#### The People of the State of New York ex rel. Lake Placid Company, Relator, *v.*Clark Williams, as Comptroller of the State of New York, and Harvey G. Alford, Respondents.

Third Department,

May 3, 1911.

Tax — occupancy of Adirondack lands — tax sale — redemption.

Occupancy of land within the Tax Law does not mean that an owner or representative must build a house and reside upon the premises. Thus, a corporation maintaining a club house, an inn and other buildings on Adirondack lands for the use of members occupies lots to which it has title, although it has not inclosed or cultivated them, and they are separated from its buildings-by the waters of a lake, if it has maintained boat landings and camps thereon, has cleaned brush therefrom and *35opened trails and used the land as part of its estate for picnics and camping, and has posted notices forbidding the use of firearms, catting trees, etc.,

Where lots so occupied have been sold for taxes without notice to the owner, as required by the Tax Law, it is entitled to redeem them.

Houghton and Sewell, JJ.; dissented, with opinion.

Cebtiorabi issued out of the Supreme Court and attested on the 5th day of August, 1909, directed to Charles H. G-aus, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany' all and singular the proceedings had in refusing to permit the relator to redeem lands sold by the Comptroller at a tax sale.

*George J. JSatt, Snd,*for the relator.

*Thomas Carmo&y, Attorney-General*and *J. A. Kellogg, Deputy Attorney-General,*for the respondent Comptroller.

*T. Almern Griffin,*for the respondent Alford.

Betts, J.:

The parcels of land in question here are small pieces of land in lots 333 and 314, township 11, Old Military tract, in the town of North Elba, Essex county, N. Y.

These lands with others had been purchased for the relator by M'elvil Dewey, its president, in 1898 and conveyed to the relator in February, 1901, by deeds duly recorded.

The relator paid all tax bills presented by the town tax collector and supposed that it had paid all taxes on these lands hut through inadvertence or otherwise some payments were omitted and the two small lots in question were sold at the tax .sale of 1905 for certain taxes for a small amount thereon, assessed sometime prior thereto. No notice was served upon the relator, which claims to he both owner and occupant, by the purchasers at the tax sale or any person in their behalf. Relator attempted to pay the taxes within one year but through a misunderstanding its check arrived too late for that purpose, whereupon this proceeding was had to redeem them under section 13Í of the Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908; now *36Consol. Laws, chap. 60; Laws of 1909, chap. 62)' on the ground that they were in actual occupancy of the Lake Placid Company, the owner, and its tenant, the Lake Placid Club, during all the times subsequent to the purchase of the property in 1898 and until the date of the affidavits, which was on Í)écem-her 15 and December 19, 1908, and, of course, including one year from December 23, 1905, the last day of the tax sale. The purchasers at the tax sale1 or their representatives were allowed to file affidavits in opposition, and upon the affidavits thus submitted, the Deputy Comptroller, Kelsey on April 1, 1909,, denied the application to redeem, whereupon this certiorari proceeding was brought.

It appears from all the papers here that the relator owns lot • 278 upon which its inn and many other of its buildings are, and also other lots bordering on Mirror lake; that, it owns a portion or the whole of lot 277 on East lake which is a part of Lake Placid and the greater portion of lots 335, 333, 313 and 314, the last three being on Moose island and. 385 being on the mainland nearly opposite and southeast from 314.

. The map submitted shows that the nearest part of the lot sold from the northeast corner of lot 314 was about two miles and a- quarter from the Lake Placid Inn of relator; that the nearest part of lot 333 sold was about two and three-quarter miles from the inn of relator; that lots 313, 335, 333 and 314 were connected with the boathouse of relator on lot *277*by a nature’s highway, being the waters of the East lake which is a part of Lake Placid,' the nearest parts of lots' 314 and *277*being only about two miles apart; that a portion of lots 333, 313, 314, 335 and *277*are all under water of the East lake or Lake. Placid; th$t these various lots are each one-half mile square^ and lot 314 is in the third tier of lots north of *277*and the second tier east thereof and lot 333 is in the fourth tier north of *277*and the third tier east thereof and that lot 335 is in the second tier north of *277*and in the third tier east thereof, as I understand the points of the compass shown oh the map filed on this hearing by both parties. Lots 313, 333, 314 adjoin each other ahd 335 corners up to 314 under water; 277, where relator’s boathouse is, and 278 and 279, on which are the inn, club *37and other buildings of relator, directly adjoin and ihere is water connection between those lots that do. not touch each other, so a fairly compact mass of lots belonging to, occupied by and cared for by relator is presented. The distances as shown by the map scale put the lands much nearer together than do the affidavits submitted.

