I dissent. The action is ejectment to recover a small strip of land about four feet wide lying along the line between lots 1 and 2 in a certain block in the city of Sacramento. The court found that at the commencement of the action plaintiff was entitled to the possession of the disputed premises, and had been in the actual, exclusive and adverse possession thereof for ten years (and it -might justly have been twenty years) next before December, 1892, at which last-mentioned time defendant took possession thereof, and rendered judgment in favor of plaintiff for the possession of said premises.
I see no reason for disturbing the judgment. The record shows that the regular paper title to the west thirty-two feet of lot 2 was conveyed to plaintiff in 1872; and the evidence is amply sufficient to show that within *287a year or two thereafter she inclosed by a fence the land thus conveyed to her; that the fence included the strip now here in contest; that since 1872 she continuously had a barn on her land which extended entirely over said strip; and that for a period much longer than ten years next preceding December, 1892, she was thus in the actual, exclusive, and adverse possession of said strip of land, openly and notoriously claiming it as her own. Defendant owns a part of lot 1 lying to the west of plaintiff’s land. In 1892 a storm blew down a part of plaintiff’s fence between her land and that of defendant; whereupon defendant pulled down the rest of said fence, and built a new fence about four or four and a half feet to the east of the old one—thus taking possession of the strip in contest. This new fence takes in the west part of plaintiff’s barn, some of the boards of which defendant took off. (From the diagram in evidence it seems that the new line also runs through plaintiff’s house.)
The facts leave to the defendant only the defense that plaintiff has not complied with the provisions of section 325 of the Code of Civil Procedure, relating to the payment of taxes. Payment of taxes has no natural relation whatever to the matter of actual adverse possession of land; and, therefore, the provision of said section should not be applied as a mere technical defense founded on an alleged slight defect in the description of land.. In the present case this defense is highly technical, for it is based upon the strict letter, and not upon the spirit and intent of the law. There is no pretense that plaintiff tried to evade the payment of her taxes, or that she did not believe that she had paid all the taxes upon her land as inclosed and claimed by her. She did actually pay all the taxes on her lot from 1872 to the present time; but the assessments for taxes on it were made in the form of the “ west thirty-two feet of lot 2”; and it is contended that therefore she did not pay taxes upon the small strip within her inclosure which is now in contest But if we should concede that if the strip were actually not a part of lot 2, this *288would be such a want of compliance with section 325 as to be fatal, still the whole theory of the appellant on this point is based upon the assumption that the strip in contest is not a part of lot 2, but is a part of lot 1. That assumption, however, is entirely unwarranted. On the contrary, it is alleged in the complaint that the new fence built by defendant was “ on land of the plaintiff claimed by her to be a part of lot 2,” and in the finding of the court the said fence is described as “ constructed by defendant in December, 1892, on lot 2.’> It may be said that this finding is rather in the form of recital, and not direct; but there is no exception to it. Moreover, there is no averment in the answer that the strip is on lot 1, or that it is not on lot 2; and there is no exception to the findings on the ground that they do not fully enough find that the strip is a part of lot 2. It is expressly admitted by stipulation that plaintiff paid taxes as hereinbefore stated, and there was no need of a finding on that subject. These views make it unnecessary to discuss other points made by respondent in support of the judgment. In my opinion the judgment should be affirmed. Indeed, as appears from appellant’s witness, the surveyor, it is impracticable to determine with any accuracy where the true line between the two lots is—if it can be said that there is any such true line; and, in the case at bar, I cannot see any stronger evidence of the correct location of that line than is afforded by the fact that a fence, on what respondent claimed to be the true line, has stood for a period several times longer than the statutory period of limitation, without any objection by the coterminous owners. And, for the purpose of the payment of taxes, this fence, in my opinion, establishes the western line of lot 2.