198 P. 920 | Or. | 1921
Having given a general history of the different deals claimed to affect the status of the property in suit, we will endeavor to outline more minutely the situation, use and purposes of the motor
We should start with Mr. Reames’ ownership. He owned all of the farm and fixtures and personal property sold and transferred to McKillop. We shall pass without further mention many of the side issues, and also conclusions stated by the witnesses as to what part of the property was real and what personal, and try to observe the concrete facts which govern the main question. It appears the farm is situated on the bank of the Klamath River. There were two pump-houses on the land, with a centrifugal pump in each used for pumping water from the river to irrigate the land. One of the pumps rested on timbers and the other also on timber resting on concrete. Both were securely fastened to their foundations with screws. The ten-horse power electric motor was fastened to a timber frame resting on the concrete foundation and connected with electric wiring, and remained on the place when the property was transferred to McKillop. Possession was taken by Oliver under the contract of purchase from Mc-Killop. The motor was so arranged that the electric wire could be detached, and the motor and its frame placed upon a sled and moved to the other pumping plant where it fitted the foundation and could be securely screwed down to the same. Sometimes the motor was so moved and used. It usually remained
“Q. In connecting the motors with the wires, wasn’t that fixed in such a way it was easily disconnected so it could be moved easily?
“A. Well, we had to disconnect the wires from the-switch and then take off the switch and move that down from the other place and then connect up there,, the same as moving any motor.
“Q. The motor was not set in any permanent, foundation, was it, like a cement foundation, anything like that?
‘ ‘A. At one — at the stand where it was used principally, there was a concrete foundation with timbers, on that and also the pump on the same timbers. The-motor was on the other timbers that set on that, we-screwed down to it and made it stationary so as to-remain true and firm.”
One of the pumps was sometimes used for pumping-water in order to drain the land. The motor and pump appear to have been a part of the irrigation system connected with and used upon the land. They were essential for the purposes of irrigation and drainage of the land. How long this system had been in use or when it was placed upon the land does not clearly appear.
“Annexation, actual or constructive, is an essential element. Pure examples of constructive annexation are found in cases where after having been actually annexed an article is severed from the realty for some temporary purpose. * * In the instant case the pipe and giants can be removed without impairing them or injuring the land and therefore the single element of annexation is not conclusive. As was said by this court in Doscher v. Blackiston, 7 Or. 144, 146: the courts in many of the states have abandoned the notion that to constitute an irremovable fixture the article must be attached to the land by bolts or nails or be imbedded in brick or stone. * * ”
It is the trend of judicial opinion to regard all of those things as fixtures which have been attached, whether physically or constructively to the realty with a view to the purposes for which the real property is held or employed, however slight or temporary the connection between the articles and the land. The important element to be considered is the intention of the party making the annexation. Neither the intention existing at the time of procuring the article nor that which exists while the same is being transported
* ‘ The second test, namely, the adaptation or application to the use or purpose of that part of the property with which it is connected, is generally considered as entitled to much weight, especially in connection with the criterion of intention, * * the tendency being to regard everything as a fixture which has been attached to realty with a view to the purposes for which the realty is held or employed, however slight or temporary the connection between them. So generally it may be said that if property is placed on land to improve it and make it more valuable it is generally deemed a fixture, but that if it is attached for use which does not enhance the value of the land it remains a chattel.”
“In some jurisdictions, if the realty is equipped with a complicated plant, some of which is so attached to the realty as to be a part thereof, and some not physically annexed, then on a transfer of the realty the entire plant is transferred, including the unattached parts, on the principle whereby an indispensable part of a machine is transferred”: 19 Cyc. 1045.
From the nature of the irrigation system constructed on the farm, the relation and situation of the owner who installed the apparatus, the whole surroundings and mode of the annexation, the evident purpose thereof, and all the facts disclosed by the testimony, we conclude that the owner making the con
As ruled in Sowden v. Craig, 26 Iowa, 156 (96 Am. Dec. 125, 130):
“Where the owner of real estate executes a mortgage upon chattels, which may properly be made fixtures, and subsequently affixes them to the real estate, that no person having knowledge of such facts can, by purchase of the real estate or otherwise, acquire from the mortgagor any title to such chattels paramount to the mortgagee thereof.”
Plaintiff claimed $250, as attorney’s fees for foreclosing the chattel mortgage for $860, and interest. The trial court allowed $150, as such fees. We think the Circuit Court was in a better position to decide what was a reasonable amount for such services than this court is. We approve this finding.
It follows that the decree of the trial court should be affirmed. It is so ordered. Affirmed.