Summary
In Southern Pacific R. R. Co. v. Whitaker, 109 Cal. 268, [41 P. 1083], it was said: "But conceding that there should have been a special finding as to the assessment and payment of taxes, still it clearly appears from the evidence that if such a finding had been made it must have been in favor of defendants.
Summary of this case from Craig v. GrayOpinion
Department Two
Appeal from a judgment of the Superior Court of Tulare County and from an order refusing a new trial. W. W. Cross, Judge.
COUNSEL:
Joseph D. Redding, for Appellant.
E. O. Larkins, for Respondents.
JUDGES: Belcher, C. Britt, C., and Searls, C., concurred. Harrison, J., Van Fleet, J., Garoutte, J.
OPINION
BELCHER, Judge
This is an action of ejectment to recover possession of one hundred and sixty acres of land. The complaint was filed January 21, 1892, and it alleges that plaintiff is the owner, and entitled to the possession of the said land, and that, on or about the first day of December, 1891, while plaintiff was in possession, and entitled to the possession of the same, the defendants wrongfully entered thereon, and wrongfully and unlawfully ousted the plaintiff from the possession thereof.
The defendant, Daniel Rhoads, disclaimed having any interest in the demanded premises. The defendants Horace Whitaker and Nathan H. Garretson answered, and, among other defenses set up, pleaded in bar of the action sections 319, 320, 321, and 322 of the Code of Civil Procedure.
The case was tried by the court, without a jury, and the findings were in substance as follows:
That the plaintiff was the holder of a United States patent for the land described in the complaint, which was duly issued to it on November 1, 1891, under and by virtue of the act of Congress of July 27, 1866, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast, by the southern route."
That the road was located and constructed in conformity with the provisions of the granting act; that on January 3, 1867, plaintiff duly located its line of route opposite the land in controversy, and on that day filed in the office of the commissioner of the general land-office at Washington a map definitely locating the route of the railroad to be built by plaintiff; that the lands in controversy were shown to be agricultural lands, and within twenty miles of the definite line of the road as laid out and constructed; and that under said act of Congress plaintiff became the owner in fee of said lands, and entitled to the possession thereof upon the filing of the map of definite location on January 3, 1867.
That on April 9, 1867, the defendant Whitaker duly swore to a possessory claim including the land in controversy, [41 P. 1084] setting up that he claimed the land under and by virtue of the act of the legislature of the state of California, approved April 20, 1852; that Whitaker settled on said land in 1865, and built a cabin thereon in 1866, and commenced the cultivation thereof, and that up to 1876 he used said land for stock and farming purposes, and claimed the right to the possession of the same as his own under color of title adverse to the plaintiff and to the whole world; that such possession was hostile to the plaintiff, and was open and notorious, and plaintiff during said time had knowledge of his adverse claim.
That in October, 1875, a certificate of purchase for said land was issued to Whitaker by the United States land-office, and the purchase price therefor was duly paid by him to said land-office.
That on April 29, 1876, defendant Whitaker executed a grant, bargain, and sale deed of said land to defendant Garretson, and that immediately after the transfer Garretson went into possession of said land under said deed, and ever since has used the same for farming and stock purposes; that the possession of Garretson has been open, notorious, and continuous, under color and claim of title, to the exclusion of plaintiff and the whole world, for a period of more than five years, and that during the whole of said time plaintiff has had knowledge of the claim of Garretson, but has never in any way interfered with his possession or occupation before the filing of the complaint in this action.
That the land was surveyed in 1869 and was withdrawn for the plaintiff May 21, 1867.
That on February 28, 1872, Whitaker filed a declaratory statement for the land alleging settlement thereon in 1865; that on November 4, 1872, he submitted his pre-emption proof, and tendered payment for the land, but his application to enter was rejected by the local officers of the United States land-office, whose action was sustained by the commissioner of the general land-office in June, 1874, and again by the secretary of the interior in April, 1875; that upon a motion for review the secretary of the interior in September, 1875, allowed Whitaker to complete his entry by making payment of the land, and the former decision was revoked, and Whitaker's entry was allowed upon the proof offered by him in 1872; that after the payment of the said purchase money the railroad company moved for a new trial, which was granted July 1, 1876, and on February 27, 1877, the trial was had at the local land-office at Visalia, and resulted in favor of the plaintiff, and a patent was finally issued to plaintiff in 1891 as before stated.
As conclusions of law, the court found that plaintiff became the owner in fee of said land and entitled to the possession thereof upon filing said map of definite location on January 3, 1867; and from the stipulation as to the facts and from the evidence the court concluded that the government of the United States has not had any interest in said land since January 3, 1867, and that Garretson has acquired the ownership of the land by adverse possession, and is now the owner thereof as against the plaintiff, and that plaintiff's rights thereto are barred by the statute of limitation.
Judgment was accordingly entered in favor of the defendants, from which and from an order denying its motion for a new trial the plaintiff appeals. That the grant to the railroad company was a grant in praesenti, and operated to vest in the grantee a perfect title to the granted lands when the map of the definite location of the road, opposite the lands, was filed in the office of the commissioner of the general land-office is no longer an open question. It has been so held by numerous decisions rendered in similar cases by the supreme court of the United States and by this court. And thereafter the grantee could have maintained an action for the possession of any such lands, without waiting for the issuance of a patent therefor. (Curtner v. United States , 149 U.S. 675, and cases cited; Forrester v. Scott , 92 Cal. 402; Jatunn v. Smith , 95 Cal. 154.)
