
    Claude R. Hammond, Respondent, v. Minnie H. Van Riper and Others, Respondents, Impleaded with John L. McCloskey, Appellant.
    Second Department,
    April 11, 1913.
    Tax sale—right of ¡way to maintain pipe line — notice of sale—when owner of easement not occupant.
    A foreign corporatioL which has merely a right of way over vacant lands for the purpose ojf maintaining a pipe line ¡for- the- transportation of • petroleum with ri'ght of ingress and egress,¡ the line, however, not to interfere with the:¡cultivation of.the premises or with buildings thereon, is not in actual occupancy of the land so as to be entitled to written notice of a tax salé under section 134 of the Tax Law.
    The question of “actual occupancy”■ under the statute is a question of law, and hence, although it has been found as a fact by a referee that the pipe line company was in actual occupancy the Special Term may decide otherwise. ■
    Appeal by the: defendant, John L. McCloskey, from parts of an interlocutory ¡judgment of the Supreme Court in favor of the plaintiff and ¡certain of the defendants, entered in the office of the clerk of the county of Richmond 0n the 24th day of July, 1912, confirming! the report of a referee.
    
      John J. Crawford, for the appellant,
    
      William M. Mullen, for the respondents Rosenberg.
    
      Clarence A. Farnum, for the respondent Tide Water Pipe Company, Limited.
   Hirschberg, J.:

The action wais instituted for the partition of certain vacant salt meadow land in the county of Richmond. The land was sold by the Comptroller of the State of New York for unpaid taxes on. February 10, 1900, and purchased by Horatio J. Sharrett. Thereafter Sharrétt and wife conveyed an undivided-one-fourth interest each, to one Ella H. Post and to the defendant. Minnie H. Van Riper, and an undivided one-half interest to the defendant Charles Rosenberg. Before the commencement of the action the plaintiff acquired the interest of Ella H. Post and during the pendency of the action the interest of the defendant Minnie H. Van Riper.

In 1893 the then owner of the land, Jacob Hatfield, died intestate, survived by a son, John J. Hatfield, and three daughters, a Mrs. Griffith and Ella H. Post, and the defendant Minnie H. Van Riper. April 30, 1900, Mrs. Griffith conveyed her interest to Prank D. Willson, and thereafter such interest was conveyed by various mesne conveyances to the defendant John L. McCloskey, the sole appellant.

In 1888 said Jacob Hatfield granted to the defendant, the Tide Water Pipe Company, Limited, by an instrument in writing duly recorded, a right of way through, over, in and upon said land “ for the purpose of constructing á line of iron pipes for the transportation of petroleum in such manner and with such other facilities as said grantee may deem necessary and with free ingress and egress to construct, operate, maintain and from time to time repair and remove the same.” The agreement also provided that the pipes should be so laid “ as not to interfere with the usual cultivation of the premises nor with any buildings thereon.” Shortly after the pipe company constructed a line of six-inch iron pipe across the land, a distance of about thirteen hundred and seventy-five feet, with a valve box about two feet high and about two feet square at each end, and a board sign about fourteen feet long, four feet wide and ten feet above the surface of the soil at the west end, upon which were printed the words, “Pipe Crossing. Don’t Anchor.” The boxes and sign were visible; but whether any of the pipe line was above the surface does not clearly appear, the record before us containing none of the evidence given upon the trial, but only the judgment roll. From the sign it is manifest that some portion of the pipe line must have been under water. '

The interlocutory judgment appealed from adjudges that the Comptroller’s sale was valid, conveying the entire premises to Sharrett subject to the easement of the pipe company, and that Ella H. Post and the defendant Minnie H. Van Riper each acquired an undivided one-fourth interest, and the defendant Charles Rosenberg an undivided one-half interest in the land, by virtue of the subsequent grants from Sharrett. The plaintiff, by virtue of ¡grants from Mrs. Post' and Mrs. Van Riper, is now entitled toian undivided one-half interest-in said land, and the defendant Rosenberg to the other undivided one-half part thereof. The defendant McCloskey has appealed from this determination,, and claiins.a one-fourth interest in the"premises on the ground that the tax sale to Sharrett was invalid, and, therefore, did not! convey the interest of his grantors to Sharrett. The ground of invalidity urged against the tax sale is that the pipe company was in the actual and exclusive occupancy of that portion of the land where its pipe line was situated, and, therefore, entitled to a written- notice of the sale under section 134 of the Tax Law, which notice was not given. That section, so far as material, reads as follows: “ If any lot or separate tract of land sold for taxes by the Comptroller and conveyed, or any part thereof shall, at the time of the expiration of one year given for the redemption thereof, be in the actualoccupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall within one year from thei expiration of the time to redeem, serve a written notice on the person occupying such land, either personally ' or by leaving the: same at the dwelling-house of the occupant, with a person of ¡suitable age and discretion belonging to his family. The term ‘ occupant ’ shall be construed to mean a person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person. And the term < occupancy ’ shall mean the actual lawful and exclusive usp and possession of such lands and premises by such an occupant.” (Tax Law [Gen., Laws, chap. 24; Laws of 1896, chap. 908], § 134; since amd. by Laws of 19G2, chap. T71;: now: Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 134.)| ■ ;

