Blayden v. Morris

• Decision Date: 26 April 1923
• Citation: 214 P. 1039,37 Idaho 37
• Parties: ELSIE BLAYDEN and FRED A. BLAYDEN, Her Husband, Respondents, v. M. M. MORRIS and PEARL M. MORRIS, His Wife, Appellants
• Court: Idaho Supreme Court

214 P. 1039

37 Idaho 37

ELSIE BLAYDEN and FRED A. BLAYDEN, Her Husband, Respondents, v. M. M. MORRIS and PEARL M. MORRIS, His Wife, Appellants

Supreme Court of Idaho

April 26, 1923

ADVERSE POSSESSION-EVIDENCE OF LAND ASSESSED-PAYMENT OF TAXES.

1. The description of land in the assessor's plat-book must be complete by itself and sufficient to identify the land, and such description cannot be impeached or varied by parol evidence.

2. Payment of taxes upon a legal subdivision inclosed by fences inclosing also a strip of adjoining land not assessed to the claimant, where the correct line of the legal subdivision does not include such inclosed strip, is not a payment of taxes upon the disputed strip, and a person claiming by adverse possession cannot prove the same by such evidence of payment of taxes.

3. The payment of taxes for the statutory period is one of the requirements essential to sustain adverse possession.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. B. S. Varian, Judge.

Action to quiet title. From judgment for plaintiffs, defendants appeal. Affirmed.

Judgment affirmed, Costs to respondents.

Haynes & Wilbur, for Appellants.

Possession of lands within an inclosure, though the fence be off from the true line by a mistake of fact, may be adverse. (Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Alverson v. Hooper, 108 Wash. 510, 185 P. 808; Rude v. Marshall, 54 Mont. 27, 166 P. 298.)

Taxpayer A's intention to retain, or supposition that he has retained, title to the full acreage in his legal subdivision by the payment of taxes on such legal subdivision, will not prevent taxpayer B, whose lands adjoin his, from acquiring by adverse possession, a portion of A's legal subdivision by the erection or acquisition by B of a fence built off the true survey line and within A's subdivision. (2 C. J 206, sec. 425; Bayhouse v. Uriquides, supra; Alverson v. Hooper, supra.)

If the assessor, in assessing B's subdivision, does, in fact, deem the improvements and the land upon which the same are made to be a part of B's subdivision, and assesses B's subdivision accordingly, then, if B pays such tax assessment, and such assessments and payments continue for the statutory period of five years, so far as payment of taxes is concerned, B has complied with C. S., sec. 6603. (Bayhouse v. Urquides, supra.)

The findings of fact together with the uncontroverted evidence of appellant, as to the payment, by appellants, of all taxes levied against appellant's lands beginning with 1912, establish the fact that, either prior to the time when respondents acquired the first of their holdings adjoining those of appellants, viz., 1917, or prior to the date when, according to the testimony of respondent Blayden, appellant Morris agreed to move the fence in controversy, viz., 1918, appellants had possessed the disputed strip of land adversely to respondents, their predecessors, and the world, for the statutory period. (C. S., sec. 6603; Bayhouse v. Urquides, supra; Alverson v. Hooper, supra; Rude v. Marshall, supra.)

Alfred F. Stone and Harry S. Kessler, for Respondents.

Where a person claims land by adverse possession beyond the boundary described in his deed, but pays taxes only upon the lands described in his deed, he cannot successfully maintain an action to quiet title by adverse possession, and it is not sufficient for him to show that he paid taxes on other lands, supposing the disputed lands to be included therein; this is particularly true where no boundary has been agreed upon. (C. S., sec. 6603; Brown v. Brown, 18 Idaho 345, 110 P. 265; Citizens Right of Way Co., Ltd., v. Ayers, 32 Idaho 206, 179 P. 954; Hesse v. Strode, 10 Idaho 250, 77 P. 634; McDonald v. Drew, 97 Cal. 266, 32 P. 173, and cases cited; Friedman v. Southern California Trust Co., 179 Cal. 266, 176 P. 442; Baldwin v. Temple, 101 Cal. 396, 35 P. 1008; Staniford v. Trombly, 181 Cal. 372, 186 P. 599; Standard Quick Silver Co. v. Habishaw, 132 Cal. 115, 64 P. 113; Mann v. Mann, 152 Cal. 23, 91 P. 994; Reynolds v. Willard, 80 Cal. 605, 22 P. 262; Schmidt v. Williams, 34 Idaho 723, 203 P. 1075.)

