Weller v. Chavarria

In this action to quiet title to a roadway, plaintiff appeals from the adverse portion of a judgment decreeing that certain defendants and cross-complainants^[1] (hereafter referred to as the Chavarrias), as descendants of one Maria Higuera Chavarria, are the owners of an undivided one-half interest therein.

It is not disputed that plaintiff at all material times has been and is the owner of record of an undivided one-half interest in the roadway. The present controversy revolves about the ownership of the remaining one-half. Plaintiff commenced this action under the so-called ten-year statute of adverse possession (Code Civ. Proc., §749.1) alleging that she held legal title of record to an undivided one-half interest and that by herself she had been in the actual, exclusive and adverse possession of the whole of the property continuously for 10 years prior to the filing of her complaint. Defendants and cross-complainants Frank D. Cuciz, Irma V. Cuciz, Joseph L. Cuciz and Elizabeth I. Cuciz^[2] (hereafter referred to as the Cucizes) admitted that plaintiff held legal title to an undivided one-half interest, denied plaintiff’s claim to ownership by adverse possession of the other undivided one-half interest, claimed that they themselves were the owners of a right-of-way over the roadway in question for ingress and egress from and to the Old Oakland Highway to and from their real property, and further claimed that they were the owners of the aforementioned undivided one-half interest of the roadway to which plaintiff did not have legal title of record. The Chavarrias (see fn. 1, ante) similarly admitted plaintiff’s legal title to an undivided one-half interest but denied her claim to the ownership of the other one-half, claiming on their own behalf that the record title thereto was in their ancestor Maria Higuera Chavarria who died in 1909 and that, as the sole heirs of Maria, they were seized in fee simple absolute of such undivided one-half interest.

The trial court found and concluded, so far as is here pertinent, that plaintiff was the owner of an undivided one-half interest in the subject property; that the Chavarrias, as descendants of Maria Higuera Chavarria, were the owners of the other undivided one-half interest; that plaintiff was

The property subject of the present action is known as the Rancho Higuera Road or Higuera Road. This road runs generally eastward from the Old Oakland Highway to plaintiff’s ranch which is known as Rancho Higuera and sometimes referred to in the record as the Curtner or Weller ranch.^[4] It is 3898.95 feet long and 33 feet wide and has an area of 2.954 acres. Next to the Rancho Higuera on the south lies the Cuciz property, reached, as we have noted, by another road running southerly from the eastern terminus of the Higuera Road.

The Higuera Road was conveyed in 1869 by Henry Rengstorff to Leo Norris and Valentine Higuera in equal shares as tenants in common. In 1873 Valentine Higuera conveyed his interest in the property to his daughter Maria Higuera Chavarria who died in 1909. The evidence received below disclosed no subsequent transfers of record of Valentine’s original interest. Maria had 10 children, only three of whom died leaving spouses or issue. The Cuciz property was owned by some of the Chavarrias until 1949.^[5] In fact Maria Higuera Chavarria’s family were at one time the owners of the ranch properties now owned by both plaintiff and the Cucizes.

As defendants concede, the undivided one-half interest of

Plaintiff testified^[6] that she was born on the Curtner ranch and lived there until she was married. After her husband’s death in 1958 she returned to the ranch and made it her home. Since 1952, when she became sole owner of the original Norris interest in the roadway, she has borne the entire cost of maintaining Higuera Road, providing the necessary grading, graveling and rolling, using her own grader and at times hiring others to do the work. Prior to 1952 plaintiff and her family had similarly maintained the road since 1925 except on one occasion in 1945 when the Silvas entered into an agreement with plaintiff’s family to do so. She also testified that since 1952 signs have been placed at the western end of the road where it meets the Old Oakland Highway stating the following: “Rancho Higuera, Theodor e-Marion Weller,” “Private Drive, No Parking,” “Private Property, Not a Through Road.” Even prior to 1952, including the time when members of the Chavarria family lived on the property, there had been a sign at this location containing the words “Private Property.” The road was always fenced on both sides except that a section of the fence near the public school was removed. Plaintiff did not erect any fences herself and stated that the existing fences were in place even when the members of the Chavarria family lived on the property.

