89 N.Y.S. 416 | N.Y. App. Div. | 1904
The only question involved on this appeal is whether the various statutes creating and defining the duties and rights of the Forest Commission have placed it in such actual occupancy of wild and vacant lands owned by the State within the forest preserve that notice must be given it in order to limit the time to redeem lands sold for unpaid taxes.
At the State tax sale of December, 1900, the relator purchased a tract of wild and unoccupied land within the boundaries of the forest preserve, paid the purchase price and received a certificate of sale therefor. At the time of such sale title to a large tract of land, within which was the tract bid for by relator, was in dispute between the State and individuals. That controversy was adjusted
We think there was no such actual occupancy by the Forest Commission as required notice, and that the time to redeem was not extended because of failure to give it.
This court has recently held in People ex rel. Keyes v. Miller (90 App. Div. 596) that the cutting of trails through forest lands and the building of boat landings was not actual occupancy within the meaning of the Tax Law. And a long line of decisions have declared an occupant under the Tax Law to be one who has made actual and substantial improvements, and has been in actual possession as distinguished from legal possession. (Comstock v. Beardsley, 15 Wend. 348; Smith v. Sanger, 4 N. Y. 577; Hand v. Ballou, 12 id. 541; People ex rel. Marsh v. Campbell, 143 id. 335; People ex rel. Chase v. Wemple, 144 id. 478.)
In view of the numerous and uniform decisions, and the plain meaning of the term “ occupant,” we think it would be doing violence to the language of the statutes to say that the Forest Commis
We think those cases cannot be so construed. The action of People v. Turner was one in replevin for timber cut upon lands of which the State had a valid title. Such an action could be brought by any owner having constructive possession.. It is true that in commenting upon the character of title of the State the court says that by reason of the statute placing the lands under the control and supervision of the Forest Commission the constructive possession of the State was made an actual possession. But this is far from holding that the Forest Commission had thus become an actual occupant of the land. Even in that case it was held that the cutting of . grass on a natural meadow on said lands, and the sowing of grass seed on two occasions, and the damming of a stream did not make the one so doing an actual occupant entitled to written notice to redeem.
People ex rel. Forest Commission v. Campbell was a certiorari to review the determination of the Comptroller in canceling the sale of certain lands made to the State, and the only question involved was whether the Forest Commission, as such, had the power to institute the proceedings. In the course of the discussion the court reiterated what it had said in People v. Turner. The State was the purchaser at the tax sale, and it had an interest in the cancellation such as an .individual who had purchased would have, and the duty of custody and control devolving upon the Forest Commission might well give it
In neither of the cases was the Forest Commission given any greater rights than would have been accorded an individual having constructive possession only. Under the Revised Statutes (2 R. S. 312, § 1), to entitle a party to institute an action to determine claims to real property, he must have been in actual possession of the lands. In Churchill v. Onderdonk (59 N. Y. 134), in commenting upon the meaning of the statute, Folger, J., says : “ Actual possession, as a legal phrase, is put in opposition to the other phrase, possession in law, or constructive possession. Actual possession is the same as pedis possessio or pedis positio, and these' mean a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupation of it, as a real demonstrative act done. It is the contrary of a possession in law, which follows in the Wake of title.”
This definition would apply equally well to that occupancy requiring notice to redeem from a tax sale. Whatever the rights of the Forest Commission may be with respect to care, custody, control and supervision, the Legislature has not placed it in such possession of the wild and unoccupied lands within the forest preserve as makes it an actual occupant whose time for redemption is extended by failure to serve a written notice to redeem.
The determination of the Comptroller must be reversed, with fifty dollars costs, and disbursements to the relator.
All concurred.
Determination of the Comptroller reversed, with fifty dollars costs and disbursements to the relator.