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Same-Guardian.

other lands not his own. Tweed v. Metcalf, The occupier of property, who is held to 4 Mich. 578, 586. be liable criminally for nonrepair of a

"Occupant,” as contained in a deed givbridge, the repair of which is charged on ing a right to take water from a certain the land, should be one in whom the law spring "by the aqueduct as now laid from supposes to be vested a command over, and said house to said spring to the extent and actual possession of the profits of, the land. as has been the custom of the occupant of An infant inheriting land on which his the house hereby conveyed,” refers to the cusguardian in socage resides, and on which tom of the tenants, and not that of the origthe infant did not, except on occasional inal builder of the aqueduct. Wright v. Newvisits, was not such an occupier of the land, ton, 130 Mass. 552, 555. but the guardian was the person liable. Rex v. Sutton, 3 Adol. & El, 597, 600.

"Occupier," as used in a law which de

clares that the occupier and not the owner of Same-Husband of owner.

the building is liable to third persons for A husband residing with his wife on her damages arising from any defect in the buildseparate property is not the occupant of the ing, means the person who occupies it as a property within the meaning of the statute al- tenant, having control of it, and not merely lowing lands to be assessed to occupants. The

the person who physically occupies such statute meant one who occupied the property building. Ahern v. Steele, 22 N. E. 193, 197, in his or her own right, as tenant or other. 115 N. Y. 203, 5 L. R. A. 449, 12 Am. St. Rep. wise, and in the absence of a possession by 778 (citing Cunningham v. Cambridge Sav. the real owner.

Hamilton v. City of Fond Bank, 138 Mass. 480). du Lac, 25 Wis. 496, 497.

The term “occupant,” within the meanA husband, though the head of the fam. ing of the statute providing that one who ocily, is not in any legal sense the possessor or cupies land without special contract shall be occupant of the house or land owned by his liable for rent, does not apply to one who wife, and in or upon which the family reside. lives with, and as a member of the family Kavanagh v. Barber, 12 N. Y. Supp. 603, 59 of, a tenant, in pursuance of a contract with Hun, 60.

the tenant. Tinder v. Davis, 88 Ind. 99, 101. Under a statute of New York providing

A statute providing that, if any lands that real estate shall be assessed and taxed sold and conveyed by the controller be in the in the name of the owner or occupant, it is actual occupancy of any person, the grantee beld that a husband living separately from shall serve written notice on the person ocbis wife is neither an owner nor occupant of cupying such land, should be construed to land belonging to his wife, so that an assess- include a tenant in actual possession of a ment to him of such land was void. Smith portion of the lands. Boarders, lodgers, and V. Read, 51 Conn. 11, 13.

servants, however, are not occupants, within

the meaning of the statute, upon whom notice Same-Landlord.

is to be served. National Fire Ins. Co. v.

MCCode Civ. Proc. § 1160, giving an "occu- Kay (N. 1.) 5 Abb. Prac. (N. S.) 445, 449. pant" of land the right to maintain an action Six persons jointly leased a house which for an unlawful detainer, would not include they and others used for the purposes of a a landlord in possession merely through his political association. The rent and wages of tenant. Hammel v. Zobelein, 51 Cal. 532, 533. the servants who had charge of the premises

were paid out of a common fund, to which Same-Mortgageo in possession.

the lessees and other members of the asso"Occupant,” as used in Rev. St. c. 116, ciation were subscribers. Various members giving to an occupant of land the right to re of the association transacted the business of cover gross damages awarded by a jury on the association on the premises, and the lesa complaint for flowing land, would include a

sees when in London frequented the premises, inortgagee who makes entry under his mort- partly transacting the business of the assogage title on the premises, and demands of ciation, and partly transacting their own afthe tenant holding by parol leases from the fairs. Held, that the possession by the lesmortgagor to attorn to him, to which demand sees was an occupation of each, within 2 Wm. the tenant has acceded. Abbott v. Upham, IV, c. 45, $ 27, giving the right to vote to the 54 Mass. (13 Metc.) 172, 174.

actual occupants of buildings, either in their

own right or as tenants. Luckett v. Bright, Same-Tenant.

