Source: New York Forest Commission, Annual Report, 1892 (presented to the State Assembly on March 30, 1893)
One of the greatest difficulties which the Forest Commission has had to contend with in the administration of the laws affecting the Forest Preserve has been the uncertainty of the tenure by which the State held the great body of its land in the Adirondack forest. Most of the title to such lands came from tax sales -- in some instances the State having title from three or four sales. In such cases a fair presumption would be that such title ought to be good; but that did not always prove to be the case when an effort happened to be made by the State to assert its title.
There are two methods of avoiding a tax sale -- or defeating a title acquired from it; the one, by redemption from such tax sales; the other, by a cancellation of it. A redemption may be had as a matter of right from a perfectly valid and regular tax sale; a cancellation, however, can not be granted unless such tax sale for some reason or other has been irregular, and therefore invalid. A redemption is based upon facts and circumstances arising after a tax sale; a cancellation upon conditions existing before it.
Applications for the cancellation or redemption from tax sales must be made to the Comptroller of the State, except in certain specified counties, and the Comptroller is the sole judge and arbiter in the hearing and disposal of them, except so far as his action may be reviewed by the courts. Any person, however, may make such application, whether such person had any interest or rights in the land at the time of the sale or not.
Prior to the year 1891, the evidence in support of such applications was presented in the form of affidavits, with no provision of law for the presentation of opposing affidavits, and no State department or officer charged with the duty of preparing or presenting them. Such ex parte evidence became unsatisfactory and unreliable in about the same ratio as the land which was the subject of it increased in value. Consequently, in the year 1891, an act was passed (Chapter 211), authorizing the Comptroller to appoint a commissioner to hear the evidence, take proof of all the material facts in the case, and report the same to the Comptroller with an opinion thereon. Even in that act no provision was made as to who should represent the State when its title was affected; but through the courtesy of the Comptroller, the Forest Commission, in some instances before as well as after the passage of the act, were notified of the applications, and they took such steps as they were able to in order to put the Comptroller in possession of all the facts in the case.
One of the principal grounds upon which claims for redemption were based was that of occupancy. The law provided that if any person should be in the actual occupancy of the tract of land sold for taxes, or any part thereof, at the time of the expiration of the two years allowed by law for the redemption thereof, and no notice of the tax sale was served upon such person within a prescribed time, the person claiming such occupancy, or any other person, could, at any subsequent time, redeem the tract of land sold by paying the taxes charged against it, together with a certain per cent as interest and costs, all of which would, in most instances, be far less than the increased value of the land at the time of the redemption. Under such conditions many questions arose as to what constituted an occupancy under the statute. In some instances the courts held that the most trivial acts in connection with the land constituted an occupancy which would entitle the occupant to a notice form the purchaser to redeem.
One of those questions of occupancy, which is claimed to be within the decisions of earlier cases, arose in Hamilton county, and was as follows:
In the year 1877, an old hunter and guide, named Alvah Dunning, built a camp on an island in what is known as the Eight Lake of the Fulton Chain, in Township 5, Totten and Crossfield Purchase, Hamilton County. This island was from a half an acre to an acre and a quarter in extent. It was open, uninclosed, wild land, covered with a few cedar trees, bushes, and second growth pine. There were no improvements on it, except so far as a rude camp erected there might be considered an improvement. No part of the land was ever fenced or cleared, nor had the ground ever been plowed or broken up. The camp was a one-story building, rudely constructed of logs, with no chimney to it, the smoke passing out through a stovepipe in the roof; it was divided into two rooms, with one small window in each room. There was no floor in the outer room, and only a rough floor of unmatched boards in the inner room. The only furniture or furnishings in it were a cook-stove, hunter's bed, three or four camp stools, and such cooking utensils as a hunter would use. Dunning claimed to have used the camp and island as a home during all the years from 1877 to present time; but it was an undisputed fact that, during that time, he had resided at different places upon Raquette Lake, situated in an adjoining township, in the town of Long Lake; and that he had a substantial dwelling house at the mouth of Brown's Tract Inlet, on Raquette Lake, where he had an acre of cleared, cultivated land upon which he raised corn, potatoes, cabbage, and other vegetables every year.
