Ross v. Evans

Thornton, J. In this cause the findings do not pass on all the material issues. The court finds aii adverse possession by defendant and his grantors, from 1862 to the trial of the action in September, 1883, against every one except the United States, of the lands for the possession of which it awards judgment to the plaintiffs. It also finds that these lands were public lands in 1862, for a portion of which a patent of the United States was made to the plaintiff in 1875, and for the remaining portion he received a patent from the same in 1879, and that plaintiff’s cause of action was not barred by the Statute of Limitations. This conclusion could only be reached on the ground that the defendant had not paid the taxes on the lands,' as required by the Act of April 1, 1878, amending section 325 of the Code of Civil Procedure. (See Amd’ts Codes 1877—78; Code Civ. Proc. Newmark’s ed. 1883, § 325.) The language of this act is that “ in no case shall adverse possession be considered as established under the provision of any section or sections of this Code, unless it shall be shown that .... the party or persons, their predecessors and grantors, have paid all the taxes, State, county, or municipal, which have been levied and assessed upon such land.”

As to the matter of taxes and their payment, the court finds that these lands have never been assessed to defendant or his grantors since the year 1877, nor have they paid the taxes thereon; that since the year 1877, defendant and his grantors have paid all the taxes, State, county, and municipal, that have been assessed to them on any lands owned by them in Lassen County.

If any taxes were levied and assessed (such are the words of the statute) on the lands in controversy, after the Act of 1878 went into effect, the defendant must have shown that he or his grantors paid them, to establish his adverse possession. It is immaterial to whom they were assessed. Whether assessed to him or some other person, if he does not show that he or his grantors have paid them, he cannot make out his adverse possession. It may be that if such taxes were paid by some one else, defendant would only be called on to prove that fact; perhaps, in such case, he would be relieved from paying them to make out his defense. But as to this we decide nothing,' as the question is not before us.

[441]It will not be enough for defendant to prove that he has paid all the taxes levied and assessed on the land owned by him in the county where the land in suit is situated; for the defense of the Statute of Limitations admits that he do'es not own the land unless by reason of his adverse possession, and the adverse possession is to be made out by this showing.