Harvey v. Meyer

Garoutte, J. The plaintiff claiming title to certain real property, and out of possession, brought this action under section 738 of the Code of Civil Procedure to quiet his title and secure possession. Judgment went against defendant, and he appeals therefrom, and also from the order denying a motion for- a new trial.

The title to the parcel in dispute was originally in plaintiff’s intestate, John G. Downey, and now rests in his heirs, represented in this action by the above-named administrator, unless a new title has been created in defendant by adverse possession for the statutory period. Defendant’s title is dependent solely upon the question of the payment of taxes upon the land in controversj^ he having been in exclusive possession of the same under a claim of right for a term longer than that required by the statute.

In the year 1876 defendant became the owner of a tract of land fronting seventy-eight feet, more or less, upon Main street, in the city of Los Angeles, and extending in depth to the center of the block about one hundred and sixty-five feet. J. G. Downey, plaintiff’s intestate, at the same time was the owner of a tract of land fronting seventy-eight feet, more or less, upon Spring street, and extending in depth to the center of the aforesaid block. These two streets are parallel to each other, and form the eastern and western boundary lines respectively of the block. The two lots of these respective owners abutted on each other at the rear. When defendant entered into possession under his deed, in the year 1876, he took actual possession of some thirty feet in depth of the rear portion of Downey’s lot, and this small tract constitutes the land in dispute.

It is conceded that defendant has title if he has complied with the statute of 1878 as to the payment of taxes. [62]In this regard he claims that he has paid all the taxes assessed and levied against this tract since the year 1878; and further insists that if he has not paid such taxes the reason is found in the fact that none were assessed and levied. This contention brings us directly to a consideration of the evidence upon that question. The taxes assessed and levied in the years 1879, 1880 and 1881 are the first to become material, and at that time the tract in dispute, marked “A,” and its immediate surroundings are substantially pictured as follows:

"Defendant entered into possession in October, 1876. His title by adverse possession would have become perfected in October, 1881, if all taxes assessed and levied in the interim had been paid by him. It is not shown that he paid the taxes upon this land during any of the five years between 1876 and 1881. But it does affirmatively appear that in the year 1881 he only paid the taxes which were assessed and levied upon the following described tract, and by such description it is evident that the tract in litigation was not included therein.