Turney v. Sousa

THE COURT.

These are two quiet title actions concerning the same property consolidated in the court below and decided by one judgment. Action Number 23693 was instituted by the record owners of the “K Ranch” on Tómales Bay in Marin County against Victor Sousa, a Digger Indian, hereinafter called Sousa, who occupied a portion of said ranch fronting on Tómales Bay known as Parker’s Landing. Sousa filed a cross-complaint to quiet title to the portion of the ranch" occupied by him, claiming title by adverse possession,

[789]

which was denied by the record owners. As it appeared that Sousa and his relatives who had been in possession before him had never paid any taxes on the property, a requirement for the establishing of adverse possession under section 325 of the Code of Civil Procedure, Sousa had himself appointed administrator of the estate of Euphrasia Felix, his great-grandmother, herein after called Euphrasia, and in that capacity instituted against the record owners of the ranch action 24814 to quiet title to the property' in said Euphrasia, deceased. It was the position of the administrator that Euphrasia had obtained title by adverse possession prior to the year 1878, the year in which an amendment to section 325,

supra,

made the payment of taxes an element of adverse possession. If that were so the requirement of payment of taxes would have no application.

(Lucas

v.

Provines,

130 Cal. 270, 272 [62 P. 509] )

At the trial the only evidence offered of the actual possession of Euphrasia during five years prior to 1878 was testimony of Sousa that his great-grandmother told him. around 1914, when he was 11 and she 97 years old, that she came to Parker’s Landing from San Francisco and that she lived in San Francisco when there was only one building there, and testimony by deposition of Mary Pensotti, a woman then probably 79 years old, that she knew Euphrasia at Parker’s Landing when she was 12 or 14 years old and that Euphrasia told her that San Francisco, when she moved away from there, was forest and just a log house; that from San Francisco she first moved to Camp Murray and that thereafter, how long the witness did not know, she moved to Parker’s Landing. The record owners objected to all this testimony as self-serving hearsay. The court admitted the testimony of Sousa subject to the objection and to being stricken if found inadmissible and subsequently ordered it stricken. The above parts of the deposition of Mary Pensotti were not admitted into evidence. The direct evidence of witnesses who had seen Euphrasia at Parker’s Landing did not go back further than the late 1880’s. Title was quieted in the record owners and Sousa appeals both as administrator and individually.