Boundary & Easement  ·  September 30, 2026

The Easement Says Road. It Doesn’t Say Paved.

A neighbor has driven the same gravel road across your land for twenty years. Now a paving contractor is measuring it. Or you are the one with the easement, the gravel washes out every winter, and the owner of the land underneath says you cannot touch it. Both of you are looking at the same recorded document, and it may say only "road" or "ingress and egress."

California law answers the question the document leaves open, and the answer is less automatic than either side usually assumes. This article explains what an easement holder may and may not do to the land it crosses, how a 2026 Court of Appeal decision broke with other published decisions on the burden of proof for prescriptive easements, and when an easement can be lost by not using it. It is current as of September 30, 2026.

What decides how an easement can be used in California?

An easement is a right to use someone else's land for a particular purpose. The land that benefits is the dominant tenement; the land that carries the burden is the servient tenement. Everything about scope starts with one sentence of the Civil Code. Section 806 provides: "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired."

That sentence sets up two very different tests, depending on how the easement came into existence. This article focuses on the two most common kinds, express and prescriptive; easements can also arise by implication or necessity, which follow their own rules.

• Express easements — created by a deed, a recorded grant or reservation, or an easement agreement — are measured by their terms. Courts generally interpret grants "liberally in favor of the grantee" (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419), although under Civil Code section 1069 a reservation, and a grant by a public body to a private party, is interpreted in favor of the grantor. The Supreme Court in Laux v. Freed (1960) 53 Cal.2d 512 adopted the rules that "[a] grant of a right of way unrestricted as to purpose is a grant of a way to be used for any purpose whatever," and that a grant in general terms "will ordinarily be construed as creating a general right of way capable of use in connection with the dominant tenement for all reasonable purposes."
• Prescriptive easements — acquired by open, continuous, hostile use for five years — are measured by the use that created them. There is no document to interpret, so the history of the use is the grant.

Both kinds of easement are nonexclusive by default: the owner of the land underneath keeps the right to use it too, so long as that use does not unreasonably interfere with the easement. The two owners' rights are, in the words of Dolnikov, "correlative. Each is required to respect the rights of the other."

Can an easement holder pave a gravel road in California?

Sometimes. Not automatically.

Every easement carries what California courts call secondary easements: "the right to do such things as are necessary for the full enjoyment of the easement itself" (Dolnikov). For a road, that includes the right "to make such changes in the surface of the land as are necessary to make it available for travel in a convenient manner" — language the courts trace to Ballard v. Titus (1910) 157 Cal. 673. Secondary rights are limited by a rule of reason, and they depend on "the nature of the easement, its method of creation, and the facts and circumstances surrounding the transaction."

Bernstein v. Sebring (2025) 116 Cal.App.5th 1264, decided by the Third District in December 2025, applied that rule to a gravel driveway. The easement holder wanted to pave a 244.5-foot gravel and dirt roadway crossing the neighbor's land. The trial court found that "paving the driveway is not reasonably necessary to make it available for safe and convenient vehicular travel" and enjoined the paving. The Court of Appeal affirmed. It rejected the holder's argument that a road easement includes the right to pave as a matter of law, explaining that such a rule "would also directly contradict established law that the scope of secondary easement rights depends on the circumstances of each easement."

Two points about Bernstein are easy to lose. First, the holder did not challenge the trial court's factual finding that paving was not reasonably necessary; the appeal turned on whether a right to pave exists automatically, and the court said it does not. Second, the case does not hold that paving is never allowed. On different facts — a steep grade, a road that washes out, access that genuinely fails without an improved surface — the same rule of reason can support paving.

Read together, the two cases describe the real question a court will ask: is this improvement reasonably necessary for the use the easement allows? That is a question of fact, which is why these disputes are won on evidence — photographs of washouts, testimony about emergency vehicle access, engineering opinions, and the history of how the road has actually been used — rather than on the wording of the deed alone.

Can the easement holder widen the road or use the whole easement strip?

A recorded easement often describes a strip much wider than the road that actually runs through it. Holding a 52-foot easement does not necessarily mean holding the right to use all 52 feet.

In Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, a winery owned land burdened by a 52-foot nonexclusive easement "for road and utility purposes." The winery planted grapevines and installed water tanks inside the easement strip. The easement holder, meanwhile, paved a separate route across the strip that created a second entrance onto Highway 29. The Court of Appeal affirmed a judgment that refused to order the vines and tanks removed and required the holder to remove the new paving.

