Baldwin

I concur in the judgment. The question does not arise here whether one relying on adverse possession must prove, negatively, that no taxes were levied on the land in contest. It was held that he must do so in Reynolds v. Willard, 80 Cal. 605 , by a divided court; but I do not consider that one case as establishing the doctrine. If we are to stand by the decisions—why, they are the other way. In the opinion of the majority of the court in Reynolds v. Willard , the case of Ross v. Evans, 65 Cal. 439 , is referred to, and treated as not necessarily determining the point; but the two later cases of Heilbronv. Water Ditch Go., 75 Cal. 123, and Oneto v. Restaño, 78 Cal. 374 , are not in any way referred to or mentioned. Yet in these two last-named cases, both in Bank, the point was squarely de *404 cided the other way. In Ross v. Evans, 65 Cal. 439 , while the point was perhaps not clearly involved, still the opinion of the department, delivered by Mr. Justice Thornton, states views inconsistent with those after-wards expressed in Reynolds v. Willard, 80 Cal. 605 . However, in Heilbron v. Water Ditch Co., 75 Cal. 123 , the point was necessarily involved, and the court held that the…

The plaintiff brought ejectment. The defendant answered, and also filed a cross-complaint to quiet title to the demanded premises, and plaintiff answered the cross-complaint. The cause was tried by the court without a jury. The findings were in favor of the defendant, and judgment was entered thereon. Plaintiff moved for a new trial, which was denied, and this appeal is from the judgment, and from the order denying a new trial.

No question is made that the plaintiff has the legal title, unless the defendant has acquired title by adverse possession; nor is there any question but that the defendant -was in the exclusive possession of the demanded premises a sufficient length of time to give him title. The question controverted touching the adverse possession of defendant is as to whether taxes were levied and assessed upon the demanded premises for the year 1878. Upon this point the finding of the court is as follows: “ That said property was not assessed for taxes for the year 1878.”

A general statement of the facts of the case is necessary to a clear understanding of the question above indicated.

In 1874 F. P. F. Temple was the owner of the undivided one-half of the Rancho La…