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Same-Guardian.

The occupier of property, who is held to be liable criminally for nonrepair of a bridge, the repair of which is charged on the land, should be one in whom the law supposes to be vested a command over, and actual possession of the profits of, the land. An infant inheriting land on which his guardian in socage resides, and on which the infant did not, except on occasional visits, was not such an occupier of the land, but the guardian was the person liable. Rex v. Sutton, 3 Adol. & El. 597, 600.

Same-Husband of owner.

A husband residing with his wife on her separate property is not the occupant of the property within the meaning of the statute allowing lands to be assessed to occupants. The statute meant one who occupied the property in his or her own right, as tenant or otherwise, and in the absence of a possession by the real owner. Hamilton v. City of Fond

du Lac, 25 Wis. 496, 497.

A husband, though the head of the family, is not in any legal sense the possessor or occupant of the house or land owned by his wife, and in or upon which the family reside. Kavanagh v. Barber, 12 N. Y. Supp. 603, 59

Hun, 60.

Under a statute of New York providing that real estate shall be assessed and taxed in the name of the owner or occupant, it is held that a husband living separately from his wife is neither an owner nor occupant of land belonging to his wife, so that an assessment to him of such land was void. Smith V. Read, 51 Conn. 11, 13.

Same-Landlord.

other lands not his own. Tweed v. Metcalf, 4 Mich. 578, 586.

"Occupant," as contained in a deed giving a right to take water from a certain spring "by the aqueduct as now laid from said house to said spring to the extent and as has been the custom of the occupant of the house hereby conveyed," refers to the custom of the tenants, and not that of the original builder of the aqueduct Wright v. Newton, 130 Mass. 552, 555.

"Occupier," as used in a law which declares that the occupier and not the owner of the building is liable to third persons for damages arising from any defect in the building, means the person who occupies it as a tenant, having control of it, and not merely the person who physically occupies such building. Ahern v. Steele, 22 N. E. 193, 197, 115 N. Y. 203, 5 L. R. A. 449, 12 Am. St. Rep. 778 (citing Cunningham v. Cambridge Sav. Bank, 138 Mass. 480).

The term "occupant," within the meaning of the statute providing that one who occupies land without special contract shall be liable for rent, does not apply to one who lives with, and as a member of the family of, a tenant, in pursuance of a contract with

the tenant. Tinder v. Davis, 88 Ind. 99, 101.

A statute providing that, if any lands sold and conveyed by the controller be in the actual occupancy of any person, the grantee shall serve written notice on the person occupying such land, should be construed to include a tenant in actual possession of a portion of the lands. Boarders, lodgers, and servants, however, are not occupants, within the meaning of the statute, upon whom notice is to be served. National Fire Ins. Co. v. Mc

Code Civ. Proc. § 1160, giving an "occu- Kay (N. Y.) 5 Abb. Prac. (N. S.) 445, 449.

pant" of land the right to maintain an action for an unlawful detainer, would not include a landlord in possession merely through his tenant. Hammel v. Zobelein, 51 Cal. 532, 533.

Same-Mortgagee in possession.

"Occupant," as used in Rev. St. c. 116, giving to an occupant of land the right to recover gross damages awarded by a jury on a complaint for flowing land, would include a inortgagee who makes entry under his mortgage title on the premises, and demands of the tenant holding by parol leases from the mortgagor to attorn to him, to which demand the tenant has acceded. Abbott v. Upham, 54 Mass. (13 Metc.) 172, 174.

Same-Tenant.