The court explained that the servient owner "may make continued use of the area the easement covers so long as the use does not 'interfere unreasonably' with the easement's purpose," and that "the specification of width and location of surface rights-of-way does not always determine the extent of the burden imposed on the servient land." The easement holder may do "that which is reasonably necessary to enjoy the easement and, as an incident thereto, keep it in repair and fit for use." On those facts, that meant ingress and egress along a reasonable route, not exclusive use of the whole strip.

The practical lesson runs both ways. A servient owner can often use the unused portion of an easement strip for landscaping, parking or improvements, but anything that narrows the usable route or blocks access invites an interference claim. An easement holder who wants to expand the physical footprint of a road should expect to show why the expansion is reasonably necessary.

Can the use change when the property served by the easement is redeveloped?

This question is important for investors and developers as California law allows more density on parcels that were once single-family lots. An access easement written for one house may now be asked to serve a fourplex, an ADU cluster or a small apartment project.

Express easements: no material increase in burden

An express easement written in general terms can serve changing uses of the dominant parcel — that is the teaching of Laux v. Freed. But there is a ceiling. "[T]he owner of an easement cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden" (Wall v. Rudolph (1961) 198 Cal.App.2d 684). In Wall, easements granted for road purposes and farm and domestic use could not be used to run 150 to 200 heavy vacuum trucks a day for oil-field waste disposal, or to serve a parcel that was not part of the dominant land at all.

Whether a particular change crosses the line is a question of fact. In Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, the Court of Appeal reversed the judgment and ordered a retrial. It held that under Civil Code section 1069 the trial court should have construed an access easement promised by a public agency in the agency's favor, as limited to the prior owners' personal ingress and egress; had damages been evaluated on that basis, there was a reasonable probability the jury would have found that transferring the easement to the successor owners of two large ranch estates would materially overburden it. And when the dominant parcel is partitioned, Civil Code section 807 requires that the burden "be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement."

Prescriptive easements: a change in degree, not in kind

Prescriptive easements are tighter. Prescriptive rights "are limited to the uses which were made of the easements during the prescriptive period" (McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, quoting O'Banion v. Borba (1948) 32 Cal.2d 145, and affirming a finding that a prescriptive easement was limited to pedestrian use). The Supreme Court explained in Hannah v. Pogue (1944) 23 Cal.2d 849 that "[t]he scope of a prescriptive easement is determined by the use through which it is acquired."

California courts do allow a prescriptive use to grow in intensity, within limits. In Applegate v. Ota (1983) 146 Cal.App.3d 702, drawing on Cushman v. Davis (1978) 80 Cal.App.3d 731, the court explained that increased use is permitted "if the change is one of degree, not kind," considering "the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement." In Cushman itself, a prescriptive easement acquired through seasonal access to an apricot orchard could not be used to serve a residential subdivision. By contrast, Pipkin v. Der Torosian (1973) 35 Cal.App.3d 722 refused to confine a farm-access prescriptive easement to agricultural purposes, reasoning that if a home were built, it "should be of no moment" to the neighbors whether vehicles were headed to the home or to the crops "so long as the amount of traffic is not substantially increased."

Can the property owner move an easement without the holder's consent?

Generally, no. California has long required agreement to relocate an easement. In Hannah v. Pogue, the Supreme Court held that the holder of a prescriptive right to maintain a dam and ditch could not move them to a new location, explaining that a prescriptive user "does not acquire the right to make other uses of" the land, and that an easement acquired by grant in a given location "becomes fixed by use and its location may not be substantially changed." Parties may relocate an easement "by mutual consent, either express or implied," and that consent "may be implied from their use and acquiescence" (Kosich v. Braz (1967) 247 Cal.App.2d 737; see also Red Mountain). When a new route is substituted by consent, the existing easement rights attach to the new location.

Some states now let the owner of the burdened land relocate an easement unilaterally, at the owner's own expense, if the move does not significantly lessen the easement's utility — the approach of section 4.8(3) of the Restatement (Third) of Property: Servitudes, and of the Uniform Easement Relocation Act. As of September 30, 2026, we are not aware of any California statute or published California decision adopting either. An owner who wants to move an easement for a building pad, a pool or a lot split should plan on negotiating it.

What is the burden of proof for a prescriptive easement in California after Montecito Country Club v. Root?

