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sense of "held in possession,” and as indi-, tinct lots be occupied as one parcel, they cating a constructive possession only. Con- may be sold together on foreclosure sale, solidated Coal Co. v. Schaefer, 25 N. E. 788, does not require that all the lands be im789, 135 Ill. 210.

proved. The actual inclosure of a part car

ries with it the occupancy of a balance which Cultivation.

is used, or intended to be used, as part of Under Laws 1858, p. 173, § 9, relating one farm. Harris v. Creveling, 45 N. W. 85, to the sale of swamp lands, and making pro- 86, 80 Mich. 249. vision for two distinct classes of purchasers, namely, settlers and occupants of such land

Location or selection of pablio lands. at the time of the passage of the act, and "Occupation," as used in Rev. St. U. 8. owners and occupants of adjoining lands, oc- $ 2319 (U. S. Comp. St. 1901, p. 1424), providcupancy of the adjoining lands might consisting that “all mineral deposits in lands beof cultivation and use without actual resi- longing to the United States are hereby dedence, or might be by a tenant. People v. clared to be free and open to exploration and State Treasurer, 7 Mich. 366, 370.

purchase, and the lands in which they are

found, to occupation and purchase," means The use of the word “occupy," in 9 Stat. possession. The right to occupy is the right 323, granting to religious societies certain to possess and hold, and includes the right missionary stations occupied by them in to locate. Tibbitts v. Ah Tong, 2 Pac. 759, Oregon, not exceeding 640 acres, does not 761, 4 Mont. 536. confine the grant to the land actually inclosed and cultivated by the societies, but it The mere selection by surveying platted is to be construed to include the maximum ground into lots, blocks, and streets will not quantity at each station occupied by them; be sufficient to constitute an occupation of that is, claimed and in any way used by the land for the purposes of a town site. them, and not in the actual possession of Carson v. Smith, 12 Minn. 546, 562 (Gil. 458, anyone else. In so ruling, the courts say:

476). "To occupy is to possess, not constructively, but actually. It is derived from 'ob' and Occupancy by mistake. 'capio'—to lay hold of—and means to pos- As used in 1 Rev. St. 412, 883, requiring sess by having hold of, or being actually that if, when proceedings are brought to reupon the thing possessed, continuously and deem land sold for unpaid taxes, the land exclusively." Dalles City v. Missionary Soc. is occupied, the occupants must have notice, (U. S.) 6 Fed. 356, 370.

means being occupied with an intention on Laws 1886, c. 315, & 4, provides that, erty; and an accidental or chance occupa

the part of the occupant to enjoy the propwhen the line between two towns divides a farm, it shall be taxed, if occupied, in the tion of a small part of the land by a mistown where the occu

take in the fencing thereof was not an occu

resides. A. owned a farm wbich was intersected by a town Smith v. Sanger, 4 N. Y. (4 Comst.) 577, 579.

pancy, within the meaning of the statute. line, and lived with his father on an adjoining farm owned by his father, and wholly

Occupancy by servant. within one town. Work was done on A.'s farm with the father's teams and tools, and

The term "occupy,” both in a popular the father's cows were pastured there, but and legal acceptation, has a known, certain, milked on

his own farm. Produce was and definite meaning, and implies actual brought from A.'s farm to that of the father, use, possession, and cultivation; and it where the teams were kept. Held, that A.'s would be nonsense to say that a man occufarm was occupied, within the meaning of pied a farm which was in the possession and the law above cited. People v. Gaylord, 6 management of another. Jackson v. Sill (N. N. Y. Supp. 348, 350, 52 Hun, 335.

Y.) 11 Johns. 201, 214, 6 Am. Dec. 363. Where land was used and cultivated by

“Occupier,” as used in Code, $ 936, prothe owner, it was occupied by him, though viding that, before a highway can be lawhe did not reside on it. Lyons v. Andry, 31 fully established, a notice shall be served on South. 38, 39, 106 La. 356, 55 L. R. A. 724, each owner or occupier of land lying in the 87 Am. St. Rep. 299.

proposed highway, or abutting thereon, as

shown by the transfer books in the auditor's Setting out trees or building a sidewalk office, who resides in the county, cannot be in a highway is not such an occupation as construed to include a foreign railroad comcan be made the foundation of a claim to pany whose right of way crosses a proposed title by adverse possession against the true

highway. The occupier who is entitled to owner. Bliss v. Johnson, 94 N. Y. 235, 242.

notice is one who personally resides in the

county. The statute does not contemplate Inclosure of part.

an occupier who is represented only by an Occupancy, within the meaning of How. agent, and who through such agent is in the Ann. St. $ 8503, which provides that, if dis- occupation of the land, and himself an actual

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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, is not sufficient. Herskell v. Busbnell, 37 135.

