Weller v. Chavarria

• Decision Date: 25 March 1965
• Citation: 233 Cal.App.2d 234,43 Cal.Rptr. 364
• Court: California Court of Appeals Court of Appeals
• Parties: Marion Curtner WELLER, Plaintiff, Cross-Defendant and Appellant, v. Robert CHAVARRIA et al., Defendants, Cross-Complainants and Respondents. Civ. 22091.

Page 364

43 Cal.Rptr. 364

233 Cal.App.2d 234

Marion Curtner WELLER, Plaintiff, Cross-Defendant and Appellant, v. Robert CHAVARRIA et al., Defendants, Cross-Complainants and Respondents.

Civ. 22091.

District Court of Appeal, First District, Division 1, California.

March 25, 1965.

Frederick W. Mielke, San Francisco, for appellant.

Malovos, Mager & Chasuk, San Jose, for respondents.

SULLIVAN, Presiding Justice.

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 undividual 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 ten 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 ded 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 owner of an easement over and along the undivided one-half interest of the Chavarrias for ingress and egress from and to the Old Oakland Highway to and from plaintiff's ranch located at the easterly end of the roadway; that the Cucizes were the owners of an easement over and along the subject property and an additional ranch road extending southerly from the easterly end of the subject property to the Cuciz property for ingress and egress from and to the Old Oakland Highway; that the fee simple title of plaintiff and the Chavarrias was subject to any interest which the City and County of San Francisco had acquired or might acquire by virtue of a certain condemnation action, to a certain right-of-way of the Milpitas Water District and to a certain gas line right-of-way of the Pacific Gas and Electric Company. Judgment was entered accordingly. ³

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 ten 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 Leo Norris in the roadway passed to members of plaintiff's family and eventually to plaintiff in 1952 as the sole owner thereof.

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, Theodore-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

Frank E. Cuciz, one of the Cucizes, defendants and cross-complanants below but not parties to this appeal, testified that he and his family owned a 15-acre parcel on the south side of the Weller ranch. They acquired this property in 1952 from the Pedros who had purchased it from the Chavarrias in 1949. The Cucizes and their tenants always used the Higuera Road and the other ranch road (running south from the easterly end of the Higuera Road and sometimes referred to in the record as the Cuciz Road) in going to and from the Old Oakland Highway. At no time were any of these parties told that they had no right to do so. They maintained the Cuciz Road but not the Higuera Road. However, the witness saw some of the Chavarrias working on the Higuera Road--'They used to help with the grader or incidentals'--although he had no knowledge of the arrangements under which they did so, that is, whether as employees of the Curtner ranch or in some other capacity. The witness testified that he always felt that the Higuera Road was part of the Cuciz property and that while they claimed no ownership of the Cuciz Road, they considered that the Chavarria interest in the Higuera Road passed to them with the fifteen acres which, at one time, were owned by the Chavarrias. However Cuciz admitted that his policy of title insurance covered only his 15-acre ranch with provision for a right-of-way over the Higuera Road ⁸ and the so-called Cuciz Road and that it did not disclose any ownership of the Higuera Road itself.

Mrs. Della Chavarria, the widow of Frank Chavarria, who died in 1957 and was the last survivor of the ten 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 the record. 'We have taken a ride down there to see the old place and see just for sentimental reasons.' Nobody ever told the witness that she could not use the roadway nor did plaintiff or any other person ever demand money from her for maintaining it. Shortly before the present dispute arose, although the date does not appear from the record, Mrs. Chavarria telephoned plaintiff and told the latter that a Mr. Schulte and inquired of the witness 'if I knew we owned the road, andI said yes.' The witness then made an inquiry as to the taxes on the property. During this telephone conversation plaintiff made no adverse claim that she had full ownership of the roadway.

All of the parties stipulated in writing that no taxes have at any time been levied or assessed against the...