1 Filed 1/15/14 Gill v. Varwig CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (San Joaquin)

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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. C069565 (Super. Ct. No. 3920080018622 2CUORSTK)

C070505 (Super. Ct. No. 3920080018622 2CUORSTK)

Plaintiffs Jasbir and Parampal Gill own two parcels of agricultural property on which they have planted a vineyard. They access a portion of thei r property over an unpaved route across property owned by defendant Roger Varw ig. This route is shown2 as a road on old maps. The G ills 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 r oute and then by digging a ditch across it. Ja sbir Gill’s truck got
stuck in the ditch. The Gills filed suit against Varwig. The trial court f ound in their favor, finding a public right of way or a prescriptive ease ment across Varwig’s property. The court issued an injunction preventin g Varwig from interfering with this public right of way or easement and awarded the Gills damages, in cluding damages for em otional distress and punitive damages. Varwig appeals, contending substantial evidence does not support the finding of either a public right of way or a prescriptiv e easement, or the damages awarded. The Gills cross-appeal from the order deny ing their motion for attorney fees. As we will explain, we modify the ju dgment. 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 a nd the order denying attorney fees. FACTUAL AND PROCED URAL BACKGROUND The Properties The properties involved in this case are ru ral lots in the County of San Joaquin (the County) shown on the Ma p of Morse Colony recorded in 1895. The map contains 56 lots, laid out in roughly a ch eckerboard pattern. The southe rn boundary is designated a public highway, now known as Eight Mile Road, and the northern boundary is Morse Road. An irrigation canal ma intained by the Woodbridge Irri gation 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,3 crossing Lincoln Road, now called Leach Road.) The ma p 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 cont ains 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 th e 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 se veral lots in the area. So do the Gills. As relevant here, Varwig owns two lots on e ither side of Leach Road; these two lots are four lots north of Eight Mile Road. To th e 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 G ills’ Lots 21 and 22. As one
travels north on Leach Road th ere are three signs. One indi cates 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 a nd traveling north to the irrigation canal branch that bisects th e Gills’ Lot 21 and Lo t 22 to the east. History of the Properties The Morse Colony Map wa s recorded in 1895. Th e map includes the following offered dedication: “I hereby dedicate the st reets, 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 paved4 portion). There is no evidence that the Count y ever formally accepted the dedication of the portion of Leach Road fu rther north to the canal br anch (the unpaved portion). A parcel map recorded in the 1970’s shows Leach Road an d notes that Leach Road is “not open on the ground” south of th e canal branch. In th e 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 ag ricultural families. They own a number of agricultural parcels in the Co unty. They rented Lots 21 and 22 in 1998 and purchased the lots two years later from Formento. Jasbir Gill understo od that he could access the portions of Lots 21 and 22 th at were south of the canal branch by way of Leach Road, including the unpaved portion of the road be tween 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. Events of August 2007 The Gills first had problems accessing th e 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 hi s 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 th e entire width of the alleged right of way. On August 20, 2007, Gill was driving his truck about 20 m iles 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 camouf laged with weeds. Gill was5 confused and suffered some chest pain. 1 He was in a “little s hocky state” and called his manager to come help him. The manager took Gill home. Varwig complained to the sheriff about Gill’s stuck pi ckup truck. The sheriff went to see Gill. After Gill explained about th e ditch, he thought th e sheriff was satisfied with his explanation. Varwig claimed he had discovered a le aky 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, usin g 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 accide nt, 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 whethe r he would be able to harvest his grapes. He suffered anxiety an d sometimes lost sleep. After Gill sought legal advice, Varwig relented and allowed Gi ll access to his proper ty to complete his
harvest in 2007.

1 Varwig objected to any testimony about Gill’s injuries because Gill had refused to address his physical or emotional injuries in his deposition. After reviewing the deposition, the trial court found Gill had w ithdrawn any claim for physical injuries, but he would be allowed to testify about emotio nal distress. The court noted the emotional distress had to be “severe.”

2 Leach Road is 40-feet wide, the same width as the trench, which Gills’ attorney sarcastically referred to as a “lucky coincide nce.” He claimed Va rwig had dug a “tank trap” and caught his client.6 Subsequent Events Gill again became concerned about his ab ility 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 con cern arose in March or Apr il because Varw ig 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 a nd 22 without the need to travel the unpaved portion of Leach Road. The WID widened an ex isting bridge over the canal from Pearson Road (which borders th e Gill’s property to the east ) to the southern portion of Lot 22 to permit access by large harvesting mach inery. The WID fi nished construction of the widened bridge within two weeks after Gill contacte d 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 harv esting equipment than was the route from Pearson Road over the widened bridge.
The Lawsuit On June 12, 2008, the Gills filed suit against Varwig. Th e complaint sought a temporary restraining order, and a prelimin ary 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 ea sement. The Gills claimed an easement by operation of law due to necessity alleging th at there was no other reasonable alternative for access to their property. The complaint alleged that th e Gills’ property and Varwig’s property had previously been under common ow nership. When part of the property was conveyed to the Gills and part to Varwig, the Gills had no access to their property other than the easement across Varwig’s property. Three months later, the Gills filed a first amended complaint (FAC). The FAC alleged that when the Gills bo ught Lots 21 and 22, the seller (and former owner of Lot 237 as well), Formento, told them th at Lot 23 had been sold to Varwig with the understanding
that there was an access easement across it so that the southern portions of Lots 21 and 22
could be farmed. The Gills claimed an easement across Va rwig’s property under three theories: (1) a public right of way; (2 ) an implied easement according to the oral agreement at the time of sale of Lot 23; 3 and (3) strict necessity as there was no other
reasonable alternative for access to the G ills’ property. The FAC sought damages, including for emotional distress , as a result of Varwig’s obs truction and interference with the easement, and punitive damages for Varw ig’s willful and oppressive conduct. Finally, the FAC sought to quie t title in the Gills to a 15-foot wide easement across Varwig’s property. 4 Varwig moved for a judgment on the pleadin gs or nonsuit. He asserted that the Gills now claimed, in their settlement statem ent, an easement by public dedication. He contended that the Gills had failed to join the County as an indispensi ble party, so the suit
should be dismissed. The trial court denied the motion, findi ng the County was not an indispensible party. The Trial At trial, the Gills claimed an easeme nt over Varwig’s property either as a dedicated public right of way or an easement by prescription. During trial, the trial court permitted the Gills to amend the FAC to alle ge an easement by prescription. Varwig

