120 Cal. 332 | Cal. | 1898
Lead Opinion
This is an action to recover possession of a certain tract of land situated in Humboldt county. This land is covered by the waters of Humboldt bay. Plaintiffs rely upon a patent from the state of California, in which the lands are described as state tide lands. Defendants rely upon title by prescription, or adverse possession. The present action was brought April 30,1894. In the year 1871 a number of persons composing ' the firm of Evans & Co. became the owners of a tract of land ad
The merits of this litigation to a considerable extent revolve around that provision of the law relating to the payment of taxes by an adverse occupant of land. It is there provided: “In no case shall adverse possession be considered established under the provision of any section or sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, cr municipal, which have been levied and assessed upon such land.” (Code Civ. Proc., sec. 325.) This provision of the law took effect May 31, 1878. The language of the provision, to the effect that the party in possession must “have paid all the taxes .... which have been levied and assessed upon such land,” is not well chosen, inasmuch as it can hardly be said that taxes are assessed upon the land. But the intent of the law-making power is reasonably plain; and a fair construction of the language is that the word “levied” refers to the act of the board of supervisors in making the levy, and the word “assessed” refers to the act of the assessor in making the assessment. This construction being adopted, we agree with appellant that by the words of the provision itself both the assessment and levy must be made while the occupant is in possession, or he is not called upon to pay the tax. It is insisted that ■such construction might result in the creation of an adverse title by the payment of the taxes for only four years. But that
The question we have been discussing becomes most material ■in this case. It is conceded that defendants paid no state or county taxes levied during the year 1889. The action being brought April 30, 1894, to establish an adverse possession for ■the five years next preceding the commencement of the action, it was necessary to prove the payment of all taxes levied and assessed during that term of five years, that is, all taxes levied and assessed subsequent to April 30, 1889. If the state and county taxes for the year 1889 assessed upon this land were “assessed” prior to April 30, 1889, then the defendants were not called upon to pay them, even though those taxes were levied subsequent to that time, for, as we have seen, the taxes must be both levied and assessed within the five years of adverse occupancy. As to what constitutes the assessment of any particular tract of land by the assessor, within the purview of this statute, we are not called upon to decide. Neither will we determine under the evidence before us the particular day upon which this land was assessed. Whether or not it was assessed prior or subsequent to April 30, 1889, was a question of fact essentially for the jury and not the trial judge.
The court instructed the jury as to the law bearing upon this question of payment of taxes, in general accord with the case of Brown v. Clark, 89 Cal. 196. It is there declared: “The duty laid upon the occupant is to pay all taxes which have been levied and assessed against the land during his term of continuous occupancy and adverse claim of right for five years. If he does this, he can maintain his position as against the person who would otherwise be the owner of the land.” This instruction was directly in line with the statute and clearly sound. But appellant’s counsel asked the court to give the following instruction to the jury, which request was refused: “Since 1878, to acquire a title to land by adverse possession, it has been necessary that the persons claiming such adverse possession should pay all taxes, state, county, and municipal, levied and assessed -during the period covered by his adverse claim, and I instruct
The title by adverse possession relied upon by defendants was created at either one of two periods of time. The provision of the statute as to the payment of taxes taking effect May 31, 1878, defendants’ title was either created between 1871 and that date, or it was created during the five years next preceding the commencement of the present action. Tor it is conceded that defendants paid no taxes upon this property subsequent to May 31, 1878, until the year 1890. Hence, that time could form no element in the creation of the title for the earlier period. The court gave the jury the following instruction, which appellants strenuously insist was error: “You are instructed that an adverse, open, notorious, exclusive possession for the period of five years extinguishes the right of the party
The opinion of the court denying appellants’ motion for a new trial is attached to their brief, and it appears therefrom that the court was somewhat in doubt as to whether or not lands covered by navigable waters could be acquired by adverse possession. If the law is such as the court by its opinion seems to indicate, then the plaintiffs in this action should have lost their case. They rested their cause of action upon a patent from the state. They were out of possession, and had nothing but a paper title upon which to base their action. If they had sufficient title upon which to base the action, then they
Section 325 of the Code of Civil Procedure provides: “For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure; 2. Where it has been usually cultivated or improved.”
As explanatory of the second subdivision of the section, appellants asked the following instruction: “A piece of property is said to be usually improved or improved in the usual manner, when it is improved as similar property is improved. An improvement may mean to employ advantageously, or to enhance in value, or to make letter, or to occupy for a beneficial purpose pursued during occupation. It does not necessarily mean buildings or structures thereon.”
The court refused to give this instruction as requested, but modified it by omitting therefrom the words in italics. The last sentence could well have been given, but portions of the instruction were properly rejected. Those portions took too wide a scope. The mere beneficial user of this land for hunting, fishing, or bathing would probably have come within the signification of the language used, yet certainly those things are not meant by the words “usually improved.” The court refused to give the following instruction: “If you find from the
This instruction should have been given. It contains a sound principle of law, and was clearly applicable to the facts of the case.
