Did thе court err in submitting this case to the jury and in entering judgment upon the verdict rendered? There is ample testimony tending to establish plaintiff’s claim of title by adverse рossession, but the vital question is whether there is any evidence to the contrary. It was stipulated by the parties hereto that the land in controversy
“was nоt assessed by Douglas County, Oregon, for State and County taxes prior to the year 1901; that said Lot Nine (9) was assessed by said county for State and County taxes for the years 1901 to 1915, *35 inclusive, in the name of the Oregon and California Railroad Company, as owner thereof; that said Railroad Company paid the taxеs so assessed against Lot Nine (9) for the years 1901 to 1912, inclusive, and that the United States paid the taxes so assessed against said lot for the years 1913, 1914 and 1915, and that said lot was not assessed by Douglas County for State and County taxes for the years 1916 to 1921, inclusive; that said lot Nine (9) was never assessed to Victor Phipps nor Robert Phipps; that no proof need be offered on said matters at said trial.”
We agree with defendant’s contention that the above stipulation constitutes evidence tending to refute plaintiff’s claim of title. It is true that it was not essential to plaintiff’s cause that evidence be offered of pаyment of taxes on this land by him or his predecessors, but it does not follow that the failure so to do would not be competent evidence supporting defendant’s theory that plaintiff did not claim ownership thereto. Ordinarily, a person pays taxes on that which he claims to own. At least it was matter, togethеr with all of the other facts and circumstances in the case, for the jury to consider relative to the issue as to whether this property was occupied under a claim of ownership during the statutory period necessary to establish title. The jury might have been convinced from evidence, aside from question of payment of taxes, that plaintiff had acquired title by adverse possession, but it was not bound to do so. The rule is thus stated in
Looney
v.
Sears,
“It is true that his failure to pаy the taxes on the land and his failure to return the same*’on his tax lists was persuasive evidence against his claim of right, and if his acts of ownership were othеrwise equivocal or doubtful, his failure to pay the taxes might turn the scales against him. But while the *36 failure to pay the taxes, or to return the property for taxation, is competent evidence and of considerable weight, it is by no means conclusive.” Also see 2 C. J. 275 and cases cited' under note 36.
In
Holtzman
v.
Douglas,
“Payment of the taxes * * is very important and strong evidence of a claim of title; and the failure of the plaintiff’s predecessors to make any claim to the lot or to pay the taxes themselves is some evidence of an abandonment of any right in or claim tо the property.”
In
Todd
v.
Weed,
“If the payment of taxes tends to show an intention to claim title, — and clearly it does, — the failure to pay them would a fortiori tend to show the converse of the proposition.”
There is also еvidence of oral admissions against interest made by plaintiff, which, if true, would justify a reasonable inference that he did not claim ownership of the prеmises in controversy.
However the conflict in the evidence, plaintiff urges it was error to submit the cause to the jury for the reason that both parties moved for directed verdicts, which is equivalent to a stipulation that there was no issue of fact involved. Appellant’s contention cannot be uphеld in the light of
Banfield et al.
v.
Crispen et al.,
Plaintiff complains of failure to give the following requested instruction:
“And I instruct you that in order to acquire title by adverse possession it is not necessary that the claimant should know who is the true owner, and furthermore any information furnished to Eobert Phipps or the plaintiff as to the fact thаt the land office records showed the land to be railroad land would make no difference in this case, if you find that the possession of Eobert Phipps was of the character herein defined to you and continued for ten years from and after August 29, 1883.”
As an abstract proposition of law, plaintiff cоuld have acquired title by adverse possession regardless of whether he knew who was the true owner of the land in dispute or the fact that the land office records showed it to be railroad land, but these matters, together with all of the other evidence in the case, were for the consideration of the jury. It would have been improper to have singled out this particular line of testimony and directed attention to it:
Kellogg
v.
Ford,
*38 Finally, it is contended thаt the land was not subject to homestead entry for the reason that at the time defendant made his entry thereon it was in possession of plaintiff. Appellant did not raise this question in the trial court and, therefore, it cannot be considered here. Furthermore, this contention is inconsistent with the theory upon which appellant sought to prevail, as shown by the following stipulation :
“That from the time said railroad company became entitled thereto, said lаnd continued to be property of said railroad company subject to the terms and conditions of the acts of Congress specified in Paragrаph I hereof until revested in the United States by the Act of Congress known as the Chamberlain-Ferris Act approved June 9, 1916 (39 Stat. at Large 218, chapter 137), unless the titlе thereto was acquired by adverse possession by plaintiff and his predecessors in interest; that is to say, if said title was not acquired by the plaintiff and his prеdecessors in interest by adverse possession, then the said land was revested in the United States by the said Chamberlain-Ferris Act and became public land of the United States and subject to the defendant’s homestead entry under the provisions of the homestead laws of the United States as modified by said Act and Hоuse Joint Eesolution No. 20 adopted by the House of Eepresentatives of the United States and approved February 14, 1920; but if the said plaintiff acquired title to said land by adverse possession and conveyance prior to the passage of the said Chamberlain-Ferris Act, then said land did not revest in the United States or become public land or subject to defendant’s homestead entry.”
As stated in
Wallace
v.
American Life Ins. Co.,
“Where a case has been tried on a certain theory, with the acquiescence of the parties, it must be so *39 continued on appeal, and the Supreme Court will not permit a change of position in that tribunal.”
8. It may well be argued that the preponderance of the testimony favors plaintiff, but under the inhibition of Article VII, Section 3c of the Constitution of Oregon, we are precluded from disturbing the verdict of a jury where there is any evidence to sustain the same.
The judgment of the lower court is affirmed.
Affirmed.