Conn. 36, 41, 9 Am. Rep. 299. “Occupy," as used in 2 Wm. IV, c. 45, “Occupy," as used in a stipulation in a $ 27, conferring a right of voting on one oc lease declaring that it sball be void in case cupying a house as a tenant, did not include the lessee permitted more than one family one who occupied a house of the requisite or tenant to every 160 acres to reside on, use Falue, where it was necessary, for the dis- or occupy any part of the premises, would charge of his duties as hall keeper, that he include a letting of parts of the premises to should reside in the house in question, which persons for a year to cultivate for shares. was built for the residence of a ball keeper, Jackson v. Brownell (N. Y.) 1 Johns. 267, 271, as such occupancy was rather that of a serv- 3 Am. Dec. 326. ant than of a tenant. Clark v. Bury St. Edmunds, 1 C. B. (N. S.) 23, 32

A pauper who hired a distinct and separate building, and held same for one year,

with part of the house let to an undertenant, Occupancy by tenant.

occupied it, within the meaning of St. 59 Geo.
"Occupancy," when applied to land, 18 111, c. 50, requiring that, in order to acquire a
nearly synonymous with “possession,” and settlement by the renting of a tenement, it
may, in contemplation of law, exist in the shall consist of a separate and distinct dwell-
same manner by and through a tenancy. ing house or building, hired at £10 a year,
Walters v. People, 21 Ill. 178; People v. and shall be held and the land occupied for
State Treasurer, 7 Mich. 366, 370.

the term of one whole year. Rex v. Inbab-
Where a farm has been rented, and the itants of Great Bolton, 8 Barn. & C. 71.
rent used for the support of the widow and
family, the homestead is occupied, within

Occapancy of Licensoo.
the meaning of the homestead laws. Wal- The term “person in actual possession or
ters v. People, 18 Ill. 194, 199, 65 Am. Dec. occupancy of land,” within the meaning of
730; Brinkerhoff v. Everett, 38 Ill. 263, 265. Revenue Law, $ 216, providing that, before

a purchaser at a tax sale shall be entitled to
The word “occupied,” within a statute a deed, he shall serve notice on every person
exempting from taxation the real property in actual possession or occupancy of such
of a board of trade so long as such property land, does not include a person who is al-
sball be occupied by said board of trade for lowed, without payment of rent, to stack
the purposes contemplated in its organization, hay on a part of land which is rented to a
does not apply to that portion of the realty third person. Drake v. Ogden, 21 N. E. 511,
of the board which is rented for business 128 111. 603,
purposes to third persons, though the rent is
applied to the purposes of the board, and

Operation of mino.
the remainder of the building is used for

"Occupancy,” to constitute the founda-
board of trade purposes. City of Louisville
. Board of Trade, 14 8. W. 408, 90 Ky. 409, the intent or design to acquire the owner-

tion of title to mining land, must be with
9 L. R. A. 629.

ship of the thing desired; and a temporary
Rev. St. c. 7, § 5, enacts that “the per-occupation, though entitled to protection
sonal property of all literary, benevolent, against unlawful intrusion, is insufficient to
charitable, and scientific institutions, • * *give title, real or presumptive, to the land,
and such real estate belonging to such insti- and no title to mineral lands can be acquired
tutions as shall be actually occupied by them by occupancy, unless for the purpose of
or by the officers of such institutions for the mining or extracting the minerals, and an
purposes for which they were incorporated, entry and occupation not for this purpose,
shall be exempt from taxation." The occu- but for the establishment of a mill site, is
pation of a building by an officer or profes- not the occupancy required under Rey. St.
sor as lessee is not such an occupation as is U. 8. $ 2319 (U. S. Comp. St. 1901, p. 1424).
intended by the statutes. It would be other. Burns v. Clark, 66 Pac. 12, 14, 133 Cal. 634,
wise if the building were built for the pro- 85 Am. St. Rep. 233.
fessor or officer, and had been occupied by

Occupancy of mining property, under the
him with the permission of the college, and

statute, implies a substantial and practical
without his having any estate therein, or

use of the earth for the uses for which it
paying any rent therefor. Pierce v. Inhab-
itants of Cambridge, 56 Mass. (2 Cush.) 611, by the claimants and locators. When a man

was claimed or located, and as contemplated
613.

occupies a dwelling house, his character of Gen. St. tit. 7, $ 192, providing that any occupancy is with reference to the purposes person may seize any animal in any highway for which the house was built. He lives in 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 occu

