George H. Sullivan of Stillwater, Minnesota, was the owner of the fee to a half section of improved grazing land in Blaine County, Montana, described as the East One Half (E 1/2) of Section Twenty-five (25), Township Thirty-six (36) North of Range Twenty-six (26), East M.M. The owner failing to pay the taxes, the land was sold on July 16, 1932 to the county of Blaine for the delinquent taxes for the year 1931. There was no redemption from such tax sale and no assignment of the tax sale certificate. By written notice dated April 22, 1939 the county of Blaine gave notice that unless redemption was made before July 26, 1939, that on said date the county would apply for a tax deed. By affidavit of the County Clerk and Recorder of Blaine County dated July 26, 1939, it appeared: That the described lands then were unoccupied; that it appears from the records of the county clerk and recorder the present owners of the described real estate are George H. Sullivan and Mrs. George H. Sullivan whose postoffice address is 104 N. Maine Street, Stillwater, Minnesota; that other than the owners Sullivan, none others hold mortgages, assignments of mortgages, or other liens against said property; that true and correct copies of the county's notice of application for tax deed were sent on April 22, 1939 by registered mail to the owners, George H. Sullivan and Mrs. George H. Sullivan at the postoffice address above given; and that said notice was duly and regularly published, as required by law, in The Harlem News, a newspaper of general circulation in Blaine County, Montana.
Attached as an exhibit to the foregoing affidavit is a copy of the notice of application for tax deed which states that there was at that time due as delinquent taxes against said property the following amounts, viz.: For 1931 tax $32.11; for 1932 tax $65.55; for 1933 tax $69.54; for 1934 tax $59.22; *Page 377 for 1935 tax $44; for 1936 tax $43.54; for 1937 tax $46.20, and for first half 1938 tax $22.89, and that the total amount due as of July 26, 1939, was the sum of Three Hundred Eighty-three and 11/100 Dollars ($383.11).
The county treasurer of Blaine County by tax deed dated July 26, 1939, and recorded July 31, 1939, granted to Blaine County, Montana, the described 320 acres of land, reciting a consideration of $406.41 paid therefor. Thereafter, on March 1, 1943, the County of Blaine entered into a written contract with M.H. Skones to sell the land to the latter on installment payments.
On June 11, 1943, the plaintiff Jess E. Van Voast commenced this action against Blaine County, H.D. Hiebert as treasurer of said county, and M.H. Skones and his wife, seeking to have declared void the tax deed to the county and the contract of sale entered into with the defendant M.H. Skones. Plaintiff also seeks an order of court directing the county treasurer of Blaine County "to advise plaintiff the correct and lawful amount to be paid plaintiff to redeem said land from the tax sale" and "upon the payment thereof to the proper fiscal officer of Blaine County" that the "Court by decree order that said land has been lawfully redeemed by the plaintiff herein from said tax sale and that plaintiff's title to said land, upon the payment thereof, be quieted."
Section 2209, Revised Codes, provides that the purchaser of property sold for delinquent taxes must at least sixty (60) days before he applies for a deed, "serve upon the owner of the property purchased, if known, and upon the person occupying theproperty, if the said property is occupied * * * a written notice, stating that said property * * * has been sold for delinquent taxes, giving the date of the sale, the amount of property sold, the amount for which it was sold, the amount due, and the time when the right of redemption will expire, or when the purchaser will apply for a tax deed, and the owner of the property, or the mortgagee, or the assignee of said mortgagee has the right of redemption indefinitely *Page 378 until such notice has been given and the deed applied for, upon the payment of fees, percentages, penalties and costs required by law." (Emphasis ours).
The plaintiff disputed the fact statement contained in the county clerk's affidavit to the effect. "That the above described property is unoccupied." Plaintiff contends that he was the person then occupying the property and that as such occupant he was entitled, under section 2209, Revised Codes, supra, to receive at least sixty days notice before the county applied for a tax deed.
The county denied that the plaintiff was the occupant of the property at the time mentioned or that the lands were then occupied.
Thus the question presented is: Was the plaintiff Jess E. Van Voast occupying the Sullivan property on April 22, 1939 at which time the county gave notice of its intention to make application for a tax deed?
It is conceded that no notice was served on plaintiff and it[1] is quite clear that plaintiff was not entitled to notice unless he could establish by a preponderance of the evidence that at the time stated he was "the person occupying the property," the burden of proof being on him. Witherhead v. Ort, 223 A.D. 626,229 N.Y.S. 315, 317.
After hearing and considering the evidence introduced by the respective parties, the trial court made written findings of fact and rendered its decree for defendants and against plaintiff.