3 The Gills abandoned this th eory of an oral easement. “An easement creates a present incorporeal interest in real property that is subject to th e statute of frauds and is protectable, irrevocable, and compensable.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2001, Supp. 2006) § 15:2, p. 15-11.) Under the statute of frauds, an agreement for an interest in real property must be in writing to be valid. (Civ. Code, § 1624, subd. (a)(3).)

4 The trial court found a prescriptive easemen t of 40 feet. There is no issue on appeal as to the scope of the easement.8 objected to the continuing change in theories, complaining it wa s “like trying to pin jello
on the wall.”
Gill testified he had used Leach Road for access to hi s property without objection from 2002 until August 2007. He claimed he had traveled up L each Road from Eight
Mile Road to the canal branch “for many years, seven years.” The trial court sustained Varwig’s objection to Gill’s atte mpt to testify that Formento had told him such use of the unpaved portion of Leach Road had been ongoing for 50 years. Varwig testified Gill was able to access th e southern portion of his properties with harvesting equipment over the existing concre te bridge even before the new culvert bridge was installed, and had done so in 20 07. There was now a lo cked gate across this bridge which Varwig’s son had installed, bu t Varwig did not own the property. Varwig testified that from 1998 until 20 07 he never saw Gill on Leach Road. Varwig had once seen a young man on a minibike on Leach Road and occasionally people left trash there. WID personnel “possibly” used the road to a ccess the canal branch. People walked along the levy by the canal branch to “fish and crawdad.” Varwig put a chain link fence around his property for security. 5 Gill never told Varwig that he thought he had access rights. Varwig saw Sammy, Gill’s foreman, but they never discussed an easement. Varwig testified he told Sammy he did not want them (Gill’s employe es) crossing over his property. Statement of Decision In its statement of decision, the trial court found “there exists an accepted dedication of the disputed easement through pu blic use.” The court found it “clear” that if Formento had been willing to pay to pave the northern pa rt of Leach Road, the County would have accepted the de dication of it, but Formento “lik ely” felt no need to incur that

5 The engineer and surveyor hired by the G ills testified this ch ain link fence did not infringe upon the alleged easement, except wh en the fence went ar ound an oak tree.9 expense. “Likely access was made by members of the public looking for crawfish in the canal” and by WID maintenance personnel. “The Court finds that what was likely originally a dirt road in 1895 wa s accepted by public use and travel.”
The court further found that “[i]f plaintiffs did not ha ve entitlement to use of the land . . . as a member of the general public, they would hold a prescriptive easement in said land in that the five-year period of use by the Plaintiffs was completed before” the August 18, 2007 incident.
The court found that Varw ig’s “wrongful complete de privation of use of the easement began on August 18, 2007” when Varwig stru ng a piece of barb ed wire across the easement. Afterwards, Varwig “created a modest ‘tank trap’” and Gill’s vehicle was caught. From that date, Varwig “continuous ly denied Plaintiffs use of the right of way/easement.” The court found a mandatory and prohib itive injunction was necessary to restore
the condition of the easement. It awarded to the Gills compensatory damages of $50 per day from August 22, 2007 6 until the date of entry of judg ment, a total of $72,300. The court also awarded the Gills damages for the co st they paid for the bridge that the WID constructed ($3,506) and for the expense of pr oviding a legal description of the easement ($3,820). The court awarded $50,000 for Gi ll’s emotional distre ss. The court found Varwig acted with malice and oppression on A ugust 22, 2007, so an award of punitive damages was appropriate. A bifurcated tr ial was to be held on Varwig’s financial
condition. Costs were awarded to the Gills and “[a]ny application for attorneys fees pursuant to Code of Civ. Proc., § 1021.9 will be cons idered on noticed motion.”

6 Although the evidence shows th e date of the “tank trap” inci dent as August 20, the trial court used the date of August 22.10 Punitive Damages At the hearing on punitive damages, he ld April 18, 2011, Varwig testified the balance on his home mortgage was $405,45 2.76 and his house was currently worth $400,000 to $450,000. The ta x assessment had been lowered in July 2010 to $468,452. In a loan application in December 2008 , Varwig placed the value of his home at $650,000. He testified he did not correct th is figure because he was “under duress[,] I needed money to live.” Varwig’s tax return s for 2008 showed rent al income of $69,000 and income of $17,475 from a neighbor’s orch ard that he farmed. Varwig’s 2009 tax return showed gross income from farming of $26,516. He owned small tools and equipment, and a 2003 Ford truck with 125,0 00 miles on it. His company owned a 2001 truck with 225,000 miles on it. The compan y was close to the limit on two credit lines and had accounts payable of $123,000. Va rwig had paid $300, 000 for Lot 23 and $140,000 for Lot 25; he es timated their current valu e as about $125,000 each. The court awarded $35,00 0 in punitive damages. Motion for New Trial Varwig moved to vacate the judgment and to enter a different judgment. He also
moved for a new trial on the basis of insu fficient evidence and excessive damages. 7 The court denied these motions and Varwig appealed. Motion for Attorney Fees The Gills moved for attorn ey fees pursuant to Code of Civil Procedure section 1021.9. They sought fees of $6 5,779.50 and costs of $1,593.09.

