Cohen v. Anderson

This is the ordinary action to quiet title to land. In his amended answer, filed on the day of the trial, defendant denied that plaintiff is the owner in fee of the property claimed. Further answering, defendant alleges:

“That defendant and his predecessors in interest were for a period of more than five consecutive years prior to the commencement of this action in the open, notorious, exclusive, continuous, uninterrupted, peaceable and adverse possession of said property and the whole thereof, under claim of right and title thereto, exclusive of any other right; and that plaintiff and his predecessors have during all of said years paid all the state, county and municipal taxes levied and assessed against said property.”

By way of cross-complaint defendant avers “that he is now and for a period of more than five years .prior to the date of the filing of the complaint herein, has been the owner of, and in the possession of all those certain lots,” describing the real property in question; that plaintiff claims some right to or interest in said property, without right, and prays the decree of the court that plaintiff take nothing by his action and that defendant be adjudged the owner of said property.

Defendant had findings in his favor and judgment passed quieting his title to said land. Plaintiff “moved the court to enter another and different judgment than the one entered in said cause on May 10th, 1912 . . . and that the said court enter a judgment as prayed for in favor of the plaintiff adjudging the plaintiff to be the owner in fee of said premises described in the cross-complaint and findings therein.” The motion set forth quite fully the grounds thereof but it was denied by the court. Thereupon plaintiff served and filed his notice of appeal from the judgment and brings the case here on the judgment-roll and reporter’s transcript of the proceedings in the case.

The subject of the action is the following described land: Lots 2, 3, and 4, sec. 10, and lots 6 and 9, sec. 11, T. 43 N., R. 3 E., M. D. M., situated in Siskiyou County containing 161.50 acres.

Defendant introduced certain proceedings relating to an assessment of the land and a sale to the state for nonpayment of the tax levied in 1888 and a subsequent sale by the state by deed dated February 4, 1905, to Charles Crawford and William J. Bray. This was followed by deed from Crawford to defendant, dated November 2, 1907, and a deed from Bray to defendant, dated November 26, 1907.

It is conceded that the proceedings in the matter of the tax-title were void for fatal irregularities and failures to comply with the law and that no title passed to either Crawford or Biay and hence they conveyed no title. These proceedings and deeds, however, were introduced and are relied upon by defendant as color of title and supporting as such his prescriptive title on which alone rests his claim. The provisions of the Code of Civil Procedure relating to what constitutes adverse possession under a written instrument, are found in sections 322 and 323. Section 322 provides: “When it appears that the occupant, or those under whom he claims, entered into the possession of the property under claim of title, exclusive, of other right, founding such claim upon a written instrument, as being a conveyance of the property in question, . . . and that there has been a continued occupation and possession of the property, included in such instrument, . . . or some part of the property, under such claim, for five years, the property so included is deemed to have been held adversely, except that when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract.” Section 323 provides. “For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument

There is a provision found in section 325, applicable to all the sections relating to the subject of prescriptive title—“that in no case shall adverse possession be considered established . . . 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 . . . have paid all the taxes . . . which have been levied and assessed upon such land. ’ ’

Appellant contends: 1. That title by adverse possession is not sufficiently pleaded in the amended answer; 2, That the findings are insufficient to show a title by adverse possession; 3. That the findings are insufficient to support the judgment; 4. That the findings are wholly unsupported by the evidence.

The action was commenced May 11, 1911. Crawford and Bray’s color of title dates from February, 1905, and defendant’s from November, 1907. Bray did not testify. Crawford testified that he went to the land on the twenty-fourth day of June, 1905; that he went there to see if he “could run the lines out and establish corners, to see where my land was that I had bought.” He testified: “I put up two notices that we were running the lines out,” warning against trespassing; that he was there “three days that spring but in the fall later on quite a while—a week or ten days hunting and prospecting.” He went to the property again in 1906 “in the latter part of July or first of August.” He found a man by the name of Brown running sheep on the land and told him he was intruding on his rights and that he must keep his sheep off. At another time he drove a band of forty or fifty cattle off the land. He was asked if he built a fence and replied that he did not; that he “had too much work to

Defendant testified as to his occupation of the land: “In the spring of 1908 as quick as I could get in there, it was some time in the latter part of June or first of July, I went into this place and stuck up notices all around, as nearly as I could describe the piece of land without a surveyor. Close to the lake I put up notices forbidding trespassing on the place of people coming in there grazing it oft with sheep. Q. What is the character of the land? A. There is a little grass on it, some little timber, small timber. Q. Would you call it grazing land? A. Well, it is grazing land for a little while in the summer. Q. What else is it? A. It is just a kind of a summer resort. ... I stayed there some two or three day at that time—then I went back home. Some time about July 4th I moved out there with my family. Q. What did you use it for? A. I used it for, just for a summer resort, for camping and hunting. ... We stayed there six weeks when I moved out." In 1909 he went to the land on horseback the first of July and later took his family there as he had the year before. He testified: “It is cold—it is only just a little while, somewheres, probably three months, would be as long as one could stay there comfortably. Q. That is as much as it can be occupied as a summer resort? A. Yes, sir; three months would be the limit for any comfort there. Q. And is that as much as it can be occupied for grazing? A. Yes, sir; grass no grow after that length of time." He testified that in 1910 he “went up twice that spring again, stayed a few days, fixed up the camp" and took his family

On this evidence, and we have given enough of it to fairly disclose the extent and nature of the use made of the land by defendant, the court made the following among other findings :

“9. And the court finds that defendant has at all times assumed and held the possession and control of said property.