The trial court found:
"VI. That the said lands were not occupied and the plaintiff was not occupying said lands on April 22, 1939, and thereafter during the time when Blaine County was giving notice of application for Tax Deed thereto, and that Blaine County did not know and in the exercise of reasonable diligence could not have known that the plaintiff had any interest therein and did not serve Notice of Application for Tax Deed on the plaintiff. *Page 379
"VII. That the defendant, Blaine County, did on the 22nd day of April, 1939, give legal and sufficient Notice of Application for Tax Deed to said land to the persons entitled thereto and Blaine County did thereafter take and receive said Tax Deed to said real property, which said Tax Deed was legally issued and delivered to it."
In Bickford v. Bickford, 158 P.2d 796, 797, we said:
"On appeal to this court the presumption is that the decree and findings of the trial court are correct. In re Bragg's Estate, 106 Mont. 132, 76 P.2d 57; Missoula Light Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041; Cedar Creek Oil Gas Co. v. Archer, 112 Mont. 477, 117 P.2d 265; Wieri v. Anaconda Copper Min. Co., Mont., 156 P.2d 838; Whitcomb v. Koechel, Mont., 158 P.2d 496.
"The findings of the trial court must be sustained if they are supported by substantial evidence. Kommers v. Palagi,111 Mont., 293, 108 P.2d 208. All legitimate and reasonable inferences must be indulged toward upholding the findings. Welch v. Thomas,102 Mont. 591, 61 P.2d 404."
There is evidence that in 1939 the Sullivan half section was unenclosed, unimproved and uncultivated grazing land located in what is called "open country" where everyone ran their livestock and that the cattle and horses of various persons, including those of plaintiff as well as those of his neighbors, roamed and grazed thereon. To the north of the Sullivan tract were lands owned by Mrs. Skones the mother of the defendant M.H. Skones; to the west was a half section owned by plaintiff; to the south was section 36 being a school section owned by the state, and to the east was "just open range."
Plaintiff introduced in evidence an unfiled and unrecorded written lease dated April 1, 1926, whereby for an agreed consideration of $30 per year the owner George H. Sullivan of Stillwater, Minnesota, leased his half section of land to the plaintiff for "the term of three (3) years * * * ending *Page 380 April 1, 1929." The instrument recites that the "land has no fencing on same" and that in order for plaintiff "to use said land for grazing he will have to build one and one-half miles of fence at his own expense and after the expiration of this lease" he "has the right to remove his property from said land."
There is no evidence that the west or south boundaries of the Sullivan lands were ever fenced but plaintiff testified that on receipt of the lease in 1926 he built a three-wire fence extending from the southeast corner of the Sullivan tract "north a mile thence west a mile" and that he used such lands "for summer pasture those days quite a lot before I got other pasture in the hills for the summer." On cross-examination plaintiff admitted that in the year 1939 the fence along the east side of the Sullivan tract "needed rebuilding"; that the wires were down in places and "needed repairing" and that "the posts weren't any too good" as the fence "had been there quite a while."
The plaintiff testified that he had paid the stipulated annual rental during the three years covered by the lease, i.e. from April 1, 1926, to April 1, 1929, but admitted that thereafter and for the ten years which elapsed from the time of the expiration of the lease to the time the county applied for a tax deed that plaintiff had paid no rental whatever. During all this time the plaintiff occupied as his home buildings located in the west half of section 34, township 36 north, range 26 east, M.M., owned by plaintiff, which buildings are situate approximately two and one-half miles distance from the nearest point on the Sullivan lands.
There is no evidence that plaintiff or any other person ever resided on any part of the Sullivan lands during any of the time involved herein.
The defendant M.H. Skones resides about five miles from the Sullivan half section. He testified that in February 1937 he drove through the center of the Sullivan tract while hunting horses; that there were then indications that there had *Page 381 been fences on the property "but they were not up"; that where he crossed the property line the wires were down and a lot of the posts were down; that the fence would not hold livestock; that when he arrived there was a bunch of horses on the land but that upon his approach the horses moved off the land and eastward into Phillips County; that thereafter the witness drove back through the Sullivan tract saying, "and I didn't have to bother with any fences, they were down, and I went through"; that the witness knew the plaintiff owned the west half of the section but that he did not know that plaintiff was using the east half of the section; that there was then nothing about the land to indicate that the plaintiff had possession of the Sullivan property and that the witness had never seen the plaintiff on such lands.