7 “A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were e ither excessive or inadequate, whether the case was tried by a jury or by the court. [Citation.]” ( Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719.)11 The trial court denied the motion, finding that the Gills failed to give notice of a demand for attorney fees in their pleadings and there was no damage to crops under cultivation as contemplated by Code of Civil Procedure section 1021.9. The Gills separately a ppealed from this order. DISCUSSION
I Public Dedication
A. The Law
“A dedication is the transfer of an inte rest in real property to a public entity for the public’s use.” ( Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 543.) “Dedication of private property for public use requires an offer of dedication by the owner and an acceptance of the offer by the public entity. [Citations.]” ( Ackley v. City Etc. of San Francisco (1970) 11 Cal.App.3d 108, 112.) A statutory dedication is effected when the public agen cy accepts the offer of dedication. ( Scott v. City of Del Mar (1997) 58 Cal.App.4th 1296, 1302.) “[A] failure to complete a statutory dedication does not negate the possibility of a common law dedication.” ( Hanshaw v. Long Valley Road
Assn . (2004) 116 Cal.App.4th 471, 474.) When the public uses the land for the offered purposes over a reasonable period of time, ther e is an implied acceptance of the offer of dedication without any formal acti on by governmental authority. ( Biagini v. Beckham (2008) 163 Cal.App. 4th 1000, 1009 ( Biagini ).) The extent and character of the public use
must be commensurate with the nature of the property dedicated. ( Biagini, supra, 163 Cal.App.4th at p. 1011.) “Hence, a dedication, like a contract, cons ists of an offer and acceptance, and it is settled law that a dedication is not binding until acceptance, proof of which must be unequivocal [citation]. The accep tance may be actual or implied. It is actual when formal acceptance is made by the proper authorities, and im plied, when a use has been12 made of the property by the pub lic for such a length of time as will evidence an intention to accept the dedication.” ( County of Inyo v. Given (1920) 183 Cal. 415, 418.) The burden of proving an im plied dedication is on the part y seeking to establish it. ( Robas v. Allison (1956) 146 Cal.App.2d 716, 720 .) Whether there was an implied acceptance of an offer of dedication is a questi on of fact and we review the trial court’s findings of fact for s ubstantial evidence. ( Biagini, supra, 163 Cal.App.4th at p. 1010.) “To be substantial, the evidence must be credible and of solid value. [Citation.] ‘While substantial evidence may consist of inferences , such inferences mu st be “a product of logic and reason” and “must rest on the eviden ce” [citation]; inferences that are the result of mere speculation or c onjecture cannot support a finding.’ [Citations.]” ( Casella v. SouthWest Dealer Services, Inc . (2007) 157 Cal.Ap p.4th 1127, 1144.)
B. Analysis The trial court found there was an accep ted dedication of the public easement by public use. Varwig contends substantia l evidence does not support this conclusion
because the court relied on speculation. We agree.
The court found there ha d been public use of all of Leach Road, establishing acceptance of the dedication. The court posite d the “likely reason” for the paved road to
end before the Gills Lot 21 was that Formento, who previo usly owned Lots 21, 22, and 23, “likely” felt no need to bear the expens e of paving the road. The court found it
“clear” that if Formento had been willing to pay for the pa ving, the County would have formally accepted the dedicatio n in its entirety. Further, there was “likely” access by members of the public. Citing the “events lik ely to exist” in 1 895 when the map was
recorded and the need for ac cess across neighboring propertie s, the court concluded “that
what was likely originally a dirt road in 1895 wa s accepted by public use and travel
across the road even if the County did not formally accept the offer of dedication at that
time.”13 As the repeated use of the word “likel y” shows, the court’s conclusion is based entirely on speculation. “While substantial evidence may co nsist of inferences, such
inferences must rest on the evidence ; inferences that are the result of speculation or conjecture cannot support a finding. [Citation.]” ( In re Precious D . (2010) 189 Cal.App.4th 1251, 1259, italics added.) There was no eviden ce that Formen to (or anyone else) was required to pay for paving the releva nt portion of Leach Road for the County to accept its dedication, or that th e County would accept a road dedication only if the road were already paved. 8 Rather, the evidence suggests there was no need for a public road in that particular area because it accessed only the private property of one person, obviating the need fo r any public access. Nor did the Gills provide s ubstantial evidence of current public use of the unpaved
Leach Road to show acceptance by public use. The evidence of current use was practically nonexistent. Varwig saw a ma n on a minibike on the road just once and occasionally someone dumped garbage on the road. Th ese limited uses are not commensurate with the dedication of a road. ( Biagini, supra, 163 Cal.App.4th at p. 1011.) Varwig saw people on the canal’ s levy, fishing and looking for crayfish, but there was no evidence that these people had accessed the levy using the unpaved portion
of Leach Road--there were ot her means of access. Varw ig testified WID personnel “possibly” used the road to access the irri gation canal. They had access to the canal branch from Pearson Road and Varwig had seen them use Leach Road north of the canal. But there was no evidence WID personnel routin ely used the unpaved portion of Leach
Road. There was evidence that Gill and his employees used that portion of the road. Gill
testified he had used it to a ccess the southern portion of his properties for seven years.

