Baldwin v. Temple

¶1I 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*404cided 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 point of nonpayment of taxes was “sufficiently answered by the fact that it does not appear that any taxes were ever levied or assessed upon” the property there involved; and there was no dissent in the court in Bank upon the point, although Mr. Justice Patterson dissented upon another point. But in Oneto v. Restaño, 78 Cal. 374, the court in Bank, without any dissent, took occasion to express its views fully on the subject, and said: “It is argued for the plaintiff that, in order to re-, cover upon this ground, the defendant must show that he paid all the taxes which have been assessed. It has been held, however, that if no taxes are found to have been assessed, it need not be found that the party claiming by adverse possession has paid taxes. (Heilbron v. Last Chance Co., 75 Cal. 117.) In other words, the requirement as to the payment of taxes does not apply when none have been assessed to anybody. And the inference is, that the burden of showing that none have been assessed is not upon the claimant by possession. That is a negative which he is not required to prove. If there has been an assessment it is for the other party to show the fact. This is the rule which convenience requires. For it is an easy matter to show that an assessment has been levied, but a difficult one to show that none have been levied for a series of years.” This case was not in any way called to the attention of the four justices who rendered the decision in the subsequent case of Reynolds v. Willard, 80 Cal. 605; and, under these circumstances, I adhere to the decisions, and not to the one isolated case last above mentioned.