Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. CT. No. 04-432350
NEEDHAM, J.
Here we conclude that the payment of property taxes on an encroaching structure does not necessarily satisfy the requirement that taxes be paid on land which is sought through adverse possession. (See Code Civ. Proc., § 325.) We affirm the judgment entered on a jury verdict in favor of respondent Sulpicio Mariano (Mariano) and against the adverse claimants, plaintiffs William and Patricia Sigman (the Sigmans).
Further statutory references are to the Code of Civil Procedure.
BACKGROUND
Day Street is situated in the hills between the Noe Valley and Glen Park areas of San Francisco. Numbers 532 and 536 Day Street are adjacent residential lots, each of which contains a home. The house on 532 Day Street was built in 1898. It straddles the boundary line and encroaches about two feet into the back yard of 536 Day Street, covering a total area of about 30 square feet. The legal descriptions of the properties and the tax assessment records do not reflect the encroachment.
The properties at 532 and 536 Day Street were commonly owned until 1989, when they were divided along the lines of their legal descriptions during a probate sale. The Sigmans purchased 532 Day Street, and Sam Griswold purchased 536 Day Street. Griswold’s partner, Mariano, moved into the property at number 536 and eventually took title after Griswold died.
The house on the Sigmans’ property at 532 Day Street was in disrepair when they purchased it. Over the years, William Sigman made a number of improvements, which included adding a new basement that extended under the portion of the house that encroached on Mariano’s property.
A survey conducted in approximately 1993 revealed that the Sigmans’ home extended onto Mariano’s property at 536 Day Street. In 2004, the Sigmans filed this civil action against Mariano, seeking, among other things, a declaration that they had obtained title to the land beneath the encroaching portion of their house through adverse possession. The case proceeded to a jury trial on claims of adverse possession, prescriptive easement (over another portion of Mariano’s property) and nuisance (based on damage to the Sigman property that was allegedly the fault of Mariano). The only contested element on the adverse possession claim was the statutory requirement that taxes be paid by the claimant on the land at issue for at least five years. (See § 325.)
The evidence presented at trial showed that residential property in the city and county of San Francisco is assessed by lot number and location, using the legal description of the property, rather than by visual inspection. The total value is allocated between the value of the land and the value of structures and improvements on the land. During the five-year period relevant to the Sigmans’ adverse possession claim, they paid the taxes assessed against their property at 532 Day Street, and Mariano paid the taxes assessed against his property at 536 Day Street. The Sigmans’ 2003 property tax bill valued the land at 532 Day Street at $190,540 and the structures and improvements at $22,224.
Alex Tharayil, the chief deputy assessor, reviewed the tax records for 532 and 536 Day Street. He determined that Mariano’s property at 536 Day Street was assessed on the basis of the property’s lot number and description. A note in the file indicated that an assessor had also looked at the property, which was generally done to see the quality of the building or to resolve some issue about the property’s value. But there was no indication in the file that the land at 536 Day Street was assessed on the basis of anything other than its legal description.
At the conclusion of the trial, the jurors were given a special verdict form which, as to the adverse possession claim, required them to answer the initial question: “Did the Sigmans pay taxes for a five-year period for the portion of their house lying over the property . . . line shared with 536 Day Street and for the portion of land lying under the overlapping structure?” They answered this question in the negative and rejected the prescriptive easement and nuisance claims.
Judgment was entered in favor of Mariano on all three claims. The Sigmans filed motions for a new trial and judgment notwithstanding the verdict, which were denied by the trial court. The Sigmans now appeal.
DISCUSSION
I.
Adverse possession is the acquisition of title to real property by continuous possession over a period of time. The claimant must prove: (1) possession under either a claim of right or color of title; (2) actual, open and notorious occupation of the property in a manner that constitutes reasonable notice to the owner of record, and which is both exclusive and hostile to the title of the owner; (3) continuous and uninterrupted possession of the property for at least five years; and (4) payment of taxes levied and assessed on the property during the five-year period. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321 (Gilardi); see §§ 324, 325.)
The Sigmans contend the taxes element of their adverse possession claim—the only element in dispute—was established as a matter of law because it was uncontested that they paid the property taxes on the house that encroached on Mariano’s land, even if they did not pay the taxes on the land underneath. They urge us to reverse the judgment in favor of Mariano and remand the case to the trial court with instructions that it quiet title over the disputed portion of the property.
Special jury instructions submitted by the Sigmans on the elements of adverse possession required a finding that payment had been made on both the structure and the land. This requirement was echoed in the special verdict form. The Sigmans do not seek a reversal on the basis of instructional error, apparently recognizing that the doctrine of invited error would preclude them from challenging an instruction given at their request. (See Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1290.)
