112 Mo. App. 226 | Mo. Ct. App. | 1905
Action to enforce a lien. The items in controversy are gas fixtures. It is admitted the plaintiff company put the gas fixtures into the building, but the appellants contend gas fixtures are not lienable articles within the meaning of the statute giving liens for material furnished and labor done on a building. It appears to be conceded that such fixtures may be put into a house under circumstances showing an intention to make them a permanent part of the realty, in which event they are lienable articles. The exact dispute between the parties to this litigation is whether an intention of that kind fairly appears from the evidence — in other words, whether there was any competent evidence to prove it existed. The appellant says there was not, because the evidence goes no further than that the attachments were bought for use in the houses and connected with the gas pipes, which facts are argued to be insufficient to show an intention to make them part of the realty. To the contrary, the respondent contends that it was fairly inferable from the evidence that when
In St. Louis Radiator Co. v. Carroll, 72 Mo. App. 315, this court said that gas chandeliers were not fixtures. The remark was a dictum, but, taken in connection with the reason assigned for the decision given in the case, has weight. The court held that a radiator heated by a furnace in the basement of a house, with pipes running through the building, was a fixture, for which a lien would lie; because it was annexed to the building, and adapted to its use, with the intention of making it an addition to the freehold. But the opinion noticed a decision in Pennsylvania (Bank v. North, 160 Pa. St. 303) that a radiator, warmed by pipes not orig-mating in the dwelling, but running from a general plant established in another part of the city, was no fixture. Now, this court said that the radiator in the Pennsylvania case was like a gas fixture, in that it was served through pipes connected with an outside plant, instead of constituting a self-sufficient apparatus appurtenant to the particular house. If we were unhampered, a great deal might be said in favor of the view that gas chandeliers are fixtures; but we feel bound by the previous rulings in this State. This will not be understood as an intimation that we deem those rulings unsound, for we do not. We intend to say no more than that the question is not an open one.
Numerous cases have been cited by counsel on both sides which support their respective contentions. We have carefully read them all and learned from them how conflicting the law on the point is in different jurisdictions. We think it would be useless to review those cases in detail, or do more than mention them. The following decisions treat gas chandeliers as fixtures, and
“The learned legal arbitrator below very properly considered himself bound by the authority of Vaughen v. Haldemen, 9 Casey 522, and decided accordingly; but his report contains a labored argument against the judgment in that case, and we are now urged by the plaintiffs in error to reconsider and overrule it. Upon the fullest consideration however, we have determined to adhere to it. It is frankly conceded that the act of April 14th, 1855, did not operate to extend the lien of mechanics to gas fixtures as distinguished from gas fittings, if a lien for the former did not exist by virtue of the act of 1836. The distinction between the two is well stated and ex*234 plained in Vaughen v. Haldeman. We are not satisfied that there is any usage or general understanding contrary to that decision. Houses are considered as finished by the builders when the gas fittings are completed. The fixtures are put up in more or less expensive style, according to the taste and means of the persons who mean to occupy them, whether as tenants or owners. If the tenant puts them in, it is not denied that, as between him and the landlord, they are his, and he may remove them, or they may he sold as his personal property on an execution by the sheriff. No doubt the owner, if they belong to him, often sells them with the house. They add more to the value of the house than they would be worth if removed. But if there is no agreement to sell the house as it is — fixtures and all — the purchaser is not entitled to them.”
As said above, our Supreme Court cited with approval the decisions from several States including Pennsylvania, which adhere to the doctrine that gas fixtures, globes and the like, are not part of the freehold. Of course, the evidence might show the owner of the building intended, when he had such attachments put in, to make them permanent parts of his house. We think such an intention is not fairly inferable from the mere fact that they were put in and remained in after the property was sold; which is all there is to prove such an intention in the present case.
The judgment is reversed and cause remanded.