Imágenes de páginas
PDF
EPUB

sense of "held in possession," and as indi-tinct lots be occupied as one parcel, they
resident of some other state. State v. Chi-ant was in actual and exclusive occupation cago, B. & Q. R. Co., 26 N. W. 37, 68 Iowa, 135.

cating a constructive possession only. Con-
solidated Coal Co. v. Schaefer, 25 N. E. 788,
789, 135 III. 210.

Cultivation.

Under Laws 1858, p. 173, § 9, relating
to the sale of swamp lands, and making pro-
vision for two distinct classes of purchasers,
namely, settlers and occupants of such land
at the time of the passage of the act, and
owners and occupants of adjoining lands, oc-
cupancy of the adjoining lands might consist
of cultivation and use without actual resi-
dence, or might be by a tenant. People v.
State Treasurer, 7 Mich. 366, 370.

The use of the word "occupy," in 9 Stat.
323, granting to religious societies certain
missionary stations occupied by them in
Oregon, not exceeding 640 acres, does not
confine the grant to the land actually in-
closed and cultivated by the societies, but it
is to be construed to include the maximum
quantity at each station occupied by them;
that is, claimed and in any way used by
them, and not in the actual possession of
anyone else. In so ruling, the courts say:
"To occupy is to possess, not constructively,
but actually. It is derived from 'ob' and
'capio' to lay hold of-and means to pos-
sess by having hold of, or being actually
upon the thing possessed, continuously and
exclusively." Dalles City v. Missionary Soc.
(U. S.) 6 Fed. 356, 370.

Laws 1886, с. 315, § 4, provides that,
when the line between two towns divides a
farm, it shall be taxed, if occupied, in the
town where the occupant resides. A. owned
a farm which was intersected by a town
line, and lived with his father on an adjoin-
ing farm owned by his father, and wholly
within one town. Work was done on A.'s
farm with the father's teams and tools, and
the father's cows were pastured there, but
milked on his own farm. Produce was

brought from A.'s farm to that of the father,
where the teams were kept. Held, that A.'s
farm was occupied, within the meaning of
the law above cited. People v. Gaylord, 5
N. Y. Supp. 348, 350, 52 Hun, 335.

Where land was used and cultivated by
the owner, it was occupied by him, though
he did not reside on it. Lyons v. Andry, 31
South. 38, 39, 106 La. 356, 55 L. R. A. 724,
87 Am. St. Rep. 299.

Setting out trees or building a sidewalk
in a highway is not such an occupation as
can be made the foundation of a claim to

title by adverse possession against the true
owner. Bliss v. Johnson, 94 N. Y. 235, 242.

Inclosure of part.

Occupancy, within the meaning of How.
Ann. St. § 8503, which provides that, if dis-

may be sold together on foreclosure sale,
does not require that all the lands be im-
proved. The actual inclosure of a part car-
ries with it the occupancy of a balance which
is used, or intended to be used, as part of
one farm. Harris v. Creveling, 45 N. W. 85,
86, 80 Mich. 249.

Location or selection of public lands.

"Occupation," as used in Rev. St. U. S.
§ 2319 [U. S. Comp. St. 1901, p. 1424], provid-
ing that "all mineral deposits in lands be-
longing to the United States are hereby de-
clared to be free and open to exploration and
purchase, and the lands in which they are
found, to occupation and purchase," means
possession. The right to occupy is the right
to possess and hold, and includes the right
to locate. Tibbitts v. Ah Tong, 2 Pac. 759,
761, 4 Mont. 536.

The mere selection by surveying platted
ground into lots, blocks, and streets will not
be sufficient to constitute an occupation of
the land for the purposes of a town site.
Carson v. Smith, 12 Minn. 546, 562 (Gil. 458,
476).

Occupancy by mistake.