1

pancy of property is to be understood with , territory, shall be confirmed and established reference to the nature and character of the in the several religious societies to which property involved. To occupy mining prop- said missionary stations respectively belong, erty, and to enjoy the right of occupancy, is synonymous with the word "possess." under the statute, is to mine the same in a Corporation of the Catholic Bishop of Nesminer-like manner, and to extract ore from qually v. Gibbon, 21 Pac. 315, 316, 1 Wash. the same, mill it and dispose of it, and not St. 592; Id. (U. 9.) 44 Fed. 321, 323. It is to merely go upon it, yet refuse to dig and an appropriate word to use for the purpose mine the ground. Butte & B. Consol. Min. of identifying land in actual possession and Co. v. Montana Ore Purchasing Co., 60 Pac. use. Corporation of the Catholic Bishop of 1039, 1042, 24 Mont. 125.

Nesqually v. Gibbon (U. S.) 44 Fed. 321, 323. Possession.

"Occupied,” as used in Act Cong. Jan. 6,

1883, § 2, providing that “all that part of the To “occupy land” means to possess it. Indian Territory lying north of the Canadian Gardener v. Wagner (U. S.) 9 Fed. Cas. 1154, river, and east of Texas and the one hun1156.

dredth meridian, not set apart and occupied The words “possession" and "occupan- by the Cherokee, Creek, and Seminole Indian cy," as used in Revenue Law, $ 216 (Rev. St. tribes, shall after the passage of this act be 1874), are controvertible terms, and are prac- annexed to and constitute a part of the Unittically synonymous. Taylor V. Wright, 13 ed States judicial district of Kansas," means N. E. 529, 533, 121 Ill. 455; Walker v. Con- no more than possession of the country. To verse, 36 N. E. 202, 204, 148 Ill. 622.

have possession does not require actual res

idence. Where there is a subjection of land There is a distinction between “occupa- to the will and control of another, with title tion” and “possession,” because there may in him, it is occupied by that other. It is in be a legal or constructive possession where the actual, legal possession of that other. there is no actual occupation. Ward v. United States v. Rogers (U. S.) 23 Fed. 658, Dewey, 16 N. Y. 519, 531.

665. “Occupation" is synonymous with the “Occupied," as used in Rev. St. p. 1152 expression “subjection to the will and con- (P. L. 65, 8 6), providing that when the line trol” and with “possessio pedis,” and signi- between two townships divides a farm own. fies “actual possession." Lawrence v. Ful- ed by the person taxed, the same shall be ton, 19 Cal. 683, 690. The word occupation taxed, if occupied, in the township or ward ordinarily, in the law, means subject to the in which the occupant resides, means such will and control-possessio pedis—and is an occupation or possession as will enable synonymous with “subjection to the will and the tenant or possessor, without the aid of control.” United States v. Rogers (U. S.) 23 a paper title, to maintain an action for a Fed. 658, 666; McKenzie v. Brandon, 12 Pac. trespass on it. Colwell v. Abbott, 42 N. J. 428, 429, 71 Cal. 209.

Law (13 Vroom) 111, 113. “Occupation," as used in Acts 1893, c. “Occupation,” as used in an affidavit 22, providing that occupation shall consti- on which an application to purchase lands tute sufficient ownership to entitle the party from the state was based, reciting that to the benefit of the act which prescribes there was no occupation of such lands adthe proceedings for the establishment of verse to any which the affiant bad, is equivboundaries, is employed in the sense of "pos- alent to "actual possession.” McKenzie v. session." Basnight v. Meekins, 27 S. E. 992, Brandon, 12 Pac. 428, 429, 71 Cal. 209. 993, 121 N. C. 23.

"Occupied,” as used in an instruction "Occupancy,” as used in How. Ann. St. in an action of trespass to try title, where ģ7836, providing for compensation for im- the defendant had been in possession under provements made by defendants in eject- no color of title, that the defendant was enment who shall have been in actual, peace titled by reason of such adverse possession able occupation of the premises for six years to only so much of the land as he actually before the commencement of the action, or occupied, is synonymous with “possession." who shall have occupied for a less time than | Hence the instruction is correct. Evans y. six years under a claim of title and in good Foster, 15 S. W. 170, 171, 79 Tex. 48. faith, means such occupancy as under the rules of common law would entitle one to

Within the meaning of Comp. Laws acquire a title by adverse possession. Jones 1871, 8 778, requiring the occupant of land v. Merrill, 71 N. W. 838, 839, 113 Mich. 433, to erect line fences, "occupancy" means 67 Am. St. Rep. 475.

something more than boarding or living on

the premises. To be an occupant in the "Orcupied," as used in Organic Act, 81, sense of the statute, one must be in posproviding that the title to the land, not ex- session and have the use and control of ceeding 640 acres, now occupied as mission- the land. His connection with the property ary stations among the Indian tribes of said must be such that it would be proper and

5

soon

consistent for him, if he so willed, to fence, In the primary and most familiar sense of voluntarily. Carpenter v. Vall, 36 Mich. 226, the word, it is the equivalent of the word 228.

