Watson v. Davidson ( 1878 )

Chief Justice Agnew

delivered the opinion of the court,

This case was very fairly submitted to the jury on the only fact upon which the verdict turned, viz., the seated character of the tract, and of this there was sufficient evidence to go to them. In the legal aspect of the case, the question was whether a tract of land can be seated for lumbering purposes. The negative means that land cannot be seated except for agricultural purposes. It would have been error to so hold. The court said: “ When the owner of a timber tract, in person or by others under him, enters thereon to take out the timber, carries on the business for so long a time and in such manner continuously, from year to year, as to show an actual and permanent occupancy of the tract, with the use thereof, and personal property thereon from year to year, and so that the appearance of the land itself indicates to the assessor that there is an occupation of the same by the claimant for the purpose or business of lumbering, it is seated, and it is the duty of the assessor to so assess it.”

Clearly the character of the land as thus described, was a question of fact for the jury, and if so found, the land is seated, for we cannot perceive that such an actual continued occupancy has less effect than if the owner were in actual possession carrying on any other business. It is not the business which gives character, but the permanent occupancy and possession with the means afforded thereon for the collection of the taxes.

In this case the number, permanency, use and character of the buildings, the property found on the land, and the death of the owner, accounting for a short non-user, were facts properly for the jury, and not the court, in determining the question of an actual continued and fixed possession. While the jury might have found a different verdict, the evidence was not so weak as to be withdrawn, with a peremptory instruction to find a verdict for the plaintiff.

Judgment affirmed.