As used in 1 Rev. St. 412, § 83, requiring
that if, when proceedings are brought to re-
deem land sold for unpaid taxes, the land
is occupied, the occupants must have notice,
means being occupied with an intention on
the part of the occupant to enjoy the prop-
erty; and an accidental or chance occupa-
tion of a small part of the land by a mis-
take in the fencing thereof was not an occu-
pancy, within the meaning of the statute.
Smith v. Sanger, 4 N. Y. (4 Comst.) 577, 579.

Occupancy by servant.

The term "occupy," both in a popular
and legal acceptation, has a known, certain,
and definite meaning, and implies actual
use, possession, and cultivation; and it
would be nonsense to say that a man occu-
pied a farm which was in the possession and
management of another. Jackson v. Sill (N.
Y.) 11 Johns. 201, 214, 6 Am. Dec. 363.

"Occupier," as used in Code, § 936, pro-
viding that, before a highway can be law-
fully established, a notice shall be served on
each owner or occupier of land lying in the
proposed highway, or abutting thereon, as
shown by the transfer books in the auditor's
office, who resides in the county, cannot be
construed to include a foreign railroad com-
pany whose right of way crosses a proposed
highway. The occupier who is entitled to
notice is one who personally resides in the
county. The statute does not contemplate
an occupier who is represented only by an
agent, and who through such agent is in the
occupation of the land, and himself an actual

"Occupy," as used in 2 Wm. IV, c. 45, $27, conferring a right of voting on one occupying a house as a tenant, did not include one who occupied a house of the requisite value, where it was necessary, for the discharge of his duties as hall keeper, that he should reside in the house in question, which was built for the residence of a hall keeper, as such occupancy was rather that of a servant than of a tenant. Clark v. Bury St. Edmunds, 1 C. B. (N. S.) 23, 32.

Occupancy by tenant.

"Occupancy," when applied to land, is nearly synonymous with "possession," and may, in contemplation of law, exist in the same manner by and through a tenancy. Walters v. People, 21 Ill. 178; People v. State Treasurer, 7 Mich. 366, 370.

Where a farm has been rented, and the rent used for the support of the widow and family, the homestead is occupied, within the meaning of the homestead laws. Walters v. People, 18 III. 194, 199, 65 Am. Dec. 730; Brinkerhoff v. Everett, 38 111. 263, 265.

The word "occupied," within a statute exempting from taxation the real property of a board of trade so long as such property shall be occupied by said board of trade for the purposes contemplated in its organization, does not apply to that portion of the realty of the board which is rented for business purposes to third persons, though the rent is applied to the purposes of the board, and the remainder of the building is used for board of trade purposes. City of Louisville v. Board of Trade, 14 S. W. 408, 90 Ky. 409, 9 L. R. A. 629.

Rev. St. c. 7, § 5, enacts that "the personal property of all literary, benevolent, charitable, and scientific institutions,

..

[ocr errors]

and such real estate belonging to such institutions as shall be actually occupied by them or by the officers of such institutions for the purposes for which they were incorporated, shall be exempt from taxation." The occupation of a building by an officer or professor as lessee is not such an occupation as is intended by the statutes. It would be otherwise if the building were built for the professor or officer, and had been occupied by him with the permission of the college, and without his having any estate therein, or paying any rent therefor. Pierce v. Inhabitants of Cambridge, 56 Mass. (2 Cush.) 611, 613.

is not sufficient. Herskell v. Bushnell, 37 Conn. 36, 41, 9 Am. Rep. 299.

"Occupy," as used in a stipulation in a lease declaring that it shall be void in case the lessee permitted more than one family or tenant to every 160 acres to reside on, use or occupy any part of the premises, would include a letting of parts of the premises to persons for a year to cultivate for shares. Jackson v. Brownell (N. Y.) 1 Johns. 267, 271, 3 Am. Dec. 326.