2 Man. G. & S. 193, 195. To make one an occupant within a stat- Under Act April 4, 1798, directing that a ate requiring land to be assessed in the name writ of scire facias sued out to preserve the of the occupant, it is not necessary that the lien of a judgment on real estate must be person should have his home upon the prem- served on the terre-tenants or persons occuises, but refers to one who lives upon his pying the real estate, the occupiers are those own lands, but cultivates or raises crops upon 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.

or plantation within this state, other than

where the owners reside, shall be taxed in of publio land.

such city, town, or plantation, “if the owners One who erects, or causes at his own ex. occupy any store, shop, mill, or wbarf there pense to be erected, on a town lot, a building in, and shall not be taxed where the owners for the purpose of trade or business, is an reside.” Campbell v. Iuhabitants of Machias, occupant, within the town site law. Hagar

33 Me. 419. v. Wikoff, 39 Pac. 281, 283, 2 Okl. 580; Leech v. Rauch, 3 Minn. 448, 453 (Gil, 332, 338).

Of street.

The city of St. Louis is not the "occu“An occupant, within the meaning of the town site law of Congress, is one who is a pant” of that portion of a street which has settler or resident of the town, and is in the been set apart by ordinance as a stand for bona fide actual possession of the lot at the day, within Rev. Ord. 1866, p. 329, $ 21, mak

market wagons during certain hours of the time the entry is made.” Singer Mfg. Co. v. Tillman (Ariz.) 21 Pac. 818; Hussey v. Smith, ing on portions of streets liable to the con

ing the owner or occupant of property front1 Utah, 129, 132.

tractor for the cost of repaving the streets. "Occupant,” as used in the law of the Bixler v. Hagan, 42 Mo. 367, 373. United States allowing occupants who possess certain qualifications, and who have made a certain character of improvements, to pre

OCCUPANT STATUTES. empt 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 bave 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 im- occupant 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.

OCCUPATION. "Occupant," as used in the laws of the United States relating to occupants of govern- See “Usual Occupation." ment lands, and entitling them to a deed to Like occupation, see “Like." the land under certain conditions, and on Occupation of land, see "Occupancy-00proof of actual occupancy, meant that the cupation-Occupy (Of land)." party should have the actual use or posses- Other occupation, see "Other.” sion of land. The acts necessary to constitute possession must in a great measure al- "Occupation," as used in Code Civ. Proc. ways depend on the character of the land, $ 1187, requiring a materialman to file his and the locality and object for which it is lien claim within 30 days after the completaken up. But in all cases where a party re- tion of the structure, and providing that the lies solely on the possession there must be a occupation of the structure by the owner shall subjection of the land to the will and control be deemed conclusive evidence of completion, of the claimant. The occupant must assert should be construed to include the releasing an exclusive ownership over the land, and his of the contractor, and the taking control and acts must at all times be in harmony with possession of the work by the owner for the his title. His possession must, in the lan- purpose of completing it. Giant Powder Co. guage of the authorities, be apparent, open, v. San Diego Flume Co., 25 Pac. 976, 88 Cal. notorious, and unequivocal pedis possessio, 20. carrying with it the evidence and marks of ownership. Lechler v. Chapin, 12 Nev. 65, Of dwelling house. 72 (citing Eureka Min. & Smelting Co. v. Way, 11 Nev. 171, and authorities there widow the use and occupation of his mansion

When used in a will giving the testator's cited).

house, “occupation" does not mean living and

residing, in the absence of any language in Of sawmill.

the will which implies a personal occupation The hiring of logs to be sawed does not or residence. Reeve v. Troth (N. J.) 42 Atl. constitute the owner of them, if a nonresi

571, 574 dent, such an occupant of the sawmill as to subject the logs to taxation in the town The occupation of a house is not suffiwherein the mill is situated, within St. 1845, cient to satisfy the words "live and reside" c. 151, § 10, cl. 1, providing that all goods, in it. Fillingham v. Bromley, 1 Turn. & R. wares, and merchandise, and all logs, timber, i 530, 536.

