People ex rel. Turner v. Kelsey

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 by the execution and delivery, on March 14, 1901, of a quitclaim deed from such individuals to the people, specifically stating that such deed was subject to all taxes upon the lands and tax sales thereof. The lands embraced in that deed included those in dispute, and under the provisions of section 127 of the tax law (Laws 1896, p. 838, c. 908), the forest commission, in behalf of the state, had an undisputed right within the one year succeeding the sale to redeem said lands therefrom, and from the record before us it appears to have been the intention at the time of the adjustment of the controversy and the taking of the deed so to do. By some oversight this redemption was not made, and thereupon the relator demanded his deed from the comptroller, which, upon one pretext- or another, was withheld. In October, 1903, the forest commissioner made application to the comptroller to be allowed to redeem, in behalf of the people, on the ground that the forest commission had been in actual occupancy of the lands from March 14, 1901, claiming that because no notice had beeri served upon it the time for redemption

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 , 86 N. Y. Supp. 189 , 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 N. Y. 542 ; People ex rel. Marsh v. Campbell, 143 N. Y. 335 , 38 N. E. 300 ; People ex rel. Chase v. Wemple, 144 N. Y. 478 , 39 N. E. 397 .

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 commission was placed by them in the actual occupancy of the wild and unoccupied lands in dispute. The language of section 9, c. 283, p. 482, of the Laws of 1885, is “The forest commission shall have the care, custody, control and superintendence of the forest preserve.” This statute seems to be still in force, although it is largely superseded by article 13, c. 20, p. 61, Laws 1900, known as the “Forest, Fish, and Game Law.” The language of subdivision 1, § 220, of that act, is that the commission “shall have the care, control and supervision of the forest preserve.” In People v. Turner, 145 N. Y. 451 , 40 N. E. 400 , and People ex rel. Forest Commission v. Campbell, 152 N. Y. 51 , 46 N. E. 176 , the Court of Appeals passed upon the former statute with respect to the questions arising in those cases, and it is claimed that the language used indicates that, in the opinion of that court, the forest commission, by force of the statute, was placed in actual occupancy of the lands owned by the state within the forest preserve, within the meaning of the tax law. 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 in 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

“ ‘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, and control, 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 $50 costs and disbursements to the relator. All concur.