190 Iowa 1327 | Iowa | 1921
— The defendant, as a tenant, occupied for some years a certain business building as a furniture store on West Walnut Street in the city of Des Moines. For the purpose of his business, he installed in the second and third stories thereof eer
‘ ‘ The electric wires were all encased in metal pipes that run along the ceiling and down the walls. On the third floor, they were fastened to the open ceiling joists by nailing; on the second floor, I cannot say whether they were nailed or screwed on. As to the junction boxes on the side walls, they were fastened with a kind of staples, and the plaster was around the boxes. The boxes were nailed onto the ceiling, and the plaster was around the boxes, coming over the side about one-half inch. ’ ’
The defendant offers to repair all damage which he may cause by the act of removal. This offer, however, is not, of itself, determinative of his right. The question whether this improvement became a part of the realty or whether it remained as a removable trade fixture is, in the first instance, a question of intent. If the fixture be so attached that it cannot be removed without substantial damage to the property, it tends to show an intention to make the same a part of the realty; so, also, if the damage caused by its removal is disproportionate to the value of the fixture itself, it tends in the same direction. Though the doctrine
‘ ‘ I first thought about taking this wiring out when I started to move.”
Upon the whole record, the inference is fairly warranted that the improvement was not originally intended as a trade fixture, and that the removal of the same at the present time would work a damage to the building greatly disproportionate to the value of the wire.
It is urged in argument that there are certain chain drops suspended from’the conduits which can be removed without any damage. The difficulty here, however, is that the pleadings disclose no reference to such chain drops. We should not be warranted in reversing the trial court for its failure to allow an item that was not referred to in the pleadings, and to which the attention of the court was in no manner specifically directed. The fact appears in the record only by a casual reference in the testimony. We reach the conclusion that the decree entered below should be affirmed. — Affirmed.