Updated on September 18, 2026
Can You Pave a Gravel Road Easement? Not So Fast, Says the Third District
By Schorr Law | September 2026
If you hold an easement over someone else’s property for road access, you might assume you can improve that road however you see fit, including paving it. A recent California appellate decision says otherwise. In Bernstein v. Sebring, 116 Cal.App.5th 1264 (2025), the Third District Court of Appeal held that a dominant owner’s road easement does not automatically include the right to pave a gravel road, reinforcing the principle that secondary easement rights are always governed by a rule of reason, not assumption.
The decision is a must-read for anyone involved in easement disputes over road access, shared driveways, or rural ingress/egress rights in California.
The Dispute: Neighbors, a Gravel Driveway, and a Paving Plan
The facts of Bernstein v. Sebring are straightforward. Plaintiff Scot Bernstein and defendant Tim Sebring owned adjoining properties within the same subdivision. Sebring’s property had an easement on Bernstein’s property for ingress and egress, which included portions of a paved road running through the subdivision and a 244.5-foot gravel/dirt roadway that served as a driveway to Sebring’s property.
This was the second lawsuit between the parties. The first case involved Sebring clearing trees and performing construction on the easement without Bernstein’s permission. That case settled. Bernstein then filed a second action — this time seeking a declaratory judgment to prevent Sebring from paving the gravel portion of the easement road.
The trial court denied Sebring’s motion for judgment on the pleadings, held a bench trial, and found in favor of Bernstein. The court concluded that paving the driveway was “not reasonably necessary to make it available for safe and convenient vehicular travel” and enjoined Sebring from paving.
Sebring appealed, arguing (1) the second suit was an improper splitting of actions, and (2) his easement right necessarily includes the right to pave as a matter of law.
The Third District affirmed on both counts.
No Improper Splitting of Actions
Sebring’s first argument was procedural: he contended that the paving dispute should have been litigated in the first case and that the second suit constituted an improper splitting of a cause of action, barred by res judicata.
The court disagreed. Under California’s “primary right theory,” a cause of action is composed of (1) a primary right of the plaintiff, (2) a corresponding primary duty of the defendant, and (3) a wrongful act by the defendant constituting a breach of that duty. The most important feature of a primary right is that it is indivisible — violation of a single primary right gives rise to only one cause of action.
But here, the court found the two suits involved distinct episodes of alleged violation. The first case involved Sebring cutting down trees and building a rock wall on the easement — a completed act of interference with Bernstein’s property rights. The second case involved Sebring’s proposed paving of the gravel road — a different episode entirely that had not yet occurred when the first suit was filed.
Because each suit was based on a separate wrongful act, there was no improper splitting.
Why it matters: This holding is a useful reminder that res judicata does not bar subsequent suits involving the same easement if the alleged violations are distinct episodes. Easement disputes tend to be recurring — the same neighbors fighting over the same strip of land for different reasons over time. Bernstein confirms that each new dispute over the scope of use may give rise to its own cause of action.
The Main Event: Secondary Easement Rights and the Rule of Reason
The heart of the appeal — and the most instructive part of the opinion for California real estate practitioners — is the court’s analysis of secondary easement rights.
What Are Secondary Easement Rights?
Every easement includes what are called “secondary easements” — the right to do such things as are necessary for the full enjoyment of the easement itself. (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, 428.) This can include the right to make repairs, renewals, and replacements on the servient property, and to make changes to the surface of the land “as are necessary to make it available for travel in a convenient manner.” (Id.)
But these incidental or secondary rights are not unlimited. They are governed by a rule of reason: “there are no absolute rules of conduct. The responsibility of each party to the other and the ‘reasonableness’ of use of the property depends on the nature of the easement, its method of creation, and the facts and circumstances surrounding the transaction.” (Dolnikov, at pp. 428–429.)
A “Road” Does Not Automatically Mean a “Paved Road”
Sebring’s central argument was definitional: he pointed to dictionary definitions of the word “road” and argued that because a road can be paved, his easement over a “road” necessarily included the right to pave it.
