The above-entitled cases were separately tried in the court below. Separate appeals have been taken from the judgment in each case. Since the primary question involved on both appeals is the same, the appeals are by stipulation argued in a single set of briefs and will be disposed of in a single opinion.

On April 30, 1921, and May 4, 1923, appellant, Hammond Lumber Company, pursuant to four several written harbor board orders, obtained from the. City of Los Angeles, respondent herein, acting in its proprietary capacity, tjie use of certain parcels of tide lands. These orders, it ha£ been decided, were leases in legal effect. (Hammond Lumber Co. v. County of Los Angeles, 104 Cal. App. 235, 240 [285 Pac. 896]; San Pedro etc. R. R. Co. v. City of Los Angeles, 180 Cal. 18, 19 [ 179 Pac. 393 ].) The leases were silent as to which party should pay the taxes. Appellant paid taxes under protest on the parcels in question; and these actions are brought against respondent to recover the money sol paid. Judgment in each was in favor of respondent.

It is admitted that when a lease is executed between private parties and it is silent as to which party shall pay taxes, the obligation to pay the taxes rests upon the landlord. (Pacific Palisades Assn. v. Menninger, 219 Cal. 257, 265 [ 26 Pac. (2d) 303 ].) Appellant’s theory is that since the city in this case acted in its proprietary capacity, its status is the same as a private.party; that “there is not one law for the sovereign and another for the subject”, and that the city is, therefore, in its capacity of landlord, under obligation to pay the taxes. (Chapman v. State, 104 Cal. 690, 694 [ 38 Pac. 457 , 43 Am. St. Rep. 158 ].) Respondent concedes that it acted in a private capacity, concedes the general rule urged by appellant, but contends that there is an exception to the same, and “that when there is a lease of land owned by a municipality, the reversion being exempt from taxation, in the absence of agreement to the contrary, the duty to pay taxes on the usufructuary interest acquired by such private individual or corporation is upon the lessee, and not upon the municipal lessor”. The claims of appellant in both actions aggregate the sum of approximately $80,000. The court found as a fact in both actions “that ... no taxes were levied or assessed against the real property as owned by the defendant . . . and that the taxes which were levied and assessed and referred to in plaintiff’s complaint . . . were levied and assessed against the possessory interests of the plaintiff, ...” (Italics ours.)

There is no doubt that a possessory interest such as a lease is personal property, and may be severally assessed from the freehold. In Graciosa Oil Co. v. Santa Barbara County, 155 Cal. 140 , a case in which an oil lease was separately assessed, the court said (at pp. 143 et seq. [ 99 Pac. 483 , 20 L. R. A. (N. S.) 211]):

In the ease at bar it is admitted that the land comprised in the leases while held by the city for its own use was not taxable. It is admitted that the reversion is not taxable. It is found as a fact that the only property assessed was th¿ “possessory interest” of the lessee. The leases have many more years to run. The practical effect of appellant’s contention is that it is entitled to the use of the land for the payihent of taxes—indeed, that it may be entitled to a refund year after year for the payment of taxes on land which is tax-free if used by the city, if .such taxes should run more than the rental agreed upon. It is true that the governmental capacity of respondent cannot be considered when it a[cts as a private party, but this does not mean that a municipality must, when acting in a private capacity, take affirmative action to advise another person, artificial or natural, that such person does not have the benefit of law enacted wholly for the benefit of government agencies. There is a significant practical difference between the obligation of a city owning land and the obligation of a private party owning land, pi the former case no taxes are paid so long as the land is used by the city. In the latter, the owner is responsible for taxes whether the land is used by himself or another.

We feel that the case of Hammond Lumber Co. v. County of Los Angeles, 104 Cal. App. 235 [ 285 Pac. 896 ], is decisive of the primary question here involved. We are mindful that in that case the court was not concerned with who was responsible for the taxes as between the lessor and the lessee. The primary question involved in that case was the validity of any tax, and, if valid, whether the assessor’s valuation was the correct one. In that case, however, the court said, at pages 239 and 240:

It is conceded that appellant cites respectable authority for its contention. (Boston Molasses Co. v. Commonwealth, 193 Mass. 387 [ 79 N. E. 827 ]; People v. Barker et al., 1§3 N. Y. 98 [ 47 N. E. 46 ]; Purcell v. City of Lexington, 186 Ky. 381 [ 216 S. W. 599 ].) Such authority is undoubtedly persuasive, but it is not controlling upon this court, and has not yet been adopted as the law in this state. Further, the terms of the leases in those cases indicate an intention not' to hold the lessee for taxes.

Therefore the judgment is affirmed in each case.

York, Acting P. J., and Doran, J., concurred.

A petition by appellant to have the cause heard! in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 30, 1936.