8 The trial court cited a resolution in wh ich the County approved agreements with Formento and others to pay for road construc tion on Leach Road. The court cited Exhibit AA, but this resolution is not part of the Exhibit AA in the record.14 As Biagini, supra, 163 Cal.App.4th 1000, explains, howev er, this use is insufficient to constitute acceptance of the de dication by public use.
At issue in Biagini was the sufficiency of the evidence of pu blic use to show acceptance of a dedication of a road. The ro ad was commonly used by business clients of two adjoining property owners. Both prop erty owners had express private easements over the road. ( Biagini, supra, 163 Cal.App.4th at pp. 1011-1 012.) This court found the clients’ use was not a sufficient public use to constitute acceptance of the dedication. ( Id

. at p. 1013.) We reasoned that a dedication is in the nature of an estoppel and is a matter between the owner and the public, not between the owner and individuals. “Thus, where the public at large relies on an offer to dedicate land to public us e to such an extent that it would be unfair under principl es of estoppel to deny the pub lic continued use of the land for that purpose, implied acceptance of th e offer of dedication will be found.” ( Id . at p. 1012.) Since the use of the ro ad by the clients of adjoin ing landowners was not beyond the scope of the private easements and thes e easements would continue to permit the same access, “the conclusion that an imp lied acceptance of the Beckhams’ offer of dedication never occurred results in no injus tice or unfairness, and thus the fundamental basis for finding such an acc eptance does not exist.” ( Id . at p. 1013.) Here, of course, the Gills have no express easement. We conclude post , however, that they do have a prescriptive easement ove r the unpaved portion of Leach Road. Since
their use of the road does not exceed the scope of the pr escriptive easement and the prescriptive easement will allow fo r access to the Gills’ property, “ the fundamental basis for finding such an accepta nce does not exist.” ( Biagini, supra, 163 Cal.App.4th at p. 1013.) Varwig contends the trial court erre d in finding the Co unty was not an indispensible party because the declaration of a public right of way would affect the County’s rights and obligations. He also cont ends that Code of Civil Procedure section 771.010, providing a conclusive presumption that a proposed dedication was not accepted15 if certain conditions are met, applies. Beca use we have found that substantial evidence does not support the trial court’ s finding of a public right of way due to acceptance of the road dedication by public use, we need not address these contentions.
II Prescriptive Easement
A. The Law “A prescriptive easement is establishe d by use of land that is (1) open and notorious, (2) continuous and uninterrupted, and (3) adverse to the true owner, and that is all of these things (4) for a period of five years. [Citations.]” ( Windsor Pacific LLC v. Samwood Co., Inc . (2013) 213 Cal.App.4th 263, 270; see Civ. Code, § 1007; Code Civ. Proc., § 321 [five-year period].) “The purpose of these requireme nts is to insure that the owner of the real property which is being en croached upon has actual or constructive notice of the adverse use and to provide su fficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement. [Citations.]” ( Fogerty v. State of California (1986) 187 Cal.App.3d 224, 238 ( Fogerty ).) “‘The actual use required depends on the natu re of the easement. It need not be used every day during the prescr iptive period. The use is sufficient if it occurs on those occasions when it is necessary for the convenience of the user.’ [Citation.]” ( Fogerty,