"By the term 'occupation' is meant use could not be said to be engaged in the occuor tenure, as of a house." Fleming v. Mad- pation of a hunter at the time of his death, dos, 30 lowa, 239, 241.

so that his beneficiary would be only entiFor a dwelling house to be in a state of tled to the indemnity allowed in case of a

hunter, Union Mut. Acc. Ass'n v. Frohard, occupation, there must be in it the presence 25 N. E. 642, 643, 134 III. 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 continuous, but that must be the place of Sheppard, 59 Pac. 651, 652, 61 Kan. 351, usual return and babitual stoppage. For

47 L. R. A. 650; Holiday V. American Mut.

Acc. Ass'n, 72 N. W. 448, 449, 103 Iowa, 178, what length of time it may remain unoccu

64 Am. St. Rep. 170. pied will depend upon the circumstances. Van Derhoof v. Agricultural Ins. Co., 12 N.

Within the meaning of the statute imY. St. Rep. 341, 343.

posing a tax upon all occupations, the keep

ing of a private billiard table for the use Of pond.

of the owner and his guests, for which no Stocking a great pond with a new species charge is made or profit derived therefrom, of fish, and closing the outlet with a wire directly or indirectly, is not an occupation. screen, is a sufficient occupation of a pond for The word "occupation,” as used in the Conthe purpose of artificially cultivating and stitution, authorizing such a tax, and in the maintaining fish therein, within St. 1867, c. statute imposing the tax, means a profitable 384. Commonwealth V. Weatherhead, 110 pursuit, or a pursuit undertaken and prose Mass. 175, 178.

cuted for a profit. Tarde v. Benseman, 31

Tex. 277, 282. Of whart. The piling of sawed lumber upon a wharf viding that “any person who shall pursue

In construing Pen. Code, art. 110, pro to season, and the payment of wharfage or follow any occupation, calling, or profestherefor, do not constitute such an occupa- sion, or do any act taxable by law, without tion of the wharf as to make the lumber first obtaining a license therefor, shall be taxable there, instead of at the owner's resi- fined," as applied to a charge of an unlidence. Stockwell v. Inhabitants of Brewer,

censed sale of intoxicating liquors by one 59 Me. 286, 289.

who never followed the occupation of selling

liquors, but on the day alleged in the infor. OCCUPATION (Vocation).

mation had sold four bottles of medicated

bitters that was an intoxicant when drunk As property, see "Property."

in sufficient quantities, the court said: “A Occupation is defined to be that which single sale of intoxicating liquors would not occupies or engages the time or attention; of itself constitute pursuing or following the the principal business of one's life;

occupation of a liquor dealer. "Occupation,' tion; employment; calling; trade. Union

as used in this statute, and as understood Mut. Acc. Ass'n v. Frohard, 25 N. E. 642, 643, commonly, would signify vocation, calling, 13III. 228, 10 L R. A. 383, 23 Am. St. Rep. trade, or business which one principally en664.

gages in to procure a living or obtain wealth.

It is not the sale of liquor that constitutes “Occupation" means regular business. this offense. It is the business of engaging Standard Life & Acc. Ins. Co. v. Fraser (U. in the sale without paying the occupation S.) 76 Fed. 705, 709, 22 C. C. A. 499.

tax. It does not require even a single sale

to constitute the offense, for a person may The word "occupation,” as used in an Insurance policy stating that any member in it even to the extent of one sale. So, on

engage in the business without succeeding receiving an injury while engaged tempora- the other hand, a person may make occarily or otherwise, in an occupation more baz- sional sales of liquor without pursuing or ardous than the one in which he was en- following, or intending to pursue or follow, gaged when insured, means the vocation, the occupation of selling liquor.” Standford profession, trade, or calling which the as

v. State, 16 Tex. App. 331, 332; Williams v. sured bas engaged in for hire or profit, and State, 5 S. W. 136, 137, 23 Tex. App. 499; dues not preclude him from the performance State v. Austin Club, 33 S. W. 113, 115, 89 of acts and duties which are simply inci. Tex. 20, 30 L. R. A. 500. dents connected with the daily life of men in any or all occupations, Union Mut. Acc.

