Meyer v. Schoeffler

• Decision Date: 31 July 1924
• Citation: 39 Idaho 500,227 P. 1061
• Parties: AUGUST MEYER, Appellant, v. AUGUSTA SCHOEFFLER, OTTO SCHOEFFLER, DAVE SCHOEFFLER, WILLIAM FRED SCHOEFFLER, ANNA SCHOEFFLER, MARTHA SCHOEFFLER, MINNIE SCHOEFFLER and LENA SCHOEFFLER, Heirs of FREDERICK SCHOEFFLER, Deceased, Respondent
• Court: Idaho Supreme Court

227 P. 1061

39 Idaho 500

AUGUST MEYER, Appellant, v. AUGUSTA SCHOEFFLER, OTTO SCHOEFFLER, DAVE SCHOEFFLER, WILLIAM FRED SCHOEFFLER, ANNA SCHOEFFLER, MARTHA SCHOEFFLER, MINNIE SCHOEFFLER and LENA SCHOEFFLER, Heirs of FREDERICK SCHOEFFLER, Deceased, Respondent

Supreme Court of Idaho

July 31, 1924

EJECTMENT-TITLE TO REAL PROPERTY-ADVERSE POSSESSION-PAYMENT OF TAXES-WHAT CONSTITUTES-EVIDENCE-SUFFICIENCY OF.

1. To acquire title to land by adverse possession, it is necessary to comply with all the provisions of the statute relating thereto.

2. The payment of all state, county and municipal taxes levied and assessed upon land for a consecutive period of five years is an indispensable requirement of the statute to establish title by adverse possession.

3. The payment of taxes levied and assessed upon a governmental subdivision of land does not constitute a payment of taxes on an adjoining small tract, which is known to be included in another subdivision.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action in ejectment. Judgment for defendants. Reversed.

Judgment reversed. Costs to appellant.

McNamee & Clements, for Appellant.

The burden of proving all the essential elements of adverse possession is upon the party relying upon title by adverse possession. (2 C. J., p. 262, par. 585, and cases cited; Pleasants v. Henry, 36 Idaho 728, 213 P. 565; Brown v. Brown, 18 Idaho 345, 110 P. 269; Swank v. Sweetwater Irr. Co., 15 Idaho 353, 98 P. 297; Altschul v. O'Neill, 35 Ore. 202, 58 P. 95; Collins v. Riley, 104 U.S. 328, 26 L.Ed. 752; Grosholz v. Newman, 21 Wall. (U.S.) 481, 22 L.Ed 471; Nathan v. Dierssen, 146 Cal. 63, 79 P. 739; Tuffree v. Polhemus, 108 Cal. 670, 41 P. 806; Ball v. Kehl, 95 Cal. 606, 30 P. 780.)

Adverse possession cannot be established in this state unless it is shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons their predecessors and grantors, have paid all the taxes state, county or municipal, which have been levied and assessed upon such land according to law. (C. S., sec. 6603; 2 C. J., p. 263, par. 585, note 77; Green v. Christie, 4 Idaho 438, 40 P. 54; Brose v. Boise City Ry. Co., 5 Idaho 694, 51 P. 753; Little v. Crawford, 13 Idaho 146, 88 P. 974; Swank v. Sweetwater Irr. Co., 15 Idaho 353, 98 P. 297; Coe v. Sloan, 16 Idaho 49, 100 P. 354; Bayhouse v. Urquides 17 Idaho 286, 105 P. 1066; Brown v. Brown, 18 Idaho 345, 110 P. 269; Northern P. Ry. Co. v. Pyle, 19 Idaho 3, 112 P. 678; Wilson v. Linder, 21 Idaho 576, Ann. Cas. 1913E, 148, 123 P. 487, 42 L. R. A., N. S., 242; Cramer v. Walker, 23 Idaho 495, 130 P. 1002; Johnson v. Sowden, 25 Idaho 227, 136 P. 1136; Trask v. Success Min. Co., 28 Idaho 483, 155 P. 288; Dickerson v. Hansen, 32 Idaho 18, 177 P. 760; Citizens Right-of-way Co., Ltd., v. Ayers, 32 Idaho 207, 179 P. 954.)

E. J. Doyle, for Respondents.

We call the court's attention to the case of Price v. De Reyes, 161 Cal. 484, 119 P. 893, on the question of the payment of taxes.

Landmarks which have been acquiesced in for a long time will not be disturbed. (Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., and Johnson, District Judge, concur.

OPINION

WM. E. LEE, J.

--This is an action in ejectment commenced to recover possession of a certain tract of land and for damages. The cause was tried to the court without a jury upon the amended complaint of appellant, the answer and cross-complaint of respondents and appellant's answer to the cross-complaint. In 1889, Frederick Schoeffler and Henry Wessels were the owners of adjoining lands. About that time the construction of a public road intersected these lands. The road cut off about three acres from one corner of Schoeffler's land and also a small tract from the Wessels land.

Evidently because it became more convenient on account of the construction of the road for Wessels to farm, in connection with his land, the three-acre tract cut by the road from the Schoeffler land, they agreed that Wessels should take said three-acre tract in exchange for a tract of about the same size and value of the land cut off by the road from the Wessels land. It is the three-acre tract, originally a part of the Wessels land, that is the subject of this action. Their agreement was oral and, while the evidence tends to show that they recognized that conveyances of land must be in writing, they postponed the making of deeds and Wessels and Schoeffler died without making them. Each of the original parties inclosed the strip, which he had "traded for," with his other land. Wessels cultivated the tract he got from Schoeffler until he died, and his successors have cultivated it ever since. Schoeffler cultivated the tract he got from Wessels as long as he lived, and his heirs have cultivated it ever since. For nearly thirty years Wessels and Schoeffler abided by their trade. In 1921, however, one August Meyer, appellant herein, the owner of the Wessels farm, without notice and without offering to trade back to the Schoefflers the land Schoeffler had traded to his predecessor, Wessels, went upon the three acres in controversy, while a crop of wheat was growing thereon, and built a fence on the original line of the tract. The Schoefflers promptly tore down Meyer's fence, and this action was commenced.

The Schoefflers, the respondents, base their title on adverse possession. The trial court found in their favor. From that decree this appeal is taken. Appellant assigns numerous errors on the part of the lower court, all of which relate to the alleged insufficiency of the evidence.

The evidence is amply sufficient to sustain the court's findings that the tract claimed by respondents had been both protected by a substantial inclosure and cultivated for approximately thirty years. But appellant insists that it appears from the evidence that respondents have not paid the taxes. To acquire title to land by adverse possession, it is necessary to comply with all the provisions of the statute relating thereto. C. S., sec. 6603, provides among other things:

"That in no case shall adverse possession be considered established under...