127 P. 506 | Cal. Ct. App. | 1912
The facts of this case are few and simple and the law involved therein is plain and well settled. The *623 complaint in ejectment was in the usual form. The answer denied to plaintiff ownership of any part of the property or any interest therein, admitted possession by appellant, set up title by prescription, and pleaded the statute of limitations. The appeal is from the judgment in favor of plaintiff.
At the trial, without objection, contest or contradiction, the legal record title was shown to be in respondent. By mesne conveyances it was connected directly with a United States patent, embracing the land in controversy, issued December 21, 1901, to the Central Pacific Railroad Company. The only claim made by appellant in the court below was that he had acquired title by adverse possession. In this court there is an additional contention that there was an infirmity in the proof of the legal record title, inasmuch as it was not shown that the said railroad company had complied with the terms prescribed by the act of Congress as the condition upon which the land should be granted by the government. It would be singular, indeed, if a litigant were permitted to keep his lips closed in the trial court, and to speak loud enough to be heard in the appellate tribunal and to maintain such an attack upon a patent issued with all the formalities of law. These solemn instruments of conveyance are surely entitled to greater consideration than is implied by appellant's argument. Even if the objection had been made at the trial, manifestly the patent would be at least prima facie evidence of the facts therein recited, and if said recitals could be controverted at all in such proceeding as this, the law would impose the burden of proof upon the one assailing the integrity of the instrument. The effect of a patent to land issued by the government is fully discussed in Standard Quicksilver Co. v. Habishaw,
After proving as aforesaid the record legal title, plaintiff introduced evidence showing that the property was assessed from the year 1898 to 1910, inclusive, and then rested. From a juridical standpoint, then, this situation was presented: Plaintiff, having established a legal title to the property, is presumed to have been possessed thereof within the time required by law, and the occupation of the property by defendant to have been under and in subordination to the legal title, and this presumption can only be overcome by sufficient evidence on the part of appellant that he had held and possessed the property adversely to such legal title for five years before the commencement of the action. (Code Civ. Proc., sec. 321; Ross v. Evans,
As to these it may be said that it would at least be a fair inference that appellant's occupancy was not under a claim of right in view of his testimony that "I went to the assessor's office, Henry Jones, and told him I was living on the land and I would like to have the land assessed to me, and he asked me if I had title to the land and I told him no, and he said he could not assess it to me then." It is no doubt true that the "acts and declarations of the party respecting his claim at any time while in possession before commencement of the action, whether within or after five years after the commencement of his possession, would be admissible as tending to show the character in which he claimed during the whole time," and whether the possession is adverse must be determined from all the evidence in the case. (Cannon v. Stockmon,
This feature of the case, however, may be passed without further comment, as it is plain that the lower court was entirely justified in concluding that appellant had utterly failed to satisfy the requirement of the code "that in no case shall adverse possession be considered established under the provisions of any section or sections of this code unless it shall be shown . . . and the party or persons, their predecessors and *626 grantors, have paid all the taxes, state, county or municipal, which have been levied and assessed upon the land." Appellant testified: "I have known the lands for about twelve years. They were not occupied by any person when I first became acquainted with them, and I then settled upon them. I went to the land office and tried to file on it and they would not let me file on it. I went twice to file on it and they would not let me file on them." He detailed also the improvements that he made on the land, and in the cross-examination the following questions and answers appear: "Did you ever pay any taxes on it? A. There was none assessed against me to pay on it. Q. Did you ever pay any taxes on it? A. There was none assessed on it to me, I couldn't pay it. Q. Did you ever pay any taxes? A. Not on the land I didn't." It is thus to be seen that appellant, in one vital respect, has fallen short of establishing his title by prescription. He attempts to excuse his failure on the ground that he was prevented from making the required payment. This explanation is sought to be shown by an affirmative answer to the leading question of his counsel: "I understood you to say that you had offered to pay all taxes that were assessed?" But it does not appear in any manner when or to whom this offer was made or whether it was ever repeated. The witness probably referred to the occasion aforesaid when he requested that the property be assessed to him. No case has been cited and it is believed none could be found in which it has been held that, under similar circumstances, there has been a compliance with the plain provision of the statute.
The decisions upon which appellant relies can afford him no comfort and in their facts are so unlike this as to be hardly instructive. As pointed out by respondent, the sentence quoted by appellant from McNoble v. Justiniano,
In Cavanaugh v. Jackson,
In Owsley v. Matson,
In Glowner v. De Alverez,
In consonance with the plain terms of the law, there is no doubt that for five consecutive years the claimant must pay all the taxes assessed against the property, or at least tender such payment during the same period. To so hold is to affirm the judgment of the lower court, and it is so ordered.
Chipman, P. J., and Hart, J., concurred.