Capen v. Peckham

35 Conn. 88 | Conn. | 1868

Park, J.

We do not intend to relax the rule established by repeated decisions during the last seventy years, that the whole case tried in the court below cannot be brought up for review in this court, but only the particular matter complained of in the admission or rejection of evidence, or the rulings of the court upon questions of law arising in the case. McDonald v. Fisher, Kirby, 839 ; Wadsworth v. Sanford, id., 456 ; Watson v. Watson, 10 Conn., 75 ; Picket v. Allen, id., 156 ; Lyme v. East Haddam, 14 id., 394 ; Sharp v. Curtiss, 15 id., 526 ; Shelton v. Hoadley, id., 535 ; Woolf v. Chalker, 31 id., 121.

The counsel for the defendant claims that this case comes under this rule, but we do not so regard it. The question involved in it is, whether certain instruments put up in a slaughter house adapted to the business of slaughtering animals are personal property or real estate. The question applies to each article separately, and whether it is of the one class or the other depends upon the facts applicable to it. One article may be personal property and another real estate ; hence the court was called upon to decide in reference to each article by itself. Suppose the plaintiff had specially requested the court to rule, as matter of law, that the facts in relation to the windlass, as detailed in the finding, showed it to be real estate, and the court had refused so to rule ; it is clear that in a proper proceeding stating the fact the ruling of the court could be l’eviewed without doing violence to the rule.

Now substantially this was the case here. The plaintiff insisted, as matter of law, that the facts detailed in the motion showed each article to be real estate. The court ruled that each article was personal property. The claim and the ruling applied to each article separately and if in the case supposed the ruling could be reviewed consistently with the rule, so it can be here.

The plaintiff insists that the ruling of the court was wrong in any view of the case; that if the articles were personal property they were never sold by him, and consequently there should have been a recovery on the second count of the declaration, and if they were a part of the realty then there should have been a recovery on the first count, as the defendant concedes. But there is nothing in the case that goes to show that these articles were not sold by the plaintiff in connection with the real estate, if they were personal property. They may have been regarded by both parties to the sale as appurtenant to the realty, and if they were included in the contract and delivered with the deed the title to them passed to the vendee, as much as it would if they were in fact a part of the realty or sold in a separate contract. Whether they were sold by the plaintiff or not, was a question of fact for the court to determine, and it is not the subject of review by this court.

Were these articles a part of the realty ? This is the only question that we can consider.

The books are full of decided cases upon the subject of fixtures, from the year books down to the present time, and, strange to say, after all the ability that has been displayed upon this subject, no rule can be found of universal application that clearly defines the line where an article loses its legal quality as a chattel and assumes that of real estate.

Property is divided into two great divisions, things personal and things real, and fixtures may be found along the dividing line. They are composed of articles that were once chattels, or such in their nature, and by physical annexation to real property have become accessory to it and parcel of it. Hence in many cases questions of great nicety must arise, where it is difficult to determine with any degree of satisfaction whether a chattel has lost its natural character by annexation to real property or not. Many rules may be found in the books to determine these questions. One rule prevails where the question arises between grantor and grantee, or executor and heir, and another between landlord and tenant, and still another between the executor of a tenant for life and the remainder-man or reversioner, and in such cases the question tunis, not upon the character of the annexations and considerations connected therewith, but upon the relation of the party making the annexation to the thing annexed. And even in cases of landlord and tenant a distinction is made between cases where the article is affixed for the purposes of agriculture and those where the same thing is done for purposes of trade or manufacture.

It is not our purpose to go into any extensive examination of the law upon this subject. The great weight of authority is in favor of the doctrine that to constitute a fixture it is necessary that the article should be annexed to the freehold, as the name itself imports ; but there is great diversity of opinion in relation to the degree of annexation which is essential for this purpose. Walker v. Sherman, 20 Wend., 636; Despatch Line of Packets v. Bellamy Manuf. Co., 12 N. Hamp., 205 ; Farrar v. Chauffetete, 5 Denio, 527 ; Farrar v. Stackpole, 6 Greenl., 154 ; Gray v. Holdship, 17 Serg. & R., 413 ; Gale v. Ward, 14 Mass., 352; Murdock v. Gifford, 18 N. York, 28 ; Swift v. Thompson, 9 Conn., 63 ; Baldwin v. Walker, 21 id., 168.

Many cases, both English and American, decide that the annexation must be permanently made, so much so that the article cannot be removed without injury to the freehold. Taffe v. Warnick, 3 Blackf., 111; Gale v. Ward, supra; Heermance v. Verney, 6 Johns., 5; Cresson v. Stout, 17 id., 116 ; Raymond v. White, 7 Cowen, 319; Farrar v. Chauffeteee, supra. This no doubt is essential in a great majority of cases, but not in all. Mill stones and water wheels used in milling establishments are universally conceded to be a part of the realty; still many of them could be removed without the least injury to the freehold. The fences that are used to separate the lots of farmers are not let into the ground or imbedded in the earth, so as to occasion injury to the soil by their removal, and still no one could doubt that they are fixtures or appurtenant to the realty.