Peter Skones testified that for 31 years he had resided and still resides just a mile southeast of the Sullivan lands; that almost every week of the year he went through such lands in caring for his cattle; that there were some years when he would go through the property and find nothing thereon so far as fences were concerned; that he was over the land in the summer of 1940 and in June 1941 at which times he found no fences that would hold cattle or horses but only the remains of fences consisting of "some wire scattered here and there and some rotten posts standing here and there"; that occasionally he had seen the plaintiff on the Sullivan land and had seen running back and forth thereon the cattle and horses of plaintiff as well as those of his neighbors; that about November 1941 a fence was built on the county line along the east boundary of the Sullivan tract and that, "Before that there was no fence."
Vernon Heilig testified that in the fall of 1941, while he was in plaintiff's employ, he assisted in building a completely new fence on the east line of the Sullivan lands; that prior to that time there was no fence nor was there any evidence of any fence having been there; that the only fence which he *Page 382 saw was an old cross fence with the posts and wire down which "fence" would not hold cattle or horses.
Gordon Skones who for 22 years had lived within a mile of the Sullivan land testified that from the year 1935 to the fall of 1941, along the north line of the tract, there was only a small trace of a fence consisting of "an odd post standing and loose wires, and on the east side there wasn't a trace," and that such condition obtained until November 1941 when "Somebody built a fence along the east side of 24 and 25"; that prior to 1941 he saw stock on the Sullivan lands; that everyone ran stock in there and that to the east of the township or county line there was "just open range" with no fences at all.
Frank L. Bagan, an employee of Blaine County, testified that he had been over the Sullivan lands in 1940 at which time the only signs of fences on the property "were a few broken down posts and wire, some of the wire was out in the trail, just rolled up and rolled out." He also testified that there was nothing that he could discover about this land which would indicate that plaintiff occupied it and "there wasn't any sign of anybody having control of it. It was open range' with a few horses running there.
By the law of this state, made so by express statute, all[3] barbed wire and other wire fencing which has sagged or fallen to the ground so as to be ineffectual for the purpose of turning stock, and a menace to any person riding or walking over the same is declared to be a public nuisance, and subject to abatement. Upon ascertaining the existence of any such wire nuisance it becomes the duty of the board of county commissioners to notify the owner to remove the same provided such owner be within the state of Montana and known to the board and if there be no owner within the state or if such owner be unknown to it then the board is empowered to collect and remove such wire at the expense of the county. Sections 3376.1, 3376.2 and 3376.3, Revised Codes of 1935. Thus is it against the declared public policy of this state to allow *Page 383 or permit sagged or fallen fencing wire to clutter the range and become a menace to persons riding or walking thereover.
The lease of April 1, 1926 which expired in April 1929[4] contained a provision to the effect "that if the second party remains in possession of said premises after the expiration of the term for which they are hereby leased such possession shall not be construed to be a renewal of this lease, but to be a tenancy at the will of first party which may be terminated upon thirty (30) days' notice given by said first party." The evidence, however, falls far short of establishing that plaintiff remained "in possession of said premises after the expiration of the term" for which they were leased, i.e. after April 1, 1929. As before stated, the plantiff testified that he used the Sullivan lands "for summer pasture those days quite a lot before I got other pasture in the hills for summer" and it is possible that when plaintiff did procure "other pasture in the hills for the summer" that he was no longer interested in renting the Sullivan lands or in maintaining any fence or fences thereon but in any event the evidence is clear that plaintiff paid Sullivan no rent after the expiration date of the lease nor did he thereafter maintain any fence thereon until November 1941 the latter date being over two years subsequent to the time the tax deed issued to the county. The fence which plaintiff delayed building until November 1941 most certainly did not constitute any visible evidence of Plaintiff's claimed occupancy in 1939 when the county applied for a tax deed.
So far as the public records of Blaine County are concerned there was nothing to show that the unfiled and unrecorded lease of April 1, 1926, ever existed and the evidence introduced on behalf of defendants, if believed by the trial court, was ample to sustain the court's findings that "the lands are not occupied and the plaintiff was not occupying said lands on April 22, 1939."
In State (Colwell, Prosecutor) v. Abbott, 42 N.J.L. 111, at pages 113, 114, 13 Vroom 111, at pages 113, 114, it is said: *Page 384 "The terms `occupied' and `unoccupied' are found in the tax laws * * *. The word `unoccupied,' as used in the act of 1854, is said in State v. Hoffman (30 N.J.L. 346) to designate the same kind of land as was described in a previous tax law * * * as unimproved or untenanted land, and to mean land having no visible occupant or possessor. To the same effect is what is said by the court in State (Cosset, Prosecutor) v. Reinhardt [31 N.J.L. 218], 2 Vroom 218. * * * This tract, being wild and untenanted, without visible occupant or possessor, was, for the purposes of taxation, unoccupied land."
