Hesse v. Strode

• Decision Date: 27 June 1904
• Citation: 77 P. 634,10 Idaho 250
• Parties: HESSE v. STRODE
• Court: Idaho Supreme Court

77 P. 634

10 Idaho 250

HESSE v. STRODE

Supreme Court of Idaho

June 27, 1904

REAL ESTATE-TITLE BY ADVERSE POSSESSION-TAXATION BY CITY-ESTOPPEL.

1. Where the city erected a fire-engine house on its own lot and on a small fraction of an adjoining lot, and maintained such house there for about twenty years, and in the meantime assessed for taxation said fractional part of the adjoining lot with the remaining part thereof to the owner, and collected and received such taxes and charges for street paving, sidewalk, sprinkling and other city purposes, it is estopped from claiming title thereto by adverse possession.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Action to quiet title to certain land. Judgment for defendants. Affirmed.

Judgment of the district court affirmed. Costs of this appeal awarded to the respondents.

Alfred A. Fraser and Charles M. Kahn, for Appellants.

Under the facts in this case as stipulated and agreed to, the plaintiffs herein base their right to recover upon two points: 1. That the city acquired title to said tract of land by adverse possession of the same; and 2. That the defendants are estopped to claim title to said tract of land in controversy by reason of the acquiescence of the defendants' predecessors in interest in the boundary line between said tracts of land by permitting, without objection the city to erect the building upon the same and occupy the same without protest for a period of almost twenty years. On the question of adverse possession, the facts in this case establish all the elements necessary in such case, with the exception of the payment of taxes upon the property in dispute. The appellants contend that it was not necessary for the city to pay taxes upon this property in order to acquire title by adverse possession, as the city, under the constitution and laws of the state of Idaho is not required to pay taxes upon property. (Rev. Stats. 1887, sec. 1401; Idaho Const., art. 7, sec. 4; United States v Schwalby, 8 Tex. Civ. App. 679, 29 S.W. 90; Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259; Grimm v. Curley, 43 Cal. 250; Brown v. Lette, 2 F. 440, 6 Saw. 332.) It is held that acquiescence for a great number of years is conclusive evidence of an agreement to that line. No express agreement need be shown. (Rockwell v. Adams, 7 Cow. 761.) A line which parties have agreed to, either expressly or by acquiescence, will not be disturbed. (McCormick v. Barnum, 10 Wend. 105. See Riley v. Griffin, 16 Ga. 141, 60 Am. Dec. 726.) Standing by while a party subjected himself to expenses in regard to the land which he would not have done had not the line been located as it was, may perhaps warrant the presumption of a grant within the statute period. (Adams v. Rockwell, 16 Wend. 285, 302.) Acquiescence is conclusive evidence of an agreement as to a boundary, and such agreement need not be shown by direct evidence, but is inferred from conduct and such acquiescence. (Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Baldwin v. Brown, 16 N.Y. 359; Jones v. Pashby, 67 Mich. 459, 11 Am. St. Rep. 589, 35 N.W. 152; Gwynn v. Schwartz, 32 W.Va. 487, 9 S.E. 880; 4 Am. & Eng. Ency. of Law, 2d ed., 863; O'Donnell v. Penney, 17 R. I. 164, 20 A. 305; Swettenham v. Leary, 18 Hun, 284.)

W. E. Borah, for Respondents.

In the absence of the evidence of intention to hold adversely the presumption would be that he intended to hold to the true line. (Tam v. Kellogg, 49 Mo. 118.) "Occupation such as will constitute a disseisin of the true owner and give title by adverse possession must be accompanied with claim of title." This authority also lays down the rule that the burden is upon the plaintiff to establish every essential ingredient of his rights and that the presumptions are in favor of the true title. (Altschul v. O'Neil, 35 Or. 202, 58 P. 95.) Under the statutes of Idaho adverse possession cannot ripen into title unless the party has paid all taxes assessed, against the land according to law. (Idaho Rev. Stats., sec. 4043; Green v. Christie, 4 Idaho 438, 40 P. 54.) In respect to the title to real estate, if the party claiming title is acquainted with the true state of the title or has an equal means with the other party of ascertaining it as in the case of a duly recorded deed, there will be no estoppel, at least from mere silence. (Clark v. Parsons, 69 N.H. 147, 76 Am. St. Rep. 157, 39 A. 899; Odlin v. Gove, 41 N.H. 465, 77 Am. Dec. 773; Wood v. Griffin, 46 N.H. 230; Mountain Lake Co. v. Schartzer, 83 Md. 10, 34 A. 536; Reynolds v. Insurance Co., 34 Md. 280, 6 Am. Rep. 337; Jameson v. Rixey, 94 Va. 342, 64 Am. St. Rep. 726, 26 S.E. 863; Poynter v. Chapman, 8 Utah 442, 32 P. 693.) As to boundary line by acquiescence: Biggins v. Champlin, 59 Cal. 113; Cooper v. Vierra, 59 Cal. 282; Sneed v. Osborn, 25 Cal. 619; McCormick v. Barnum, 10 Wend. 104; Jackson v. Van Corlaer, 11 Johns. 123; Perkins v. Gay, 3 Serg. & R. 327, 7 Am. Dec. 653; Moyle v. Connelly, 50 Cal. 295; City of Bloomington v. Bloomington etc. Assn., 126 Ill. 221, 18 N.E. 300; Mullaney v. Duffy, 145 Ill. 559, 33 N.E. 750; Liverpool v. Prescott, 7 Allen, 494; Quick v. Nitschelm, 139 Ill. 251, 28 N.E. 926-929; Schraeder Co. v. Packer, 129 U.S. 688, 9 S.Ct. 385, 32 L.Ed. 760; Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139.

SULLIVAN, C. J. Stockslager and Ailshie, JJ. , concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

--This action was begun by Boise City, and thereafter the present appellants were substituted as plaintiffs. The action is to quiet title to a strip of ground two feet nine inches wide off of the east side of the west half of lot 8, block 7 of the original townsite of Boise City. The case was tried upon an agreed statement of facts, and upon that statement the court rendered its decision in favor of the defendants who are the respondents here. The appeal is from the judgment. The following facts appear from the record: It was stipulated by the respective parties that the abstract of title marked exhibit "A" was a true and correct abstract of title to lot 8, block 7 of the original townsite of Boise City, and showing correctly the chain of title to said lot that in the year 1870 there was erected and has since been standing on the west half of said lot 8 a one-story brick or adobe building, and that said building was erected by the predecessors in interest of the respondents; that said building has been there ever since said year and is now standing thereon as the same was originally constructed; that there are two feet nine inches of the east side of the west half of said lot which are not covered or occupied by said building; that in the year 1884, Boise City erected upon the east half of said lot a city fire-engine house of brick, two...