95 Ark. 268 | Ark. | 1910
(after stating the facts). The only question presented by this appeal is whether or not appellee had the right to remove the house and machinery from the land.
The reservation in- Darter’s deed- gave him and tenants under him the right to hold as long as Darter lived. When Darter died, the right to hold the land by any one claiming under him was extinguished. Such was the effect of the holding of this court on the former appeal, where we said: “The deed says, ‘as long as we or others holding under us may want to use same for running machinery at said point.’ The last quotation from the deed shows only how long Darter and wife were to have the use of the land free of rent. ‘Others holding under us’ refers to persons holding like tenants.” Appellee under his deed from Darter might enter and hold as long as a tenant of Darter could hold. A tenant of Darter could hold, if such were the contract, as long as Darter lived. It follows therefore that appellee, in entering upon the land and holding it and the houses and machinery in controversy under his contract with Davis and his deed from Darter, was not a trespasser. The contract with Davis gave appellee title to the machinery, etc., mentioned therein, provided these were not attached to the land in such manner as to become realty. The deed from Darter to appellee gave him color of title to the land and the right to possess and use same for the purposes therein mentioned so long as Darter lived.
To justify appellee in removing the house, gin, machinery, etc., from the land it was not necessary for him to show a technical color of title to the freehold. That would only be essential where appellee was seeking pay from the owner of the freehold for -the improvements. It is sufficient to sustain the judgment appealed from if appellee has shown that he was not a trespasser in going upon the land, and that the house, gin, machinery, etc., in controversy were not annexed to the soil in such manner as to become immovable fixtures. The testimony of Berry Field, aside from the deed from Darter and the contract with Davis, shows that appellee was not a trespasser in going upon the land and in placing the machinery, etc., thereon. It is clear from the uncontradicted evidence in the record that appellee made the improvements and put the machinery, etc., on the land in good faith. The only other question then is, were these improvements, machinery, etc., fixtures? While there is no precise definition of a “trade fixture," ■the articles in controversy, under the undisputed evidence, fall clearly within the designation of a “trade fixture,” as that term is used by the authorities in describing property that has been annexed to the freehold for the purpose of carrying on a trade. Trade fixtures “are articles erected or annexed to the realty by the tenant for the purpose of carrying on a trade, and are removable by him during his term, provided the removal does not affect the essential characteristics of the article removed or reduce it to mass of crude materials.” 13 Am. & Eng. Enc. L. (2 ed), p. 642, and cases cited in note; Van Ness v. Pacard, 2 Pet. 137. “Besides being removable on the grounds of public policy, trade fixtures are also removable because, from the nature of the tenure, they are not presumed to have been annexed with the intention of making them permanent additions to the realty.” 19 Cyc. 1065b.
Now, here was property devoted to the business of ginning and milling. Such parts of it as were annexed to the soil were so constructed that they could, “if it became necessary, be put on rollers and taken away.” It was all assessed as personal property, and the evidence shows that it was not the intention of the party who placed it there, nor of the owner of the soil on which it was placed, to have it annexed permanently to the freehold. The intention of the party erecting the structure and placing the machinery in cases of this kind will generally control. Markle v. Stackhouse, 65 Ark. 23; Bemis v. First National Bank, 63 Ark. 628, and cases there cited.
It follows from what we have said that there could not have been any prejudicial error in the -rulings of the court in the giving of instructions. The judgment was right upon the undisputed evidence, and it is therefore affirmed.