Gill v. Varwig
| Decision Date | 15 January 2014 |
| Docket Number | C070505,C069565 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JASBIR S. GILL et al., Plaintiffs and Respondents, v. ROGER VARWIG, Defendant and Appellant. JASBIR S. GILL et al., Plaintiffs and Appellants, v. ROGER VARWIG, Defendant and Respondent. |
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No.
Plaintiffs Jasbir and Parampal Gill own two parcels of agricultural property on which they have planted a vineyard. They access a portion of their property over an unpaved route across property owned by defendant Roger Varwig. This route is shownas a road on old maps. The Gills claim the right to use this route either because it is a dedicated public road or because they have a prescriptive easement. This dispute arose when Varwig obstructed the Gills' access, first by means of a barbed wire "fence" blocking the unpaved route and then by digging a ditch across it. Jasbir Gill's truck got stuck in the ditch.
The Gills filed suit against Varwig. The trial court found in their favor, finding a public right of way or a prescriptive easement across Varwig's property. The court issued an injunction preventing Varwig from interfering with this public right of way or easement and awarded the Gills damages, including damages for emotional distress and punitive damages.
Varwig appeals, contending substantial evidence does not support the finding of either a public right of way or a prescriptive easement, or the damages awarded. The Gills cross-appeal from the order denying their motion for attorney fees.
As we will explain, we modify the judgment. Substantial evidence does not support the trial court's finding of a public right of way or the award of damages for emotional distress. The damage award for loss of use of the easement must be reduced to exclude the period of time for which there is no evidence of obstruction. In all other respects, we affirm the judgment and the order denying attorney fees.
The properties involved in this case are rural lots in the County of San Joaquin (the County) shown on the Map of Morse Colony recorded in 1895. The map contains 56 lots, laid out in roughly a checkerboard pattern. The southern boundary is designated a public highway, now known as Eight Mile Road, and the northern boundary is Morse Road. An irrigation canal maintained by the Woodbridge Irrigation District (WID) cuts through the middle of these lots; the canal runs north to south with an angled jog. (A branch of the WID canal, not shown on any of the maps, bisects several lots east to west,crossing Lincoln Road, now called Leach Road.) The map shows Leach Road, which runs north to south just east of the western two columns of lots on the checkerboard. The Gills contend that a section of this road contains their easement or the public right of way. This section of road allowed the Gills to access those portions of two lots (lots 21 and 22) positioned south of the canal's east/west branch by passing between two of Varwig's lots (lots 10 and 23). About one-third of Lots 21 and 22 are south of the branch; two-thirds are north.
Varwig, an engineer and contractor, owns several lots in the area. So do the Gills. As relevant here, Varwig owns two lots on either side of Leach Road; these two lots are four lots north of Eight Mile Road. To the immediate west of Leach Road is Lot 10, which Varwig has owned since 1996, and to the immediate east of the road is Lot 23, which he purchased in 2002. Varwig's house is on Lot 10. Directly north of Lot 23, and also to the immediate east of Leach Road, is Lot 21 and directly east of this lot is Lot 22. The Gills own both of these lots, as well as others in the area.
Leach Road is paved north of Eight Mile Road. The paved road ends just south of Varwig's Lots 10 and 23, more than a full lot south of the Gills' Lots 21 and 22. As one travels north on Leach Road there are three signs. One indicates the road ends in 500 feet; another says "not a through road;" at the end of the paving a sign reads, "End County Maintained Road." In short, the disputed property is the unpaved portion of Leach Road, running between Varwig's Lots 10 and 23 and traveling north to the irrigation canal branch that bisects the Gills' Lot 21 and Lot 22 to the east.
The Morse Colony Map was recorded in 1895. The map includes the following offered dedication: "I hereby dedicate the streets, avenues, roads and alleys as shown on this map for use to the public forever." In the 1970's, the County accepted the dedication of Leach (formerly Lincoln) Road 1250 feet north of Eight Mile Road (the pavedportion). There is no evidence that the County ever formally accepted the dedication of the portion of Leach Road further north to the canal branch (the unpaved portion).