Plaintiff further testified that she always considered the roadway to be her own property and treated it as such, although since 1952 or 1953 she has known that there was some “cloud in the title” as a result of which it appeared that she had only an undivided one-half interest in the property. In 1960 and 1961 she granted easements over the roadway to the Milpitas County Water District and to the Pacific Gas and Electric Company. On neither occasion did she communicate with the Chavarrias to ascertain if they had an interest in the property or to advise them of her action. Plaintiff never informed any member of the Chavarria family that she claimed full ownership of the roadway nor did she or her family ever attempt to keep the Chavarrias off the roadway when the latter were living on the Cuciz property.^[7]

Mrs. Della Chavarria, the widow of Frank Chavarria, who died in 1957 and was the last survivor of the 10 children of Maria Higuera Chavarria, testified that she and her husband never lived on the ranch but visited it on many occasions— “pretty near every Sunday we were out there. . She stated that on some of these occasions she saw members of the Chavarria family working on the Higuera Road to keep it in repair.^[9] She also visited the ranch on more recent occasions presumably after the Chavarrias sold it, although the time and frequency of these later visits do not appear in

In the instant ease plaintiff asserts ownership by adverse possession under claim of right and not under color of title (Code Civ. Proc., §§ 324, 325). As previously noted she rests her claim on the so-called 10-year statute. (Code Civ. Proc., § 749.1.) It is also clear from the record that the relationship of cotenants existed between plaintiff and the Chavarrias, respondents herein. Maria Higuera Chavarria was a cotenant of plaintiff’s predecessors in interest and, as the trial court found, respondents are the descendants of Maria and as such became vested with the undivided one-half interest in the roadway formerly owned by Maria. The court’s finding and conclusion that Maria’s title devolved upon respondents has not been attacked on appeal and in any event is, in our view, supported by the evidence.^[10] Plaintiff’s position here is not that Maria and her successors did not have title but that plaintiff acquired such title by adverse possession.

Where, as here, a claim of ownership by adverse possession is asserted against a cotenant additional principles become operative. It is settled law that the exclusive occupancy of jointly owned premises by a eotenant is deemed permissive and does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him. (West v. Evans, supra, 29 Cal.2d 414 , 418; Dimmick v. Dimmick, supra, 58 Cal.2d 417 , 422; Johns v. Scobie (1939) 12 Cal.2d 618 , 623-624 [ 86 P.2d 820 , 121 A.L.R. 1404 ]; Faubel v. McFarland (1904) 144 Cal. 717 , 720 [ 78 P. 261 ]; Unger v. Mooney (1883) 63 Cal. 586 , 591-592 [ 49 Am. Rep. 100 ]; Miller v.

With these principles in mind we turn to consider plaintiff’s claim that certain documentary evidence was erroneously excluded. Two separate documents are involved.

During the direct examination of plaintiff, her counsel offered in evidence an agreement entered into in 1945 by plaintiff and other members of her family^[11] with Joseph T. and Isabella Silva covering the maintenance of Higuera Hoad. So far as is here pertinent, the agreement, after reciting that plaintiff and the three Curtners were the owners of the road, conferred on the Silvas “a non-exclusive license of ingress and egress” over it and provided that the latter should pay one-sixth of any costs of maintenance, repairs or improvements. All defendants objected on the ground that the agreement was self-serving. Plaintiff’s counsel conceded that it was self-serving but stated that it was offered to prove that the Curtners were then claiming ownership.^[12] No evidence

Shortly thereafter plaintiff offered an affidavit of W. M. Curtner, her father, and Weller Curtner, her brother, executed on November 9, 1935, when said parties together with plaintiff and her mother were cotenants of the roadway. The Curtners stated therein that a certain “roadway leading from the land of Prank Chavarria et al to the San Jose-Oakland Highway” was “over, along and across the lands now owned by said W. M. Curtner, et al” and that Prank Chavarria and his coowners had acquired a prescriptive easement over the roadway.^[13] A sketch attached to the affidavit identifies the roadway as the Curtner (i.e., Higuera) Road and the road extending from the easterly end thereof, subsequently known as the Cuciz Road. As previously noted, it was this affidavit which was referred to in the Cuciz policy of title insurance. (See fn. 8, ante.)

