67 P. 462 | Kan. | 1902
The facts as hereinafter set out are those most favorable to the defendant in error that can be drawn from the admissions and evidence in the case. The question of law is whether upon such facts the judgment can be sustained,
i Prior to September 1, 1887, the Dodge City Water-supply Company, a Kansas corporation, had been granted a franchise by the city of Dodge City to lay water-mains in the streets of that city and supply the inhabitants thereof with water, and it had erected and was then maintaining a water-works system in said city. Its stand-pipe was very near the north line of the corporate limits in said city. Shortly prior to that date one A. T. Soule had purchased all of the stock of the water-works company, which consisted of 1000 shares, of which he took 996 shares in his own name and gave the other four shares to four other persons, so that there might be a sufficient number of shareholders to constitute a full board of directors. On September 1 a complete transfer of the possession and management of the water-works system was made to the new board of directors thus constituted.
Mr. Soule at the time owned a section of land immediately to the north of Dodge City, which he had platted into lots and blocks, and had named Lakeview addition. The plat, however, -was not made of record
Several mortgages had been made by the Dodge City Water-supply Company to different mortgagees covering all of its water-plant and appurtenances thereto. These mortgages were foreclosed, and the
The contention of the defendant in error is that, inasmuch as A. T. Soule purchased the water-pipe and laid it upon the land then his own, which was afterward purchased by it from his heirs, with the title to this land passed the right to this disputed
From all of the facts and circumstances, we are inclined to the belief that Mr. Soule, when he laid the pipe in question, did it with the view of enlarging the utility and capacity of the water-works system, of which he was at the time the principal if not the sole owner. The pipe was laid along the streets of his platted and proposed addition, and the vacation of this plat thereafter by the legislature could not interfere with the rights of any one then having any interest in the water-works system. In fact, we very much doubt whether the pipe ever became a fixture to the land within which it was laid in any proper sense and use of the term. Independently, however, of this question, it seems clear to us that as Mrs. Soule was the owner, at least of a portion of the land on'which this pipe was laid at the time she sold the water-works plant, with all of its appurtenances, and as this pipe was a material portion of the water-works plant at the time, it was embraced in her conveyance of the same to the water company; and, as it was being used by the water company as such material portion of its plant at the time that the defendant in error became the owner by quitclaim deed of the land on which this pipe was laid, it took the land subject to the rights of the water company in respect to this pipe. It can hardly be contended that Mrs. Soule or
As we have said before, the contention of the defendant in error was that, inasmuch as Mr. Soule laid this pipe on his own land and paid for it with his own money, it at once attached to and became a part of this realty and passed to it as such. We think that this conclusion may well be doubted, for, as we have seen, at the time Mr. Soule laid the pipe he was practically the owner of the water-works plant as well as of the land, and we must look into the entire transaction to determine whether it was laid as an addition to his water-works plant or as a fixture to his land. It was connected with the mains at both ends and was a necessary portion of the water-works system, and was so used at the time the mortgages, which were foreclosed, were given and title acquired by the present plaintiff. Then, again, this pipe was laid along pi’oposed streets, and evidently as a component part of the water-works system and to supply water to those who should purchase and live upon the lots fronting those streets, and was not an appurtenance to farming or agricultural lands. It had in it' at street crossings cross-sections, or T’s, for the purpose of attaching such other water-pipes as might be needed in extending the system. It was not attached to the land in which it was placed so that its removal would interfere with the practical use of the land or in any way injure it for agricultural purposes.
The tests to be applied in determining whether or not personal property becomes a fixture are : (1) Annexation to the realty; (2) adaptation to the use of that part of the realty with which it is connected;
The pipe in question, being at the time of the sale of the water-works system by Mrs. Soule to the present owners an essential part of that system, passed by her conveyance. It was a “trade fixture,” and was not an accessory to the enjoyment of the freehold upon which it was laid, and hence did not pass with the title thereto. (Railroad Co. v. Nyce, 61 Kan. 394, 59 Pac. 1040.)
The judgment of the court below must be reversed, with directions to proceed further in accordance with this opinion.