Allen v. McKay & Co.
Before: Garoutte, Harrison
Synopsis
Advebse Possession—Pbescbiptive Title—Payment of Taxes—Consteuction of Code—Taxes * ‘ Levied and Assessed’ ’—Assessment Pbiob to Five Years—Subsequent Levy.—The intention of the legislature in requiring the payment of all taxes “levied and assessed” upon land adversely claimed and possessed continuously for five years, under the terms of section 325 of the Code of Civil Procedure, is to refer to the act of the supervisors in making the levy, and the act of the assessor in making the assessment, and to require that the taxes must be both levied by the board of supervisors and assessed by the assessor upon the land during the period covered by the adverse possession for five years, in order to require payment of them as a condition of such adverse possession; and if an assessment was in fact made by the assessor more than five years before the commencement of an action to recover the possession, the fact that it was levied within the five years does not require it to be paid, and if a tax is levied after the expiration of the five years, the fact that it was assessed within the five years does not require the payment in order to complete the prescriptive title.
Id.—Adverse Possession Pbiob and Subsequent to May 31, 1878.—A person holding adverse possession prior to May 31, 1878, when the amendment of the code took effect, might add his prior adverse possession to his adverse possession subsequent to that date, and was only required to pay taxes levied and assessed upon the land within the period after that date, required to complete the statutory period of five years.
Id.—Advebse Possession of Tide Lands—Bights of United States.—Tide lands patented by the state may be acquired by adverse possession as against the patentee; and any rights of the United States in such lands are unaffected by an action between the patentee from the state and an adverse claimant, and need not be considered for any purpose in such action.
In.—Usual Improvement of Tide Lands—Instruction.—Tide lands may be said to be usually improved within the meaning of section 325 of the Code of Civil Procedure, when improved as similar property is improved, and an improvement thereof does not necessarily mean structures or buildings thereon; but a requested instruction to the effect that “an improvement may mean to employ advantageously, or to enhance its value, or to occupy for a beneficial purpose pursued during occupation,’’ is too broad, and is properly rejected.
Id.—Boom: Sticks and Fastenings—Substantial Inclosube.—Boom sticks fastened together and also fastened to piles, surrounding a boom on all sides continuously, and constituting a boundary and inclosure for the boom sufficient for all of the purposes to which the same was or could be applied, constitutes a substantial inclosure of tide lands within the meaning of section 325 of the Code of Civil Procedure.
Opinion — Garoutte
GAROUTTE, J. This is an action to recover possession of a certain tract of land situated in Humboldt county. This land is covered by the waters of Humboldt bay. Plaintiffs rely upon a patent from the state of California, in which the lands are described as state tide lands. Defendants rely upon title by prescription, or adverse possession. The present action was brought April 30,1894. In the year 1871 a number of persons composing ' the firm of Evans & Co. became the owners of a tract of land ad[334]joining the premises in controversy, upon which was situated a sawmill, and which property was known as the Occidental Mill property. The business of this firm and the ownership of this property continued by itself and its grantees down to September 12, 1888, at which time the entire title vested in defendant liebecca McKay. The various deeds of conveyance transferred the Occidental Mill property and its “appurtenances.” From 1871 to the commencement of this action the various owners of the mill property, in connection with the mill, used the property in controversy as a boom, viz., as a storage place for saw logs. This boom or storage place was inclosed by piles driven into the ground, to which were attached by chains continuous series of heavy timbers called boom sticks. Upon the land side the inclosure was completed by pickets driven into the soil.
The merits of this litigation to a considerable extent revolve around that provision of the law relating to the payment of taxes by an adverse occupant of land. It is there provided: “In no case shall adverse possession be considered established under the provision of any section or sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, cr municipal, which have been levied and assessed upon such land.” (Code Civ. Proc., sec. 325.) This provision of the law took effect May 31, 1878. The language of the provision, to the effect that the party in possession must “have paid all the taxes .... which have been levied and assessed upon such land,” is not well chosen, inasmuch as it can hardly be said that taxes are assessed upon the land. But the intent of the law-making power is reasonably plain; and a fair construction of the language is that the word “levied” refers to the act of the board of supervisors in making the levy, and the word “assessed” refers to the act of the assessor in making the assessment. This construction being adopted, we agree with appellant that by the words of the provision itself both the assessment and levy must be made while the occupant is in possession, or he is not called upon to pay the tax. It is insisted that ■such construction might result in the creation of an adverse title by the payment of the taxes for only four years. But that
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