Gallo v. Gallo

ELLISON, J.,

pro tem.

Plaintiff brought this action to quiet her title to the northeast quarter of a certain section of land situated in Tulare County, and obtained judgment -as prayed for. The defendant appeals.

On the trial the plaintiff introduced as evidence of her title to the quarter-section a patent from the United States to her husband, Giacomo Gallo, dated August 9, 1897, and a deed from the latter to her, of August 12, 1911, conveying the land.

The defendant (who' is a brother of said Giacomo Gallo) as a defense alleged that he had obtained title to the land by adverse possession, and made no other claim-.

Upon this appeal the defendant insists that the findings of the court to the effect that he had not acquired title by adverse possession are not sustained by the evidence, and this is the only question presented.

The record shows that, at about the time plaintiff’s grantor obtained his patent for the northeast quarter of the section, the defendant obtained a patent for the northwest quarter of the same section. Evidently the land was considered of little value -at the time. Neither brother lived nor resided upon the land covered by his patent for any long period after obtaining it, and neither has lived on any part of the half section for many years. (The plaintiff’s quarter-section adjoins the defendant’s on the east, -and the two constitute the north half of the section.) The defendant testified that he

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built a fence on the east side of the land in dispute about 1903 and during the same year inclosed the half section. The fence was of posts and three wires. When he first built the fence he leased the half section to one Goodale for two years at a rental of nine dollars per year. “He agreed to pay the taxes and build the fence. ’ ’ He pastured some cattle on it for two years. At some date, not stated, defendant leased the half section to a man, whose name he cannot recall, under a verbal lease for five years. He paid the rent, $40, for one year and no more, and defendant does not know how long he was on the land, but never saw him after the first year. In 1911 he leased.the land to one Howard for five years under a written lease. This action was begun in October, 1912. The defendant never resided on the land in dispute and never made any use of it except as above stated. The land is in Tulare County and plaintiff’s grantor, during all this time, lived in Stockton, and defendant testified his brother never knew he was leasing the land. He also testified that he had the whole half section assessed to himself, and paid all taxes on it for at least fifteen years. The evidence as to the payment of taxes is that they went delinquent in 1905 and that no taxes were paid in 1906, 1907, and 1908 until 1909, when the defendant redeemed the land from tax sales.