A person is not engaged in the “occupaAss'n v. Frohard, 25 N. E. 642, 643, 134 Ill. tion of vending medicine,” who, while per228, 10 L. R. A. 383, 23 Am. St. Rep. 664; forming missionary duties, sold three bottles Hess v. Preferred Masonic Mut. Acc. Ass'n, of a mixture which was called the “Oil of 70 N. W. 460, 462, 112 Mich. 196, 40 L. R. A. Life"; the person not being in the business 444; or from engaging in mere acts of ex- of selling this oil, but his occupation and ercise, diversion, or recreation, and hence a profession being that of a missionary preachmerchant who was killed while hunting er. "Occupation" means a vocation, trade

6 W'ds. & P.-3

voca

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.

As assessment, see “Assessment."
The phrase "occupation or exposure

An occupation tax is peculiar in its

character. classed by this company as more hazardous,"

It is not a tax upon property, in a life policy, was construed to mean dis- but upon the pursuit which a map follows iinct, classified occupations or employments,

in order to acquire property and support his such as railroad conductors, brakemen, en

family. It is a tax upon income, in the gineers, blacksmiths, carpenters, etc., and not sense only that every other tax is a tax upon to include the act of insured in attempting income; that is to say, it reduces a man's to board a moving train, he in fact not being fair income by the precise amount of the a railroad employé. Miller v. Travelers’ Ins. tax, but it is an income tax in no sense. Co., 40 N. W. 839, 840, 39 Minn. 548.

Appeal of Banger, 109 Pa. 79, 95.

An occupation tax is a tax upon an oc Attorney in fact or guardian.

cupation or the prosecution of a business, "Occupation,” as used in Act April 15, etc. “The distinction between a tax upon 1834 (P. L. 512) $ 4, making all offices and a business, and what might be termed a 11posts of profit, professions, trades, and occu- cense, is that the former is exacted by reapations taxable, should be construed to in- son of the fact that the business is carried clude an employment or business. One who on, and the latter is exacted as a condition had become the attorney in fact of some of precedent to the right to carry it on. In the owners of a large and valuable estate, the one case the individual may rightfully consisting of lands and fronworks, etc., and engage in and carry on the business withthe guardian of the remaining owners of the out paying a tax. In the other he cannot." same, who were minors, and bad undertaken Adler v. Whitbeck, 9 N. E. 672, 675, 44 Ohio to superintend and manage the whole estate, St. 539. for which he was to receive and had been

The tax imposed by Laws March 24, receiving $2,000 a year for attending to and 1881, imposing on every firm, person, or asmanaging it, was engaged in an occupation, sociation of persons owning or running any within the meaning of the statute. Commis- palace, sleeping, or dining room cars not ownsioners of Lebanon County v. Reynolds (Pa.) ed by the railroad company an annual tax, 7 Watts & S. 329, 330.

is an occupation tax, which is unconstitu

tional, because it is not equal and uniform, Building contractor.

as it exempts one class of persons pursuing Code Or. $ 211, exempting from execu- an occupation, and imposes a tax on others tion tools and implements used by a person pursuing the same occupation. Pullman Palengaged in any “trade, occupation, or profes- ace Car Co. v. State, 64 Tex. 274, 276, 63 sion," does not include the business of a Am. Rep. 758. building contractor. In re Whetmore (0. S.) 29 Fed. Cas. 921.

OCCUPIED AS DWELLING HOUSE. Manufacturer.

A condition in a fire policy that it is to Under a statute exempting tools, imple be occupied as a dwelling house does not ments, etc., to enable a person to carry on

render the policy invalid because a part of the profession, trade, occupation, or busi- the building insured is used as a stable. If ness in which he is wholly or principally the family live in the building, it is not de engaged, a manufacturer is entitled to the prived of its character as a dwelling because exemption. Wood v. Bresnaham, 30 N. W.

domestic animals also housed there. 206, 208, 63 Mich. 614.

Hannan v. Williamsburg City Fire Ins. Co.,

45 N. W. 1120, 1122, 81 Mich. 556, 9 L. R. A. Minister.

127. The term “occupations," in Act April 29, A recital in a policy of ire insurance 1844, § 32, declaring that all offices, posts of that the building insured is occupied as a profit, professions, trades, and occupations, dwelling 18 ordinarily a warranty by the inexcept the occupation of farmers, shall be sured that the building so described, and on valued, assessed, and subject to taxation, in which the risk is taken, is in fact at the clude a minister of the gospel. Miller V.

time of issuing the policy & building occuKirkpatrick, 29 Pa. (5 Casey) 226, 229.

pied only as a dwelling house. Maher v.