A pauper who hired a distinct and separate building, and held same for one year, with part of the house let to an undertenant, occupied it, within the meaning of St. 59 Geo. III, c. 50, requiring that, in order to acquire a settlement by the renting of a tenement, it shall consist of a separate and distinct dwelling house or building, hired at £10 a year, and shall be held and the land occupied for the term of one whole year. Rex v. Inhabitants of Great Bolton, 8 Barn. & C. 71.

Occupancy of licensee.

The term "person in actual possession or occupancy of land," within the meaning of Revenue Law, § 216, providing that, before a purchaser at a tax sale shall be entitled to a deed, he shall serve notice on every person in actual possession or occupancy of such land, does not include a person who is allowed, without payment of rent, to stack hay on a part of land which is rented to a third person. Drake v. Ogden, 21 N. E. 511, 128 III. 603.

Operation of mine.

"Occupancy," to constitute the foundation of title to mining land, must be with the intent or design to acquire the ownership of the thing desired; and a temporary occupation, though entitled to protection against unlawful intrusion, is insufficient to give title, real or presumptive, to the land, and no title to mineral lands can be acquired by occupancy, unless for the purpose of mining or extracting the minerals, and an entry and occupation not for this purpose, but for the establishment of a mill site, is not the occupancy required under Rev. St. U. S. $ 2319 [U. S. Comp. St. 1901, p. 1424]. Burns v. Clark, 66 Pac. 12, 14, 133 Cal. 634, 85 Am. St. Rep. 233.

Occupancy of mining property, under the statute, implies a substantial and practical use of the earth for the uses for which it was claimed or located, and as contemplated by the claimants and locators. When a man occupies a dwelling house, his character of occupancy is with reference to the purposes for which the house was built. He lives in reference to the nature and character of the property involved. To occupy mining property, and to enjoy the right of occupancy, under the statute, is to mine the same in a miner-like manner, and to extract ore from the same, mill it and dispose of it, and not to merely go upon it, yet refuse to dig and mine the ground. Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co., 60 Pac. 1039, 1042, 24 Mont, 125.

Gen. St. tit. 7, § 192, providing that any person may seize any animal in any highway opposite to land owned or occupied by him, it. When he occupies a barn, his occupancy etc., means an actual or constructive occu- is complete, under the law, if he puts his pation, and a mere ownership while a ten- horses and wagons in it. That is, an occupancy of property is to be understood with territory, shall be confirmed and established

Possession.

To "occupy land" means to possess it. Gardener v. Wagner (U. S.) 9 Fed. Cas. 1154, 1156.

The words "possession" and "occupancy," as used in Revenue Law, § 216 (Rev. St. 1874), are controvertible terms, and are practically synonymous. Taylor v. Wright, 13 Ν. Ε. 529, 533, 121 Ill. 455; Walker v. Converse, 36 N. E. 202, 204, 148 III. 622.

There is a distinction between "occupation" and "possession," because there may be a legal or constructive possession where there is no actual occupation. Ward v. Dewey, 16 N. Y. 519, 531.

"Occupation" is synonymous with the expression "subjection to the will and control" and with "possessio pedis," and signifies "actual possession." Lawrence v. Fulton, 19 Cal. 683, 690. The word occupation ordinarily, in the law, means subject to the will and control-possessio pedis-and is synonymous with "subjection to the will and control." United States v. Rogers (U. S.) 23 Fed. 658, 666; McKenzie v. Brandon, 12 Pac. 428, 429, 71 Cal. 209.

"Occupation," as used in Acts 1893, с. 22, providing that occupation shall constitute sufficient ownership to entitle the party to the benefit of the act which prescribes the proceedings for the establishment of boundaries, is employed in the sense of "possession." Basnight v. Meekins, 27 S. E. 992, 993, 121 Ν. C. 23.

"Occupancy," as used in How. Ann. St. $7836, providing for compensation for improvements made by defendants in ejectment who shall have been in actual, peace able occupation of the premises for six years before the commencement of the action, or who shall have occupied for a less time than six years under a claim of title and in good faith, means such occupancy as under the rules of common law would entitle one to acquire a title by adverse possession. Jones v. Merrill, 71 N. W. 838, 839, 113 Mich. 433, 67 Am. St. Rep. 475.

