Brown v. Berman

DRAPER, P. J.

Defendant Berman appeals from decree quieting title in plaintiff. Plaintiff’s claim is based wholly on adverse possession, claimed to have been continuous for more than five years before date of filing of the complaint, February 4, 1960, and to and including date of trial, October 31, 1960. Defendant Lantz acquired title by deed in 1950. Taxes on the property were long delinquent. In 1953, plaintiff paid the taxes due for the fiscal year 1952-1953. In 1954, she paid all delinquent taxes for the years 1946-1951, and certificate of redemption was filed with the State Controller, whose receipt therefor was recorded (Rev. & Tax. Code, § 4107). By May of 1954, she completed on this lot a fence which measured 48 feet across the front, 50 feet across the rear, and 123 feet on each side. On this fence she placed a sign “Private Property, Keep Off, No Trespassing.” She testified that her name appeared in one corner of the sign. She maintained fence and sign through time of trial, inspecting them almost every week. In August, 1959, defendant Berman loaned Lantz $1,100 and recorded a trust deed on the lot securing repayment. Trustee and trustor were joined in this action, but defaulted. Berman is the only appellant.

The decree quiets title to the entire lot described by reference to a recorded map. The map is not in evidence, but there is testimony that the mapped lot is in fact 150 feet by 50 feet. There is no finding as to the actual size. Plaintiff, both

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in the trial court and here, asserts a claim only to an area 125 feet by 50 feet. The requirements of possession are more stringent where the possessor acts under mere claim of right than when he occupies under color of title (2 Witkin, Summary of Cal. Law, 877). In the former case, the land is deemed to have been possessed and occupied only where it has (a) been protected by a substantial inclosure, or (b) usually cultivated or improved (Code Civ. Proe., §325). Compliance with requirement (b) is not even suggested here. Thus plaintiff must rely upon her fencing of the lot. “ [T]he land so actually occupied, and no other, is deemed to have been held adversely” (Code Civ, Proe., §324). Plere the trial court made no determination as to the portion of the lot actually enclosed by fence, or as to the extent of the area to which title was quieted. Thus the case must be returned for retrial.