"possess." It implies the conception of per

manent tenure for a period of greater or Residence distinguished.

less duration. Lane v. Nelson, 31 Atl. 864, See “Residence."

866, 167 Pa. 602 (citing Lacy v. Green, 84

Pa. 520); Morrow v. Brady, 12 R. I. 130, 131. Sole possession. *Occupancy,” as used in 2 Rev. St. 303,

Use. providing that, if the premises for which "Occupied," as used in Hill's Ann. Laws ejectment is brought are actually occupied Or. § 2732, subd. 3, exempting from taxaby a person, such actual occupant shall be tion such real estate belonging to educanamed “defendant," the occupancy intended tional institutions as shall be actually occuwas the possession which was requisite to pied for the purposes for which they were subject the party to the action before the incorporated, is synonymous with the word passage of the statute. It is only another "use." Willamette University v. Knight, 56 name for such possession, and the occu- Pac. 124, 126, 35 Or. 33. pant named in the statute was the same

Real estate purchased by an incorpoperson who before was called the "tenant in possession," and who alone, at common law, rated charitable institution, upon which, as could be served with notice to appear and

as purchased, the corporation begins defend the suit brought in form against to erect a building for the purposes for the casual ejecter. An occupant is one who which it was incorporated, will be deemed has actual use or possession. Bouv. Law to be occupied, and, as such, exempt from Dict. It is distinguished from a claim. Pos- taxation, under Gen. St. c. 11, § 5, cl. 3. session is the detention or enjoyment of a

New England Hospital v. City of Boston, thing which a man holds or exercises by 113 Mass. 518, 520; Trinity Church v. City

of Boston, 118 Mass. 164, 166.
himself or by another, who keeps or exer-
cises it in his name. Occupancy or posses-

In Rev. St. C. 7, § 5, cl. 2, relating to sion by one implies the exclusion of every

exemptions from taxation of property owned other individual from the occupancy and by certain educational institutions, and repossession. A man who only enjoys the use quiring that the property exempted should of premises in common with the public can be actually occupied by them, the word in no just sense be said to be an occupant. “occupied" was not used in the general Redfield v. Utica & S. R. Co. (N. Y.) 25 Barb. sense in which a corporation or individual 64, 58.

may be said to occupy their real estate The word “occupied,” as used in the when it is not occupied by any one else, bomestead act exempting from sale one- but in the sense in which such institutions fourth of an acre within a recorded town

an incorporated college, academy, hosplator city or village, and a dwelling pital, or like institution, occupies its lands thereon owned and occupied by the debtor and buildings connected therewith. Lynn as a homestead, is to have a controlling ef. Workingman's Aid Ass'n v. City of Lynn, fect in the application of the statute; and 136 Mass. 283, 285. hence while by the law of the state the

The requisites of occupancy of land for owner of a lot bounded by a street in a re- the purpose of a town site are complied with corded town plat, city, or village takes the by an occupation for purposes of trade, fee to the center of the street, he has no

commerce, or manufacture. Leech v. Rauch,
right to occupy any portion of such street 3 Minn. 448 (Gil. 332, 337); Hagar v. Wikoff,
as his homestead, and land included in any 39 Pac. 281, 283, 2 Okl. 580.
such public street or alley is consequently
not to be reckoned with in determining the

Whole interest in estato.
homestead. Weisbrod v. Daenicke, 36 Wis.
73, 76.

"Occupy," as used in a provision of a

lease and release that the lessor shall live Tenancy.

in and occupy the said cottage, with the ap

purtenances, as he theretofore had done and "Occupy,” as used in a lease providing then did, for life, reserves the whole estate that the rent should be paid monthly in to the lessor for life. Rex v. Inhabitants advance so long as the tenant should oc. of Eatington, 4 Term R. 177, 179. cupy the house and lot of ground, should not be construed simply in the sense of “Occupancy,” as used in a charter of a actual or personal occupancy, but in the railroad company giving it the right to take larger sense of tenancy actually existing possession of land on paying or tendering under the lease. The word means some- damages for the occupancy, was intended times the actual use of premises as a resi- to embrace all the right and interest which dence or as a place to store goods, but that the company could acquire in the land. is not the only meaning in which it is used. Mettler v. Easton & A. R. Co., 25 N. J. Eq.

as

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(10 O. 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.

would be subserved by requiring notice to

be served upon the person having the actual OCCUPANT-OCCUPIER.