To make one an occupant within a statate requiring land to be assessed in the name of the occupant, it is not necessary that the person should have his home upon the premises, but refers to one who lives upon his own lands, but cultivates or raises crops upon

Six persons jointly leased a house which they and others used for the purposes of a political association. The rent and wages of the servants who had charge of the premises were paid out of a common fund, to which the lessees and other members of the association were subscribers. Various members of the association transacted the business of the association on the premises, and the lessees when in London frequented the premises, partly transacting the business of the association, and partly transacting their own affairs. Held, that the possession by the lessees was an occupation of each, within 2 Wm. IV, c. 45, § 27, giving the right to vote to the actual occupants of buildings, either in their own right or as tenants. Luckett v. Bright,

2 Man. G. & S. 193, 195.

Under Act April 4, 1798, directing that a writ of scire facias sued out to preserve the lien of a judgment on real estate must be served on the terre-tenants or persons occupying the real estate, the occupiers are those who come in under the owners of the fee

simple. In re Dohner's Assignees, 1 Pa. (1 boards, and other lumber, in any city, town, Barr) 101, 104.

Of public land.

One who erects, or causes at his own expense to be erected, on a town lot, a building for the purpose of trade or business, is an occupant, within the town site law. Hagar v. Wikoff, 39 Pac. 281, 283, 2 Okl. 580; Leech v. Rauch, 3 Minn. 448, 453 (Gil. 332, 338).

"An occupant, within the meaning of the town site law of Congress, is one who is a settler or resident of the town, and is in the bona fide actual possession of the lot at the time the entry is made." Singer Mfg. Co. V. Tillman (Ariz.) 21 Pac. 818; Hussey v. Smith,

1 Utah, 129, 132.

or plantation within this state, other than where the owners reside, shall be taxed in such city, town, or plantation, "if the owners occupy any store, shop, mill, or wharf therein, and shall not be taxed where the owners reside." Campbell v. Inhabitants of Machias, 33 Me. 419.

Of street.

The city of St. Louis is not the "occupant" of that portion of a street which has been set apart by ordinance as a stand for day, within Rev. Ord. 1866, p. 329, § 21, makmarket wagons during certain hours of the ing the owner or occupant of property fronting on portions of streets liable to the contractor for the cost of repaving the streets. Bixler v. Hagan, 42 Mo. 367, 373.

OCCUPANT STATUTES.

"Occupant," as used in the law of the United States allowing occupants who possess certain qualifications, and who have made a certain character of improvements, to preempt a quarter section of land, means the Statutes which provide that a bona fide person who is living on the quarter to be pre-occupant, making lasting improvements in empted, but does not necessarily mean one good faith, shall have a lien upon the estate who is in possession of the entire quarter. recovered by the real owner, to the extent The person living on a quarter section, and that his improvements have increased the possessing the other qualifications of a pre- value of the land, are called betterment or emptor, and having made the necessary imoccupant statutes. Jones v. Great Southern provements, is entitled to pre-empt the entire Fireproof Hotel Co. (U. S.) 86 Fed. 370, 386, quarter, though he may not be in actual pos- 30 C. C. A. 108. session of a tenth part thereof. O'Neale v. Cleaveland, 3 Nev. 485, 492.

"Occupant," as used in the laws of the United States relating to occupants of government lands, and entitling them to a deed to the land under certain conditions, and on proof of actual occupancy, meant that the party should have the actual use or possession of land. The acts necessary to constitute possession must in a great measure always depend on the character of the land, and the locality and object for which it is taken up. But in all cases where a party relies solely on the possession there must be a subjection of the land to the will and control of the claimant. The occupant must assert an exclusive ownership over the land, and his acts must at all times be in harmony with his title. His possession must, in the language of the authorities, be apparent, open, notorious, and unequivocal pedis possessio, carrying with it the evidence and marks of ownership. Lechler v. Chapin, 12 Nev. 65, 72 (citing Eureka Min. & Smelting Co. v. Way, 11 Nev. 171, and authorities there cited).

Of sawmill.

The hiring of logs to be sawed does not constitute the owner of them, if a nonresident, such an occupant of the sawmill as to subject the logs to taxation in the town wherein the mill is situated, within St. 1845, c. 151, § 10, cl. 1, providing that all goods, wares, and merchandise, and all logs, timber,

OCCUPATION.