“10. That there was no one who ever interfered with the possession of said property or any part thereof by defendant, nor any one who claimed any right, title or interest in the property at any time.

“11. That Crawford and Bray during their possession and defendant during his possession, each and all have at all times held open, notorious, peaceable and exclusive possession of said lands under claim of right and title thereto, and have, during all of said time, paid the taxes, state, county and municipal, which were levied and assessed thereon.

“12. That said property is not agricultural land, nor is it grazing land. That it has an elevation of 7000 feet. That it is situated a great distance away from any farming or agricultural lands—in the mountains and is useful or available

only for use as a camping ground or summer resort. That said property was at all times held, claimed and occupied and cared for by Crawford, Bray, and defendant, Anderson, in the same manner and used for the same purposes as such property usually is used. ’ ’

“13. The court finds that this character of property is not usually inclosed by fence, of any kind, that it is customary and usual only to post said property in the usual manner as against trespassers.”

We are unable to find evidence in the record sufficient to support the foregoing findings without which latter the judgment would have no support. Neither Crawford nor Bray, defendant’s predecessors, did more than to visit the land for a short time, post notices thereon claiming the same, and warning against trespassers; they asserted their ownership on one or two occasions when they found sheep and cattle running on the land, and one winter they allowed a man to camp on the place to hunt and trap. But there is no evidence that they made any improvements on the land, or did the acts required to constitute adverse possession other than to pay the taxes levied and assessed thereon. We do not see how their possession can be availed of by defendant as hostile or adverse to plaintiff and the whole world in making up the period of five years required by the statute.

Defendant took his deed in November, 1907, but did not attempt to take possession under it until the latter part of June or the first of July, 1908. His possession, such as it was, begins to run from that date, -and ceased on May 11, 1911, when the action was commenced. Unless defendant can avail himself of Crawford and Bray’s possession as adverse in the legal sense of that term, his possession, if, under the evidence, it can be held to have been adverse, would fall far short of the required five years.

The finding “that the said property is not agricultural land, nor is it grazing land,” is supported by the evidence only to the extent that it is not agricultural land. The evidence is that sheep and cattle were grazed upon it, and their owners were warned to keep their stock off the land. The finding that the land “is usful or available only for use as a camping ground or summer resort” may be true as to the land near the lake around which the campers pitched their tents and defendant

And this leads to another section. Section 322 provides that “when it (the land) consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract.” Here are five different lots, some fractional, comprising in all 161.50 acres. The evidence is that but ten acres were inclosed, and the evidence does not show on which lot is this inelosure. How can the judgment stand giving defendant title to all these lots by adverse possession? We are unable to discover how it can be done.

We think, too, that the finding of adverse possession, marked 11, supra, is insufficient to support the judgment. It is that

Appellant asks that on the findings the judgment be reversed and the lower court directed to enter judgment for plaintiff. The record shows that the defendant and his predecessors have paid the taxes levied and assessed on the land since their occupation, and also that the purchasers at the delinquent tax-sale paid all such taxes, costs, and charges up to that time incurred. The maxim—“He who seeks equity must do equity”—forbids our complying with the plaintiff’s request. (Holland v. Hotchkiss, 162 Cal. 366 , [ 123 Pac. 258 ]; Campbell v. Canty, 162 Cal. 382 , [ 123 Pac. 266 ].) In the first of these cases, upon a careful examination of the question, Mr. Justice Shaw thus stated the rule: “Where the owner comes into equity asking equitable relief to remove or cancel a tax-deed or sale as a cloud upon his title, or to obtain a judgment which, in effect, will invalidate the sale or deed, the court should refuse any relief except upon the condition that he first repay to the tax purchaser, or his grantee or assigns, the taxes, penalties, interest, and costs justly chargeable upon the land, and which the purchaser has paid at the sale, or afterward upon the faith of it, with legal interest from the time of such payment, less rents received, if any, if the purchaser has been in possession.” The opinion points out some further things which the plaintiff must do, conditional to

The judgment is reversed.

Hart, J., and Burnett, J., concurred.

A petition for a modification of the judgment in this cause having been filed, the following opinion was rendered thereon by the district court of appeal on September 27, 1913:

CHIPMAN, P. J. —Plaintiff asks, by petition, for a modification of the opinion filed herein “by striking therefrom the last paragraph thereof, and inserting in lieu thereof an order directing the trial court to enter judgment on the findings in favor of appellant, pursuant to appellant’s motion.” Attention is called to the pleadings from which it appears that plaintiff in his complaint simply alleged ownership in himself and the assertion of an adverse claim, without right by defendant, to the land in controversy. It is hence suggested that the complaint did not show an equitable right in defendant, or a duty from plaintiff to defendant, upon which the maxim—He who seeks equity must do equity—can be invoked. Buck v. Canty, 162 Cal. 226 , 237, 238, [ 121 Pac. 924 , 929], is cited, wherein the court said: “The equity of the defendant not being apparent on the face of the complaint, the only other way by which it could be presented would be by setting it up in the answer.” But the answer in the case here did not allege a purchase by defendant or his predecessor at a tax-sale, and only referred to the payment of taxes for five years as an element in his title by adverse possession. As in the case cited, it is apparent, from the answer as well as from the proceedings at the trial, that there is no claim made by defendant that plaintiff should reimburse defendant for. any taxes

The judgment is reversed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 27, 1913.