22 N.Y.S. 458 | N.Y. Sup. Ct. | 1893
This is a writ of certiorari to review the determination of the comptroller of the state of New York, denying the application of the relator for the redemption of certain lands, about 14,000 acres, sold by the state for the nonpayment of taxes at the tax sale of 1881, on the ground that the said lands were occupied from the year 1875 up to the time of the application to redeem, and that the people of the state of New York never served notice upon such occupant, as required by law. The alleged occupant is one Alvah S. Dunning. Upon an island about 1 acre in extent, situated in a lake bordering upon, or included in, the tract of land so sold lor taxes,—the island being a part of such
I do not think it was necessary to serve notice upon him. The object of the statute, as was said by Nelson, J., in Comstock v. Beardsley, 15 Wend. 348, in speaking of a similar statute, is to “afford any person who might happen to be an occupant * * * an opportunity to redeem, presuming that he was either owner, or in some way legally interested in the land.” Here there is no pretense of ownership or legal interest, and the case, it does not seem to me, comes within the spirit of the law. I have referred to no case defining what is meant by the words “actual occupancy” in the statutes. But it does not seem to me that the erection of a hunting lodge, hut, or house, to be occasionally used for hunting or fishing purposes, where there is no claim of ownership of the land, constitutes an “actual occupancy.” It appears that it is the custom of the guides and hunters of the North woods to erect or establish so-called “camps” in various localities, to be used by them in their hunting and fishing excursions. A single hunter might have several, located far apart, in different patents or townships; and it is hardly conceivable that the occasional and temporary use of these lodges or camps constitutes an actual occupancy, within the meaning of the statute, in the absence of any claim of title to the land upon which the lodge or camp is located. The statute seems to have contemplated an actual residence or dwelling house; it might be without claim of title, merely the possession of a squatter, but still the establishment of a household. It reads:
“Such notice may be served personally, or by leaving the same at the dwelling house of the occupant, with any person, of suitable age and discretion, belonging to his family. ” Section 69, c. 437, Laws 1855.
This evidently contemplates a dwelling house upon the land to be sold,—upon the place claimed to be occupied. It does not contemplate
But, conceding that the facts recited constitute an actual occupancy by Dunning, it would only be an occupancy of the island. It is separable from the mainland and was not used by him in conjunction with it, in such a manner as to make him an occupant of the whole tract. The use of an island, an acre in extent, as a hunting camp, without any use of the mainland, except to roam over it in pursuit of game, does not, to my mind, constitute an actual occupancy of the whole tract of 14.000 acres. Thompson v. Burhans, 61 N. Y. 52, 79 N. Y. 93. The determination of the comptroller should be affirmed, with costs and printing disbursements. All concur.