Erickson v. Winegar

GIVENS, J. — Appellant Erickson sued respondent Mary H. Winegar to quiet title to certain real property which respondent claimed by adverse possession. Judgment was entered by the court, in favor of respondent and this appeal taken therefrom. Among other assignments of error it is contended by appellant that the trial court made no finding as to the payment of taxes upon the land. There must be a finding upon every material issue (Wilson v. Wilson, 6 Ida. 597, 57 Pac. 708), whether raised by the complaint or upon an affirmative defense alleged in the answer. (Carson v. Thews, 2 Ida. 176, 9 Pac. 605; Wood v. Broderson, 12 Ida. 190, 85 Pac. 490.) Failure to so find is a ground for reversal unless such a finding for or against the successful party would not affect the judgment entered. (Wood v. Broderson, supra; Brown v. Macey, 13 Ida. 451, 90 *3 Pac. 339; Farmers’ etc. D. Co. v. Nampa etc. Irr. Dist., 14 Ida. 450, 94 Pac. 761; Uhrlaub v. McMahon, 15 Ida. 346, 97 Pac. 786; Jensen v. Bumgarner, 26 Ida. 355, 137 Pac. 529.) A portion of paragraph, four of defendant’s amended answer being: “And that during the said time, defendant and her grantors and predecessors in interest have paid the taxes upon the two said strips of land.” The payment of taxes is a material issue and thus raised by the pleadings. (C. S., sec. 6603; Blayden v. Morris, 37 Ida. 37, 214 Pac. 1039; Meyer v. Schoeffler, 39 Ida. 500, 227 Pac. 1061.) The only findings in the record are those found in the judgment, as follows: “The court finds' that the defendant and her grantors and predecessors in interest have been in the undisputed possession of the said two last described strips of land; and that they have been in the ophn, notorious, exclusive and adverse possession of the said land for more than nine years before the commencement of this action; and that the defendant and her grantors and predecessors in interest have farmed, controlled and operated the said land for more than the last nine years before the commencement of this action; and that they have had the same fenced with their other land for more than nine years; and that the plaintiff and his grantors and predecessors in interest and the defendant have recognized the division fences separating the land of plaintiff and defendant for more than nine years before the commencement of this action; and that the said division fences were established as the division lines between the property of plaintiff and defendant more than nine years ago and for more than nine years after said time the said lines were recognized as the division lines, and that the said two strips of land are lying with the fence inclosed land of defendant; and that the same have been inclosed with a fence with the other land of defendant for more than nine years, and that for more than nine years before the commencement *4 of this action the defendant and her grantors and predecessors in interest have in every way held exclusive and complete control thereof and have farmed the same without objection and have taken the proceeds of the said land.” From which it appears that there is no finding as to the payment of taxes and such finding would affect the judgment. (Wood v. Broderson, supra; Stoneburner v. Stoneburner, 11 Ida. 603, 83 Pac. 938; Sterrett v. Sweeney, 15 Ida. 416, 128 Am. St. 68, 98 Pac. 418, 20 L. R. A., N. S., 963; Dickerson v. Hansen, 32 Ida. 18, 177 Pac. 760; Tyee Consol. Min. Co. v. Langstedt, 121 Fed. 709, 58 C. C. A. 129.) Having reached this conclusion we will not consider the other errors assigned but will reverse and remand the case, and it is so ordered. Costs awarded to appellant. Wm. E. Lee, Budge and Taylor, JJ., concur.