What is the Primary Right Theory in California for Easements?

The case of Bernstein v. Sebring proves easements, unlike fences, do not make good neighbors.

The appeal in that case was from the second suit between plaintiff Scot Bernstein and defendant Tim Sebring involving a road easement with a gravel road on plaintiff’s property that defendant uses as a driveway to access his property.

The parties settled the first case, which involved defendant clearing trees and performing other construction on the easement without plaintiff’s permission.

Plaintiff subsequently filed the second suit seeking to prohibit defendant from paving the easement’s gravel road.

The trial court denied defendant’s motion for judgment on the pleadings in the case and then, after a court trial, found in favor of plaintiff.

Defendant appealed, alleging the second action constituted an improper splitting of actions and asserting his easement right includes the right to pave the easement’s gravel road.

The appellate court affirmed the judgment against Defendant.

Plaintiff and defendant own adjoining properties within the same subdivision.

Defendant’s property has an easement on plaintiff’s property for ingress/egress that includes portions of a paved road going through the subdivision over plaintiff’s property and a 244.5 foot gravel/dirt roadway splitting off the paved road used as a driveway for defendant’s property.

In the first case, initiated in 2014, plaintiff’s complaint against defendant and other parties alleged defendant hired a construction company to enter plaintiff’s property without plaintiff’s permission and performed excavation, performed construction, cut down trees and removed the fallen wood, cut down landscape and other natural features, and used plaintiff’s native stone to construct a rock wall on plaintiff’s property. 

After a partial settlement between the parties, the trial court entered judgment in October 2018.

In May 2018, while the first case was pending, plaintiff filed another complaint against defendant for declaratory relief and a permanent injunction.

This complaint alleged defendant informed plaintiff he intended to immediately pave the gravel/dirt roadway, including the areas that are located on plaintiff’s property even though the paving of the gravel/dirt roadway on plaintiff’s property is not necessary for the use of the gravel/dirt roadway to travel to and from defendant’s property.

Defendant filed a motion for judgment on the pleadings in January 2019, arguing the complaint constitutes an improper splitting of actions, is uncertain under the California Rules of Court, and fails to allege facts sufficient to state a cause of action because a road includes, by definition, a paved surface.

The trial court denied the motion in February 2019. In a written order, the trial court rejected defendant’s pleading sufficient facts argument because it raised factual issues not amenable to determination on a motion for judgment on the pleadings.

The court also rejected defendant’s assertion the complaint violates court rules by being uncertain, finding the complaint sets forth the facts with sufficient precision.

Finally, the court found the complaint did not violate the rule against splitting a cause of action because there was no mention of defendant paving the easement in plaintiff’s earlier complaint.

The amended judgment to the prior action acknowledged a nonexclusive easement, but did not specify the scope of the easement; that is, what construction or improvements, if any, defendant was permitted to do within the portion of the easement at issue.

This action involved plaintiff’s request for declaratory relief because he alleged defendant intended to, but had not yet, paved the easement.

After a court trial on the merits in June 2022, the trial court found in favor of plaintiff. On the paving issue, the trial court found the evidence at trial established paving the driveway is not reasonably necessary to make it available for safe and convenient vehicular travel. Thus, the trial court enjoined defendant from paving the driveway.

Defendant first asserted the trial court erred by finding plaintiff’s complaint did not improperly split actions.

Defendant argued the primary right being litigated in both cases is the scope of the road easement and the secondary easement rights.  Thus, defendant argued plaintiff’s second action is barred because it arose out of the same facts and primary rights as the 2014 complaint.

The primary right theory provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty.

The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.

The “cause of action” is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.

The primary right theory has a fairly narrow field of application.

The theory is invoked when a plaintiff attempts to enforce one primary right in two suits, and if the first suit has terminated, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.

The first case involved plaintiff’s allegation defendant was cutting down trees and building a rock wall on the easement.

Plaintiff’s second suit involved defendant threatening to pave the road on the easement after the first action was initiated.

Though involving the same general subject matter, e.g., plaintiff’s property rights in relation to defendant’s easement, the actions are “distinct episodes” of defendant’s purported violation of plaintiff’s property right, establishing a valid second cause of action.

Finding otherwise could bar plaintiff from bringing any future suits involving the easement even if defendant threatens new types of harm to plaintiff’s property rights.

Res judicata may not apply when there are changed conditions and new facts that were not in existence at the time the action was filed upon which the prior judgment is based.

Defendant makes two more arguments that are related.

The first argument is under a subheading to his splitting of actions section, titled: “The 2018 Complaint Failed to Allege Facts Sufficient to State a Cause of Action.” Defendant

argued: A road includes, by definition, a paved surface. As a matter of law, the paving of defendant’s road easement is within the express scope of the easement and plaintiff therefore failed to state a cause of action.

The second argument is under its own heading in defendant’s brief, titled: “The Scope of the Road Easement.” Here defendant contended the trial court applied an incorrect necessity standard for improvement of an easement. Defendant asserted the correct standard is whether the improvement is “necessary for convenience, not necessary for actual use,” which paving the easement’s gravel road satisfies.

Both arguments asserted defendant’s easement right necessarily includes the right to pave the gravel road.

Every easement includes what are termed “secondary easements;” that is, the right to do such things as are necessary for the full enjoyment of the easement itself.

This can include the right to make repairs, renewals and replacements on the property that is servient to the easement and to do such things as are necessary to the exercise of the right.

A right-of-way to pass over the land of another 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 incidental or secondary easement rights are limited 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.

The appellate court rejected defendant’s assertion his road easement includes the secondary right to pave the gravel road as a matter of law.

The rule of reason applied to secondary rights depends on the reasonableness of the use of the easement, and given that reasonableness depends on the facts and circumstances of each case, whether a particular use of the land by the servient owner is an unreasonable interference is a question of fact for the fact finder.

Defendant presents no law supporting his argument that this is different for a road easement.

Defendant instead relies on a dictionary to argue that by definition, a road includes a paved surface.

This rests on a logical fallacy; because a road can be paved does not necessarily mean all roads are paved.

Declaring all road easements necessarily include the right to pave would also directly contradict established law that the scope of secondary easement rights depends on the circumstances of each easement.

Defendant’s easement rights specifically may include the secondary right to pave the gravel road, but this would require investigating whether the trial court’s factual finding lacked substantial evidence, and defendant does not make such a challenge on appeal.

There was no error with the trial court’s legal analyses. First, in the motion for judgment on the pleadings, the trial court found defendant’s argument on this issue raised factual issues not amenable to determination on a motion for judgment on the pleadings.

Second, at trial, the court found the evidence at trial established paving the driveway is not reasonably necessary to make it available for safe and convenient vehicular travel. This was the correct standard.

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.

Defendant misconstrues the standard when he argued there can be little doubt, and the evidence at trial showed, 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.

Based on the evidence presented at trial, the trial court found: Paving the driveway is not reasonably necessary to make the easement available for safe and convenient vehicular travel.

And again, defendant did not challenge the trial court’s factual finding. The appellate court therefore concluded defendant had not established the trial court erred.

LESSONS:

1.         The primary right theory provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. 

2.         The “cause of action” is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.

3.         The primary right theory has a fairly narrow field of application.

4.         The theory is invoked when a plaintiff attempts to enforce one primary right in two suits, and if the first suit has terminated, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.