Stickel v. Carter , 63 Idaho 78 ( 1941 )

Appellant's petition for rehearing urges the original opinion failed to recognize Section 5-210 I. C. A.¹

Claimant holding by adverse possession need pay only taxes "levied and assessed." (Swank v. Sweetwater Irrigation etc.Co., 15 Idaho 353, 98 P. 297; Dickerson v. Hansen, 32 Idaho 18,177 P. 760.) The abstract shows none were levied or assessed between 1930 and 1937, inclusive, or a period of eight years, more than the prescriptive period, during which time respondent held under color of title; hence his title then ripened, of which he has not yet been divested. (Cramer v. Walker,23 Idaho 495, 130 P. 1002.)

The petition, thus being without merit, is denied.

BUDGE, C.J., and MORGAN, HOLDEN and AILSHIE, JJ., concur.

¹ "5-210. Oral claim — Possession defined — Payment of taxes. — For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only:

1. Where it has been protected by a substantial inclosure.

2. Where it has been usually cultivated or improved.

Provided, however, that in no case shall adverse possession be considered established under the provisions of any sections of this code unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county or municipal, which have been levied and assessed upon such land according to law."