"Occupied," as used in Organic Act, §1, providing that the title to the land, not exceeding 640 acres, now occupied as missionary stations among the Indian tribes of said

in the several religious societies to which said missionary stations respectively belong, is synonymous with the word "possess." Corporation of the Catholic Bishop of Nesqually v. Gibbon, 21 Pac. 315, 316, 1 Wash. St. 592; Id. (U. S.) 44 Fed. 321, 323. It is an appropriate word to use for the purpose of identifying land in actual possession and use. Corporation of the Catholic Bishop of Nesqually v. Gibbon (U. S.) 44 Fed, 321, 323.

"Occupied," as used in Act Cong. Jan. 6, 1883, § 2, providing that "all that part of the Indian Territory lying north of the Canadian river, and east of Texas and the one hundredth meridian, not set apart and occupied by the Cherokee, Creek, and Seminole Indian tribes, shall after the passage of this act be annexed to and constitute a part of the United States judicial district of Kansas," means no more than possession of the country. To have possession does not require actual residence. Where there is a subjection of land to the will and control of another, with title in him, it is occupied by that other. It is in the actual, legal possession of that other. United States v. Rogers (U. S.) 23 Fed. 658,

665.

"Occupied," as used in Rev. St. p. 1152 (P. L. 65, § 6), providing that when the line between two townships divides a farm owned by the person taxed, the same shall be taxed, if occupied, in the township or ward in which the occupant resides, means such an occupation or possession as will enable the tenant or possessor, without the aid of a paper title, to maintain an action for a trespass on it. Colwell v. Abbott, 42 N. J. Law (13 Vroom) 111, 113.

"Occupation," as used in an affidavit on which an application to purchase lands from the state was based, reciting that there was no occupation of such lands adverse to any which the affiant had, is equivalent to "actual possession." McKenzie v. Brandon, 12 Pac. 428, 429, 71 Cal. 209.

"Occupied," as used in an instruction in an action of trespass to try title, where the defendant had been in possession under no color of title, that the defendant was entitled by reason of such adverse possession to only so much of the land as he actually occupied, is synonymous with "possession." Hence the instruction is correct. Evans v. Foster, 15 S. W. 170, 171, 79 Tex. 48.

Within the meaning of Comp. Laws 1871, § 778, requiring the occupant of land to erect line fences, "occupancy" means something more than boarding or living on the premises. To be an occupant in the sense of the statute, one must be in possession and have the use and control of the land. His connection with the property must be such that it would be proper and

consistent for him, if he so willed, to fence voluntarily. Carpenter v. Vail, 36 Mich. 226, 228.

Residence distinguished.

See "Residence."

Sole possession.

"Occupancy," as used in 2 Rev. St. 303, providing that, if the premises for which ejectment is brought are actually occupied by a person, such actual occupant shall be named "defendant," the occupancy intended was the possession which was requisite to subject the party to the action before the passage of the statute. It is only another name for such possession, and the occupant named in the statute was the same person who before was called the "tenant in possession," and who alone, at common law, could be served with notice to appear and defend the suit brought in form against the casual ejecter. An occupant is one who has actual use or possession. Bouv. Law Dict. It is distinguished from a claim. Possession is the detention or enjoyment of a thing which a man holds or exercises by himself or by another, who keeps or exercises it in his name. Occupancy or possession by one implies the exclusion of every other individual from the occupancy and possession. A man who only enjoys the use of premises in common with the public can in no just sense be said to be an occupant. Redfield v. Utica & S. R. Co. (N. Y.) 25 Barb. 54, 58.

