48 Wis. 628 | Wis. | 1880
This action is brought to enjoin the defendant from entering upon the lands of the plaintiffs and removing
It appears that the plaintiffs purchased the premises of one' Thompson; that at that time the material in question was upon the surface of the soil, either as fire-wood or filling; and that afterwards Thompson sold said material to the defendant, and the defendant entered the premises and removed a part of such material therefrom. The character of this material in its nature and uses, its situation upon the land as being actually and physically attached or detached, and the intention of the owner when it was so placed in respect to its use, are questions of fact necessary to be considered in determining the question of law as to whether this material had become a part of the realty, and passed by deed to the plaintiffs, or whether it was personal and movable property, and was sold to the defendant, and he thereby became the owner. _ The facts agreed upon, the questions of law are neither difficult nor doubtful. That which is in its nature otherwise personal, when physically attached to the soil, or constructively'attached by its use or intended use with the soil, will pass with the title of the realty. Tyler on Fixtures, 59, 116; Ewell on Fixtures, 31; Conklin v. Parsons, 2 Pinney, 264.
The only question in this case is, Does the evidence show the material to have been “ slabs, sawdust, shavings and other
By the. Court. — The judgment of the circuit court is affirmed, with costs.