This matter involves a dispute between the government and a group of persons, defendants, below, who are asserting an easement for a road across public lands. 1 It is here on defendant’s appeal from partial summary judgment holding defendants trespassers and the government entitled to immediate possession of the government lands over which defendants were constructing portions of the road at the time this suit was commenced.

We conclude the judgment cannot stand. Summary judgment may not be entered unless, in the language of Rule 56(c) Fed.R.Civ.P., “. . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This record discloses several such issues.

Defendants asserted the doctrine of easement by implication and necessity as the basis for the road. 2 They *445 relied upon affidavits, etc. which tended to show that they succeeded, through mesne conveyances, to the ownership or control of a number of sections and partial sections of land which had been patented in the year 1906 to the Southern Pacific Railway Company, pursuant to Congressional grant to aid in the construction of railroads (Act of July 27, 1866, 14 Stat. 292 ; Act of Mar. 3, 1871, 16 Stat. 573 ); that the lands so patented were and are wholly surrounded by public lands and that no roads to defendants’ lands have ever existed nor do the patents make any provision for access; that the lands, although never exploited commercially, have utility for some purposes and that defendants desire to “develop” them and sell parcels for home-sites and recreational uses; that the defendants, to that end, laid out and coim menced to construct a two lane surfaced road suitable for vehicular travel, linking said sections together and providing access to them; that upon completion defendants intended to dedicate the road to the public. They make further statements concerning the route selected and the width of the road, which tend to show that the course is predominantly dictated by the nature of the surrounding terrain and that the size is commensurate with the probable need.

The court held this showing insufficient to meet the government’s motion. It gave two reasons. The first that no necessity appeared. Said the *446 court: “It is interesting in connection with the claim of the defendants to a way of necessity that they have not shown that any of the parcels as to which defendants claim an interest is entirely landlocked.” Even if the record bore out this statement, such fact would not necessarily have ended the matter. 3 However, the record is to the contrary; it includes, in addition to defendants’ statements concerning lack of access to their lands, a plat which tends to show that most, if not all, of defendants’ lands are wholly surrounded by those of the government.

The district court, as the second basis for its ruling, declared in effect that, assuming an easement, the road exceeded in scope that contemplated by the government at the time patent issued. 4 But that fact does not support, let alone require, the conclusion reflected in the summary judgment that defendants are wholly without a right nor does it justify the broad order directing them to quit the public land altogether.

The defendants, having raised a factual issue as to whether or not they hold an easement, are entitled to a hearing to determine not only that issue, but the incidental ones that relate to it.

The judgment is vacated and the cause is remanded to the district court for further proceedings consistent with this opinion.

. The complaint names several persons as defendants, but the judgment, as well as the writ, runs solely against one of them— Michael Dunn, and leaves the present status of the others unclear. References to “the defendants” throughout this opinion include not only Dunn but any other of the defendants who are interested.

. Since the government did not, in our judgment, raise the point upon which Judge Wright bases his dissent, we have not discussed it in the opinion, but nevertheless did give it due consideration and concluded that it lacked merit. 3 Powell, Real Property, 443-444. See Superior Oil v. United States, 353 F.2d 34 (9th Cir. 1965).

The doctrine applies to roads:

. “Absolute” necessity is not always prerequisite to an implied easement. 2 Thompson, on Real Property, § 353.

. In this conclusion, the district court noted defendants’ concessions to the effect that the government at the time of patent (1906) had not intended a highway for motor vehicles across its retained lands, but this concession does not foreclose all inquiry into questions of size, nature and course of a road. See Superior Oil Co. v. United States, 353 F.2d 34 (9th Cir. 1965).