Since at least 1983, a line of California appellate opinions has described the burden of proving a prescriptive easement as clear and convincing evidence — a demanding standard, and one that makes these claims harder to win. On March 6, 2026, the Second District Court of Appeal, Division Six, departed from the clear and convincing standard stated in its own prior decisions.

In Montecito Country Club, LLC v. Root (2026) 118 Cal.App.5th 1236, the court acknowledged "the split of authority on the standard of proof required to establish a prescriptive easement." It noted that its own division had previously identified clear and convincing evidence as the standard, citing Grant v. Ratliff (2008) 164 Cal.App.4th 1304 and Applegate v. Ota. It then found persuasive the Sixth District's analysis in Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057 — which had questioned the higher standard, traced it to a 1943 Supreme Court decision involving constructive fraud, but did not need to decide the question — and concluded that "the correct standard is preponderance of the evidence."

The court cited Evidence Code section 115, which provides that "[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." It noted that a higher clear-and-convincing standard does apply, under Evidence Code section 662, to overcoming the presumption that the holder of legal title owns full beneficial title — but the club was not seeking title to the neighbors' land, only an easement.

Three cautions keep this from being overstated:

1. The split is not resolved. Other published decisions, including Grant v. Ratliff and Applegate, state the clear and convincing standard, and as of September 30, 2026, the California Supreme Court has not decided the question. A published Court of Appeal decision is binding on every California trial court, and when published appellate decisions conflict, the trial court must choose between them (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450). So wherever the property is, expect both standards to be argued.
2. The decision is final. The Court of Appeal's docket shows the opinion filed March 6, 2026, the remittitur issued May 7, 2026, and the case marked complete, with no petition for review or rehearing entered. The opinion was certified for partial publication; its standard-of-proof and prescriptive-scope rulings are in the published portion.
3. The elements have not changed. A claimant still must prove use that was open and notorious, continuous and uninterrupted for five years, hostile or adverse, and under claim of right. What Montecito changed is how convincing the proof must be.

Montecito also illustrates how a prescriptive easement can enlarge an express one. The club held a recorded easement "for cart path and greenskeeper truck purposes." The court affirmed that the easement had been expanded by historical use to include maintaining a boundary hedgerow and accessory landscaping, while rejecting the neighbors' argument that this amounted to complete control of the strip. The neighbors were ordered to remove a hedge, fence and retaining wall they had built in the easement area.

What a landowner can do to prevent a prescriptive easement

Prescription requires use that is hostile or adverse to the owner. As Montecito put it, a use is adverse "if the use is made without the landowner's explicit or implicit permission." That is why a written, signed permission — renewed when the property or the neighbor changes hands — is an effective, low-cost protection. California also provides a statutory tool: under Civil Code section 1008, no use of land, "no matter how long continued," ripens into a prescriptive easement if the owner posts at each entrance to the property, or at intervals of not more than 200 feet along the boundary, a sign reading substantially as follows: "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code." Timing matters: section 1008 speaks to use that has not yet ripened into a prescriptive right, and it does not purport to extinguish an easement already fully acquired before the signs went up. (Compare Civil Code section 813, which provides that recording a notice of consent to use "shall not be deemed to affect rights vested at the time of recording.") Our article on neighbor claims to part of your yard explains the related doctrine of adverse possession and why the property-tax element is often decisive.

Can an easement be lost by not using it?

It depends on how the easement was created, and the rules are very different.

Easements created by grant: nonuse alone is not enough

An express easement is not extinguished simply because nobody uses it. As a general rule, abandonment requires "nonuser accompanied by unequivocal and decisive acts on the part of the [dominant tenant], clearly showing an intention to abandon" (Gerhard v. Stephens (1968) 68 Cal.2d 864). "[M]ere nonuse is insufficient to demonstrate an intent to abandon," although "a long period of nonuse may be considered as evidence of the necessary intent" (Visitacion Investment, LLC v. 424 Jessie Historic Properties, LLC (2023) 92 Cal.App.5th 1081). In Visitacion, the Court of Appeal reversed a summary judgment finding abandonment because intent was a triable question.

The Montecito court also upheld a finding that the club had not abandoned its easement after removing the cart path in a 2016 redesign, but that part of the opinion is unpublished and cannot be cited as precedent.