See "Usual Occupation."
Like occupation, see "Like."
Occupation of land, see "Occupancy-Oc
cupation-Occupy (Of land)."
Other occupation, see "Other."

"Occupation," as used in Code Civ. Proc. § 1187, requiring a materialman to file his lien claim within 30 days after the completion of the structure, and providing that the occupation of the structure by the owner shall be deemed conclusive evidence of completion, should be construed to include the releasing of the contractor, and the taking control and possession of the work by the owner for the purpose of completing it. Giant Powder Co. v. San Diego Flume Co., 25 Pac. 976, 88 Cal. 20.

Of dwelling house.

When used in a will giving the testator's widow the use and occupation of his mansion house, "occupation" does not mean living and residing, in the absence of any language in the will which implies a personal occupation or residence. Reeve v. Troth (N. J.) 42 Atl. 571, 574.

The occupation of a house is not sufficient to satisfy the words "live and reside" in it. Fillingham v. Bromley, 1 Turn. & R. 530, 536.

"By the term 'occupation' is meant use or tenure, as of a house." Fleming v. Maddox, 30 Iowa, 239, 241.

could not be said to be engaged in the occupation of a hunter at the time of his death, so that his beneficiary would be only entitled to the indemnity allowed in case of a

For a dwelling house to be in a state of hunter, Union Mut. Acc. Ass'n v. Frohard, occupation, there must be in it the presence 25 N. E. 642, 643, 134 Ill. 228, 10 L. R. A. of human beings, as at their customary place 383, 23 Am. St. Rep. 664; Wildey Casualty Co. of abode, not absolutely and uninterruptedly v. Sheppard, 59 Pac. 651, 652, 61 Kan. 351, continuous, but that must be the place of 47 L. R. A. 650; Holiday v. American Mut. usual return and habitual stoppage. For what length of time it may remain unoccupied will depend upon the circumstances. Van Derhoof v. Agricultural Ins. Co., 12 N. Y. St. Rep. 341, 343.

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"Occupation" means regular business. Standard Life & Acc. Ins. Co. v. Fraser (U. S.) 76 Fed. 705, 709, 22 C. C. A. 499.

The word "occupation," as used in an Insurance policy stating that any member receiving an injury while engaged temporarily or otherwise, in an occupation more hazardous than the one in which he was engaged when insured, means the vocation, profession, trade, or calling which the assured has engaged in for hire or profit, and does not preclude him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations, Union Mut. Acc.) Ass'n v. Frohard, 25 N. E. 642, 643, 134 Ill. 228, 10 L. R. A. 383, 23 Am. St. Rep. 664; Hess v. Preferred Masonic Mut. Acc. Ass'n, 70 N. W. 460, 462, 112 Mich. 196, 40 L. R. A. 444; or from engaging in mere acts of exercise, diversion, or recreation, and hence a merchant who was killed while hunting 6 WDS. & P.-3

Acc. Ass'n, 72 N. W. 448, 449, 103 Iowa, 178, 64 Am. St. Rep. 170.

Within the meaning of the statute imposing a tax upon all occupations, the keeping of a private billiard table for the use of the owner and his guests, for which no charge is made or profit derived therefrom, directly or indirectly, is not an occupation. The word "occupation," as used in the Constitution, authorizing such a tax, and in the statute imposing the tax, means a profitable pursuit, or a pursuit undertaken and prosecuted for a profit. Tarde v. Benseman, 31 Tex. 277, 282.

