Elliott v. Bertsch

California Court of Appeal Jun 30, 1943 No. Civ. 6789Published

Before: Peek

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Holding. The court held that the defendant's affirmative allegation of ownership sufficiently traversed the plaintiffs' claim of adverse possession, and that the plaintiffs failed to meet their burden of proof to establish the elements of adverse possession. Consequently, the trial court's failure to make a specific finding on the issue of adverse possession was not reversible error because such a finding would have necessarily been adverse to the plaintiffs.

Issues

Whether an affirmative allegation of ownership in an answer constitutes a sufficient denial of a complaint's allegation of adverse possession.
Whether the plaintiffs met their burden of proof to establish title by adverse possession.
Whether the trial court's failure to make a finding on the issue of adverse possession constitutes reversible error.
Whether the judgment roll from prior foreclosure proceedings was properly admitted into evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It may be said, generally, that any allegation in an answer which, if found to be true, necessarily shows that the allegation of the complaint as to the same matter is untrue, is a good traverse and sufficient as a denial.”

“The plaintiffs had the further burden of clearly proving all of the other essential elements necessary to establish their title by adverse possession, i.e. actual, open and notorious use, hostile and adverse to the original owner’s title.”

“It is generally true that unless waived, full findings are required on all material issues, the exception being that a party cannot complain of a failure to make findings when, if made, they must necessarily be adverse to him.”

PEEK, J.

Plaintiffs appeal from a judgment quieting their title to certain real property subject to defendant’s easement to the water on said land, and the further right to lay and maintain water pipes in connection with the use thereof.

Plaintiffs acquired title to the property by virtue of a sheriff’s deed dated October 15, 1928, resulting from the foreclosure of a mortgage on the property in question. The right of easement claimed by the defendant had its source in a conditional sales agreement entitled “Bond for Deed”, dated September' 11, 1907. Plaintiffs’ immediate predecessors in interest, the mortgagors under said mortgage, were the successors in interest of H. Johansen, who also was the grantor of the water and water rights to F. H. Bertsch and wife, the predecessors in interest of their son, the defendant herein.

The plaintiffs’ complaint contained two causes of action, the first, following the usual quiet title procedure, alleged ownership and possession, while the second was based upon an allegation of adverse possession. The defendant’s answer which denied plaintiffs’ first cause of action made neither reference to nor denial of plaintiffs’ allegation of adverse possession but affirmatively alleged ownership of certain water and water rights on the land.

At the conclusion of the hearing the court made its decree as previously mentioned. The plaintiffs thereupon proposed certain findings of fact and conclusions of law to the effect that the allegations in their complaint relative to their ownership and possession were true; that upon receipt of the sheriff’s deed they had entered into possession of the premises and ever since have been in “actual, continuous, open, notorious, exclusive and adverse possession thereof, and used the waters thereon for the ordinary purposes of husbandry and paid all the taxes thereon. ’ ’

Such proposed findings were rejected by the trial court

[546]

with a statement in a memorandum of opinion particularly addressed to the question of adverse possession, that:

“I do not believe the evidence warrants such a finding. . . . In the present ease the court has already found the easement of water rights was acquired by deed and there has been no use by the plaintiffs, the owner of the premises, which is adverse to the defendant’s enjoyment of such right. ...”

Elliott v. Bertsch

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PEEK, J.

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