A parcel map recorded in the 1970's shows Leach Road and notes that Leach Road is "not open on the ground" south of the canal branch. In the opinion of Varwig's expert surveyor and engineer, this means the road "does not exist."
James Formento previously owned Lots 21, 22, and 23, the lots to the east of Leach Road. He had been an assistant assessor.
The Gills are both medical doctors from agricultural families. They own a number of agricultural parcels in the County. They rented Lots 21 and 22 in 1998 and purchased the lots two years later from Formento. Jasbir Gill understood that he could access the portions of Lots 21 and 22 that were south of the canal branch by way of Leach Road, including the unpaved portion of the road between Varwig's Lot 10 and Lot 23. The Gills began planting a vineyard on Lots 21 and 22 in 2002. The first harvestable crop was in 2005. Gill claimed he used Leach Road to access his property every year from 2002 through 2006 without any objection by the owner of Lots 10 and 23.
The Gills first had problems accessing the southern portions of Lots 21 and 22 by means of Leach Road in August of 2007. On August 18, Gill had to cut a barbed wire that was strung between two poles across the road to access his property. Immediately thereafter, he reported to the police that his access was obstructed. Varwig claimed the barbed wire "fence" was there when he purchased the property. Gill did not "recollect" seeing the fence before. The fence obstructed the entire width of the alleged right of way.
On August 20, 2007, Gill was driving his truck about 20 miles per hour on the unpaved portion of Leach Road. He came to an abrupt stop and his truck got stuck in a ditch. The ditch was a trench filled with water and camouflaged with weeds. Gill wasconfused and suffered some chest pain.1 He was in a "little shocky state" and called his manager to come help him. The manager took Gill home.
Varwig complained to the sheriff about Gill's stuck pickup truck. The sheriff went to see Gill. After Gill explained about the ditch, he thought the sheriff was satisfied with his explanation.
Varwig claimed he had discovered a leaky water pipe on August 18 and his son put up caution tape in the area where the barbed wire had been cut. To repair the water line, Varwig dug a 40-foot ditch, using a back hoe, and replaced the pipe.2 The irrigation line went to the end of the fence. Varwig filled the trench with existing dirt, compacted the dirt using a wheel roller, and restrung the caution tape. He did not water the ground as it was already wet. Varwig claimed Gill removed the caution tape before he crossed the area. Varwig took pictures of the accident, but did not offer assistance or have any conversation with Gill. The pictures showed the front wheels of Gill's truck caught in a ditch and a pile of yellow tape nearby.
After this ditch incident, Gill was very concerned about whether he would be able to harvest his grapes. He suffered anxiety and sometimes lost sleep. After Gill sought legal advice, Varwig relented and allowed Gill access to his property to complete his harvest in 2007.
Gill again became concerned about his ability to access the southern portion of Lots 21 and 22 from Leach Road in the spring of 2008 when work in the vineyard was about to resume. Gill's concern arose in March or April because Varwig had placed some rocks in the access to the vineyard. Varwig had also planted corn in the right of way in 2008.
Gill went to the WID to see if something could be done so he could have adequate access to the southern portions of Lots 21 and 22 without the need to travel the unpaved portion of Leach Road. The WID widened an existing bridge over the canal from Pearson Road (which borders the Gill's property to the east) to the southern portion of Lot 22 to permit access by large harvesting machinery. The WID finished construction of the widened bridge within two weeks after Gill contacted them and charged the Gills $3,506 for the construction. Gill testified the route to lots 21 and 22 over Leach Road was much safer for transporting large harvesting equipment than was the route from Pearson Road over the widened bridge.
On June 12, 2008, the Gills filed suit against Varwig. The complaint sought a temporary restraining order, and a preliminary and permanent injunction to prevent Varwig from interfering with the Gills' easement across Varwig's property. The complaint also sought to quiet title to the easement. The Gills claimed an easement by operation of law due to necessity alleging that there was no other reasonable alternative for access to their property. The complaint alleged that the Gills' property and Varwig's property had previously been under common ownership. When part of the property...
To continue reading
Request your trial