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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 carries 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.

Cultivation.

Under Laws 1858, p. 173, § 9, relating to the sale of swamp lands, and making provision for two distinct classes of purchasers, namely, settlers and occupants of such land Location or selection of public lands. at the time of the passage of the act, and "Occupation," as used in Rev. St. U. S. 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 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 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 inclosed 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 possess 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.

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 redeem land sold for unpaid taxes, the land is occupied, the occupants must have notice, means being occupied with an intention on erty; and an accidental or chance occupathe part of the occupant to enjoy the proption of a small part of the land by a mistake in the fencing thereof was not an occuSmith v. Sanger, 4 N. Y. (4 Comst.) 577, 579. pancy, within the meaning of the statute.

Occupancy by servant.

Laws 1886, c. 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 adjoining 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 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, 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.

use, possession, and cultivation; and it would be nonsense to say that a man occupied 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, providing that, before a highway can be lawfully 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 company 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 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

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.

resident of some other state. State v. Chicago, B. & Q. R. Co., 26 N. W. 37, 68 Iowa, 135.

ant was in actual and exclusive occupation is not sufficient. Herskell v. Bushnell, 37 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 shall 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 value, where it was necessary, for the dis-or occupy any part of the premises, would charge 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 Ill. 194, 199, 65 Am. Dec. 730; Brinkerhoff v. Everett, 38 Ill. 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,

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 Ill. 603.

Operation of mine.

tion of title to mining land, must be with "Occupancy," to constitute the foundathe 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.

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 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. Inhabitants 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

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. S.) 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.

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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 N. E. 529, 533, 121 Ill. 455; Walker v. Converse, 36 N. E. 202, 204, 148 Ill. 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, c. 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 N. 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

"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.

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"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 occupied 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. Campden & W. R. & Transp. Co., 4 N. J. Eq. (3 H. W. Green) 47, 54.

OCCUPANT-OCCUPIER.

mously with "possessor." The Legislature undoubtedly considered that every purpose 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.

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 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 jured 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

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. A 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 N. W. 25, 87 Minn. 7.

Same-Agent or employé.

"Occupant," as used in Sp. St. 1868, c 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, occupant 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.

"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. 741, 745 (citing Sedg. & W. Tr., tit. “Land," § 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. E. 302, 152 N. Y. 1; 46 N. E. 302, 37 L. R. A. 419.

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