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.”

of land by the local authorities, because of As owner, see "Owner.”

his nonresidence; and, in the supposition Change of occupants, see “Change." that notice to the occupant or person in

possession would in most instances reach An occupant is one who has the actual the owner, such service was deemed all that use or possession of a thing. City of Ban- was necessary, beside the general service gor v. Rowe, 57 Me. 436, 439.

by posting the same in a public place. A

son residing upon land with his mother, Of land.

who had a life estate therein, and who was "Occupant of the land," as used in a in control thereof, was not entitled to a statute requiring commissioners to cause no notice. Thompson v. Town of Berlin, 91 N. tice in writing to be given to the occupant W. 25, 87 Minn. 7. of land over which a contemplated railroad is to run, should be construed to mean ac- Same-Agent or employé. tual occupant. People v. Supervisors of Al- "Occupant,” as used in Sp. St. 1868, c. legheny County (N. Y.) 36 How. Prac. 544, 448, § 3, providing that if any sawdust or 548.

refuse wood or timber of any sort sball be The most ordinary meaning of the word thrown into the Penobscot river "by any per"occupant” is one who occupies or takes son or persons who may be in the employ

any mill owner or owners, mill occupant possession; one who has the actual use or

or occupants, such owner or owners, occuthing. possession, or is in the possession, of or of

Occupancy is said to be the act of pant or occupants, shall also be liable” for holding possession. Davis v. Baker, 14 Pac. such, offenses, does not apply to the agent

of the owner and lessor of a mill. State 102, 103, 72 Cal. 494.

v. Coe, 72 Me. 456, 459. Within the statutes relating to forcible

A servant or employé claiming no title detainer, the word “occupant" is defined as

or interest in himself, or any right to the one who within five days preceding such

possession, is not an occupant, within the unlawful entry was in the peaceable and meaning of the rules of law governing ejectundisputed possession of such lands. Ken

ments. He is acting under the control of nedy v. Dickie, 69 Pac. 672, 674, 27 Mont. another, and it is only in another's right 70; Shelby v. Houston, 38 Cal. 410, 422. that he occupies the premises. Spencer v. It does not require an actual residence-a Kansas City Stockyards Co. (U. S.) 56 Fed. personal presence—but only that occupancy 741, 745 (citing Sedg. & W. TT., tit “Land,” which is sufficient in cases of forcible entry,

8 242). which is that the occupant must show an ac. tual, peaceable, and exclusive possession. Where a pauper employed as a laborer Shelby v. Houston, 38 Cal. 410, 422.

by the board of ordinance, having previ.

ously occupied a house at an annual rental “Occupant,” as used in Rev. St. 8 1810, of £7, which was then purchased by the relating to the liability of railway compa. board, still continued to reside in part of nies to occupants of adjoining lands when the premises at a weekly rent of 28, which cattle are injured on railway tracks in con

was deducted from his wages, and during sequence of the neglect of the company to such last occupation he also occupied a shop erect fences, has the same meaning as when which, together with the house, was of the used in other statutes, such as relate to annual value of £10, and on his dismissal he taxation, partition, fences, highways, etc., gave up possession as required, his last and as in common parlance, and means one occupation was not that of a tenant, but in actual possession. Veerhusen v. Chicago as a servant, and no settlement was gained & N. W. Ry. Co., 11 N. W. 433, 434, 53 Wis thereby. Rex v. Inhabitants of Cheshunt, 1 689 (citing 2 Abb. Law Dict. tit. “Occupy"; Barn, & Ald. 473, 476. Smith v. Sanger (N. Y.) 3 Barb. 360).

A clerk who attends his employer on a The word "occupant," in Gen. St. 1894, race track, and records in a book bets which $ 1808, providing that, whenever the su- his employer makes on the races, but who pervisors of a town receive a petition to lay makes no bets himself, is not guilty of out a highway, they shall cause notice of "occupying a place on the ground for the the time and place fixed for hearing thereon purpose of recording bets," within Pen. to be served on all occupants of land through Code, $ 351, providing a punishment for such which the highway may pass, is used not offenses. People v. Fallon, 46 N. E. 302, in the sense of owner, but rather synony. 152 N. Y. 1; 46 N. E. 302, 37 L R. A. 419.

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