Cavanaugh v. Jackson

Garoutte, J. This is an action for the recovery of real estate. The defendant set up title by adverse possession, and his claim was held to be well founded by the trial court. The sole question arising upon this appeal rests upon the construction of that provision of the statute which declares that, before the plaintiff can be deprived of his title by an adverse occupation, the party in possession must “ pay all the taxes, state, county, or municipal, which have been levied and assessed upon such lands.” Defendant’s occupation dates from 1881, and the court found as a fact that the laud in controversy was assessed to him, and the taxes thereon paid by him every year from the date of his occupation down to and including the year 1887. The court also found that the same land was assessed to plaintiff for the years 1885, 1886, and 1887, and the taxes paid by him for those years.

As an element entering into the creation of defendant’s title* the payment of all taxes levied upon the land during the five years’ term of occupation is neeoseary, but it was never infended by the law-making power that he's’nould pay the taxes for any [674]stated year more than once. Having had the land assessed to him, and having paid the laxes levied thereon, we think he has fulfilled the conditions of the statute, and it is immaterial as to the number of times the land may have been assessed to and the taxes paid by other parties. If it had been intended by the legislature, in enacting this provision of the statute, that no title by adverse possession could be created against the true owner as long as he paid the taxes upon the land, it was very easy for that body to have so provided, but the provision is not so worded. It does not require the owner to do anything, but requires the claimant, in order to secure the benefit of the statute of limitations, to do something, namely, to pay the taxes upon the land. Illinois has a provision of law quite similar to the one under present investigation, and it is there held (Bolden v. Sherman, 101 Ill. 489) that in case of double payment of the taxes for any one year, priority of payment prevails. That court has also held that the statute of limitations begins to run from the date of the payment of the taxes, and not from the date of the possession or occupation. But in Brown v. Ciarle, 89 Cal. 196, this court declined to follow that rule, and neither are we in the present case willing to hold that priority of payment by the true owner of itself nullifies the time which has actually run and starts anew the statute. We see no great necessity for the enactment of the provision in the first instance. If for the purpose of giving notice to the true owner that, perchance, an adverse claimant has appeared upon the scene, his payment of the taxes as notice of that fact is entirely insignificant when compared to the circumstance of his open and notorious possession of the land. Whatever may be the object and purpose of the law it should receive a reasonable construction, and to hold that priority of payment by the true owner of itself defeats the occupant’s plea of the statute of limitations would be an unreasonable construction. If such were the law, upon the first day that taxes became due and payable, it would result in a scramble at, or a race to the tax collector’s office by the respective parties to secure priority of payment. The destruction of old titles and the creation of new ones would thus be dependent upon the strongest; man or fleetest horse. We do not think the provision sniakl be so strictly construed against