The court rejected this outright, identifying the logical fallacy: “because a road can be paved does not necessarily mean all roads are paved.” The court noted that declaring all road easements necessarily include the right to pave would “directly contradict established law that the scope of secondary easement rights depends on the circumstances of each easement.”
Whether Sebring’s specific easement included the right to pave was a factual question — not a legal one to be resolved by dictionary.
“Necessary for Convenient Use” — Not “More Convenient”
Sebring also argued that the trial court applied the wrong standard. He contended the proper test was whether paving was “necessary for convenience, not necessary for actual use,” and that paving obviously satisfied this standard because travel over a paved surface is more convenient than travel over gravel.
The court corrected the framing: “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.”
This is a critical distinction. The question is not whether paving would make the road better — it is whether paving is necessary to make the easement usable for its intended purpose: safe and convenient vehicular travel. The trial court found, based on the evidence at trial, that paving was not reasonably necessary. And because Sebring did not challenge the sufficiency of the evidence supporting that finding on appeal, the ruling stood.
Why it matters: This holding has significant implications for easement disputes across California, particularly in rural and semi-rural areas where gravel roads, unpaved driveways, and dirt access roads are common. A dominant owner cannot simply decide to “upgrade” an easement road and force the servient owner to accept permanent changes to their property. Any proposed improvement must clear the “necessary for convenient use” bar — and that determination is inherently fact-specific.
The Bigger Picture: Reasonableness Is Always the Touchstone
The thread running through the entire Bernstein opinion is the principle that reasonableness governs all secondary easement rights. There are no bright-line rules. Whether a particular use of an easement is reasonable — and whether a proposed improvement falls within the dominant owner’s secondary rights — depends on:
- The nature of the easement (road access, utility, drainage, etc.)
- The method of creation (express grant, prescription, implication, necessity)
- The facts and circumstances surrounding the transaction
Because reasonableness is inherently fact-dependent, whether a particular use constitutes unreasonable interference is a question of fact for the trier of fact — not a question of law to be resolved on the pleadings or by resort to a dictionary.
Practical Takeaways
- An easement to use a road does not mean an easement to change the road. Dominant owners have the right to use the easement for its intended purpose, but proposed modifications, paving, grading, widening, installing drainage — must be necessary for convenient use, not merely more convenient.
- The reasonableness standard is case-specific. The same improvement might be permissible in one context and impermissible in another. A gravel road serving as the sole access to a remote property might warrant paving; the same gravel driveway in a subdivision with other paved access might not. Facts matter.
- Servient owners can push back. If a dominant owner proposes changes to an easement that exceed what is necessary for its convenient use, the servient owner has standing to seek declaratory and injunctive relief — as Bernstein did here.
- Recurring easement disputes are not barred by res judicata. Each distinct episode of alleged easement misuse can give rise to its own cause of action. Settling one dispute does not give the dominant owner a free pass for future overreach.
- Build the factual record. Because the scope of secondary easement rights turns on reasonableness, and reasonableness is a factual determination, both sides should focus on building a strong evidentiary record at trial. In Bernstein, the trial court’s factual finding that paving was not reasonably necessary was dispositive — and Sebring’s failure to challenge the sufficiency of the evidence on appeal left him with no remedy.
Conclusion
Bernstein v. Sebring is a valuable addition to California’s easement jurisprudence. It reinforces that secondary easement rights are not a blank check — they are bounded by reason, context, and necessity. For property owners and practitioners alike, the case is a reminder that the scope of an easement is not determined by what could be done, but by what is reasonably necessary to be done.
If you are dealing with an easement dispute — whether over road access, improvements, or scope of use — contact Schorr Law for a consultation.
About the Author
Zachary D. Schorr is a California real estate litigation attorney and the founding attorney of Schorr Law. He represents clients in specific performance actions, partition lawsuits, quiet title disputes, and complex real estate litigation throughout Southern California.
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