* The particular portions of lots 314 and 333 sold were not inclosed-or cultivated but were occupied and used by the relator in connection with other larger tracts of land which it owned, not referred to particularly in this opinion, for the purposes of enjoyment by the members of the Lake Placid Club and their guests. The relator had either erected or maintained a lumber camp on lot 335 and between lots 313 and 314 and an open camp or camps on lot 333. There was a boathouse on lot 277 and boat landings on lots 314 and 333. Over $1,000 was spent by the relator in clearing out logs and stumps and making approaches to said lots 314 and 333, wood and logs were cut and drawn, blown over timber was cleared away and taken to the mills, brush was cleaned up and burned, trails were opened, the shores were cleared and the stumps in • the water in' front of each piece were cleared away, the lands were used as a part of the relator's estate for picnics and camping and printed notices were posted all over the lands sold and other lands owned by the relator during the last twelve years printed with iron type on boards ten inches by sixteen inches, forbidding the discharge of firearms, cutting or breaking trees, shrubs or vines; that picnic parties frequently occupied these lands and that they were some of the most prized ánd admired of the club park area. Most of these facts are shown by the affidavits of Asa 0. Gallup, Melvil Dewey and Walter E. Thompson, and an additional affidavit is filed by Melvil Dewey and Walter E. Thompson and four other persons, reciting that the lands in question were in the actual occupancy of the Lake Placid Company and the Lake Placid Club on December 26, 1906. The last day to redeem under this proceeding would be December 23 or .December 24, 1906, but it is claimed.by the attorneys that the date, December 26, 1906, was an inadvertence and unintentional. None of the affidavits submitted on the part *38of the purchasers deny the ownership of the relator, and apparently all of the affiants or most of them are familiar with the locality and know where the club house, inn and principal buildings of the relator are, but their affidavits are largely conclusions and proceed on the apparent theory that *“*occupancy ” must consist of actual residence and living upon the lands sold.

The Deputy Comptroller, Kelsey, bases his decision upon what he understands to be the definition o’f or meaning of the word “ occupancy,” as defined in the case of *People ex rel. Keyes*v. *Miller*(90 App. Div. 596). That was a decision by this Appellate Division by a divided court of three to two in a case which, in my opinion, was not nearly so strong for the relator as is the case here. The Comptroller there had allowed the redemption, which determination was reversed by this court." The amount of the land owned by the club there was some 90,000 acres, of which the tract sold consisted of 570 acres. The land sold there was not in any such close touch or possession or occupancy by the club as was the land sold here. . I think that the case here comes directly within the holding of this court in *People ex rel. Moynehan*v. *Gaus*(134 App. Div. 80; affd., 198 N. Y. 501). The only difference that I can see in the two cases is that the particular lots sold in the *Moynehan*case joined and formed a compact whole of the preserve of Mr. Pruyn, the owner in that case. We have seen that there is a ■ direct nature’s highway between these lots sold and many of the other lands of the relator, an actual connection, and physical j'oining of some of the' lots, and the mere fact that the lands sold do not lay next the club house should not prevent the owner and occupant from redeeming its lands upon complying with the statute. Occupancy, of course, does not mean according to any definition applied to these sales that the Owner or some of its representatives must build a house and reside upon the particular part of the lands sold for taxes. The provisions of section 134 of the Tax Law which are as follows: “If the occupant does not reside in the tax district in.which the real estate is. situated the notice may be served by mail in the manner required by law in respect to notices of *39nonacceptance or npnpayment of notes or bills of exchange,” clearly show that the Legislature had in mind thé non-residénce of the occupant.

The relator is carrying out on these lands sold the policy of the State, that is, it is keeping them in a state of nature, in much the same way that the forest preserve is being kept by the State and relator not having been served with a notice to redeem, as required by the statute in the case of an occupant, I think that the Comptroller should have permitted a redemption.