The word "occupied," as used in the homestead act exempting from sale onefourth of an acre within a recorded town plat or city or village, and a dwelling thereon owned and occupied by the debtor as a homestead, is to have a controlling effect in the application of the statute; and hence while by the law of the state the owner of a lot bounded by a street in a recorded town plat, city, or village takes the fee to the center of the street, he has no right to occupy any portion of such street as his homestead, and land included in any such public street or alley is consequently not to be reckoned with in determining the homestead. Weisbrod v. Daenicke, 36 Wis. 73, 76.

Tenancy.

"Occupy," as used in a lease providing that the rent should be paid monthly in advance so long as the tenant should occupy the house and lot of ground, should not be construed simply in the sense of actual or personal occupancy, but in the larger sense of tenancy actually existing under the lease. The word means sometimes the actual use of premises as a residence or as a place to store goods, but that is not the only meaning in which it is used.

1

In the primary and most familiar sense of the word, it is the equivalent of the word "possess." It implies the conception of permanent tenure for a period of greater or less duration. Lane v. Nelson, 31 Atl. 864, 866, 167 Pa. 602 (citing Lacy v. Green, 84 Pa. 520); Morrow v. Brady, 12 R. I. 130, 131.

Use.

"Occupied," as used in Hill's Ann. Laws Or. § 2732, subd. 3, exempting from taxation such real estate belonging to educational institutions as shall be actually оссиpied for the purposes for which they were incorporated, is synonymous with the word "use." Willamette University v. Knight, 56 Pac. 124, 126, 35 Or. 33.

Real estate purchased by an incorporated charitable institution, upon which, as soon as purchased, the corporation begins to erect a building for the purposes for which it was incorporated, will be deemed to be occupied, and, as such, exempt from taxation, under Gen. St. c. 11, § 5, cl. 3. New England Hospital v. City of Boston, 113 Mass. 518, 520; Trinity Church v. City of Boston, 118 Mass. 164, 166.

In Rev. St. c. 7, § 5, cl. 2, relating to exemptions from taxation of property owned by certain educational institutions, and requiring that the property exempted should be actually occupied by them, the word "occupied" was not used in the general sense in which a corporation or individual may be said to occupy their real estate when it is not occupied by any one else,

but in the sense in which such institutions as an incorporated college, academy, hospital, or like institution, occupies its lands and buildings connected therewith. Lynn Workingman's Aid Ass'n v. City of Lynn, 136 Mass. 283, 285.

The requisites of occupancy of land for the purpose of a town site are complied with by an occupation for purposes of trade, commerce, or manufacture. Leech v. Rauch, 3 Minn. 448 (Gil. 332, 337); Hagar v. Wikoff, 39 Pac. 281, 283, 2 Okl. 580.

Whole interest in estate.

"Occupy," as used in a provision of a lease and release that the lessor shall live in and occupy the said cottage, with the appurtenances, as he theretofore had done and then did, for life, reserves the whole estate

to the lessor for life. Rex v. Inhabitants of Eatington, 4 Term R. 177, 179.

"Occupancy," as used in a charter of a railroad company giving it the right to take possession of land on paying or tendering damages for the occupancy, was intended to embrace all the right and interest which the company could acquire in the land. Mettler v. Easton & A. R. Co., 25 N. J. Eq.

(10 C. E. Green) 214, 218; Browning v. Camp-mously with "possessor." The Legislature den & W. R. & Transp. Co., 4 N. J. Eq. (3 undoubtedly considered that every purpose H. W. Green) 47, 54.

OCCUPANT-OCCUPIER.

would be subserved by requiring notice to be served upon the person having the actual occupancy or possession and control of the land to be affected by the highway. It is

See "Actual Occupant"; "Bona Fide Oc- frequently inconvenient to reach the owner cupant."

As owner, see "Owner."
Change of occupants, see "Change."

An occupant is one who has the actual use or possession of a thing. City of Bangor v. Rowe, 57 Me. 436, 439.

Of land.