supra , 187 Cal.App.3d at p. 239.) For example, use of a water ditch only when needed during the growing season is sufficient for continuous use. ( Hesperia Land & Water Co. v. Rogers (1890) 83 Cal. 10, 11.) “The requirem ent means that there be no break in the essential attitude of mind required for adverse us e rather than that the use be constant.” ( Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432 ( Zimmer ).) The party seeking to establish a prescrip tive easement has the burden of proof of doing so by clear and convincing evidence. ( Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938.) “The higher standard of proof demonstrates there is no policy favoring the establishment of prescriptive easements.” ( Grant v. Ratliff (2008) 164 Cal.App.4th 1304,16 1310.) “Whether the elements of prescriptive use have been established is ordinarily a question of fact, reviewed u nder the substantial evidence standard. [Citation.]” ( Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1250.) Su ch review requires that we resolve all
conflicts in the evidence in favor of the prevailing party, here the Gills, and that we view
the evidence in the light most favorable to the Gills. ( Zimmer, supra, 39 Cal.App.3d at p. 431.) “If there is any substantial evid ence to support the judgment, it must be affirmed. [Citations.]” ( Ibid .) The testimony of a single witness, even that of a party, may provide substantial evidence. ( In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
B. Analysis Here, Varwig and Gill presented two starkl y different versions of events. Varwig
testified the barbed wire fence that Gill cut to gain access had been on Varwig’s property when he bought it; he had never seen Gill or his employees use the road; Gill never claimed a right to use the road and his manager never mentioned an easement; and Varwig told Gill’s manager he did not want them crossi ng his property. In sharp contrast, Gill testified he ha d used the unpaved portion of Leach Road for seven years without any objection. He had planted vi neyards on Lots 21 and 22 and harvested them for several years. He claimed these activitie s required the access of Leach Road. Gill provided pictures that showed deep tire tracks on the disputed easement to show its use as a road. Although Varwig conten ds that Gill’s report to the po lice when he cut the barbed
wire shows Gill knew he did no t have permission or a right to be on the road, Gill testified he made the report because his lawful access was obstructed, not to report that he was trespassing. Varwig contends the Gills failed to esta blish by clear and convi ncing evidence that
he had notice of their adverse use. His ar gument, however, relies mostly on his testimony and discounts Gill’s testimony as “self-serving.” It was for the trial court to determine the credibility of the witnesse s and resolve any conflicts a nd inconsistencies in their testimony. ( Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334 ( Sav-17 On Drug Stores ).) “[T]he testimony of a witness o ffered in support of a judgment may not be rejected on appeal unless it is physica lly impossible or inherently improbable and such inherent improbability plai nly appears. [Citation.]” ( Beck Development Co. v. Southern Pacific Transportation Co . (1996) 44 Cal.App.4th 1160, 1204.) Gill’s testimony was not inherently im probable and the trial court was entitled to accept it over Varwig’s testimony. If Gill and his employees used the road at issue, Varwig had notice
of such use because his reside nce was close to that road. In his reply brief, Varwig contends Gill did not establish a fi ve-year, continuous adverse use because he used the disputed easeme nt for only a few days each year. As we have explained, to be continuou s, the use need not be constant. “‘The use is sufficient if
it occurs on those occasions when it is ne cessary for the conven ience of the user.’ [Citation.]” ( Fogerty, supra , 187 Cal.App.3d at p. 239.) Varwig further contends Gill’s use pr ior to December 2002, when Varwig acquired Lot 23, was not adverse because G ill believed he had permission from the prior
owner to use the easement. Gill testified onl y that he understood he could obtain access to his property through Leach Road , not that he had the owner’s permission to do so. Varwig contends that Gill’s understanding “i s equivalent to havi ng permission” and a permissive use is not adverse. But Gill testified only that he used the disputed easement without the owner’s objection, not that he sou ght or obtained permis sion. The failure to request permission may be sufficient to prove the use of the property was under a claim of right. (6 Miller & Starr, Cal. Real Estate, supra, § 15:32, p. 15-123.) Substantial evidence supports the finding of a prescriptive easement. Because we find the evidence supports only a prescriptive easement and not acceptance of a public dedication, we need not address Varwig’s cont ention that the trial court’s declaration of both a public right of way and a prescriptive easement is legally inconsistent.18 III Damages for Loss of Use
A. The Law The owner of an easement “may maintain an action for the enforcement of this intangible right and may recover damages fro m a party for obstructing the easement. [Citations.] Awardable damages compensate th e plaintiff for loss of use of the easement
and the diminished value of the lot it benefited.” ( Kazi v. State Farm Fire & Casualty
Co . (2001) 24 Cal.4th 871, 881.) “When a person interferes with the use of an easement he deprives the easement’s owner of a valuable property ri ght and the owner is entitled to compensatory damages. The interference is a private nuisance and th e party whose rights have been impeded can recover damages as measured in the case of a private nuisance. [Citations.] Damages may be recovered for diminution of the property’s value and for annoyance and discomfort flowing from loss of use. [Citations.]” ( Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574 ( Moylan ).)
In Moylan , the defendant constructed a fence across an easement, which denied each plaintiff access to his or her property; these property owners were unable to sell their property or, as one testifie d, to “do anything with it.” ( Moylan, supra, 181 Cal.App.3d at p. 574.) Defe ndants contended plaintiffs suffered no damages because the properties increased in value du ring the years when plaintiffs were denied access. The court found plaintiffs’ damages, although intangible, were re al. “The fact remains that plaintiffs were wrongfully de prived of access to their properties for a period of several years. The trial court fixed plaintiffs' da mages at $3 per day. That amount was not
excessive. The trial court did not abuse its discretion in asse ssing plaintiffs’ damages as it did. We find no error.” ( Ibid .)19 B. Analysis Here, the trial court awarded the Gills damages of $50 per day from August 17, 2007 to the date of judgment for loss of use of the easement. 9 The total amount of these damages was $72,300. Varwig contends the eviden ce does not support this award of damages. First, he contends the Gills are entitled to damages on ly for the intermittent period when they actually used their property, a period Varwig id entifies as only the harvest. We disagree that damages should be limited to the days of the harvest. Gill or his employees went to the property at other times, to check on the property or perform pruning and other agricultural activities. Inde ed, Gill was going to his vine yard on both August 18 and August 20, 2007 when impeded by Varwig, and the ha rvest that year was not until September. Varwig cites no authority that da mages for loss of use are limited to days when plaintiff can show he would have used the easement if not for the obstruction. The Moylan court did not limit damages to certain days or require specific proof of intent to use for each day. Next, Varwig contends that the Gills were required to mitigate damages and
alternative routes were available. The Gills did mitigate their damages. By asking WID to widen the bridge so they could access the southern portion of their properties from Pearson Road, they were able to use that route for the 2008 harvest. Had they not done so, Varwig might be facing increased damages for loss of the crop. Varwig provides no authority, and we have found no ne, that an easement providing a right of way necessarily
terminates when alternate access is available. (See Civ. Code, § 811 [modes of extinguishing easements].) Rega rdless of the availability of other routes to access their

9 Varwig does not challenge the $50 per day figure.20 property, the Gills were entitled to damages for “for annoyance and discomfort flowing from loss of use. [Citations.]” ( Moylan, supra, 181 Cal.App.3d at p. 574.) We do find, however, that the eviden ce does not fully support the award of damages. The trial court found that after August 22, 2007, Varwig “continuously” denied the Gills’ use of the right of way. The ev idence does not support this finding. Gill testified that after he contacted an attorney , Varwig “relent[ed]” and allowed him to use the right of way to harvest his property in 2007. Gill had no concern about use of the right of way until the next sp ring, March or April, when Varwig placed rocks in the access to the vineyard and plante d corn in the right of way. The evidence is not exact as to the time frames, but a fundamental rule of a ppellate review requires that we resolve all ambiguities in favor of the judgment. ( Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 755-756; accord Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.) We find that from September 2007, wh en the 2007 harvest took place, until March 2008, when the Gills’ concerns returned, there was no evid ence that Varwig obstructed the Gills’ easement. Accordingly, the damages for loss of use must be reduced by $9,100 (182 days times $50).
IV Damages for Widening WID Bridge Varwig contends there is no basis in law or the evidence for the trial court’s award of $3,506 for the Gills’ paym ent to WID to widen the culv ert bridge over the WID canal near Pearson Road. He argues that G ill chose to plant a crop whose harvesting equipment required a wider wh eelbase than his access accomm odated. He contends the widened bridge benefitted only the Gills, so it was unfai r to charge him with the cost, and such damages were duplicative of the loss of use damages. “The doctrine of mitigation of damage s holds that ‘[a] plaintiff who suffers damage as a result of either a breach of cont ract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could21 have been thus avoided’ [Citations.]” ( Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.) The Gills complied with that dut y by finding an alternate access to permit harvesting their crops after Varw ig blocked their easement. In doing so, the Gills avoided the greater damages for lo ss of their crop. Accordingly, they are entitled to recover as damages the lowe r cost of the mitigation. (See AIU Ins. v. Superior
Court (1990) 51 Cal.3d 807, 833 [c osts that are “mitigative” in nature constitute damages in ordinary terms]; CUNA Mutual Life Ins. Co. v. Los Angeles County Metropolitan Transportation Authority (2003) 108 Cal.App.4th 382, 386 [in eminent domain proceeding property owner is entitled to recover reasonable costs incurred to mitigate damage even if post-mitigati on events indicate there woul d have been no damage].)
V Damages for Emotional Distress
A. The Law “[R]ecovery for emotional distress caused by injury to property is permitted only where there is a preexisting relationship betw een the parties or an intentional tort. [Citation.]” ( Lubner v. City of Los Angeles (1996) 45 Cal.App. 4th 525, 532.) The
elements of a cause of action for intentiona l infliction of emotional distress are: (1) extreme and outrageous conduct by the defendan t; (2) done with the in tention to cause, or with reckless disregard of the probability of causing, emotiona l distress; (3) the plaintiff’s suffering severe or extreme emotional distress ; and (4) actual and pr oximate causation of emotional distress. ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 ( Hughes ).) To be outrageous, the conduct “‘must be so extreme as to exceed all bounds of that usually
tolerated in a civilized co mmunity.’ [Citation.]” ( Potter v. Firestone Tire & Rubber Co