Another class of cases holds that the true test of a fixture is the adaptation of the article to the uses and purposes to which the realty is applied, and no regard is had to the character of the annexation. Voorhis v. Freeman, 2 Watts & Serg., 116 ; Pyle v. Pennock, id., 390 ; 2 Smith Lead. Cas., (H. & W. ed.,) 216. This rule is too extensive in its application, for it includes all the machinery in mechanical and manufacturing establishments, when the connection to the freehold is made for the purpose of keeping them in position for the successful working of them, but with no design on the part of the owner to constitute them a part of the realty.

It is exceedingly difficult to lay down any rule of universal application upon this subject, but one perhaps that comes nearer to it than any other is, that it is essential to constitute a fixture that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which that part of the building was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article. This rule is in harmony with many of the cases. Lawton v. Salmon, 1 H. Black., 259; Murdock v. Gifford, 18 N. York, 28; Winslow v. Merchants Ins. Co., 4 Met., 306 ; Teaff v. Hewitt, 1 Ohio S. R., 511, 540.

This rule shows the reason why it is held in many cases that it is essential to constitute a fixture that the annexation should be so permanently made that the articles could not be remoyed without injury to the freehold, for it is easy to see that in a great majority of cases the intent of the party to make a permanent accession to the freehold can only be shown by the character of the annexation, for there is nothing in the nature of the case except this that goes to show the intent, and such an intent to make the annexation a permanent one must affirmatively appear or the article will be deemed to be personal property.

This rule explains the reason why the law is said to be indulgent to a tenant in cases that arise between him and his landlord, and declares that to be a chattel which between grantor and grantee would be held to be real estate. This arises from the fact that when a tenant erects expensive structures for the carrying on of his trade or business, which can be removed without destruction to them or material injury to the freehold, the relation of the tenant to the property in question renders it unreasonable to suppose that he intended to make them a part of the realty belonging to another, thus making a donation of them to the owner of the soil.

This rule was substantially recognized in the case of Swift v. Thompson, 9 Conn., 63., In that case the question was whether the machinery adapted to the manufacture of cotton cloth in a manufacturing establishment was a part of the realty or not. The case finds that all the machinery could be removed without any injury to the freehold. The court say, in giving their opinion, “ It is material here to observe that an important part of the description is that they were thus attached to the building to render them stable, but that they might be remoyed to any other place without any injury to the freehold. To operate successfully they must be fixed like clocks and many other articles which are clearly personal and movable. We resort then to the criterion established by the rules of the common law. Could this property be removed without injury to the freehold ? The case finds this fact. This then should satisfy us.”

The court say that the fact is material and important, that the articles were attached to the freehold simply to render them sufficiently stable for the successful working of them. Why was this fact material and important ? Because it showed for what purpose the annexation of the articles was made, that it was done with no design to make them á part of the realty. It should be observed that there was nothing in this case that could show that these articles were a part of the realty but the character of their annexation, and in order to render that sufficient to show an intent on the part of the party making it to constitute the articles a part of the freehold, it was necessary that the articles should be so at tached to the realty that they could not be removed without damage to the building. Judge Church, in giving the opinion of the court in the case of Baldwin v. Walker, 21 Conn., 168, remarks, “ that whether the machinery used in a factory is a part of- the realty or not, depends upon the manner of its connection with it.” This is undoubtedly true in relation to articles of that description, as we have seen.

The application of these views to the case under consideration shows all the articles to be personal property with the exception of the windlass, for they all could be removed without the least injury to themselves or the building, and there are no other considerations that show a design to make them a part of the realty, unless it be the character of the articles themselves. They were adapted, it is true, to the uses and purposes to which the building was applied at the time they were attached, but this merely shows that they were proper subjects to be made a part of the realty, and not that they were intended so to be. If the articles had been ponderous and exceedingly difficult to be removed, if they had been of considerable value taken in connection with the building and of little value as chattels to be removed, if they had been fitted to the places they occupied and would not be suited to any other places or building unless specially prepared for them, such considerations might go far to show that they were designed to be a part of the realty.

In relation to the windlass we are inclined to think, as the facts now appear, that it was a part of the realty. The case finds that the ends of it passed through and turned in timbers which were firmly secured to the building. It was as firmly attached as its nature would admit of, if it was designed ever so strongly to be made a part of the permanent structure. It could not have been removed without injury to the building and to the article itself. This shows that it was designed to be a part of the building and there is nothing in the case that tends to rebut the presumption. These facts may, however, be disproved upon another trial and the article shown to be personal property.

We therefore advise the Superior Court that there is manifest error in the judgment complained of, and that it be reversed.

In this opinion the other judges concurred.