This argument is akin to a claim that the trial court should have directed a verdict in favor of the Sigmans based on evidence that their property taxes included an assessment for the encroaching structure. (See Walters v. Bank of America Etc. Assn. (1937) 9 Cal.2d 46, 49 [“The trial court, in a proper case, may direct a verdict in favor of a party upon whom rests the burden of proof”].) On appeal, we consider whether the evidence compelled a finding in favor of the Sigmans, the parties with the burden of proof, as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571 (Roesch); Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.)
II.
The tax payment requirement for an adverse possession claim arises from section 325, which provides, “[I]n no case shall adverse possession be considered established under the provision of any section or sections of this Code, unless it shall be 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.” (Italics added.) The payment of taxes is ordinarily a question of fact, and the burden of proving that element lies with the claimant. (Gilardi, supra, 30 Cal.3d at p. 326; Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 698-699 (Finley).)
The chief deputy assessor testified at trial that taxes on residential property in San Francisco are assessed based on the lot description and the location of the property within the city. The evidence established that the land beneath the encroaching portion of the Sigmans’ home was included within the legal description of Mariano’s lot, and that Mariano paid the taxes on that land. The Sigmans paid property taxes only upon the land included within the legal description of their own lot, and not on the land underneath the encroaching portion of their house. There was evidence that someone from the assessor’s office had viewed Mariano’s property, most likely to evaluate the quality of the house on that lot. There was no evidence, however, of a similar viewing of the Sigmans’ property. The jury was not required to infer that the assessment for structures on the Sigmans’ land necessarily included the value of the land underneath. (See Walner v. City of Turlock (1964) 230 Cal.App.2d 399, 409 [when deed properly describes adjoining parcels, a property tax payment on adverse claimant’s own property does not establish payment of taxes on adjoining lot on which building encroaches].)
“Ordinarily, when adjoining lots are assessed by lot number, the claimant to the disputed portion cannot establish adverse possession because he cannot establish payment of taxes.” (Gilardi, supra, 30 Cal.3d at p. 326.) There are two exceptions to this rule. The first occurs when there is an error in the property’s description on the assessment roll, resulting in the claimant’s payment of taxes on the property. (Id. at p. 326.) Second, when the claimant “by construction of buildings or other valuable improvements or by the building of fences has visibly shown occupation of a disputed strip of land adjoining the boundary, several cases have reasoned that the ‘natural inference’ is that the assessor did not base the assessment on the record boundary but valued the land and improvements visibly possessed by the parties. [Citations.]” (Id. at p. 327.)
The first exception has no application to the case before us, as there is no suggestion of an error in the assessment rolls or the legal descriptions of the property owned by the Sigmans and Mariano. We consider whether, by virtue of the improvements on their property, the second exception applies and the Sigmans must be deemed to have paid taxes on Mariano’s land as a matter of law, such that the evidence required a directed verdict in their favor. (See Walters, supra, 9 Cal.2d at p. 49; Roesch, supra, 24 Cal.2d at pp. 570-571.)
The Sigmans argue that because they paid separately assessed taxes on their home as a structure on their property, they effectively paid taxes on all the land underneath the home, including that portion that encroached on Mariano’s property. They cite a number of cases for the proposition that when a disputed strip of land has been improved by a neighboring adverse claimant in such a way to indicate that it is part of that claimant’s lot, the claimant’s payment of taxes on his or her own lot is sufficient to satisfy section 325. We conclude that none of these cases requires a finding as a matter of law that the Sigmans paid taxes on the disputed property.
In Price v. De Reyes (1911) 161 Cal. 484, the adverse claimant and a neighbor agreed to a boundary line between their properties that did not reflect the true description in the deeds. (Id. at pp. 487-489.) The claimant then erected a fence on his neighbor’s property in accordance with the agreed boundary line and built a structure with one wall running along the fence line. (Id. at pp. 487-488.) The parties paid taxes according to the legal descriptions of the property, but the court relied on the rule that when parties are uncertain of a boundary and agree to its location, that boundary attaches to deeds so that one in possession of the overlap holds title thereto. (Id. at pp. 486-487, 489-490.) Due to the boundary agreement between the parties in Price, payment of taxes assessed on the basis of the deeds amounted to payment of the taxes on the property actually possessed by the parties based on the agreed boundary line. (Id. at p. 490.) Moreover, “the natural inference would be that the assessor put the value on the land and improvements of each party as disclosed by the visible possession.” (Ibid.) The evidence in this case did not show that the parties or their predecessors in interest agreed on the boundary, such that the land under the encroaching portion of the Sigmans’ house attached to their deed.