. (1993) 6 Cal.4th 965, 1001 ( Potter ).) The defendant must have intended to inflict injury
or acted with the realization that injury would result. ( Ibid .) A plaintiff may recover damages for inten tional infliction of emotional distress if the distress is severe, regardless of whether the plaintiff suffered any physical injury.22 ( Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 476.) “Severe
emotional distress means ‘“emotional distress of such substantial quality or enduring quality that no reasonable [perso n] in civilized soci ety should be expected to endure it.”’ [Citations.]” ( Potter, supra, 6 Cal.4th at p. 1004.)
Whether Gill suffered severe emotional dist ress is a question of fact and the trial court’s finding will be upheld if su pported by substantial evidence. ( Fletcher v. Western National Life Ins. Co . (1970) 10 Cal.App.3d 376, 397.)
B. Analysis The trial court awarded the Gills $50, 000 for emotional distress for Varwig’s intentional act of willfully and maliciously creating a “tank trap” that he reasonably believed Gill would hit. Varwig c ontends there was no evidence of severe emotional distress. Gill had no claim of physical injury and testified only ge nerally that he had anxiety and sometimes lost sleep. Varwig contends this evidence is insufficient to support an award of damages for seve re emotional distress. We agree.
In Wong v. Jing (2010) 189 Cal.App.4th 1354 ( Wong ), a pediatric dentist sued for
severe emotional distress ca used by a negative on-line re view criticizing her dental services. Wong claimed the review “‘was very emotionally upsetting to me, and has caused me to lose sleep, have stomach upset and generalized anxiety.’” ( Wong, supra, 189 Cal.App.4th at p. 1377.) The appellate court found this “minimal showing” was
insufficient to constitute seve re emotional distress. ( Ibid .)
The Wong court relied on Hughes , supra , 46 Cal.4th 1035. ( Wong, supra, 189 Cal.App.4th at p. 1377.) There, plaintiff sued a trustee for intentional infliction of emotional distress, claiming he made sexua lly explicit and threatening comments which in effect demanded sex in return for granting her requests for funds from a trust for her minor son. ( Hughes, supra, 46 Cal.4th at p. 1040.) In affirming summary judgment, our Supreme Court held “plaintiff's assertions that she has suffered discomfort, worry, anxiety, upset stomach, concer n, and agitation as the result of defendant's comments to23 her . . . do not comprise ‘“‘emotional distress of such substantial quality or enduring quality that no reasonable [perso n] in civilized soci ety should be expected to endure it.’”’ [Citation.]” ( Id . at p. 1051.) Here, the evidence of Gill’s emotional distress was similar to and no greater than
that found insufficient in Wong and Hughes . Accordingly, we reverse the award of damages for emotional distress. Because we find the evidence is in sufficient to support the award of damages, we need not consider Varwig’s further argument that Gill was not
entitled to recover for emotional distress under Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, because he was not a resident or occupant of the land.
VI Punitive Damages
A. The Law Civil Code section 3294, subdivision (a) provides: “In an action for the breach of an obligation not arising from contract, wh ere it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fra ud, or malice, the plaintiff, in addition to the actual damages, may rec over damages for the sake of example and by way of punishing the defendant .” The statute defines “ma lice” as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardsh ip in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) Punitive damages are available for malici ous interference with an easement. In Zimmer, supra, 39 Cal.App.3d at pages 438-439, the appellate court upheld an award of $1500 in punitive damages fo r maliciously constructing a fence across an easement. The purpose of punitive damages is “to deter, not to destroy.” ( Adams v.
Murakami (1991) 54 Cal.3d 105, 112 ( Adams ).) Our role in reviewing an award of24 punitive damages is to “determi ne whether the award is excessive as a matter of law or raises a presumption that it is the product of passion or prejudice.” ( Adams, supra, 54 Cal.3d at pp