The assessor in making assessments upon real estate must accurately describe the property and the ownership thereof must be shown upon a plat-book; these records must be complete in themselves and sufficient to identify the land, or, if reference to a map or record is required, that should be indicated in the assessment; and these descriptions cannot be impeached, varied or explained by parol evidence. (C. S., secs. 3128, 3129; Wilson v. Jarron, 23 Idaho 563, 131 P. 12; Spring Valley Water Co. v. Alameda County, 24 Cal.App. 278, 141 P. 38; Hewel v. Hogin, 3 Cal.App. 248, 84 P. 1002.)

One claiming by adverse possession has the burden of proving payment of taxes upon the land in dispute or that taxes were not levied or assessed upon the property. (C. S., sec. 6603; Swank v. Sweetwater Irr. & Power Co., Ltd., 15 Idaho 353, 98 P. 297; Green v. Christie, 4 Idaho 438, 40 P. 54; Citizens Right of Way Co., Ltd., v. Ayers, supra; Hesse v. Strode, supra; Brown v. Brown, supra; Reynolds v. Willard, supra.)

"Where owners of adjacent tracts, being ignorant of the location of the true line, occupy up to a line, which they agree is merely provisional, and is to continue only until the true line is thereafter determined, neither can acquire title to any land not within the true line." (2 C. J. 138, 139; Brown v. Brown, supra; Schmidt v. Williams, supra.)

Where there is no proof showing that actual occupancy was accompanied by a claim of title on the part of the occupant, an adverse claim based upon such occupancy cannot be allowed. (Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964.)

GIVENS, Commissioner. Budge, C. J., and Dunn and William A. Lee, JJ., concur.

OPINION

GIVENS, Commissioner.

--This is an action brought by respondents to quiet title to certain lands in Payette county, Idaho. Appellants by cross-complaint set up adverse possession of a certain portion of the lands. The cause was tried by the court without a jury, and judgment rendered for respondents. Appellants appeal from the judgment.

Respondents have had possession of the NE. 1/4 of the SW. 1/4 and the SE. 1/4 of the NW. 1/4 for some eleven years. Appellants have had possession of the NW. 1/4 of the SW. 1/4 since 1915. The controversy is over an irregular strip containing 1.638 acres, having a length of approximately 990 feet and a width varying from nothing to an extreme width of approximately 100 feet, said strip lying east of the correct survey line between the aforesaid lands of the litigants.

At the time appellants took possession of their lands, their fence was already erected, and embraced the strip in controversy. This fence, so far as this litigation is concerned, at all times since and up to the time of the commencement of this action remained as it was, except that some time before respondents took possession of their lands, respondents and appellants moved the south end of said fence on to the lands of respondents' predecessor, but in 1918 it was restored to its former position. On the strip in controversy, appellants have an orchard of 16 prune trees, 10 apple trees, some raspberry bushes, a barn, chicken-house, hog lot and stack yard.

Respondents and their predecessors have paid the taxes assessed against the NE. 1/4 of the SE. 1/4 and SE. 1/4 of the NW. 1/4 since 1907. This description by the correct survey includes the lands in controversy. Appellants have paid the taxes assessed against their legal subdivision since 1912.

During all of the times the lands of the litigants have been assessed and taxes paid thereon by legal subdivision or regular portions thereof, neither the conveyance by which the lands were conveyed nor the assessor's plat showed or described the irregular course taken by the controversial fence, which has been except for the temporary change above mentioned, where it now is for from 16 to 18 years. The assessor's plat and the assessment-roll show the lands only by legal subdivisions.

During the course of the trial, appellant was asked the following question: "At the time you testified as to your land being assessed, did you point out the lands to the assessor?" Respondent's objection that the same was immaterial, irrelevant and incompetent was sustained, whereupon appellant offered to prove by the witness that at the time his lands were assessed, which assessment was a matter of record, he pointed out the lands in question to the assessor as being a part of his lands, and that this was given to the assessor for the purpose of enabling the assessor to arrive at a valuation of the land, particularly as to the acreage of appellants' land which was under improvement and which was being farmed and cultivated at that time. A like objection upon similar grounds was sustained to this offer, and appellants assign the same as error.

If the assessment-roll and plat-book of the assessor, being his official records, showed an assessment against appellant's lands by legal subdivision only, this evidence was immaterial, since the official records are the only means by which can be shown the property actually assessed. If the assessor made no note upon his record that land in addition to the legal subdivision was included in the assessment, the evidence was incompetent, because it tended to vary the written record.

"The assessor must have prepared a full, accurate and complete plat-book of his county, in which shall be platted all townships and fractional townships which have been officially surveyed and platted by the United States government; such plats to be made in a draftsmanlike manner on a scale of four inches to the mile. . . ."...