Bidleman v. Brooks

By the Court,

Sawyer, J. This is an action to recover certain lands in San Francisco. The cause having been tried without a jury, the Court found for defendant, and rendered judgment accordingly. A new trial on the ground that the evidence is insufficient to justify the findings, was applied for by plaintiff, and denied. Plaintiff appeals from the order denying a new trial, and from the judgment.

The plaintiff’s title depends solely upon tax deeds executed upon a sale for taxes for the fiscal year ending June 30, 1862. The plaintiff introduced in evidence his tax deeds, proved a demand upon defendant for possession before the commencement of the suit, and rested.

It appeared from the evidence introduced by defendant, and further evidence in rebuttal on the part of plaintiff, that defendant, Brooks, was at the time of the assessment, and he had been since the summer of 1859, the owner in fee of the whole of fifty vara lot No. 835, and that his conveyance was on record ; that the premises in question are parts of said fifty [73]vara lot; that before and at the time of the assessment' in question, there was a house and various outbuildings on said lot, actually occupied by his tenants; that the whole fifty vara lot was inclosed by one fence, and not divided; that it was used as one lot, the tenant of defendant with his family living in the house, and thus occupying the premises as one lot down to the time of the sale; that the lot was not assessed as an entire lot, but the larger part was assessed to defendant, Brooks, as owner, and the premises in controversy arbitrarily cut off by the Assessor, and separately assessed to unknown owners.

The principal question is whether the property was lawfully assessed. We do not think it was. The Assessor is nowhere authorized to arbitrarily divide up lots into strips to suit his caprice, and assess such several portions separately. If he may divide up a lot of well known boundaries into strips twenty feet wide, he may divide it into strips of one foot in width, or even smaller dimensions, and assess each separately, and thus render it not only greatly inconvenient and oppressive to. the owner, but almost impossible for him to ascertain whether his taxes have all been paid or not. The law undoubtedly contemplates that each lot of well known dimensions and boundaries shall be assessed as one lot. In this instance, there was a lot of the ordinary dimensions—the smallest of the lots as originally officially surveyed and platted in that part of the city—which had not been subdivided by the owner. It was inclosed by a single fence, separating it distinctly from all other lands, and had a dwelling house and outbuildings upon it, the whole openly and notoriously occupied as a single lot or messuage by the defendant’s tenant and his family. Yet it was arbitrarily sliced up into at least three parts, and each separately assessed as a distinct lot, the larger portion—more than, half—being assessed to the real owner, the defendant, and the other two parcels to unknown owners. Such an assessment of a tract of land constituting one well known lot, and actually occupied as such—if it would not