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 *238 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 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 *239 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, 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
*240 Frank B. Cueiz, one of the Cucizes, defendants and cross-complainants 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 Cueiz 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 Cueiz 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 Cueiz property and that while they claimed no ownership of the Cueiz Road, they considered that the Chavarria interest in the Higuera Road passed to them with the 15 acres which, at one time, were owned by the Chavarrias. However Cueiz 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 Cueiz 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 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 *241 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 had inquired of the witness “if I knew we owned the road, and I 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 property involved in the instant action.
Plaintiff asserts that the uncontroverted evidence establishes all requisite elements of adverse possession and compels the conclusion that she has title to the property on such basis. As part of such argument she claims that the trial court improperly excluded certain documentary evidence. We must first consider whether the court committed reversible error in so doing. We then propose to examine the sufficiency of the evidence. Preliminarily, however, we set forth certain basic principles which govern the action.
In
West
v.
Evans
(1946)
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,
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 *244 was introduced or offered that any of the Chavarrias had actual or constructive notice of the agreement. The court sustained the objection.
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
*245 Subsequently on the cross-examination of defendant Cuciz, plaintiff referred to the affidavit in connection with the Cuciz policy of title insurance (not in evidence, see fn. 8, ante) in an apparent attempt to establish through the witness that it was the same affidavit as that mentioned in the policy. Counsel for the Chavarrias objected “on the same basis as I objected to it before” whereupon the court stated: “I think it is a self-serving affidavit that does not prove anything.” The inquiry as to the affidavit then ended. Plaintiff made no further attempt to introduce the affidavit and neither introduced nor offered any evidence showing that the affidavit was obtained or seen by Prank Chavarria or any other Chavarria or that it was recorded by or on behalf of any of such persons. However on motion for new trial plaintiff's counsel filed a “Declaration on Newly Discovered Evidence” stating in substance that subsequent to the trial he discovered evidence which would establish the fact that the 1935 affidavit was recorded concurrently with the recordation of the sale of the 15-acre tract by the Chavarrias to the Pedros.
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)
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
*246
bare of any evidence that the latter had, or were in some way charged with, notice of this hostile claim. Such notice was indispensable to acquisition by plaintiff of the title of her cotenants by adverse possession. (See
Wilkerson
v.
Thomas, supra,
We therefore conclude: If the exhibits in question were offered to establish plaintiff’s hostile claim against the Chavarrias (as plaintiff now claims at least as to the affidavit) they were properly excluded since plaintiff failed to prove that they emanated from the Chavarrias or were in some
*247
way brought home to them. If they were offered as simple verbal acts for the more limited purpose of merely showing the character of plaintiff's possession, their rejection in our view was still not error since plaintiff introduced evidence of other acts to show the adverse character of her possession and the excluded evidence would have been merely cumulative. A court has the inherent discretionary power to limit the introduction of cumulative evidence.
(Estate of Wineteer
(1917)
Plaintiff relies upon
Redemeyer
v.
Cunningham
(1923)
*248
We take up plaintiff’s claim that the evidence compels a conclusion that she acquired title by adverse possession. This claim must fall. Under the applicable rules set forth above (see
Wilkerson
v.
Thomas, supra,
The several eases which plaintiff cites provide no support for her position. Neither
Ortiz
v.
Pacific States Properties
(1950)
Finally plaintiff makes two attacks on the findings of the
*250
court below. The first is directed to the court’s recognition of the easements granted by her to the Milpitas Water District and to the Pacific Gas and Electric Co. The court’s holding, plaintiff argues, that she does not have title to the entire roadway and its holding at the same time that the two grantees acquired easements from her are irreconcilable. The above argument ignores the obvious fact that plaintiff is not adversely affected by the judgment insofar as it recognizes the rights of her grantees and, not being aggrieved thereby, may not attack such portion of the judgment on appeal. (See
East Shore Co.
v.
Richmond Belt Railway
(1916)
Plaintiff’s second attack is directed at the general finding that none of the allegations of her complaint are true except the allegation that she is the record owner of an undivided one-half interest in the property. She points out that one of the allegations of her complaint (thus found untrue) was to the effect that no taxes had been' levied or assessed against the property, a fact stipulated to by the parties. Thus, plaintiff complains, the finding is in conflict with the stipulation. The point is captious and devoid of merit. In view of the stipulation, a finding on the issue of payment of taxes was no longer necessary
(Capital National Bank
v.
Smith
(1944)
The judgment is affirmed as to those portions thereof appealed from.
Molinari, J., and Sims, J., concurred.
