Citizens Right of Way Co., Ltd. v. Ayers

• Decision Date: 29 March 1919
• Citation: 179 P. 954,32 Idaho 206
• Parties: THE CITIZENS RIGHT OF WAY COMPANY, LTD., a Corporation, Respondent, v. J. L. AYERS, Administrator of the Estate of JOSEPH F. AYERS, Deceased, Appellant
• Court: Idaho Supreme Court

179 P. 954

32 Idaho 206

THE CITIZENS RIGHT OF WAY COMPANY, LTD., a Corporation, Respondent, v. J. L. AYERS, Administrator of the Estate of JOSEPH F. AYERS, Deceased, Appellant

Supreme Court of Idaho

March 29, 1919

PLEADINGS AND ERROR-ASSIGNMENT OF ERROR-INSUFFICIENCY OF EVIDENCE TO SUPPORT THE FINDINGS-ADVERSE POSSESSION-PAYMENT OF TAXES.

1. Under C. L., sec. 4434, a specification in the brief on appeal of the insufficiency of the evidence to support the findings is required in order to bring before this court for review the question of such insufficiency.

2. Under C. L., sec. 4043, it is necessary to prove the payment of all taxes, state, county or municipal, levied and assessed upon the property in question during five years consecutively, in order to sustain claim of title to real property by adverse possession.

[As to adverse possession, see note in 45 Am.St. 376]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Action to quiet title. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Cavanah & Blake, for Appellants.

The open, notorious and continued possession of the property in question by the appellants for the required period of time and the payment of taxes by them during such period, was of far greater significance than the payment of taxes by the supposed true owner. (Owsley v. Matson, 156 Cal 401, 104 P. 983; People's Water Co. v. Lewis, 19 Cal.App. 622, 127 P. 506; Illinois Central R. Co. v. Houghton, 126 Ill. 233, 9 Am. St. 581, 18 N.E. 301, 1 L. R. A. 213.)

The adverse possession need not be under a rightful claim or under a muniment of title. (Pittsburgh C., C. & St. L. Ry. Co. v. Stickley, 155 Ind. 312, 316, 58 N.E. 192; Illinois Cent. R. Co. v. O'Connor, 154 Ill. 550, 39 N.E. 563; Illinois Cent R. Co. v. Moore, 160 Ill. 9, 43 N.E. 364.)

Chas F. Reddoch and Richard H. Johnson, for Respondent.

The adverse claimant must not only occupy the property adversely, but he must pay the taxes five years continuously before an adverse title is acquired. (Carpenter v. Lewis, 119 Cal. 18, 50 P. 925; Cavanaugh v. Jackson, 99 Cal. 672, 34 P. 509; Webber v. Wannemaker, 39 Colo. 425, 89 P. 780; Turner v. Ladd, 42 Wash. 274, 84 P. 866; Clayton v. Feig, 188 Ill. 603, 59 N.E. 245; Rio Grande Western Ry. Co. v. Salt Lake Inv. Co., 35 Utah 528, 101 P. 586.)

Whatever possession appellants had of the right of way was not hostile to respondent's possession, but permissive. The burden of proving all the essential elements of adverse possession, including its hostile character, is upon the party relying upon such possession. (De Frieze v. Quint, 94 Cal. 653, 28 Am. St. 151, 30 P. 1; Mauldin v. Cox, 67 Cal. 387, 392, 27 P. 804; Tippenhauer v. Tippenhauer, 158 Ky. 639, 166 S.W. 225; Fuller v. Worth, 91 Wis. 406, 64 N.W. 995; Northern Counties Inv. Trust v. Enyard, 24 Wash. 366, 64 P. 516; Roberts v. Sioux City etc. Ry. Co., 73 Neb. 8, 10 Ann. Cas. 992, 102 N.W. 60, 2 L. R. A., N. S., 272; East Tennessee V. & G. Ry. Co. v. Telford's Exrs., 89 Tenn. 293, 14 S.W. 776, 10 L. R. A. 855; Virginia & S.W. Ry. Co. v. Crow, 108 Tenn. 17, 64 S.W. 485; Hooper v. Acuff (Tex. Civ.), 159 S.W. 934; Smith v. Algona Lumber Co., 73 Ore. 1, 136 P. 7, 143 P. 921.)

"A prescriptive title cannot be founded upon use and occupation which is not adverse to the title of the owner, but which is under permission of such owner." (Davis v. Devanney, 7 Idaho 742, 65 P. 500; Allerton v. Steele, 59 A.D. 622, 69 N.Y.S. 594; City of St. Joseph v. Seel, 122 Mich. 70, 80 N.W. 987; Smith v. Hitchcock, 38 Neb. 104, 56 N.W. 791, 793; Root v. Woolworth, 150 U.S. 401, 14 S.Ct. 136, 37 L.Ed. 1123; 1 Cyc. 1032, see, also, Rose's U.S. Notes.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

This is an action to quiet title, brought by respondent corporation. The property involved is a strip of land, 100 ft. in width, acquired by respondent's predecessor for railroad purposes. Joseph F. Ayers, the original defendant in the action, pleaded title by adverse possession. After the appeal was perfected Joseph F. Ayers died, and J. L. Ayers, administrator of his estate, was substituted in this court as appellant.

In 1884, Joseph F. Ayers, by warranty deed, conveyed the strip of land to respondent's predecessor in interest. Ayers had his entire tract of land inclosed with a good substantial fence, including the land in question. About the year 1890, he plowed down the grade on the strip of land and began to cultivate the same, and continued his possession and cultivation thereof until the commencement of this action.

The trial court found that the tract of land involved in this action was assessed for taxation each and every year from the year 1884 to the year 1914, and that respondent, and its predecessors in interest, have paid all taxes, state, county and municipal, which have been levied thereon. The court also found that Joseph F. Ayers, during the same period of time, paid taxes upon the government subdivision through which that portion of the right of way in question passes, the property being described as the SW. 1/4 of Sec. 9, Tp. 4 N., R. 1 W., B. M.; that during the years 1887, 1888, 1889 and 1890, the property upon which Ayers paid taxes was described as the said SW. 1/4 "less six acres," and during the years 1899 and 1900, the property was described as 38 1/2 acres of said SW. 1/4. The court also found that respondent, and its predecessors in interest, paid taxes upon the strip of land in question each and every year prior to the time Ayers paid taxes thereon, except the years 1888 and 1893, in which years Ayers made the payment first. It was also found that Ayers never at any time caused said strip of land to be separately assessed to himself, and never paid any taxes separately upon it. The court further found that Ayers, without asserting any adverse right or claim as against the respondent, used and cultivated the strip of land in controversy in this action to the same extent and in like manner as his other premises, but that appellant never at any time notified respondent, its officers or agents, that he claimed adversely any part of said strip of land.

The foregoing findings are not called in question unless it be by the first specification of error, which is as follows:

"The court erred in not finding that appellant Ayers . . . . [was] in the open, notorious, continued, uninterrupted, peaceful and adverse possession and occupancy of the land in controversy during all the times mentioned."

C. L sec. 4434, provides that the reporter's transcript of the testimony, when settled, shall have the force and effect of a bill of exceptions duly settled and allowed, and shall be deemed adequate to present for review any question of insufficiency of the...