Similarly, in Drew v. Mumford (1958) 160 Cal.App.2d 271, the court upheld a verdict in favor of the adverse claimant after concluding that the evidence supported a finding that the neighboring parties had implicitly agreed to the apparent (but erroneous) boundary line. (Id. at p. 275.) As a result of that implied agreement and the claimant’s construction of improvements on the property in conformance with the agreed boundary, the court concluded that the land in dispute had attached to the lot owned by that claimant. (Id. at pp. 275-276.) But Drew does not suggest this finding was required as a matter of law, or that the construction of a building on neighboring land is itself sufficient to show an agreed-upon boundary.
In Winchell v. Lambert (1956) 146 Cal.App.2d 575, the adverse claimants’ home and an attached lanai encroached upon a neighboring vacant lot. (Id. at pp. 576-577.) Property taxes were assessed on the claimants’ home and improvements, and no taxes for improvements were assessed against the owner of the vacant lot. (Id. at p. 582.) The court determined that payment of the taxes on the improved property, under these circumstances, was the equivalent of paying taxes on the land underneath. (Id. at pp. 582-583.) There was no evidence, as there is in this case, that the assessments for the land were based strictly on lot descriptions, rather than on a visual assessment of the property and its improvements.
Finally, in Frericks v. Sorensen (1952) 113 Cal.App.2d 759, the parties owned adjoining lots and had entered into a boundary line agreement that was contrary to the legal description of the property. (Id. at pp. 760-762.) The party claiming adverse possession had built structures and improvements on the disputed strip of land, and paid taxes on those improvements. (Id. at p. 762.) The party against whom the adverse possession claim was made had not paid taxes on the strip of land due to an error in the assessment roll, which did not correctly describe the land assessed to either party. (Ibid.) The assessment rolls in the case before us did not contain a similar mistake that could have led to the Sigmans’ payment of taxes on Mariano’s land. To the contrary, the only evidence presented on the subject showed that Mariano paid the taxes on the land described in his deed, which included the area under the encroachment. (See also Sorensen v. Costa (1948) 32 Cal.2d 453, 465 [tax rolls in error, so successful adverse claimant actually paid taxes on neighboring property for which title was sought].)
The evidence in this case did not compel a finding that the Sigmans paid taxes on the land they claim through adverse possession, and they are not entitled to judgment in their favor as a matter of law. We emphasize that our holding is a narrow one, limited to the facts and procedural posture of this case, and should not be construed to mean that adjoining property holders will never be able to prove the requisite payment of taxes where a residence encroaches on a neighbor’s land. This case comes to us after a jury trial in which there was scant if any evidence that the parties had agreed on a boundary line different from that reflected in the assessment rolls, or had paid taxes based on anything other than the lot descriptions. We are constrained by the record before us.
The result may seem harsh because the encroachment on the land for which adverse possession is sought has apparently existed for over a hundred years. But the doctrine of adverse possession is not an equitable one, designed to reward the taker or punish the person dispossessed. (Finley, supra, 99 Cal.App.3d at p. 697.) It arose from the premise that “land use has historically been favored over disuse, and that therefore he who uses land is preferred in the law to he who does not, even though the latter is the rightful owner.” (Id. at p. 696.) This rationale is no longer compelling in a “sophisticated, congested, peaceful society,” and the modern justification for the adverse possession doctrine is simply to “reduce litigation and preserve the peace by protecting a possession that has been maintained for a statutorily deemed sufficient period of time.” (Id. at p. 697.)
While the underlying purpose of repose would be served by recognizing the Sigmans’ claim of adverse possession, it does not excuse a lack of compliance with the strict statutory requirements for taking title by this method: “‘There are no equities in favor of a party seeking by adverse holding to acquire the property of another . . . ‘Section 325 of the Code of Civil Procedure requires that one who seeks or claims to obtain title by adverse possession shall have paid “all the taxes, state, county, or municipal, which have been levied and assessed upon such land during the five years of his adverse occupancy.”. . . If the owner of the land pays the taxes as they fall due, there is no reason why his title should be impaired . . . . The statute makes the payment of taxes as important an element as actual occupancy of the land for the purpose of gaining a title by adverse possession, and the burden is upon the claimant to do the acts required to create the adverse title. He should be as vigilant in paying the taxes as in holding possession of the land. He is seeking to gain the title of another through statutory authority, and it is for him to see that he does all of the acts which the statute requires.’” (Glowner v. De Alvarez (1909) 10 Cal.App. 194, 196.)
We emphasize finally that the only issue before us is the Sigmans’ claim that they should be granted title to the disputed property under the doctrine of adverse possession. Mariano is not seeking in this proceeding to have the encroaching portion of the Sigmans’ home removed from his land, and we express no opinion as to whether he could successfully pursue such a claim in light of the equities and potentially applicable statutes of limitation. (See Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1095-1098.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur SIMONS, Acting P. J., GEMELLO, J.