McDonald
McDonald v. Drew
Opinion
Concurring Opinion
McFarland, J.
I concur in the judgment because it does not appear in the findings either that the coterminous owners had agreed upon the fence as the line between lots 4 and 7, or that respondents had claimed it as such line. All that appears is, that respondents, in addition to the west half of lot 7, also held by adverse possession a part of lot 4 as such; and as they had paid no taxes on the part of lot 4 in their adverse possession, they could not invoice the statute of limitations. But I do not think that the provision of section 325 of the Code of Civil Procedure, about the payment of taxes, applies to a small strip along a boundary line, when the adverse holder claims that the general description in his title deed carries him to the line to which he had held adversely by actual possession, and he has paid the taxes on the land thus described in his deed.
Lead Opinion
Vanclief, J.
Action in the nature of ejectment to recover possession of a narrow strip of land, about eighteen inches wide and one hundred feet in length, being part of lot No. 4, block 20, of the city of San Bernardino, the east side of which strip adjoins the east boundary line of said lot.
The defendant pleaded title by prescription through an adverse possession during a period of five years.
The court found the facts as follows:—
And in addition to said stipulation, the court finds the following facts from the evidence: —
Upon the facts found, the court adjudged that the defendants were the owners of the land in question.
Plaintiff brings this appeal from the judgment, upon the judgment roll, and contends that upon the findings of fact the judgment should have been in her favor. And so it appears to me.
The controversy is reduced to the question of law as to whether the possession of the defendants could have been adverse without payment by them of all taxes which had been levied and assessed upon the land in question during the five years’ period of the alleged adverse possession, as required by section 325 of the Code of Civil Procedure.