Counsel for the Chavarrias objected to the affidavit on the grounds that no proper foundation had been laid and that it was hearsay. Plaintiff’s counsel stated that Prank Chavarria secured the affidavit in connection with an application for a bank loan,^[14] that the affidavit “was recorded so the whole world is of notice” and that “the heirs of Prank Chavarria are held by his acts, by his admissions, by his declarations.”^[15] The objection was sustained.^[16]

In summary, defendants objected to both documents on the grounds that they constituted self-serving hearsay and the court seems to have excluded both because the Chavarrias had no notice of them. (See fns. 14 and 16, ante.) Declarations of a party claiming title by adverse possession respecting his claim made at any time while in posssession and before commencement of the action are admissible as verbal acts tending to show the adverse notice of his claim. (Cannon v. Stockmon (1869) 36 Cal. 535 , 541 [ 95 Am.Dec. 205 ]; Marshall v. Beysser (1888) 75 Cal. 544 , 547 [ 17 P. 644 ]; Turney v. Sousa (1956) 146 Cal.App.2d 787 , 790 [ 304 P.2d 1025 ]; see Stockton Savings Bank v. Staples (1893) 98 Cal. 189 , 193 [ 32 P. 936 ]; 6 Wigmore on Evidence (3d ed.) § 1778.)^[17] Such declarations, not being offered testimonially, do not fall within the hearsay rule (see 6 Wigmore, op. cit., § 1772, p. 190 et seq.; Witkin, Cal. Evidence, p. 242) and the mere fact that they are self-serving does not preclude their admission in evidence. (See Witkin, op. cit., p. 234.)

Nevertheless while the documents in question are susceptible of the interpretation that the possession of plaintiff and her coowners had become hostile to the Chavarrias, the record is

Plaintiff relies upon Redemeyer v. Cunningham (1923) 61 Cal.App. 423 [ 215 P. 83 ] in support of her contention that the rejection of the affidavit was prejudicial error. It was there held that where the trial court erroneously excluded evidence as to payment of taxes, one of the five elements of adverse possession (see West v. Evans, supra, 29 Cal.2d 414 , 418), such error alone constituted ground for reversal and that it was not incumbent upon the appellant to offer evidence of the other elements of adverse possession. Bedemeyer is distinguishable from the case at bench. In that case the court improperly rejected all of the claimant’s offered evidence on payment of taxes. In the present case, the documents offered were at best only cumulative evidence on the issue of the adverse character of plaintiff’s claim. They did not establish that the Chavarrias had notice of such adverse claim and plaintiff neither introduced evidence nor made an offer of proof that the latter parties were charged with such notice.^[18]

The several eases which plaintiff cites provide no support for her position. Neither Ortiz v. Pacific States Properties (1950) 96 Cal.App.2d 34 [ 215 P.2d 514 ] nor Sorenson v. Costa (1948) 32 Cal.2d 453 [ 196 P.2d 900 ] involved a claim of adverse possession by one cotenant against another. In Zolezzi v. Michelis, supra, 86 Cal.App.2d 827 the claimant entered into possession under color of title (and not as here under claim of right) by a deed purporting to convey the whole title to the entire property in controversy. Since the claimant’s possession was not begun as a tenant in common with anyone or under any instrument defining a cotenancy title, Zolezzi fell within the rule articulated in Akley v. Bassett (1922) 189 Cal. 625 , 641-642 [ 209 P. 576 ].^[20] The case at bench is thus clearly distinguishable from both Ahley and Zolezzi. It is similarly distinguishable from Unger v. Mooney, supra, 63 Cal. 586 , also cited by plaintiff, where the claimant entered into possession under color of title by a deed conveying to him the whole premises, the claimant thus claiming for himself exclusively and not for another. Unger held that such entry by a stranger was hostile in nature and sufficient to put the cotenant on inquiry and therefore make him chargeable with notice. In Palin v. Sweitzer (1937) 8 Cal.2d 329 [ 65 P.2d 351 ], as distinguished from the case before us, the adverse claimant gave actual notice to his cotenants that he claimed the entire property as his own. Plaintiff also cites Oglesby v. Hollister, supra, 76 Cal. 136 in connection with her argument that the Chavarrias abandoned the roadway. This point requires no extensive discussion. Plaintiff offered no direct evidence of abandonment and respondents introduced evidence that Frank Chavarria and his wife Della continued to use the roadway until shortly before the trial. The instant case is in no respect similar to Oglesby on its facts.

Finally plaintiff makes two attacks on the findings of the