In construing Pen. Code, art. 110, providing that "any person who shall pursue or follow any occupation, calling, or profession, or do any act taxable by law, without first obtaining a license therefor, shall be fined," as applied to a charge of an unlicensed sale of intoxicating liquors by one who never followed the occupation of selling liquors, but on the day alleged in the information had sold four bottles of medicated bitters that was an intoxicant when drunk in sufficient quantities, the court said: “A single sale of intoxicating liquors would not of itself constitute pursuing or following the Occupation of a liquor dealer. 'Occupation,' as used in this statute, and as understood commonly, would signify vocation, calling, trade, or business which one principally engages in to procure a living or obtain wealth. It is not the sale of liquor that constitutes this offense. It is the business of engaging in the sale without paying the occupation tax. It does not require even a single sale to constitute the offense, for a person may engage in the business without succeeding in it even to the extent of one sale. So, on the other hand, a person may make occasional sales of liquor without pursuing or following, or intending to pursue or follow. the occupation of selling liquor." Standford v. State, 16 Tex. App. 331, 332; Williams v. State, 5 S. W. 136, 137, 23 Tex. App. 499; State v. Austin Club, 33 S. W. 13, 115, 89 Tex. 20, 30 L. R. A. 500.

A person is not engaged in the "occupation of vending medicine," who, while performing missionary duties, sold three bottles of a mixture which was called the "Oil of Life"; the person not being in the business of selling this oil, but his occupation and profession being that of a missionary preacher. "Occupation" means a vocation, trade

or business in which one principally engages OCCUPATION TAX.
to make a living or to obtain wealth. Love
v. State, 20 S. W. 978, 31 Tex. Cr. R. 469.

The phrase "occupation or exposure classed by this company as more hazardous," in a life policy, was construed to mean distinct, classified occupations or employments, such as railroad conductors, brakemen, engineers, blacksmiths, carpenters, etc., and not to include the act of insured in attempting to board a moving train, he in fact not being a railroad employé. Miller v. Travelers' Ins. Co., 40 N. W. 839, 840, 39 Minn. 548.

Attorney in fact or guardian.

"Occupation," as used in Act April 15, 1834 (P. L. 512) § 4, making all offices and posts of profit, professions, trades, and occupations taxable, should be construed to include an employment or business. One who had become the attorney in fact of some of the owners of a large and valuable estate, consisting of lands and ironworks, etc., and the guardian of the remaining owners of the same, who were minors, and had undertaken to superintend and manage the whole estate, for which he was to receive and had been

receiving $2,000 a year for attending to and managing it, was engaged in an occupation, within the meaning of the statute. Commissioners of Lebanon County v. Reynolds (Pa.)

7 Watts & S. 329, 330.

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As assessment, see "Assessment."

An occupation tax is peculiar in its character. It is not a tax upon property, but upon the pursuit which a man follows in order to acquire property and support his family.

It is a tax upon income, in the sense only that every other tax is a tax upon income; that is to say, it reduces a man's fair income by the precise amount of the tax, but it is an income tax in no sense. Appeal of Banger, 109 Pa. 79, 95.

An occupation tax is a tax upon an occupation or the prosecution of a business, etc. "The distinction between a tax upon a business, and what might be termed a license, is that the former is exacted by reason of the fact that the business is carried on, and the latter is exacted as a condition precedent to the right to carry it on. the one case the individual may rightfully engage in and carry on the business without paying a tax. In the other he cannot." Adler v. Whitbeck, 9 N. E. 672, 675, 44 Ohio St. 539.

In

The tax imposed by Laws March 24, 1881, imposing on every firm, person, or association of persons owning or running any palace, sleeping, or dining room cars not owned by the railroad company an annual tax, is an occupation tax, which is unconstitutional, because it is not equal and uniform, as it exempts one class of persons pursuing an occupation, and imposes a tax on others pursuing the same occupation. Pullman Palace Car Co. v. State, 64 Tex. 274, 276, 53 Am. Rep. 758.

OCCUPIED AS DWELLING HOUSE.

A condition in a fire policy that it is to be occupied as a dwelling house does not render the policy invalid because a part of the building insured is used as a stable. If the family live in the building, it is not deprived of its character as a dwelling because domestic animals are also housed there. Hannan v. Williamsburg City Fire Ins. Co., 45 N. W. 1120, 1122, 81 Mich. 556, 9 L. R. A 127.

