120 Misc. 707 | N.Y. Sup. Ct. | 1923
Plaintiffs contend that while they were the owners of a parcel of land on Spitfire lake, in the southern part of Franklin county, the land was sold for taxes; that the proceedings in connection with the sale were irregular, and that the tax deed given to defendant, the purchaser at the sale, is void and its record constitutes a cloud upon their title. Numerous grounds of irregularity are asserted; among others that the plaintiffs were occupants of the property, and that no notice of the sale was given to them as required by section 134 of the Tax Law. It is conceded that no notice of the sale was served upon the plaintiffs, so that if the parcel in question was in fact occupied land, plaintiffs must prevail.
The premises were sold for the taxes of 1917 and 1918 by the county treasurer. Chapter 159 of the Laws of 1918 included Franklin county among the counties in which the county treasurer is authorized to sell for unpaid taxes. Prior to that time unpaid taxes in Franklin county were returned to the comptroller. The evidence and circumstances warrant the inference that this change was responsible for plaintiffs not knowing that a tax had been levied on this property which had not been paid. The sale occurred November 7, 1919. The amount of the tax for which the sale was had was thirty-five dollars and fourteen cents. On August 4, 1921, the county treasurer executed to defendant a deed of the premises which has been recorded.
The parcel in question is situate on the northerly shore of Spitfire lake in lot 82 in the town of Brighton, and consists of about three acres, having a frontage of something over 300 feet on the lake. Spitfire lake is a small body of water lying between Upper St. Regis lake on the south and Lower St. Regis lake on the north, and connected with each by a short and narrow channel. The Spitfire
At the time of the purchase of the Spitfire site, an uncle of plaintiffs with his family was occupying an adjacent tract. With the consent of plaintiffs’ father a tent platform was built by the uncle upon the site in question, and a “ slope ” (as it is called in the evidence) where boats could be run up was built there and used by the uncle for landing heavy articles for his camp. At that time a trail was cut by plaintiffs’ father from this boat landing northerly or northwesterly across his lot and lands of the Paul Smith Hotel Company to the St. Regis river for the purpose of quick access to Keyes Mills and the St. Regis Golf Club on the St. Regis river. This trail shortened the distance from the camp to the golf club and Keyes Mills by perhaps one and a half miles, for, if it was not used, it was necessary to go by boat through Spitfire lake, through the channel connecting with Lower St. Regis lake, then through that lake and down the river. The golf club is used by people generally in that section, and by plaintiffs’ family. There has been on the Spitfire parcel for a good many years, and was at the time of its assessment and sale for the taxes in question, a large sign six feet wide by four feet high, stating that the property was for sale, and that application should be made to Robert S. Little (one of plaintiffs), giving his New York city address. There were also on the lot trespass notices, with Mr. Little’s name as owner of the property.
The Tax Law, section 134, provides: “ The term ‘ occupant ’ shall be construed to mean a person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person.”
The fact that this tract was connected by water —“ a nature’s highway ”— with the camp where plaintiffs lived, only a half mile distant and in sight thereof; that it was used in the manner above set forth in connection with that camp, and that signs were upon it showing the ownership, clearly constitutes an occupancy within the authorities. Clark v. Kirkland, supra; People ex rel. Lake Placid Co. v. Williams, 145 App. Div. 34; People ex rel. Moynehan v. Gaus, 134 id. 80; Nichols v. Kellas, 90 Misc. Rep. 432; affd., 173 App. Div. 923.
It follows that the defendant’s deed is void because no notice to redeem was served upon plaintiffs. This conclusion makes unnecessary the consideration of the other points discussed in the briefs of counsel.
Judgment is a-warded, with costs, in favor of plaintiffs for the relief asked for in the complaint. '
Judgment accordingly.