paid all taxes which have been levied and assessed upon the property.
There is no doubt that the state has occupied the strip of property continuously for at least five years. As stated, the park land extended to the northeasterly line. The state marked the boundary of the park with signs and monuments, such as signs on trees, boundary stakes, surveyors' monument blazes, marks in trees, memorial grove signs, and other indicia of the property being a state park. It is also clear from the record that plaintiff clearcut the timber on its side of the line down to that park boundary.
Plaintiff argues that the requirements of enclosure, cultivation or improvement in CCP 325 apply here. The United States contends that section 322, which does not include the enclosure, cultivation or improvement requirements, is the applicable section.
This court concludes that section 322 is the applicable one. The state has maintained the park property, using the northeasterly line as the boundary, by virtue of earlier deeds to it of the various parcels making up the park.
There is no dispute as to the validity of the state's title to its property. The only issue has been the physical location of the line on the ground. The state at all times claimed title to its park property up to the northeasterly line, and did so on the basis of its prior deeds. For a claim of adverse possession to be under a claim of written title, it is not necessary that the deed to be free of defects. In Thomson v. Dypvik, 174 Cal. App. 3d 329, 220 Cal. Rptr. 46 (1985), the court said (p. 339): "However, where they (the instrument and judgment) only create an appearance of title and do not actually confer title, the law refers to the possessor as having 'color of title.'" See also Estate of Williams, 73 Cal. App. 3d 141, 147, 140 Cal. Rptr. 593 (1977).
Having put signs around the park identifying it as park land, up to the northeasterly line, the state's occupation of the ground was certainly real, adverse to the claims of others, and hostile to the claims of others.
As stated, CCP section 325 requires, regardless of the code section under which adverse possession is claimed, that the claimant have paid all taxes which have been levied and assessed upon the land.
However, the payment of taxes is not a requirement if no taxes were assessed. See City of Burlingame v. Norberg, 210 Cal. 105, 108, 290 P. 587 (1930). In this case, evidence from the county assessor demonstrates that no taxes were assessed on this strip of property because the property was believed to belong to the state. And no conduct on the part of the state or the United States resulted in any representation to the contrary. It was not until the 1981 survey was recorded, and the application of that survey later determined by Judge Henderson, that anyone determined that the strip of land was not a part of the state park.
The record also establishes that when the county assessed the property owned by Simpson, the county assessor did not include any property within the confines of the state park. And there is no authority for the proposition, asserted by plaintiff, that adverse possession can be defeated because of the failure to pay taxes that should have been or might have been, but were not, assessed by the county authorities.
This court therefore finds and concludes that the State of California had acquired title to the property in dispute here by virtue of adverse possession. Therefore plaintiff did not own the land which it purported to quit claim to the State of California by the deed in 1987.
Because of the findings and conclusions above, it is not necessary for this court to make any findings or conclusions with respect to additional arguments of the parties, including: the principle of agreed boundaries, the issue of donative intent, or the value of the property.
IT IS THEREFORE ORDERED the judgment be entered in favor of defendant The United States of America and against plaintiffs Kamilche Company and Simpson Redwood Company.
Dated: December 28, 1992.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE