Frederick v. Dickey

McFarland, J.

This action was brought to enjoin defendant from destroying or interfering with a certain water-ditch, a portion of which runs through defendant’s land. Judgment went for plaintiffs, and defendant appeals.

The court found that plaintiffs and their grantors, for ten years next before the commencement of the action, were the owners of a certain mill; that said water-ditch and right of way for the same were appurtenant to said mill, and used solely for the purpose of operating the same; and that plaintiffs and their grantors for ten years had been in the open and adverse possession of said ditch and right of way, except that such use and possession of the same where it crosses defendant’s land was *360 adverse only after October 19, 1881, which- was about seven years before the commencement of the action.

We see nothing in the objections to the introduction of the deeds marked Exhibits A and B. Neither was the objection to the introduction of a notice of location of the water right made by plaintiffs’ grantor, Matthews, made in 1873, a good one. Whether or not the location was made in accordance with the provisions of the code,, it was admissible as evidence tending to show an adverse claim, for which purpose alone it was offered. (See Coonradt v. Hill, 79 Cal. 593 .)

The real question in the case is, whether or not plaintiffs and their grantors held the ditch, water right, and right of way over defendant’s land adversely to defendant and his grantors; and a discussion of this question here would simply be a review of the evidence. The evidence clearly shows that plaintiffs and their grantors were in the possession and use of the ditch for a much longer period than the one found by the court, — some of the witnesses putting it at sixteen years.

Appellant contends that during this long period it was held and used merely under a parol license revocable at any time by appellant or his grantors; while respondents contend that it was held under a grant, which, although at first invalid because not in writing, ripened into title by adverse user, — having always been held under claim of title. And while on this issue the evidence was, no doubt, somewhat conflicting, it was amply sufficient to justify the finding of the court.

Upon the question of adverse possession, appellant invokes section 325 of the Code- of Civil Procedure, which provides that one claiming adverse possession of land must show that he has paid all taxes assessed upon said land. It is doubtful if the word “land,” as used in that section, was intended to have any other than its common meaning. In some legal connections it is, no doubt, used as co-extensive with “ real property,” but primarily it means “the soil, or a portion of the earth’s crust.” The sections of the code upon the subject of adverse *361 possession which precede section 326 — except sections 324 and 327, which are immediately connected with it — all use the more general words “ real property,” “ real estate,” or “property”; but section 325 and the two preceding sections use the word “land,” and speak of methods of adverse holding which apply only to land in its common meaning, as “ cultivated” and “protected by a substantial inclosure,” and used “ for purposes of husbandry, or for pasturage.” In the very section 325 it is first provided that in order to constitute adverse possession, land is deemed to have been possessed, — “1. Where it has been protected by a substantial inclosure; 2. Where it has been usually cultivated or improved”; ánd then it provides that the possession shall not be considered adverse unless “‘the land’ has been occupied, etc., and the claimant shall have paid the taxes levied upon such land.” It is therefore not at all clear that the section was intended to apply to mere easements or appurtenant rights. But waiving that question, the water-ditch and right here involved were appurtenant to the mill property, and, in our opinion, as intimated in Coonradt v. Hill, 79 Cal. 593 , should be considered as included in the assessment of the latter. It was, however, during some years assessed separately; but whether assessed separately or not, all the taxes assessed were paid by plaintiffs and their grantors each year from 1878 to 1888 (when this action was commenced), inclusive, unless the year 1884 is to be deemed an exception. The facts as to 1884 are, that in that year the property was mortgaged to an amount exceeding its value, and there was no tax to be paid by the owner. We do not think, as contended by appellant, that respondents have lost their right as adverse claimants because they do not show affirmatively that the mortgagee had paid the tax that year on the mortgage. Strictly speaking, there was no tax levied on “the land,” within the letter of said section 325 (whatever meaning we attach to “ land,” as there used); and if that section be broadly construed as requiring the payment of taxes by an asserted adverse *362 claimant as evidence of the bonafides of his claim, then certainly respondents and their grantors were within the spirit and intent of the provision.

The judgment and order denying a new trial are affirmed,

De Haven, J., Sharpstein, J., Harrison, J., Garoutte, J., and Paterson, J., concurred.