. 109-110.) “Because the qui ntessence of punitive damages is to deter future misconduct by the defendant, the key question be fore the reviewing court is whether the amount of damages ‘exceeds the level nece ssary to properly punish and deter.’ [Citation.]” ( Id . at p. 110.) In determining whethe r a punitive damage award is excessive under California law, a court must consider (1) the reprehensibility of the defendant’s conduct; (2) the amount of co mpensatory damages or actu al harm suffered by the plaintiff; and (3) the defenda nt's financial condition. ( Ibid .; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928.)
The finder of fact has wide discreti on in determining what amount of punitive damages is proper. “The California Supr eme Court has declined to prescribe any particular standard for assessing a defendan t’s ability to pay punitive damages [citation],
but it has held that actual evidence of the de fendant’s financial condition is essential. [Citation.] A punitive damages award is base d on the defendant’s financial condition at the time of trial. [Citations.]” ( Kelly v. Haag (2006) 145 Cal.App.4th 910, 915.) “What is required is evidence of the defendant's abil ity to pay the damage award. [Citation.]” ( Robert L. Cloud & Associ ates, Inc. v. Mikesell (1999) 69 Cal.App.4t h 1141, 1152.) “While punitive damages must bear a re asonable relation to actual damages, no
fixed ratio exists to determin e the proper proportion.” ( McGee v. Tucoemas Federal Credit Union (2007) 153 Cal.App.4th 1351, 1361 ( McGee ).) “There is no simple formula for calculating punitive damages in that there is no particular sum that represents the only correct amount for such damages in any given case. Instea d, there is a wide range of reasonableness for punitive damage s reflective of the fact finder’s human response to the evidence presented. [Citation.]” ( McGee, supra, 153 Cal.App.4th at p. 1362.)25 Although the calculation of punitive damages is a “‘fluid process’” that “‘does not involve strict adherence to a rigid formula ,’” “punitive damage awards are generally not allowed to exceed 10 pe rcent of the defendant's net worth, and [ ] significantly lower percentages are indeed the norm.” ( Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515.) “[P]unitive damage awar ds exceeding 10 per cent of a defendant’s net worth have generally been disfa vored by the appellate courts.” ( Goshgarian v. George (1984) 161 Cal.App.3d 1214, 1228.) The relationship of a punitive damages
award to defendant’s net wort h, however, is not determina tive of whether the award is excessive because “‘[n]et worth’ is subject to easy manipulation and, in our view, it should not be the only permi ssible standard. Indeed, it is likely that blind adherence to any one standard could sometimes result in awards which neither deter nor punish or which deter or punish too much.” ( Lara v. Cadag (1993) 13 Cal.App.4th 1061, 1065, fn. 3.) “[A] reduction in compensatory damages does not mandate a corresponding reduction in punitive damages.” ( McGee, supra, 153 Cal.App.4th at p. 1362 [no reduction in $1,200,000 punitive damage aw ard where compensato ry damages reduced from $1,990,385 to $750,000].) “‘[T]he “mos t important question is whether the amount of the punitive damages award will have dete rrent effect--without being excessive.”’ [Citation.]” ( Ibid .) An award of punitive damages must bear some relation to the award of actual damages, so a significant reductio n in compensatory damages may make the punitive damage award “suspect.” ( Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1190 [remand $2,600,000 punitiv e damage award where compensatory damages reduced from $207,155 to $6,750]; see Krusi v. Bear, Stearns &
Co. (1983) 144 Cal.App.3d 664, 680-681 [remand $50,000 punitive damage award where compensatory damages of $58,940 reduced by $30,000 offset].)26 B. Analysis The trial court found Varwig acted w ith oppression and malice in creating the “tank trap” and awarded $35,000 in punitive da mages. The court did not explain how it
calculated this amount. Varwig contends the evidence does not support the award of punitive damages. First, he contends the record does not esta blish clear and convinci ng proof that Varwig acted reprehensively or malici ously towards Gill. He asserts the court’s finding is based on the “conjecture” that Varwig built a “tank trap .” Varwig contends there is no evidence he intentionally dug this trench to trap Gill; he contends th ere was no evidence to refute his testimony that he simply repaired a broken water pipe. Again, it was for the trial court as trier of fact to determine the credibility of the witnesses and credit the testimony and weigh the evidence accordingly. ( Sav-On Drug Stores, supra, 34 Cal.4th at p. 334.) The photog raphs taken by Varwig that day
established that Gill’s truck was stuck in a ditc h. Varwig admitted he dug that ditch. The trial court clearly believed Gill over Varwig about the intended use of the ditch--to trap Gill. Its belief is supported by the timing of the incident, occurring mere days after Gill cut the barbed wire, another impediment to his passage, as well as Varwig’s failure to offer Gill any assistance or even to convers e with him about the incident as Varwig photographed Gill’s truck. Varwig took mu ltiple photographs of the stuck truck and contacted the sheriff, but these pictures did not show any water from a broken pipe. Nor did they show a broken pipe nor Gill’s cu tting of the yellow caution tape before he entered the ditch as alleged by Varwig, images that would have corroborated Varwig’s
version of events. The trial court found th e photographs supported Gill’s testimony and it was entitled to make that finding. Substantial evidence supports the tria l court’s finding that Varwig acted maliciously, that his conduct in creating the “tank trap” was intended to cause injury.27 That Gill suffered no serious injury was fo rtuitous, but does not negate a finding of
malice. Varwig next contends the amount of p unitive damages is excessive. He contends the $35,000 award is more than 10 percent of his net worth, which the bifurcated trial showed to be $2 10,000 ($740,000 in assets less $530,000 in liabilities). The Gills challenge this figure. They claim the value of Varwig’s residence is $650,000, as shown on his 2008 loan application, instead of the recent assessed value of $468,452, and the value of Lots 23 and 25 is the amount Varwig paid for them ($440,000) rather than his current estimate of $250,000. They further challenge defense counsel’s suggestion that
the economic downturn affected land valu es; “such is simply not the case.” Varwig has failed to show the award of punitive damages was excessive. Even
after the reductions to the aw ard of compensatory damages, the punitive damage award of $35,000 is only a fracti on of the actual damages, which ex ceed $75,000. The evidence of Varwig’s net worth, particularly the value of his properties, was in dispute. It was the role of the trial court, as the fact finder, to resolve the dispute. Further, “[n]et worth is too easily subject to manipulation to be the sole standard for measuring a defendant's ability to pay. [Citation.]” ( Zaxis Wireless Communications , Inc. v. Motor Sound Corp

