McDonald v. Drew
Before: McFarland, Vanclief
Synopsis
Prescription — Adverse Possession — Division Fence — Payment of Taxes.—Where the division fence between coterminous owners oi land was so located as to place a strip of land belonging to one of the coterminous owners upon the side of the other coterminous owner, and the fence so remained for a period of more than five years, but the lots were assessed for taxes yearly to each' owner simply by reference i o their number, without mention of the fence, or reference thereto, and paid by each owner as thus assessed, the possession of the owner on whose site the strip of land was located was not adverse as to such strip, and he could not acquire a prescriptive title thereto for want of payment of all taxes assessed upon the strip of land during the five years of the alleged adverse possession.
Opinion — Vanclief
Vanclief, C. Action in the nature of ejectment to recover possession of a narrow strip of land, about eighteen inches wide and one hundred feet in length, being part of lot No. 4, block 20, of the city of San Bernardino, the east side of which strip adjoins the east boundary line of said lot.
The defendant pleaded title by prescription through an adverse possession during a period of five years.
The court found the facts as follows:—
“ For the purpose of this action, the following are stipulated as facts: —
“ 1. That at the time of the commencement of this action the plaintiff was, and for twenty years next prior thereto she and her grantors had been, the owners of lot 4, in block 20, of the city of San Bernardino, the land described in the complaint, except in so far as such ownership may have been impaired by adverse possession of the defendants and their grantors as to the strip of land described and claimed in the answer.
“ 2. That during all of said times the plaintiff and her grantors have been in the actual and exclusive possession of said lot 4 as owners, except in so far as such possession may have been ousted or withheld by the defendants and their grantors as to said strip.
“ 3. That J. W. Satterwhite was such owner and possessor at the time of the construction of the fence mentioned in the answer, and referred to as a division fence, and the plaintiff’s title is derived through him.
[268]“ 4. That during all of said times the defendants and their grantors were the owners of the west half of lot 7, in said block 20, lying east of adjoining said lot 4.
“ 5. That at the time of the- construction of the fence mentioned, Byron Waters was the owner of the said west half of lot 7, and in the actual possession thereof, and the defendants’ title is derived through him, but this does not admit any possession or right of possession as to said strip of land.
“ 6. That during all of said times the said lot 4 has been, assessed to the plaintiff and her grantors, described simply as l'ot 4' in said block 20, without mention of said fence or reference thereto, and the plaintiff and her grantors have paid all taxes upon such assessments.
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