Hesse v. Strode

77 P. 634 | Idaho | 1904

SULLIVAN, C. J. —

This action was begun by Boise City, and thereafter the present appellants were substituted as plaintiffs. The action is to quiet title to a strip of ground two feet nine inches wide, off of the east side of the west half of lot 8, block 7 of the original townsite of Boise City. The case was tried upon an agreed statement of facts, and upon that' statement the court rendered its decision in favor of the defendants who are the respondents here. The appeal is from the judgment. The following-facts appear from the record: It was stipulated by the respective parties that the abstract of title marked exhibit “A” was a true and correct abstract of title to lot 8, block 7 of the original townsite of Boise City, and showing correctly the chain of title to said lot; that in the year 1870 there was erected and has since been standing on the west half of said lot 8 a one-story brick or adobe building, and that said building was erected by the predecessors in interest of the respondents; that said building has been there ever since said year and is now standing thereon as the same was originally constructed; that there are two feet nine inches of the east side of the west half of said lot which are not covered or occupied by said building; that in the year 1884, Boise City erected upon the east half of said lot a city fire-engine house of brick, two stories in height, and that said house was erected over and upon the west half of said lot 8 to the extent of two feet, nine inches, and has remained so ever since, and so stands at the present time and has been occupied during said time by the city as a fire-engine house; that neither respondents nor their predecessors in interest have ever, at any time, objected or complained to the city authorities of Boise City as to the building or the erection of said city engine-house or as to the same being maintained thereon; that the respondents as heirs to John Strode, deceased, are now the owners and holders of all title and interest which said Strode had in the west half of said lot; that taxes, county, city and state have been legally levied and assessed each year upon and against the west half of said lot; that said levies and assessments were made, not against the entire lot, but against the west half of said lot separate and distinct from the east half thereof each year; that no part of said taxes so levied and assessed has, at any time, been paid by the appellants or their predecessors in interest, but that the respondents and their predecessors in interest have each year paid all of such taxes. That from time to time special assessments and expenses for sidewalks, street paving and sprinkling have been levied and assessed against and upon the west half of said, lot, and that all such amounts so levied for such purposes have been paid by the respondents and their predecessors in interest. Upon those facts judgment was entered in favor of the respondents. The stipulated facts show that the respondents have a clear paper record title to the west half of said lot.

The questions for decision are: 1. Did the appellants and their grantor, the city, acquire title to said two feet and nine inches of land by adverse possession? Or 2. Was there a. boundary line agreed upon? Or 3. Are the respondents es-topped from questioning the title of the appellants? We wül answer the second and third questions first.

The stipulated facts do not show that a boundary was ever agreed upon between the city and the owners of the west half' of said lot, and there are no facts shown that estop the respondents from questioning the title of the appellants. The only other question for decision is: Did the city acquire title to the-two feet, nine inches on the easterly side of said lot by adverse possession ?

It is shown by the stipulated facts that Boise City levied taxes for city purposes and from time to time made special assessments for sidewalks, street paving and street sprinkling purposes upon the west half of said lot 8, and that all such amounts so levied, assessed or charged against said west half of lot 8 have been paid by the respondents and their predecessors in interest. This would indicate that the city was not holding said tract of ground adversely to the respondents, but recognized their title thereto by levying such taxes and charges against it. The city has thus from year to year treated this property as belonging to the respondents, accepted their money for the taxes so levied on the theory that the property belonged to them. And the city by those acts is estopped from denying that said' property was legally assessed and that it was not, in fact, subject to taxation and did not belong to the respondents.

The Judgment of the district court must therefore be affirmed, and it is so ordered. Costs of this appeal are awarded to the respondents.

Stockslager and Ailshie, JJ., concur.