. (2001) 89 Cal.App.4th 577, 582. ) We find no abuse of discretion in the punitive damage
award.
VII Attorney Fees
A. The Law “California follows what is commonly re ferred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees. [Citations.]” ( Trope v. Katz (1995) 11 Cal.4th 274, 278.) “E xcept as attorney’s fees are specifically provided for by st atute, the measure and mode of compensation of attorneys
and counselors at law is left to the agreement, express or imp lied, of the parties . . . .”28 (Code Civ. Proc., § 1021.) Wher e attorney fees are authorized by statute, such fees are recoverable as costs. (Code Civ. Proc., § 1033.5, subd. (a)(10)(B).) One exception to the general rule set fort h in Code of Civil Procedure section 1021
is Code of Civil Procedure section 1021.9 (section 1021.9 ). Section 1021.9 provides: “In any action to recover damages to personal or real property resulting from trespassing
on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be en titled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for da mages imposed by law.” (Code Civ. Proc., § 1021.9.) “We must construe the language of a stat ute in accordance with the ordinary plain meaning of the language used. ‘“The ru les governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate le gislative intent. [Citations.] ‘In determining intent, we look first to the language of the st atute, giving effect to its “plain meaning.”’ [Citations.] Although we may properly rely on extrinsic aids, we should first turn to the
words of the statute to determ ine the intent of the Legislature. [Citation.] Where the words of the statute are clear, we may not ad d to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” [Citation.] [¶] “If the statutory language is clear and unambiguous, there is no need for construction.” [Citation.]’ [Citation.]” ( The TJX Companies, Inc. v. Superior Court (2008) 163 Cal.App.4th 80, 86.) “Exceptions to the general provisions of a statute are to be narrowly construed; only t hose circumstances that are w ithin the words and reason of the exception may be incl uded. [Citation.]” ( Corbett v. Hayward Dodge, Inc . (2004) 119 Cal.App.4th 915, 921.) The legislative history of section 1021 .9 indicates its purpose was to “impose liability for all property damage ” caused by trespass onto certain lands. ( Starrh and29 Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 608, italics added.)
B. Analysis On cross-appeal, the Gills contend the tr ial court erred in de nying their motion for attorney fees under section 1021.9. They argue the court erred in requiring both notice of the request for fees in the complaint and damage to the crops under cultivation as prerequisites to an award of fees. As to the latter point, they contend their actual damages, expenses and damages for loss of use of the easement, are sufficient. We conclude the trial court properly denied th e motion for attorney fees because section 1021.9 is inapplicable to this case. This action does not fall within the plai n language of section 1021.9. Section 1021.9 requires an “action to recover damage s to personal or real property resulting from trespassing on lands . . . under cultivation.” Fi rst, there was no trespass. Varwig did not trespass on the Gills’ property that was unde r cultivation. The Gills contend Varwig trespassed on their easement. They assert th at Varwig’s interferen ce with their easement constituted a trespass because “ ‘[t]respass to property is the unlaw ful interference with its possession.’ [Citation.]” ( Elton v. Anheuser-Busch Beverage Group, Inc . (1996) 50 Cal.App.4th 1301, 1306.) The Gills, however, did not have a possessory interest in the easement. “An easement gives a nonpossessory and restricted right to a specific use or activity upon another's property, which right mu st be less than the right of ownership. [Citation.]” ( Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306.) Interference
with an easement is a nuisa nce, not a trespass. ( Moylan, supra, 181 Cal.App.3d at p. 574.) Our Supreme Court explained the differe nce between a nuisance and a trespass in Wilson v. Interlake Steel Co . (1982) 32 Cal.3d 229 ( Wilson ), quoting Dean Prosser at page 233: “‘The distinction wh ich is now accepted is that tres pass is an invasion of the plaintiff's interest in the exclusive possession of his la nd, while nuisance is an30 interference with his use and enjoyment of it.’” The Wilson court continued: “In similar fashion, the distinction is succinctly expressed in comment d to section 821D of the Restatement Second of Torts: ‘A trespass is an invasion of the inte rest in the exclusive possession of land, as by entry up on it. . . . . A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.’ [Citation.]” ( Wilson, supra, 32 Cal.3d at p. 233.) Because trespass requires that the plaintiff have exclusive po ssession of the land, “[a] tenant in common cannot trespass on the commonl y owned property.” ( Kapner v. Meadowlark Ranch Assn

. (2004) 116 Cal.App. 4th 1182, 1189.) Second, although the Gills’ action sought to recover certain damages, it did not seek recovery for “damages to personal or real property.” Instead, the action sought to recover for damage to the easement, which is not real property. An easement is an intangible property interest to use another’s land (or to prevent the owner’s use of his land), but it does not create an interest in th e land itself. (6 Miller & Starr, Cal. Real Estate, supra , Easements, § 15:5, pp. 15-19-15-20.) Damage to or interference with an easement is not property damage. (See Kazi v. State Farm Fire & Cas. Co ., supra , 24 Cal.4th 871, 881 [easement di sputes are not within “property damage” coverage because they involve intangible property rights and economic losses only].) The Gills complain that it is unfair that they are denied a ttorney fees simply because they mitigated damage s by obtaining alternate access to their property so they could harvest their vineyards. They argue th ey should not be penalized because they did not allow Varwig’s conduct to damage their gr ape crop. “Our duty as a court is to apply the governing statutes as written to the facts of the case before us, not to rewrite the statutes to make them more just or fair in particular circumst ances. [Citations.]” ( Thornton v. California Unem ployment Ins. Appeals Bd . (2012) 204 Cal.App.4th 1403, 1419.)31 DISPOSITION The portion of the judgment that decrees a public right of way is reversed. The award of $72,300 in damages for loss of us e of the easement is reduced by $9,100 to $63,200. The award of $50,000 in damages for emotional distress is reversed. As modified, the judgment is affirmed. The pa rties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

DUARTE , J.

We concur:

MAURO , Acting P. J.

HOCH , J.