I do not think that the pipe company was entitled to the notice specified in the statute. In thé casé of People ex rel. Marsh v. Campbell (67 Hun, 590; affd., 143 N. Y. 335) the term “ actual occupancy,” as used in the statute, received careful consideration from Mr. Justice Herrick, writing for the the Third Department) The learned justice íhe object of the statute, as was said by Eel-General Term of said (p. 592): “J| son, J.-, in Comstock v. Beardsley (15 Wend. 348), in speaking of a similar statute, is to ‘ afford to any person who might happen to be an occupant * * * an opportunity to redeem, presuming that he was either owner or in some way legally interested in the land.’ * * * The statute seems to have contemplated an actual residence or dwelling-house, it might, be without claim of title, merely the possession of a squatter, but still the establishment of a'household; it reads: ‘Such notice may be served personally, or by leaving the same at the dwelling-house of the occupant with any person of suitable age and discretion belonging to his family.’ ”

In People ex rel. Keyes v. Miller (90 App. Div. 596) it appeared that the Adirondack League Club purchased 9,000 acres of land in the Adirondack mountains, and used the tract as a forest, fish and game preserve, and that within the tract was a lot of 570 acres across which trails were cut through the forest, and that a boat landing was built upon the shore of a lake partly within such lot. fío tices seem to have been posted, warning people from trespassing on the lot and stating that it was used as a private park. The court held that the club was not an actual occupant of the lot within the meaning of the statute. It said (p. 598): “The statute in question (§ 134) requires that the person upon whom notice must be served shall be in the ‘ actual occupancy ’ of the tract or parcel of land which the Comptroller had sold, and it seems to me that, in the very nature of the use to which the club puts its land, it cannot have such an occupancy, nor can any of its servants have it, unless perhaps it be of some small parcel thereof upon which a permanent residing place has been created for him. Although the occupancy here is not invoked for the purpose of establishing an adverse user, yet the definition given in section 134 of the Tax Law {supra) is at least as precise and explicit as was the word ‘possession’ which section 370 of the Code defined. It must be the actual occupant upon whom the notice is to be served.”

Within the doctrine of these cases I do not think that a foreign corporation, such as the pipe company, maintaining a six-inch pipe line upon or under the surface of a vacant salt meadow and partly under water, pursuant to an agreement that such pipeline shall not “interfere with the usual cultivation of the premises nor withj any buildings thereon,” is in the actual occupancy of the land as that term is emplbyed in the statute in question. • . ;

None of the many eases cited by the learned counsel for the appellant is in point with the facts in the cases at bar, as each presents an instance where the land sold was in the actual and open occupancy of some person or persons dwelling thereon under claim of right or title, or the actual occupancy was conceded, While the referee in the case at bdr did find as. a fact that the pipe company was in the actual ¡occupancy of a portion . of the premises inj question, such' finding Would appear in reality to be a mere Conclusion of law as the construction of the • term “ actual occjupancy,” as used in the statute, is necessarily a question of law] ' The learned justice at Special Term modified this erroneous conclusion to accord With the facts as found by the referee. No point is made on .this ¡appeal challenging the regularity of the modification of the finding in question by the learned justice atj Special Term, and thei evidence taken is not made a part of the record. At the request of the company the learned referee did find specific facts stating the exact nature of the occupation j of the premises by thei company and the specific acts of the' company in connection With the use of its pipe line. Every inference being in favor of the validity of the judgment appealed frbm and the burden resting on the appellant to shoW the contrary, it would seem i to be the reasonable view that .the actual facts Were not; in dispute and that thó finding of actual occupancy was a¡ legal conclusion only and,. as such, within the power of the Special Term to modify and. correct. ;

The interlocutory judgment, in So far as appealed from, should be affirmed. ■ ■ j ,

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Interlocutory judgment,, in so far as appealed from, affirmed, with costs. j  