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Show PRESCRIPTION 377 continuous for the period contemplated by the 7-year statute of limitations, and those in possession have paid all taxes legally assessed, the title becomes fixed; and as real property it may be passed by deed. The testimony that plaintiffs and their grantors have so paid their taxes on the land is undisputed. These taxes have been so paid on land assessed and recognized as irrigated land. This is persuasive evidence of the use, by those in possession, of the water rights.611 (5) The requirement to pay taxes in order to establish a title by adverse possession may apply to water rights and to ditch and reservoir easements as well as to land. But where no taxes are levied or assessed, there is no requirement that they be paid in order to establish adverse possession.612 Where nothing appeared in a California case to show that an irrigation ditch for which a prescriptive right was claimed was assessed for taxation separately from the land, or at all, it was not necessary to show payment of taxes.613 In another California case, in which each defendant owned a piece of land near a ditch and had been taking water from the ditch upon his land and using it there, such interest in the ditch and water right having become appurtenant to the respective tracts of land, and in which the evidence further showed that the defendants had paid all taxes that had been levied and assessed upon their lands, the appellate court said, "The decisions seem to hold that under such conditions no separate payment of taxes on the ditch involved here, or of the water right claimed by the defendants, is necessary to give them a prescriptive right."614 The Montana Supreme Court took the view that a water right-a right to the use of water-while it partakes of the nature of real estate, is not land in any sense and, when considered alone and for the purpose of taxation, is personal property. Further:615 When considered otherwise, it is not subject to taxation inde- pendently of the land to which it is appurtenant, and we are satisifed that the language of section 9024 [now 93-2513] is not open to the construction that, before any one may acquire title to 611 With respect to statutory periods of years in this and other Western States, see the abstracts of statutory provisions relating to land and water rights under "Statute of Limitations," infra. 6X2HelIand\. Custer County, 111 Mont. 23, 30-31, 256 Pac. (2d) 1085 (1953); Gilroy v. Kell, 67 Cal. App. 734, 741-742, 228 Pac. 400 (1924). 6i3Silva v.Hawn, 10 Cal. App. 544, 551, 102 Pac. 952 (1909). The question of payment of taxes was not in controversy or in any way involved, and hence was eliminated from consideration, in findings that all elements of prescription were present. Evans Ditch Co.v. Lakeside Ditch Co., 13 Cal. App. 119, 129, 108 Pac. 1027 (1910); Turner v. Bush, 43 Cal. App. 309, 311-314, 185 Pac. 190 (1919). 614Ayerv. Grondoni, 45 Cal. App. 218, 222, 187 Pac. 137 (1919). 615 Verwolfv. Low Line In. Co., 70 Mont. 570, 578, 227 Pac. 68 (1924). This and other Montana cases are discussed in chapter 5 at notes 85-88. |