"Occupant of the land," as used in a statute requiring commissioners to cause notice in writing to be given to the occupant of land over which a contemplated railroad is to run, should be construed to mean actual occupant. People v. Supervisors of Allegheny County (N. Y.) 36 How. Prac. 544, 548.

The most ordinary meaning of the word "occupant" is one who occupies or takes possession; one who has the actual use or possession, or is in the possession, of a thing. Occupancy is said to be the act of holding possession. Davis v. Baker, 14 Pac. 102, 103, 72 Cal. 494.

of land by the local authorities, because of his nonresidence; and, in the supposition that notice to the occupant or person in possession would in most instances reach the owner, such service was deemed all that was necessary, beside the general service by posting the same in a public place. son residing upon land with his mother, who had a life estate therein, and who was in control thereof, was not entitled to a notice. Thompson v. Town of Berlin, 91 Ν. W. 25, 87 Minn. 7.

Same-Agent or employé.

A

"Occupant," as used in Sp. St. 1868, с. 448, § 3, providing that if any sawdust or refuse wood or timber of any sort shall be thrown into the Penobscot river "by any person or persons who may be in the employ of any mill owner or owners, mill occupant or occupants, such owner or owners, occu

pant or occupants, shall also be liable" for such offenses, does not apply to the agent of the owner and lessor of a mill. State v. Coe, 72 Me. 456, 459.

Within the statutes relating to forcible detainer, the word "occupant" is defined as one who within five days preceding such unlawful entry was in the peaceable and undisputed possession of such lands. Kennedy v. Dickie, 69 Pac. 672, 674, 27 Mont. 70; Shelby v. Houston, 38 Cal. 410, 422. It does not require an actual residence-a personal presence-but only that occupancy 741, 745 (citing Sedg. & W. Tr., tit. "Land,"

which is sufficient in cases of forcible entry, which is that the occupant must show an actual, peaceable, and exclusive possession. Shelby v. Houston, 38 Cal. 410, 422.

"Occupant," as used in Rev. St. § 1810, relating to the liability of railway compa nies to occupants of adjoining lands when cattle are mjured on railway tracks in consequence of the neglect of the company to erect fences, has the same meaning as when used in other statutes, such as relate to taxation, partition, fences, highways, etc., and as in common parlance, and means one in actual possession. Veerhusen v. Chicago & N. W. Ry. Co., 11 N. W. 433, 434, 53 Wis 689 (citing 2 Abb. Law Dict. tit. "Occupy"; Smith v. Sanger [N. Y.] 3 Barb. 360).

The word "occupant," in Gen. St. 1894, § 1808, providing that, whenever the supervisors of a town receive a petition to lay out a highway, they shall cause notice of the time and place fixed for hearing thereon to be served on all occupants of land through which the highway may pass, is used not in the sense of owner, but rather synony

"A servant or employé claiming no title or interest in himself, or any right to the possession, is not an occupant, within the meaning of the rules of law governing ejectments. He is acting under the control of another, and it is only in another's right that he occupies the premises. Spencer v. Kansas City Stockyards Co. (U. S.) 56 Fed. § 242).

Where a pauper employed as a laborer by the board of ordinance, having previously occupied a house at an annual rental of £7, which was then purchased by the board, still continued to reside in part of the premises at a weekly rent of 2s, which was deducted from his wages, and during such last occupation he also occupied a shop which, together with the house, was of the annual value of £10, and on his dismissal he gave up possession as required, his last occupation was not that of a tenant, but as a servant, and no settlement was gained thereby. Rex v. Inhabitants of Cheshunt, 1 Barn. & Ald. 473, 476.

A clerk who attends his employer on a race track, and records in a book bets which his employer makes on the races, but who makes no bets himself, is not guilty of "occupying a place on the ground for the purpose of recording bets," within Pen. Code, § 351, providing a punishment for such offenses. People v. Fallon, 46 N. Ε. 302, 152 Ν. Υ. 1; 46 N. E. 302, 37 L. R. A. 419.

« AnteriorContinuar »