| Ark. | Dec 24, 1898
(after stating the facts). So far as the house erected by A. P. Vaughan is concerned, we think the judgment of the circuit court can be sustained. If this house had been built by the grantee, B. W. Vaughan, the presumption would be that he intended it as a permanent improvement of the land, and he would not be permitted to remove it. But the house was not erected by the grantee, but by a third party under an express agreement with the grantee that it should not become a part of the real estate, and should be subject to be removed by the party erecting it. The intention is thus, shown that it should not become a portion of the real estate. It does not appear that the house was attached to the land in any way except by its own weight, nor that any injury resulted to the land from its erection and removal. In addition to this A. P. Vaughan,, the party who-erected it, testified that Brannon, the grantor, was present while he was building the house, and was informed of the agreement under which it was being erected, and it does not appear that he made objection. This proof tended to show that Brannon assented to the agreement as to the removal of the house. The evidence, taken as a whole, therefore, is sufficient to support the finding of the circuit court “that the building was not a fixture, and not part of the freehold, and that the defendant had the right to remove.”
As to the room which was built by Allison as an addition to the original dwelling house situated on the premises, the case is different. There is no evidence in regard to this room, as there was in regard to the one erected- by A. P. Vaughan, that while the building was being erected, Brannon, the grantor, was informed of the agreement giving right to remove. The evidence shows that he was informed of the agreement after the room was built, and it does not show that he made any response to the information. The uncontradicted evidence shows that this room was firmly attached to the main dwelling in such a manner that it could not be taken away without great injury to the main building. By being thus attached it became a part of the main building,—an addition to it, as the witnesses say,—and a part of the real estate to which the main building was attached. The fact that the grantor, Vaughan, had agreed that Allison should have the right to remove such addition cannot control the decision of the case; for the title to the land was not in him, and he had no authority to bind the .owner thereof to an agreement that would result in injury to his land. The fact that this room was built as an addition to the main building, and so firmly attached to it that it could not be detached without greatly damaging such building, conclusively establishes the fact that, in the absence of any agreement with the owner of the land sold, it was real, and not personal, property, and belongs to such owner. Choate v. Kimball, 56 Ark. 55" date_filed="1892-04-09" court="Ark." case_name="Choate v. Kimball">56 Ark. 55; Ewell on Fixtures, chapters 2, 3.
Had Vaughan paid for and become the owner of the land, then, in a contest between him and Allison as to whether this house was a fixture, a different question would have been presented, for he agreed, before its erection, that it might be removed, but Brannon, the appellant, made no such agreement.
Judgment reversed, and new trial granted as to the lumber in addition erected by Allison. In other respects the judgment is affirmed;