The purchasers would have no difficulty in serving personally or otherwise upon the Lake Placid Company, or the Lake Placid Club, the notice required by statute to be served upon an occupant. Many of the affidavits submitted by them show ■knowledge of the location of the owner and occupant.

I think the redemption should have been permitted and that the determination of the Comptroller should be reversed, «with fifty dollars costs to relator.

All concurred,' except Houghton, J., who dissented in an opinion in which Sewell, J., concurred.

Houghton, J.

(dissenting):

Township IT of the Old Military tract, in which the lots in controversy numbered 314 and 333 are situated, is laid out in lots one-half mile square. The .central and eastern portions of the township are largely covered by the waters of Lake Placid and Mirror lake. In the center of Lake Placid are two islands known as Buck island and Moose island, and the part of the lake on the east side of those islands is known as East lake, and that part on the west is.known as West lake. Lot. 278 is wholly covered by the waters of Mirror lake, except the northwest and southeast part, and although the record does not specifically so state, it is conceded that the relator owns this lot, and that its inn is located in the northwest quarter bn the borders of the lake. While it does not appear in evidence, it is stated in the briefs that the relator also owns lot 277, which is all covered by that part of Lake Placid known as East lake, except the ' southerly half and the extreme northwest portion thereof. There is no proof that the relator owns any part of the two intervening tiers of lots before 314 is *40reached, which is the nearest to the relator’s hotel and grounds. Both the lots in controversy, 314 and 333, are located on Moose island, and the affidavits show that by the ordinary water route from relator’s inn it is three and a half miles to Moose island, and that lot 333 is a mile-further up the lake, and by- direct line, according to the scale of the map printed in the record, it is fully three miles. These lots, therefore, can in no’ possible sense be deemed a part of the club house grounds, separated as they are in distance and by intervening ownership in third persons of at least two tiers of half mile lots. Moose island contains that part of five lots not under water. Relator does not claim to own any part of two of these lots, and has title only to the north part of lot 314. It does, have record title, however, to all of lot 333 as well as lot 313. It appears from the record that the lots in controversy had been subdivided, and that various owners own different portions. The notice of sale states that one Crawford paid the taxes on fifteen acres in the southeast quarter of lot 333, and that one Littlefield had paid the taxes on eighteen acres in the south part of lot 314, and that four acres had been redeemed by Smith and Wicks from- a tax sale. Thus apparently the relator did not own a contiguous tract of land even on Moose island.

Confessedly the land sought to be redeemed is wild land, unfénced and uncultivated, and occupied only temporarily by pleasure parties for picnic and Occasional, camping purposes. Cutting fallen trees and cleaning brush and posting notices and building docks, in view of the location and situation of- the property and its distance from the relator’s inn and grounds, did not, in my judgment, constitute such occupancy as entitles the relator to redeem. .

The facts are wholly different from those in *People ex rel. Moynehan*v. *Gaus*(134 App. Div. 80), for there the lots sold for taxes formed a part of an entire -preserve,-and were, contiguous to the portion actually occupied by the owner. The decision went upon the ground that the preserve was an entirety and that the actual occupation of a part carried with it the occupation of the lots which had been sold for taxes:

As much had been done by the owner in an attempt to . occupy, in *People ex rel. Keyes*v. *Miller*(90 App. Div. 596), *41as was doné by the relator in the present case, and.it was there held that there was not such occupancy as entitled the owner to notice of redemption.

In *Saranac Land & Timber Company*v. *Roberts*(125 App. Div. 333) the authorities are reviewed and the character of occupancy necessary to entitle a person to redeem are discussed, and it would seem quite clear that the occupancy in the present case does not come within the rule laid down.

Nor is *People ex rel. Turner*v. *Kelsey*(180 N. Y. 24) to the contrary, for the only question involved in that case was whether the Commission of the Forest Preserve could actually occupy wild lands of which it was the owner, and it was determined that such Commission was as much an occupant of such lands as an individual who actually lived upon them could be. The doctrine applied in that case has no application to individual ownership.

I think the determination of the Comptroller was right and should be affirmed.

Sewell, J., concurred.

Determination of the Comptroller reversed on law and facts, and matter remitted to the Comptroller, with fifty dollars costs and disbursements to relator.