People ex rel. Marsh v. Campbell , 67 Hun 590 ( 1893 )

HERRICK, J.

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 tract,—the said Dunning erected a log building 13 feet wide and 26 feet in depth; the sides, 5 to 6 feet in height; the middle of the building being about 10 feet in height; the roof covered with bark. Inside, the building was divided into two rooms by a log partition. The front was 13x14 feet,—no floor to it,—and- used as a woodshed; the second room, 13x12, with a board floor, and a window in the rear. It contained a hunter’s bed; three or four camp stools; a stove, with pipe going through the roof; a frying pan; two or three kettles; water pail; teapot; knives, and forks; cups and saucers. The island was uncultivated, the land uninclosed, and with no improvements upon it except the log building I have described. About 6 miles distant from this island, in another township, Dunning resided with his family, having there a dwelling house and outbuildings, and about an acre of cultivated ground. Dunning is a hunter and guide, and visited the log house on the island from time to time, using it as a hunting and fishing station, and taking parties there on hunting and fishing excursions. It is a custom among the guides and hunters in that vicinity to have camps in different localities for their use in hunting and fishing, having a permanent residence elsewhere. Dunning does not claim to own the land in question, or any part of it. No notice of sale or to redeem was ever served upon Dunning, or any of his family.

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 a service at the dwelling house of a person in New York city who has built a hunting camp in the North woods which he uses from time to time for hunting and fishing. Dunning had his dwelling, his family, and place of actual residence six miles away. Undoubtedly a person may have a residence in one place, and also occupy land in another, as in Stewart v. Crysler, 100 N. Y. 378, 3 N. E. Rep. 471, where- the land was used for the storage of lumber by a person who lived elsewhere, or as in Leland v. Bennett, 5 Hill, 287, where a portion of the land was cultivated, some of it used for pasture, and wood chopped and removed from it by a person who lived at a distance therefrom; but I do not think that the establishing of a hunting camp, the building of a log house to be used from time to time upon hunting and fishing trips, with no other improvement or use of the land, by a person living elsewhere with his family, with no claim of title to or interest in the land upon which the camp or hunting lodge is established or built, constitutes an actual occupancy, within the meaning of the statute.

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.