Biasi v. Leavitt

• Decision Date: 04 January 1985
• Docket Number: No. 14937,14937
• Citation: 101 Nev. 86,692 P.2d 1301
• Parties: Bruno BIASI and Elisa Biasi as Co-Trustees of the "Bruno Biasi Family Trust," Appellants, v. Ladell LEAVITT, Respondent.
• Court: Nevada Supreme Court

Page 1301

692 P.2d 1301

101 Nev. 86

Bruno BIASI and Elisa Biasi as Co-Trustees of the "Bruno Biasi Family Trust," Appellants, v. Ladell LEAVITT, Respondent.

No. 14937.

Supreme Court of Nevada.

Jan. 4, 1985.

Paul L. Larsen, Las Vegas, for appellants.

Leavitt & Leavitt, Las Vegas, for respondent.

OPINION

PER CURIAM:

This is a boundary dispute. Appellants, the Biasis, brought an action to eject respondent from a disputed strip of land of which they are the record owners. Respondent Leavitt successfully defended the action, claiming that he had adversely possessed the land for the statutory period. The sole issue on appeal is whether respondent satisfactorily established his compliance with the statutory requirement of NRS 11.150 that a party pay all taxes assessed against the land in question for a period of five years before adverse possession can be established. ¹ We conclude that he did not and reverse.

The problem in this case arose as a result of two government surveys having been made of the area in which the parties' properties are located. The first survey was performed in 1881 and established boundary lines for those sections of land already patented and occupied. The area in dispute in this case was one of these sections. The second survey, made in 1934, was undertaken to correct certain errors in the 1881 survey, but was not intended to disturb boundary lines or affect vested interests in the already patented and occupied lands. Section corner markers placed during the 1934 survey within the already patented lands were not meant to designate property corners, but were established as reference points from which surrounding, as yet unpatented, land was to be measured.

The Biasi and Leavitt properties are contiguous. Their common recorded boundary line coincides with the section line dividing Sections 35 and 36, Township 13 South, Range 70 East, as established by the 1881 survey. The Biasis own the NW 1/4 of the NW 1/4 of Section 36. Leavitt owns a smaller parcel located within the NE 1/4 of the NE 1/4 of Section 35. Unfortunately, Leavitt did not have an adequate survey made of his property before he constructed a home on his property. He incorrectly assumed that the 1934 section marker designated his property corner. As a result of this error, the building encroaches approximately thirty-five feet onto the Biasis' land.

At trial, respondent produced tax receipts for three years showing that he had paid taxes on 3.16 acres, with improvements, in section 35. He also testified that he paid a similar assessment for a number of additional years. The major portion of the "improvements" for which respondent was billed stand in the disputed area, which is part of section 36. Appellants produced tax receipts showing that they had paid the taxes on their land in section 36, including the disputed area, for the years in question. Although there was no direct evidence that respondent had paid taxes in any part of section 36, the trial court apparently assumed that the payment of taxes for the improvements constituted payment on the land as well, and concluded that there had been a double billing and double payment of taxes on the disputed strip of land. Relying on the holding in Zubieta v. Tarner, 76 Nev. 243, 351 P.2d 982 (1960), the court determined that respondent had satisfied the tax payment requirement. We disagree.

In Zubieta, supra, we held that where taxes were paid by both the record owner of the property and an adverse claimant, the claimant's payment was sufficient to satisfy the statutory requirement and the fact that the legal owner had also paid taxes on the property would not defeat the claim. In that case, however, the property descriptions in the parties' deeds overlapped so that each had been assessed and paid taxes on the disputed area. This is not true in the instant case. As noted, respondent's deed describes property within section 35 while appellants' deed describes property within section 36. There is no overlap in the legal description of the parties' land in their respective deeds.

Respondent contends, however, that Sorensen v. Costa, 32 Cal.2d 453, 196 P.2d 900 (1948) supports the trial court's determination that he paid taxes on the disputed area. In Sorensen it was held that, where a claimant of title by adverse possession paid the taxes actually assessed on the land occupied, a misdescription of the land on the tax rolls or in tax receipts would not affect the efficacy of payment under the California statute requiring payment of taxes in order to establish adverse possession. In that case, however, the court also noted that the claimant was required to show that the particular land occupied was assessed and the taxes paid by him or his predecessors; it was not sufficient to show that he thought or supposed he was paying taxes on the land occupied when the land was assessed under a correct description that applied to other land. 196 P.2d at 908. In the instant case, although respondent demonstrated that he had...