Hibernia Ins. Co., 67 N. Y. 283, 288. Public office.

In an application for fire Insurance, and “Occupation" means calling or avoca- in a policy issued, the premises were de tion, and embraces the duties of a public scribed as occupied by a certain individual office. Schuchardt v. People, 99 Ill. 501, 506, as a private dwelling or residence. Held, 39 Am. Rep. 34.

that such clause should not be construed to

are

amount to a warranty of the continuance must be construed and regarded as a repre of 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.

An insurance policy describing the prop- Where property insured was described erty insured as "occupied as a morocco fac as a five-story brick building “occupied as tory" indicates the use contemplated by the stores on the first floor,” and such floor was parties to the contract, and hence, there be divided into several rooms, the policy did ing a provision in the policy that in case not require that all the rooms should be the property should become unoccupied the occupied for stores at the same time; it bepolicy should be suspended, it became unoc ing satisfied if any of the rooms were so cupied on a total and absolute suspension occupied. Carter v. Humboldt Fire Ins. Co., 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.,

OCCUPIED AS STOREHOUSE. 17 N. Y. Supp. 864, 63 Hun, 82).

Where an application for fire insurance

described the premises to be insured as a OCCUPIED AS A RESIDENCE.

building occupied as a storehouse, such lan

guage was not a warranty that the building The term “occupied as a residence,” as was used only as a storehouse, but was a used in a statute exempting homesteads so mere representation. Wall v. Howard Ins. occupied from seizure and sale on judicial Co. (N. Y.) 14 Barb. 383, 391. process, means that the premises shall be the home of the party claiming a homestead

The words "Occupied as a storehouse," right therein, and this implies a permanent in a fire policy in which there are other occupation; and hence mere temporary ab- words to identify the building containing sence by the householder and his family, the property insured, have been held to exwithout acquiring another home, does not plain a fact relating to the risk, and cannot constitute an abandonment of the right be regarded as employed for any other purPotts v. Davenport, 79 Ill. 455, 458.

pose, or as implying that the house is not occupied for any other purpose.

Texas Const, art. 15, 9, which provides that Banking & Ins. Co. v. Sonne, 49 Tex. 4, 11. a homestead “occupied as a residence by the family of the owner,” together with all the

OCCUPIED DWELLING HOUSE. improvements on the same, etc., shall be exempt from sale under process of law, etc., A house used as a place of residence is construed so that a purchase of a home by a man and his family is an occupied stead with a view to occupancy, followed dwelling house, within the meaning of Pen. by an occupancy within a reasonable time, Code, $ 138, though every member of the will secure ab initio the exemption of the family may be temporarily absent at a homestead from sale on execution or other time when the house is maliciously and process, as provided by this section of the willfully burned. Meeks v. State, 27 S. E. Constitution. Ingels v. Ingels, 32 Pac. 387, 679, 102 Ga. 672. 388, 50 Kan. 755. It does not always require an actual occupancy, but may sometimes permit a constructive occupancy. Ashton v.

OCCUPIED FOR SAME PURPOSE. Ingle, 20 Kan. 670, 671, 27 Am. Rep. 197.

A condition in a lease of property of Under the homestead exemption laws cupied for the manufacturing of carpet bags, (Comp. Laws 1879, p. 437, & 1), where the that “the property is to be occupied for the owner had a family, consisting of a wife and

same purpose as it is now,” is not violated by children, who resided in Illinois, and the the use of the property for the manufacture owner never had any intention of bringing

Shumway V. Collins, 72 Mass. (6 them to reside on the property in Kansas, Gray) 227, 231 he cannot be said to have occupied the property with his family, so as to render the OCCUPY. same exempt. Farlin v. Sook, 26 Kan. 397, 403

See “Occupancy - Occupation - Occupy

(Or Land)." "Occupied as a family residence," as used in a fire policy describing the house The word "occupy" is defined by the insured as occupied as a family residence, Century Dictionary as “to take possession

of caps.

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