In Lawrence v. Fulton, 19 Cal. 683, 684, the court held that the term "occupation" is ordinarily employed as signifying actual possession.
In People ex rel. Marsh v. Campbell, 143 N.Y. 335,38 N.E. 300, one Alvah Dunning sought to redeem from tax sale some 5,455 acres sold in 1881 for delinquent taxes on the grounds that he had been the actual occupant of parts of the premises from 1875 to a time subsequent to the delivery of the tax deed and no notice had been served upon him affording him the opportunity to redeem as required by statute. In affirming the decision of the lower court denying Dunning's application to redeem, the appellate court said: "The decision of the general term that the occupancy by Dunning of a log house located on an island in the Eighth lake of the Fulton chain, as a hunting camp, at irregular intervals, and without any use of the mainland, except to roam over it in pursuit of game, did not constitute actual occupancy, under the statute, meets with our approval; * * *. The relator's right to intervene is rested upon section 70, c. 427, Laws 1855, already referred to. This section reads: `The occupant or any other person may, at any time within the six months mentioned in such notice, redeem the said land,' etc. It is insisted that the proper construction of this section entitles any person to redeem, although an entire stranger having no interest in the premises. This section admits of no such construction, and its general phraseology was designed to include any other person *Page 385 than the occupant having, or claiming in good faith to have, such substantial interest in the premises as would entitle him to redeem. The pernicious practice that obtains of permitting a stranger to the title to intervene and set the machinery of the comptroller's office in motion in order that he may redeem lands sold for taxes has no foundation in law. We affirm this order on the grounds that no part of the premises sought to be redeemed had an actual occupant in contemplation of law, and that the relator has no legal standing in this proceeding and is not entitled to redeem."
In West End Brewing Co. v. Osborne, 133 Misc. 823,233 N.Y.S. 223, 226, certain real property consisting of two city lots was sold for delinquent taxes. There were no buildings on the premises nor had there been any cultivation or enclosure thereof. About six years before the tax sale plaintiff had caused to be erected on the property a sign board 10 x 40 feet advertising its products. The name General Outdoors Advertising Company appeared on the sign board but no address was given. Plaintiff attacked the tax deed contending that it actually occupied the lots at the expiration of the equity of redemption and was entitled to notice to redeem which notice had not been given to nor served upon it. In holding that plaintiff had no standing to maintain its action the appellate court said: "No possession or occupancy within the meaning of the statute can be predicated on an occasional or temporary use of the premises. It seems to me that at the time defendant obtained the treasurer's deed there was no actual occupancy of these premises in contemplation of law. Certainly the proof fails to establish any such occupancy as called for a compliance with the provisions of law that a written notice to redeem must be served upon the occupant. The mere erection of a signboard upon the premises by plaintiff, advertising its products, is wholly insufficient to establish occupancy by plaintiff within the meaning of section 134 of the Tax Law." (Citing cases.)
In People v. Turner, 145 N.Y. 451, 40 N.E. 400, 403, the *Page 386 contention was made that a tax title was defective because no notice was served upon a person alleged to be in actual occupancy of part of the lands sold. In holding the contention untenable the court said: "The finding of the referee was that the land was wild, uncultivated, and unimproved forest land, with a small natural meadow of about 10 acres, upon which, some time after the year 1870, by the leave of Norton, the then owner, one Moody entered and cut and hauled away grass. Upon two occasions he had scattered a little grass seed, and at times he had dammed up the brook, so as to overflow about half an acre. There was no residence or building upon the land, nor any cultivation or inclosure thereof, as was the case in People v. Wemple, 144 N.Y. 478,38 N.E. 397. We think the proof fell far short of establishing any such actual occupancy of the lands by any person as called for a compliance with the provision of the law that a written notice to redeem must be served on the occupant." See also Ashworth v. Biulders' Mutual Fire Insurance Company,112 Mass. 322, 17 Am. Rep. 117, and Witherhead v. Ort, supra.
It is quite clear from the evidence that there was nothing on the public records of Blaine County to indicate that plaintiff had any right or interest in the Sullivan lands and in the year 1939 there likewise was nothing on or about these unimproved, uncultivated, unfeneced grazing lands admittedly adjacent to, if not actually a part of, the "open range" to indicate any visible occupant or possessor thereof. State (Colwell, Prosecutor) v. Abbott, supra.
Since the trial court's findings of fact and conclusions of law are sustained by the evidence they may not be disturbed and the judgment based thereon is affirmed.
Mr. Chief Justice Johnson, concurs.