Redemeyer v. Cunningham

In his petition for rehearing respondent contends that the ruling of the court below in rejecting the offered evidence as to the payment of taxes was without prejudice, for the reason that it did not show that the payment was made for five consecutive years. No such objection was made in the trial court and the ruling was based distinctly upon the ground that it was not material. When the offer was made of a copy of the official record respondent objected upon the ground that "it's immaterial who paid the taxes." Then counsel for appellant stated: "We offer in evidence a statement prepared by Lee Cunningham, the tax collector of Mendocino County, showing who paid the taxes so far as disclosed by the records in that office." The transcript then shows the following:

"The Court: 'Objection sustained.'

"Mr. Wessels: 'We offer it in evidence for the purpose of' —

"Mr. Kasch: 'Now with the witness Cunningham, it can't be material. I submit the motion to strike out the testimony as he has not connected it up.'

"The Court: 'If that was out the other document also must go B and C.'

"Mr. Kasch: 'I intended to follow with a motion to strike out those in view of that strip.'

"The Court: 'There is very little materiality in it, the motion will be granted.' "

As to the record offered it was manifestly not complete, and of itself it was not sufficient to prove said payment for the statutory period, but we must assume that appellant intended to follow it with other evidence that would supply the deficiency. Under the ruling of the court, however, it would be idle for him to present any further proof since the court had already decided that it was immaterial. [8] As aptly stated by appellant, "when the trial court at the instance and pursuant to the objection of respondent, erroneously excluded proof of one of the elements constituting title of appellant by adverse possession, such error alone constitutes ground for reversal and thereafter it was not incumbent upon the appellant to go through the useless and idle procedure of offering evidence of the remainder of the elements constituting his title by adverse possession."

[9] Moreover, it is the claim of appellant that such evidence was offered "for the purpose of showing all the lands situated in Gobbi's Addition to the Town of Ukiah City, bounded on the North by Jones Street, on the East by Dora Street, on the South by Mill Street and on the West by Spring Street that had been,in fact, assessed, and for the purpose of showing all the lands situated therein that had not been, in fact assessed, and for the purpose of showing that all taxes levied or assessed thereon had been paid, as so far as disclosed by said records, by whom such taxes were paid." It is the contention of appellant that this evidence would have shown that the land in controversy was not assessed at all, it being treated by the assessors as a part of Hortense Street. We cannot say that it would not be material for that purpose. Of course, if the property was not assessed, the element of taxes would be eliminated. And since the later decisions of the supreme court (McGrath v. Wallace, 85 Cal. 622 [24 P. 793], Baldwin v. Temple, 101 Cal. 396 [35 P. 1008]), overruling Oneto v. Restano, 78 Cal. 374 [20 P. 743], hold that the burden of proof is upon the claimant of title by adverse possession to prove that no taxes have been assessed, if such be the fact, appellant should have been allowed to show it.

It is true that appellant did not state specifically in the trial court that the evidence was offered for that purpose, but he was not permitted to make a full statement, being interrupted, as we have seen, in the midst of his offer by counsel for respondent. We must assume that appellant was not only acting in good faith in the trial court but that he is sincere in his declaration in this court that he could have shown the facts as claimed by him, if he had been given an opportunity to do so. Of course, we cannot say that he may not fail, but we think the interests of justice demand that he be allowed to make the attempt to establish his claim.

It may be conceded that his various positions were somewhat inconsistent but it is not claimed, nor could it be, that he was put to an election.

As against plaintiff's claim of the exclusive right to the possession of the tract in dispute defendant would be permitted to defeat the action on the ground that he had acquired title by prescription, although such claim of title would be of no avail against the municipality or the public.

Another reason why respondent should not prevail herein is that the consideration which he now urges for a rehearing was not presented in the original argument before this court. In his brief the following is all that he said upon the subject: "Under point 3 of issue 6, appellant argues that he acquired title by adverse possession, but his point is met by the words of the trial court at page 175: 'Not material unless he [Cunningham] derived title from Owens in order to make the claim of adverse possession. You must show the continuity by proper conveyance to Mr. Cunningham.' Even if we consider every offer of defendant as actually in evidence he has failed to show continuity of possession by himself and his predecessors in interest of the lands described in the complaint for the necessary period of five years. And if the disputed tract was or is a part of Hortense Street, surely counsel will not contend that title to it can be acquired by adverse possession." The rule is to ignore points made for the first time on petition for rehearing. It is true that this is not an inflexible rule, and in the interests of justice the appellate court may disregard it, but in view of the strenuous objection made by respondent to every effort of appellant in the trial court to prove the elements of adverse possession it would not be unfair to apply the rule herein.

At any rate we think the question should be thoroughly investigated by the trial court and the petition for rehearing is denied.

Finch, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 14, 1923.