A recital in a policy of fire insurance that the building insured is occupied as a dwelling is ordinarily a warranty by the insured that the building so described, and on which the risk is taken, is in fact at the time of issuing the policy a building occupied only as a dwelling house. Maher v. Hibernia Ins. Co., 67 N. Y. 283, 288.

In an application for fire insurance, and in a policy issued, the premises were described as occupied by a certain individual as a private dwelling or residence. Held, that such clause should not be construed to

amount to a warranty of the continuance | must be construed and regarded as a repreof the occupation during the risk, and there- sentation as to the then use of the house, fore the insurer was liable, though before and not as a warranty or obligation that the loss the occupant had removed and left it should continue to be so used during the the premises vacant. O'Neil v. Buffalo Fire continuance of the policy. Imperial Fire Ins. Ins. Co., 3 N. Y. (3 Comst.) 122. Co. v. Kiernan, 83 Ky. 468, 471.

OCCUPIED AS A MOROCCO FACTORY. | OCCUPIED AS STORE.

Where property insured was described as a five-story brick building "occupied as stores on the first floor," and such floor was divided into several rooms, the policy did not require that all the rooms should be occupied for stores at the same time; it being satisfied if any of the rooms were so occupied. Carter v. Humboldt Fire Ins. Co.,

An insurance policy describing the property insured as "occupied as a morocco fac tory" indicates the use contemplated by the parties to the contract, and hence, there be ing a provision in the policy that in case the property should become unoccupied the policy should be suspended, it became unoccupied on a total and absolute suspension of the business; that is, when it ceased to 17 Iowa, 456, 459. be occupied as a morocco factory. Halpin V. Phenix Ins. Co., 23 N. E. 482, 483, 118 N. Y. 165 (cited in Caraher v. Royal Ins. Co., 17 N. Y. Supp. 864, 63 Hun, 82).

OCCUPIED AS A RESIDENCE.

The term "occupied as a residence," as used in a statute exempting homesteads so occupied from seizure and sale on judicial process, means that the premises shall be the home of the party claiming a homestead right therein, and this implies a permanent occupation; and hence mere temporary absence by the householder and his family, without acquiring another home, does not constitute an abandonment of the right. Potts v. Davenport, 79 Ill. 455, 458.

Const. art. 15, § 9, which provides that a homestead "occupied as a residence by the family of the owner," together with all the improvements on the same, etc., shall be exempt from sale under process of law, etc., is construed so that a purchase of a home stead with a view to occupancy, followed by an occupancy within a reasonable time, will secure ab initio the exemption of the homestead from sale on execution or other process, as provided by this section of the Constitution. Ingels v. Ingels, 32 Pac. 387, 388, 50 Kan. 755. It does not always require an actual occupancy, but may sometimes permit a constructive occupancy. Ashton v. Ingle, 20 Kan. 670, 671, 27 Am. Rep. 197.

Under the homestead exemption laws (Comp. Laws 1879, p. 437, § 1), where the owner had a family, consisting of a wife and children, who resided in Illinois, and the owner never had any intention of bringing them to reside on the property in Kansas, he cannot be said to have occupied the property with his family, so as to render the same exempt. Farlin v. Sook, 26 Kan. 397, 403.

"Occupied as a family residence," as used in a fire policy describing the house

OCCUPIED AS STOREHOUSE.

Where an application for fire insurance described the premises to be insured as a building occupied as a storehouse, such language was not a warranty that the building was used only as a storehouse, but was a mere representation. Wall v. Howard Ins. Co. (N. Y.) 14 Barb. 383, 391.

The words "occupied as a storehouse," in a fire policy in which there are other words to identify the building containing the property insured, have been held to explain a fact relating to the risk, and cannot be regarded as employed for any other purpose, or as implying that the house is not occupied for any other purpose. Texas Banking & Ins. Co. v. Sonne, 49 Tex. 4, 11.

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Insured as occupied as a family residence, Century Dictionary as "to take possession

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