Ernst v. Tiel

BURROUGHS, J.,

pro

tem.

This is an action to determine conflicting claims to real property under the provisions of section 749 of the Code of Civil Procedure. The allegations of plaintiff’s complaint bring him within the provisions of that section of the code and also embrace every averment required under section 738 of the Code of Civil Procedure to quiet title to real property.

The property described in the complaint is the east half of lot No. 2, and a strip of land contiguous thereto in lot No. 3, all of said land being in the block bounded by Ninth and Tenth and “O” and “P” Streets, in the city of Sacramento, and designated by counsel as “the colored school lot.”

[749]

All of the defendants, with the exception of defendant Tiel, either filed disclaimers or suffered their defaults to he entered. Defendant Tiel answered, denying plaintiff’s ownership of the land described as a portion of lot No. 3, alleged title thereto in himself, and asked that the same be quieted.

The court found that the plaintiff is now, and that he and his predecessors in interest have been, in the actual, exclusive, and adverse possession of the land in controversy, continuously, for fifty years prior to the filing of the complaint. The date "of the filing of the original complaint does not appear in the record, but the amended complaint, upon which "the cause was tried, was filed January 4, 1917.

The court entered its judgment quieting plaintiff’s title to all of the lands described in the complaint and defendant Tiel has appealed from the judgment.

[1]

Appellant contends that the evidence is sufficient to support the finding of the court that plaintiff had been in the adverse occupancy of that portion of the premises within the school inclosure and described as a part of lot No. 3.

The undisputed testimony of all the witnesses establishes the fact that the lot described in the complaint, together with the building thereon, had been used as a school for colored children, since at least as early as the year 1877, and that the fences on the exterior boundary thereof were in the same place at the time of the trial as they were in 1877, and that in 1877 they had the appearance of being at least ten or twelve years old. One witness,R. T. Carrington, testified that he had lived in Sacramento continuously since 1871 or 1872; that the location of the fences had never been changed and that he was almost sure that the fences were there in 1871 or 1872. This uncontradicted evidence was sufficient to support the finding complained of. It was unnecessary to prove payment of taxes to establish title by adverse possession, as respondent’s title was complete prior to April 1, 1877, the date the amendment of section 325 of the Code of Civil Procedure, requiring payment of taxes as a necessary element of such title, became effective.