SORENSEN v. COSTA

Reset A A Font size: Print

District Court of Appeal, Third District, California.

SORENSEN v. COSTA.

Civ. 7393.

Decided: December 15, 1947

Ernest C. Crowley, of Fairfield, for appellant. W. Del Richards and Morse & Richards, all of Oakland, for respondent.

This is an appeal by defendant Costa from a judgment in favor of plaintiff Sorensen, which judgment decreed that Sorensen was the owner of the westerly half of Lot 7, Block 51, as delineated upon the official map of the City of Benicia.

Plaintiff filed two actions, (1) No. 15151 against Costa et al., and (2) No. 16635 against Nettie Connolly et al., claiming title to the west half of said Lot 7; both Costa and Nettie Connolly answered and corss-complained, Costa claiming title to the said west half of Lot 7 and Nettie Connolly claiming title to the east half of said lot. Costa filed a separate action, No. 15330 against Sorensen et al., claiming title to said west half of Lot 7. Costa's action was dismissed. The other two cases were consolidated for trial and tried together. The court rendered judgment that Nettie Connolly was the owner of the east half of Lot 7 and no appeal was taken therefrom. Therefore we are concerned only with the title to the west half of Lot 7 as between Sorensen and Costa.

Devolution of the title to Lot 7 is shown by the record to have been as follows:

In 1890 one Mizner executed a deed to all of said lot to Albee and Carson; these two grantees then exchanged deeds which gave the title to the west half to Albee, and title to the east half to Carson. In 1901 Albee conveyed his west half to Costa. The latter then took possession of the westerly of two houses, which house was pointed out to him by one Captain Turner as the house owned by Albee, his grantor, but which house, by subsequent survey, was found to be actually situated on the east half of the adjoining Lot 8 which Albee did not own. Costa, since 1891, has resided in the house on the east half of Lot 8 but has paid taxes assessed against the west half of Lot 7, and has not paid any taxes on the east half of Lot 8. In September, 1940, Costa purchased the east half of Lot 8, at a tax sale, and thereafter discovered the confusion as to his title.

In the meantime Sorensen and his predecessors in title, which title descended from Carson and which described the east half of Lot 7, have occupied a house actually situated on the west half of Lot 7, though believing same to be on the property described in their chain of title as the east half of Lot 7, upon which they paid taxes. In short, while Costa has title to the west one-half of Lot 7 and has paid taxes thereon, he has actually resided during said time upon the east half of Lot 8; and Sorensen, while holding title to the east half of Lot 7 and paying taxes thereon, has actually resided upon the west half of said lot. Upon the basis of his said residence upon the west half as aforesaid, Sorensen claims to have acquired title thereto as against Costa, the owner of the record title; and upon the premise in its findings, that Sorensen and his predecessors in interest had been, since April, 1890, in actual possession of the west half of said lot, had occupied, used and cultivated same, kept it surrounded by a substantial enclosure, and used and claimed the same in their own right adversely to all the world, the trial court held that Sorensen and not Costa was the owner of said west half of Lot 7.

We are unable to agree with this conclusion. In order to acquire title by adverse possession as against the owner of the legal title it is essential that the following conditions be met: possession must be by actual possession under such circumstances as to constitute reasonable notice to the owner; possession must be hostile to the owner's title; the holder must claim the property as his own, either under color of title, or claim of right; possession must be continuous and uninterrupted for five years; and the possessor must pay all taxes levied and assessed upon the property during the period. And unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession. West v. Evans, 29 Cal.2d 414, 417, 175 P.2d 219.

We need go no further in this case than to point out that Sorensen did not in fact pay the taxes assessed against the west half of Lot 7. Such taxes were paid by Costa. Sorensen paid the taxes assessed against the east half of the said Lot 7. In the leading and often followed case of Reynolds v. Willard, 80 Cal. 605, 608, 22 P. 262, the court held that a claimant is bound to prove he actually paid the taxes on the land in controversy and that it is not sufficient to show that he paid taxes on other lands supposing them to include the lands in dispute. In following the Reynolds case, in the case of In re Wasson, 54 Cal.App. 269, 274, 201 P. 793, 795, the court said: ‘He was bound to prove that he had actually paid the tax on the very property in controversy.’ (Italics added.) Again the Reynolds case was followed in the case of Standard Quicksilver Co. v. Habishaw, 132 Cal. 115, 124, 64 P. 113, 117, where the court said: ‘It is not sufficient that defendants thought or supposed they were paying taxes on lands in section 23.’ (Italics added.) This court reached the same conclusion in Pedersen v. Reynolds, 31 Cal.App.2d 18, 29, 87 P.2d 51.

In the case before us the trial court made a finding as follows: ‘The Court further finds that plaintiff and cross-defendant Ernest T. Sorenson, in action No. 15151 and his predecessors in interest have since the 19th day of April, 1890, been in actual possession of all the land and premises described in the complaint, in said action No. 15151, and have ever since the last date aforesaid, occupied, used and cultivated said land, having and keeping the same surrounded by a substantial enclosure, using and claiming the same in their own right from that date to the present time, adversely to all the world.

‘The Court further finds that all of the parties, to wit: Manuel Costa, Ernest T. Sorensen and Nettie Connolly, defendant in action No. 16635 and their predecessors in title, have paid all of the taxes assessed by the City of Benicia and the County of Solano, against the properties actually occupied by them.’

But the evidence fails to support this finding regarding the payment of taxes since it is conceded that Costa paid the taxes assessed against the property occupied by Sorensen, and that the property upon which Sorensen paid taxes was the east half of Lot 7, to which he had a deed, but which is a vacant lot.

It is apparent from the evidence in the case that when Sorensen bought the east half of Lot 7 he thought he was getting the house that is located upon the west half; and that Costa, when he acquired the west half of Lot 7 thought he was getting the house that is located on the east half of Lot 8. It is also apparent that both were mistaken. But their mistakes were not due to anything done by their respective grantors. Each acquired title by deed to that, and that only, which his grantor owned.

The judgment here appealed from by Costa adjudged that Sorensen is the owner in fee simple absolute of the west one-half of Lot 7, and quieted his title thereto as against Costa, the owner of the record title. Since the only ground upon which such a decree could be premised is that Sorensen acquired title to said lot by adverse possession, and since the essential elements of adverse possession by him have not been proven, the conclusion seems inescapable that the judgment appealed from must be, and it is hereby reversed.

ADAMS, Presiding Justice.

PEEK and THOMPSON, JJ., concur.