In the case last cited it is said: "When the legal title to land is granted by act of Congress, the title of the government is as effectively divested as it would be by the issuance of a patent therefor by the executive department, under authority of law, and such land then becomes subject to the limitation laws of the state in which it is situated; and an adverse possession thereof after the date of such grant for the requisite period fixed by such laws will ripen into a legal title in favor of the adverse possessor, and the effect of such possession is not interrupted or defeated by the subsequent issuance of a patent therefor, in pursuance of such act of Congress." (Citing cases.)
But, conceding the law to be as above stated, still it is earnestly insisted for appellant that the findings are insufficient to support the judgment, because there is no finding that after 1878 defendants paid all the taxes, state, county, or municipal, which were levied and assessed upon the land, as required by section 325 of the Code of Civil Procedure, as amended in that year.
The section referred to provides "that in 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."
It was clearly proved that defendants held possession of the land and claimed title thereto adversely to all the world continuously from the time plaintiff acquired its title in 1867 up to the time of the trial, and that Garretson paid all taxes levied and assessed upon the land up to 1891, when a claimant under the plaintiff paid them for that year.
If, therefore, the statute ran in [41 P. 1085] favor of defendants after 1872, Garretson acquired a perfect title in fee to the land long before 1891. And the rule is that a defendant in ejectment, who relies on the statute of limitations, makes a complete defense if he shows a continued adverse possession for five years, and a payment of all taxes after 1878, although not the five years next preceding the commencement of the action; and when the fee is once acquired by a five years' adverse possession, it continues till conveyed by the possessor, or till lost by another adverse possession of five years. (Arrington v. Liscom , 34 Cal. 365; 94 Am. Dec. 722; Cannon v. Stockmon , 36 Cal. 535; 95 Am. Dec. 205.) Whether, then, Garretson paid the taxes assessed on the land for the year 1891 was wholly immaterial, as his failure to pay them could not divest or in any way affect a title already acquired. (Webber v. Clarke , 74 Cal. 11.)
The ultimate fact to be determined was whether or not Garretson had acquired title to the demanded premises under and by virtue of the statute of limitations; and to establish that fact the burden was upon him to show that he or his grantor had held possession of the property adversely, and had paid all taxes levied and assessed thereon for a period long enough to vest the title in him under the provisions of the statute. Whether he had paid all the taxes or not was a mere probative fact which it was not necessary to allege (Ball v. Nichols , 73 Cal. 193), and which was necessarily covered by the finding as to the ultimate fact. It is well settled that findings should be statements only of the ultimate facts in controversy, and not of the probative facts, though findings of probative facts where the ultimate facts necessarily resulted from them have been held sufficient. (Mathews v. Kinsell , 41 Cal. 512; Biddel v. Brizzolara , 56 Cal. 374; Smith v. Mohn , 87 Cal. 489; Bull v. Bray , 89 Cal. 286.)
Ross v. Evans , 65 Cal. 439, cited by appellant, was an action of ejectment in which the defendant pleaded the statute of limitations. The court found an adverse possession by defendant and his grantors from 1862 to the trial in 1883, and that the lands had never been assessed to defendant or his grantors since the year 1877, nor had they paid the taxes thereon. The plaintiff had judgment and the defendant appealed. The court said: "The defect in the findings is that it is not made to appear by them whether any taxes were levied and assessed on the land in suit. If none were assessed of course he is not bound to prove that he paid them. But, as said above, if the taxes were levied on the land and assessed to any one, defendant must, to make out the defense set up, show that he or his grantors paid them." And for this defect and other errors the judgment was reversed. That case is clearly distinguishable from this, and we conclude that the findings here complained of were sufficient.
But conceding that there should have been a specific finding as to the assessment and payment of taxes, still it clearly appears from the evidence that if such a finding had been made it must have been in favor of defendants. And this being so the plaintiff was in no way prejudiced by the failure, and the judgment cannot be reversed on this ground. (Hutchings v. Castle , 48 Cal. 152; People v. Center , 66 Cal. 551; Murphy v. Bennett , 68 Cal. 528; Winslow v. Gohransen , 88 Cal. 450.)
It is further contended that while the contest between the plaintiff and defendants in regard to the title to this land was pending in the land department of the government -- from 1872 down to near the time when the patent was issued in 1891 -- the statute of limitations did not and could not run in favor of defendants.
No authorities in support of this contention are cited, and we know of none that uphold it. The time within which actions must be commenced is a matter of statutory regulation. Under our statute no action for the recovery of real property or the possession thereof can be maintained unless such action is commenced within five years after the cause of action accrues. ( Code Civ. Proc., secs. 318, 319.) There are some exceptions to this rule as provided in section 328 of the Code of Civil Procedure, but there is no such exception as that claimed here. The plaintiff's cause of action accrued when it acquired its title in 1867, and we know of no statute or rule of law which could have prevented or stopped the running of the statute thereafter.
It follows that the judgment and order appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.