Nonuse is different from obstruction. The Supreme Court held in Glatts v. Henson (1948) 31 Cal.2d 368 that an easement, "regardless of whether it was created by grant or use," may be extinguished by the servient owner's adverse possession of it. An easement holder who watches a neighbor fence off the easement area for years should not assume the easement is safe just because it was granted in a deed.

Prescriptive easements: five years of disuse

An easement acquired by use can be lost the same way it was gained. Civil Code section 811 provides that a servitude is extinguished "[w]hen the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment" — five years. No intent is required. As the Court of Appeal put it in Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, "[w]hile an easement created by grant is not lost by mere nonuse, intent to abandon being an essential element, one created by prescription may be if the nonuse is for the prescriptive period." The disuse must last for the full five-year period. A similar continuity rule applies when a servient owner tries to extinguish a prescriptive easement by adverse use: in Zimmer, the court held that the area adversely used must remain the same throughout the statutory period, so obstructions affecting different parts of the easement at different times could not be combined.

Section 811 also lists three other ways any servitude ends: when the easement and the land it burdens come into the same ownership; when the servient tenement is destroyed; and when the easement holder, or someone with the holder's assent, does an act on either property "which is incompatible with its nature or exercise."

Clearing old easements from title: the 20-year statute

Civil Code sections 887.010 through 887.090 add a quiet-title route to establish that an easement has been abandoned and to clear it from record title. The chapter applies to all easements, subject to its exceptions (section 887.090), and provides an action "to establish the abandonment of the easement and to clear record title of the easement" (section 887.040). Under section 887.050, an easement is abandoned if, for the 20 years immediately before the action is filed, all three of the following are true: the easement "is not used at any time"; no separate property tax assessment is made of it or, if made, no taxes are paid; and no instrument "creating, reserving, transferring, or otherwise evidencing the easement is recorded."

The easement holder has a defense built into the statute. Under section 887.060, an owner of an easement may record a notice of intent to preserve the easement at any time, and an easement is not abandoned under the chapter if that notice was recorded within the 20-year window. Even after suit is filed and before judgment, section 887.070 requires the court to let the holder record a late notice as a condition of dismissal, upon paying into court the landowner's litigation expenses attributable to the easement, including a reasonable attorney's fee. The chapter does not apply to "an easement that is part of a unified or reciprocal system for the mutual benefit of multiple parties" (section 887.020), and it supplements rather than replaces the common law of abandonment (section 887.030).

Who pays to maintain a shared road easement in California?

Civil Code section 845 answers this for easements "in the nature of a private right-of-way." The owner of the easement, or of any land to which the easement is attached, "shall maintain it in repair." When the easement serves more than one owner, the cost is shared "pursuant to the terms of any agreement entered into by the parties for that purpose," and "[i]n the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner."

If an owner refuses to perform, or fails after written demand to pay a share, the others may sue to recover it or for specific performance or contribution. A claim within the small claims limit may go to small claims court; otherwise, the action is filed in superior court and is subject to judicial arbitration. A written road maintenance agreement, recorded against every parcel the road serves, can prevent many of these disputes before they start.

What should owners and easement holders do before a dispute escalates?

1. Pull the recorded documents. Get the grant or reservation that created the easement, any recorded map or legal description, and a current preliminary title report. The words of the grant decide an express easement's scope.
2. Document the historical use. Dated photographs, aerial imagery, maintenance invoices and witness statements are the evidence that decides both reasonable-necessity disputes and prescriptive claims.
3. Put permission in writing. If you are allowing a neighbor to cross, a signed permission — or properly posted Civil Code section 1008 signs — helps keep the use from becoming a prescriptive right.
4. Do not use self-help. Paving, fencing, planting or regrading inside a disputed easement is how many of these cases start. In Montecito, the neighbors were ordered to tear out the hedge, fence and wall they had built.
5. Negotiate the improvement or the relocation. A recorded easement amendment or maintenance agreement is often less expensive than litigating what "reasonably necessary" means.

Easement disputes are often resolved alongside claims for quiet title, declaratory relief and injunctions. Our boundary and easement disputes and quiet title practice pages describe how we approach them, and our guide to California real estate litigation deadlines covers the time limits that can apply.

Common questions

This article is general information about California law as of September 30, 2026 and is not legal advice. It does not create an attorney-client relationship. Statutes and case law change, and how they apply depends on the specific facts. Anyone facing a specific dispute should consult a lawyer about their own circumstances.

Related reading: our article on neighbor claims to part of your yard and our reference on California real estate litigation deadlines.

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