right to make “repairs, renewals, and replacements.” A right of way easement carries with it the implied right to “make such changes in the surface of the land as are necessary to make it available for travel in a convenient manner.”
But these rights are subject to a rule of reasonableness, and reasonableness depends on the nature of the easement, its method of creation, and the surrounding facts and circumstances.
A case recently published by California’s Third Appellate District — Bernstein v. Sebring — addresses the issue of whether a right of way easement owner has the legal right to pave a previously unpaved roadway.
Facts: easement owner claims legal right to pave a gravel and dirt roadway
Tim Sebring had easement rights over adjoining property owned by Scot Bernstein. The easement for ingress and egress consisted of portions of a paved road going through the subdivision over Bernstein’s property and a 244.5 foot “gravel/dirt roadway” splitting off the paved road used as a driveway used to access Sebring’s property.
The parties settled a prior case, which involved Sebring cutting down trees and performing other construction on the easement without Bernstein’s permission.
While that first case was pending, Bernstein filed another lawsuit for declaratory relief and an injunction, alleging that Sebring intended to “immediately pave” the gravel/dirt roadway easement on Bernstein’s property even though paving was not reasonably necessary for the easement’s use.
Trial court: paving roadway “not reasonably necessary”
After a trial, the court found in favor of Bernstein. The court held “paving the driveway is not reasonably necessary to make it available for safe and convenient vehicular travel.” The court issued an injunction barring Sebring from paving the easement.
Sebring appealed, arguing that his easement rights included the right to pave the road.
Court of Appeal: affirmed; no right to pave the easement as a matter of law
The Court of Appeal affirmed.
The court first rejected Sebring’s argument that because the definition of a “road” includes “a paved surface,” paving the easement had to be within the easement’s express scope. The court held that Sebring’s argument “rests on a logical fallacy; because a road can be paved does not necessarily mean all roads are paved.” The court also held that a blanket rule allowing paving of all roadway easements would “directly contradict established law that the scope of secondary easement rights depends on the circumstances of each easement.”
Sebring also argued that the trial court applied an incorrect “necessity” standard focusing on whether pavement was “necessary for actual use” while the correct standard is whether paving was “necessary for convenience.” The Court of Appeal rejected that argument, holding that the trial court found the evidence at trial established paving the driveway was “not reasonably necessary to make it available for safe and convenient vehicular travel” and that was “the correct standard.”
The court held the Sebring “misconstrues the standard when he argues: ‘There can be little doubt … travel over a paved surface is more convenient than a dirt or gravel surface.’ Whether one improvement is more convenient than another is the wrong analysis. What matters is whether the proposed improvement is necessary for the convenient use of the easement.”
The court also noted that Sebring’s arguments were legal in nature, and did not call into question whether the trial court’s factual findings were supported by the evidence.
Lesson
Easement rights are rarely determined “as a matter of law.” Instead, “reasonableness” is the governing standard. As shown by the Bernstein opinion, a right of way easement over an unpaved road does not necessarily include the right to pave the road.