It is contended that an outstanding title was shown in Evans & Co., if their title did not pass to these defendants. As previously suggested, if Evans & Co. had a title at any time, it was created by adverse possession occurring prior to May 31, 1878. And, even if it be conceded that a defendant in ejectment may show an outstanding title in a stranger created by adverse possession, for the purpose of defeating a plaintiffs cause of action—a proposition not decided—still this claim of appellants has no merit. For an action based upon such title would be barred by the statute of limitations, and a title so barred is not such a present, live, effective, outstanding title as would defeat plaintiffs cause of action. (Totten v. James, 55 Mo. 494; McDonald v. Schneider, 27 Mo. 405; Hoag v. Hoag, 35 N. Y. 473; Griffin v. Sheffield, 38 Miss. 359; 77 Am. Dec. 646; Jackson v. Schauber, 7 Cow. 187.) In this direct connection it may be further suggested that a privity of estate is absolutely necessary before various periods of adverse possession created by different parties may be tacked together, and, as to the land in- controversy, the existence of such privity between the various grantees of the Occidental Mill property, prior to 1878, is not entirely plain.
We do not deem it necessary to discuss the various other questions raised upon this appeal.
For the foregoing reasons the judgment and order are reversed and the cause remanded for a new trial.
Van Fleet, J., Henshaw, J., McFarland, J., and Temple, J., concurred.
Dissenting Opinion
I dissent from the construction which is given in the foregoing opinion to the provisions of section 325 of the Code of Civil Procedure. By the terms of that section a person claiming title to land by adverse possession must show, in addition to an occupancy and claim for the period of five years continuously, that he has paid “all the taxes which have been levied and assessed upon such land.” To hold that the term “assessed,” as used in this clause, refers to the act of the assessor in making the assessment or valuation of the land as the basis for apportioning the taxes is, in my opinion, erroneous, and neither justified by the language of the section nor consistent with its purpose. The natural construction of the phrase “all the taxes which have been levied and assessed upon such land” would refer the word “assessed” to the previous word “taxes,” and its position after the word “levied” would imply that it referred to some act or step subsequent to the levy of the taxes. The word is used in the Political Code with different significations, and the meaning to be given to it in any particular case is to be determined from the context, as well as from the subject matter in reference to which it is used. The provision in section 3627 that all taxable property is to be “assessed” at its full cash value refers to an assessment of the property, and is an act entirely different from an assessment of “taxes” upon the property. It means a valuation of the property as a basis for determining the rate of tax to be subsequently levied, and for computing the amount of taxes to be paid for each piece of property. If, under the revenue system of this state there is any provision by which taxes are “assessed” upon land, as distinguished from the valuation of the land by the assessor, the term used in this section should be construed in reference to that act.
The primary meaning of the term “assess” is to apportion or fix the amount of a tax to be paid or contributed; and from this meaning has arisen a secondary or derivative use of the word signifying the valuation of property for the purpose of forming the basis upon which the tax is to be computed. The term is also used at times to include all the steps involved in imposing a tax upon property. (San Luis Obispo v. Pettit, 87 Cal. 499.)
All the acts performed by the assessor for the purposes of taxation are preliminary to the levying of the tax, and are complete before any tax is levied. After he has completed the assessment-book, and entered therein his valuation of all the property upon which taxes are to be paid, the board of supervisors, under the provisions of section 3714 of the Political Code, is required to fix the rate of county taxes, and to “levy the state and county taxes upon the taxable property of the county,” which act, as the section stood at the times involved herein, was to be performed on the first Monday of October in each year. After the taxes have thus been levied the auditor is required by section 3731 to "compute and enter in a separate money column in the assessment-book the respective sums in dollars and cents to be paid on the property therein enumerated.” This act of the auditor constitutes the assessment of the taxes
The action herein was commenced April 30, 1894, and it is conceded that the defendants did not pay the taxes for the fiscal year ending June 30, 1890. These taxes could not be levied until the first Monday of October, 3889, and, under the foregoing considerations, could not have been “assessed” until after that date. The court, therefore, did not err in declining to give to the jury the instruction asked by the defendants to the effect that it'was unnecessary to pay any taxes that were assessed before the period covered by his claim, although they were levied within that period, since such an instruction was not justified by any evidence in the case, and was in point of law self-contradictory. If it was intended by the instruction that the jury should be told that the valuation of the property by the assessor must have been made within the period of the claim, the court properly refused it as not being justified in point of law. The court did instruct the jury at the request of the defendants that if, in addition to their adverse occupancy, they had paid all of the taxes levied and assessed upon the land between the time of their entry on the 39th of April, 3889, and the commencement of the action, they had a good title to the property at the time the action was commenced, and the defendants were entitled to a verdict. This instruction sufficiently presented the law upon this point applicable to the facts of the case.
Rehearing denied.
Beatty, 0. J., dissented from the order denying a rehearing in Bank.