In Brooks v. Calderwood (1868) 34 Cal. 563, the plaintiff (Brooks) brought an action to quiet his title to certain real property -- subdivisions 28, 31, and 40 -- in San Francisco against the adverse claims of several defendants. (Id. at pp. 564-565.) In answer to Brooks's complaint, two of the defendants (Douglass and his wife) denied that Brooks had title to, or possession of, the three subdivisions; affirmatively claimed title to subdivision 40; and disclaimed any interest in the other two subdivisions. (Id. at p. 565.) At trial, the court dismissed the action as to subdivision 40 without prejudice to Brooks, found in favor of Brooks on the other two subdivisions, and awarded Brooks his costs. (Ibid.) On appeal, Douglass and his wife contended that "because the action was dismissed without prejudice as to Subdivision Forty, to which they set up title, and they disclaimed as to the balance, costs should have been awarded them. " (Brooks v. Calderwood, supra, 34 Cal. at p. 565.) The Supreme Court disagreed, writing: "But Brooks could not maintain the action, and would not be entitled to judgment at all, as to any portion of the land, unless he was in possession at the commencement of the suit. And Douglass and his wife denied his allegation of possession, and put him to his proof. They might have rested on the issue of possession alone, if Brooks was unable to prove it, and have defeated the action as to the whole on that ground. The disclaimer in another answer of any claim to a part of the premises in question, was not inconsistent with this issue, which they made. Without proof of possession, Brooks could not have had judgment even as to that portion concerning which Douglass and his wife disclaimed. If Douglass and his wife wished to avail themselves of the statutory provision relating to disclaimers, to save themselves from costs, they should not have raised the issue on Brooks's possession, and put him to his proofs. They did do it, however, and he succeeded on the issue. Brooks, therefore, succeeded in part, and, as to Douglass and wife, failed in part. Brooks was at least entitled to costs as to the issue, upon which he succeeded. And the Court, if it had the discretion to apportion the costs, did not see fit to do it. We think Douglass and his wife not entitled to a reversal of the judgment on the ground that costs were not awarded them." (Id. at pp. 565-566.)