Notes
Said defendants and cross-complainants, respondents herein, are; Robert Chavarria, Marvin Chavarria, William N. Chavarria, Edward J. Chavarria, Jack J. Chavarria, Marie Ratzburg, Kenneth R. Chavarria, George Louis Chavarria, Dorothy Santos and Lucille Mendia.
The Cucizes were granted leave of court to intervene by answer and cross-complaint. They are not parties to the present appeal.
In Ms memorandum of decision the trial judge states inter alia-. “The Court finds from the evidence and the law applicable thereto that the Plaintiff has not met the burden required of her that would entitle her to the judgment sought by her .”
Plaintiff, neé Marion Curtner, was the daughter of William M. Curtner and May Weller Curtner and the sister of Weller Curtner.
The 15-acre tract now owned by the Cucizes had also been conveyed by Valentine to his daughter Maria. In 1949 the Chavarrias sold it to the Pedros who in turn sold to the Cucizes.
Plaintiff called no other witnesses on her behalf.
Plaintiff did not personally know any of the respondents. All of the members of the Chavarria family whom she knew were dead at the time of the trial.
The witness "based Ms answer as to the right-of-way on the inclusion in the title insurance policy of a certain affidavit of W. M. Curtner and Weller Curtner which appeared of record, contained statements as to such right-of-way, and which we discuss infra. The title insurance policy itself was not received in evidence.
According to the witness, her brother-in-law John Chavarria and Mr. Curtner (presumably plaintiff’s father) worked on the road and after John’s death, Charlie Chavarria and Weller Curtner (presumably plaintiff’s brother) assumed this responsibility.
Respondents correctly point out to us that as the sole surviving heirs of Maria they have the right to defend the present action by virtue of Probate Code section 581.
W. M. Curtner, May W. Curtner and W. W. Curtner, plaintiff’s father, mother and brother.
The following occurred: ‘ ‘ Mr. Miblke [Plaintiff’s counsel] : That does not establish ownership, your Honor. That does not establish ownership, but it goes to prove that they were claiming ownership and one of the requirements of adverse possession is possession with a claim of ownership, a claim of title, a claim against the whole world, and this is evidence contemporaneous, long before this suit was filed. The Court: Well, I do not think that this would support a claim against the world, because the other . . . parties to this litigation are not a part of this agreement. ’ ’
In this latter respect the affidavit states: “Said Frank Chavarria and his co-owners of the real property now owned by said owners, a description whereof is contained hereinafter, and their predecessors in interest have used said right of way for more than twenty years last past without objection to such user being made by the owners of the land over and along which said right of way is located, and such user has been continuous, uninterrupted, adverse, and under a claim of right during all of said time herein mentioned and such user has during all of said period been with the knowledge of the owners of the said land over and along which said right of way is located. ’ ’
The affidavit shows the following printed endorsement: “Received Federal Land Bank NOV 13 1935”
A stamped endorsement discloses that the affidavit was recorded in the Office of the County Recorder of Santa Clara County on February 7, 1949.
The following colloquy occurred: “The Court: Well, this is not a declaration of Frank. Mr. Mielke [Plaintiff’s counsel]: It is an act, having recorded it. The Court: I do not know who recorded it. Mr. Mielke : I beg — The Court : I do not know who recorded it. Mr. Mielke: Well, he obtained it for the purpose of making a loan. The Court: There is no testimony in here to this effect, counsel. Up to the present time I must sustain that it be allowed to remain in for identification.”
Wigmore states: “They are merely verbal parts going to make up the whole act of occupation, and are not given any testimonial force as credible assertions: . . . they are not offered except as coloring the occupation.” (6 Wigmore, op. cit., pp. 205, 206.)
The record shows that Weller Curtner, plaintiff’s brother and one of the affiants, was living at the time of the trial. It is noteworthy that plaintiff made no attempt to call Mr. Curtner to prove that the Chavarrias *248 knew about the execution and recordation of the affidavit and thus of the allegedly hostile claim to the roadway. It is also noteworthy that plaintiff does not here contend that the court committed error in denying her motion for a new trial.
This can be reasonably implied from the express finding that the Chavarrias were the owners of an undivided one-half interest in the roadway. (See
Richter
v.
Walker
(1951)
Zolezzi
quoted from
Akley
as follows:
“The rule is that when one enters avowedly as tenant in common with others,
his possession is the possession of the others, so long as the tenancy in common is not disclaimed. In such cases to constitute the ouster there must be acts of the most open and notorious character, clearly giving notice to the world, and to all having occasion to observe the condition and occupancy of the property, that the intention is to exclude, and does exclude the eotenant.
The rule thus stated, however has no application to a case where the possession of the person in question was neither avowedly begun as a tenant in common, nor instituted under a deed or instrument which defined his title as such.”
(