The camp in question, on Township 5, was distant from six to six and one-half miles from Dunning's house at the mouth of Brown's Tract Inlet, and the only means of communication between them was by water, for four miles, with the balance of the way by trial [sic]. When the lakes were frozen over in winter, the only means of reaching the island was to go on foot through the woods. There was no highway within seven miles of the place, the nearest dwelling-house being Dunning's, on Raquette Lake, six and a half miles distant. Dunning was in the habit of going over to the island occasionally to hunt, trap, and fish. In the fall he went once or twice a week; not so often at other times. In the winter he went over to look at his traps, but never stayed any length of time.
Dunning's use of the camp was of the most temporary character; he simply did as hunters are accustomed to do in that locality, having a permanent home camp or dwelling-place, and built shanties in different parts of the woods for his shelter and temporary use when he happened to be in that vicinity. This camp on the island was only used at times by him. Dunning had no license or permission from the owner or from any other person to use this island; he had no more right there than any other stranger, and made no pretense or claim of right.
He was using this camp in the manner spoken of following each of the tax sales of 1881 and 1885, at the time when he would have been entitled to a notice to redeem if such use of the island had constituted an actual occupancy. This island was included in a tract of about 14,000 acres of land, which had been sold in one parcel at each of the tax sales of 1881 and 1885, and on his occupancy of the island an application was made to the Comptroller -- by a person other than Dunning, and one who had no interest in the land at the time of the tax sale -- to redeem the entire tract of 14,000 acres.
The Comptroller thereupon appointed a commissioner to take testimony in the case, and notified the Forest Commission of such appointment. Two days were spent in Hamilton County taking the evidence, the applicant being represented by counsel, and the Forest Commission by its secretary, C. O. McCreedy, and inspector, John H. Burke, who is also an attorney-at-law.
After the close of the testimony, the evidence and all the proceedings were reported to the Comptroller, who after giving the matter careful consideration, denied the application.
The case was then taken by the applicant to the Supreme Court upon a writ of certiorari and argued at the November General Term, at Albany, in the year 1892, the Attorney General appearing in behalf of the State. The determination of the Comptroller was sustained in the following able opinion written by Justice Herrick, in disposing of the case, and which is given here in full for the purpose of showing the nature of the claims made to defeat the State's title and the necessity of some legislative act defining occupancy:
SUPREME COURT -- GENERAL TERM --THIRD DEPARTMENT.
Mayham, P. J., Putnam and Herrick, JJ.
Albany, November, 1892
The People of the State of New York, ex
J. W. Houghton (A. D. Wait, of counsel), for appellant.
John W. Hogan (S. W. Rosendale, Attorney General, of counsel), for respondent.\
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 non-payment 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 one acre in extent, situated in a lake bordering upon or part of such tract, the said Dunning erected a log building, thirteen feet wide and twenty-six feet deep, the sides five to six feet in height, the middle of the building being about ten feet in height. The roof was covered with bark. Inside, the building was divided into two rooms by a log partition; the front was thirteen by fourteen feet, no floor to it, and used as a woodshed; the second room, thirteen by twelve, with a board floor, and a window in the rear. It contained a hunter's bed, three or four camp stools, a stove, with a 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, which I have described. About six 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 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 statutes, as was said by Nelson, J., in Comstock v. Bradley, 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 was no pretence of ownership or legal interest, and the case, it d does not seem to me, comes within the spirit of the law.
I have been 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 the title to the land upon which the lodge or camp is located.
The statutes seem 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." (69, chap. 427, Laws of 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 in one place and also occupy land in another, as in Stewart v. Crysler (100 N.Y. 378), where the land was used for the storage of lumber by a person who lived elsewhere; or as in Neland 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 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 of an actual occupancy by Dunning it would only be an occupancy of the island; it is separable from the main land 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 main land, 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; Same v. Same, 79 id. 93)
The determination of the Comptroller should be affirmed, with costs and printing disbursements.
I concur, S. L. M. I concur, J. R. P.
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