42 Kan. 23 | Kan. | 1889
Opinion by
The.plaintiff in error, defendant below, complains of two errors in the trial of the action: one, allowing damages for the boiler and its removal; the other, in decreeing a perpetual injunction against the removal of the pump. Both of the alleged errors involve the application of the same principles and require the determination of the same question, namely, whether the several pieces of property retained their character as chattels, or became fixtures. What we may say of one thing in this connection will usually apply to all the others. It will be conceded that before plaintiff could recover for the conversion of the boiler, it must have become a part of his real estate. The boiler originally was the property of defendant, and it could have done with it as it pleased; and the only way it could have become divested of its ownership, under the facts in this case, was in the manner of placing it.on plaintiff’s land. If it then became a fixture, it was the property of plaintiff.
Hill gives this definition of fixtures: “By the term fixtures are designated those articles which were chattels, but which, by being physically annexed or fixed to the real estate, become a part of and accessory to the freehold.” It is frequently a difficult and vexatious question to ascertain the dividing-line between real and personal property, and to
In the statement of facts it is agreed that the boiler was placed on the ground upon a cast-iron base, was not set in masonry, and was connected with the pump by a steam pipe for the purpose of furnishing steam from the boiler to operate the pump, and thereby carry water to the tank. This of itself does not necessarily show such a physical attachment to the realty as constitutes a fixture. (Hendy v. Dinkerhoff, 57 Cal. 3; Towne v. Fiske, 127 Mass. 125; Kimball v. Grand Lodge, etc., 131 id. 139; Balliett v. Humphreys, 78 Ind. 388; Hoyle v. P. & M. Rld. Co., 51 Barb. 45.)
But attachment to the realty is not alone sufficient to change the character of personal property; it is only one of several tests to determine whether property originally a chattel has become a fixture by being used for a particular purpose, and however the rule^may have been formerly it is not now deemed to be the controlling test. Tyler, on page 101 of his treatise on Fixtures, says:
2. Fixture,what is-criterion. “The simple criterion of physical annexation is so limited M its range, and so productive of contradiction, p. wm n0f; apply with much force except in respect to fixtures in dwellings.”
In Meigs’s Appeal, 62 Pa. St. 28, it is said:
1. structure, a fixture, or not. “In determining what is a fixture, the notion of physical attachment is exploded; it is now determined by the character of the act by which the structure is put into its piaee? the policy of the law connected with its purpose, and the intention of those concerned.”
It has been held that before personal property can become a fixture by actual physical annexation, the intention of the parties and the uses for which the personal property is to be put, must all combine to change its nature from that of the chattel to that of the fixture. (Teaff v. Hewitt, 1 Ohio St. 511; Ewell on Fixtures, p. 293; Woollen Co. v. Hawley, supra.) In this connection it is well enough to note, also, the circumstances under which this boiler was placed upon the land of plaintiff. It is conceded that the railroad company was a trespasser, yet it was not a willful one; it dug the well, put in the pump and boiler and erected the boiler-house under the belief it was occupying its own land, and only discovered its mistake after some years of occupation. There is nothing to show that it wished to gain anything by digging the well where it was located rather than on its own land; in fact, it is stated that two feet of the well is upon its own land. It can be safely presumed that the well would have been as good a one if it had been placed on defendant’s side of the division line instead of plaintiff’s. It dug the well, put in the pump and boiler for the sole purpose of operating its railroad, and not to improve the land where the property was placed.
The company began condemnation proceedings to obtain the laud, but did not follow them to a conclusion; if it had, it would have been compelled to only pay for the land and not for its own improvements thereon. This rule is well established by authority: Cohen v. St. L. Ft. S. & W. Rly. Co., 34 Kas. 158; Justice v. N. V. Rld. Co., 87 Pa. St. 28; Daniels v. C. I. & N. Rld. Co., 41 Iowa, 52; Lyon v. C. B. & M. Rld. Co., 42 Wis. 538; Greve v. St. P. Rld. Co., 26 Minn. 66; Wagner v. C. & T. Rld. Co., supra; Schroeder v. DeGraff, 28 Minn. 299.
For the reasons given above, we recommend that the judgment awarding damages against the defendant be reversed,
By the Court: It is so ordered.