106 Me. 234 | Me. | 1909
This is an appeal from the decision of the assessors of the city of Portland refusing to abate a tax levied upon the appellant for the year 1908. Under the agreed statement óf facts two questions áre involved, first, whether the appellant can mantain this appeal not having furnished to the assessors a list of its taxable property. Second, whether the property in question was taxable to the appellant on April 1, 1908, as personal property.
1. The appeal is clearly maintainable. R. S., ch. 9, sec. 73, provides that "before making an assessment, the assessors shall give seasonable notice in writing to the inhabitants,” etc., to make and
In the case at bar the appellant on the contrary, is a corporation organized under the laws of and is a resident of New Jersey, as the residence of a corporation is in the State of its creation, although it may carry on business in another State. Bank of Augusta v. Earl, 13 Pet. 519, 588; Shaw v. Quincy Mining Co., 145 U. S. 444; Hammond Beef Co. v. Best, 91 Maine, 431.
It follows therefore that the appellant being neither an "inhabitant” under section 73, nor a "resident owner” under section 74, 'was not obliged to furnish the assessors with a list of its taxable property and the objection to the maintenance of the appeal is not well taken.
Did this constitute a trade fixture or was it a part of the real estate at the time of the assessment ?
There is authority for holding that even granting this to be a trade fixture, it became a part of the realty when annexed and
"The nature of this right of removal has been explained in two ways : by supposing that the chattel nature of the thing is preserved after its annexation, or by considering that the thing ceases to be a chattel by being affixed to the land, and becomes real property, but reducible again to a chattel state by separation from the realty. There is some confusion and looseness of expression among the authorities on this subject, occasioned probably by the fact that in some relations and for some purposes, as in favor of execution creditors, or the executors of a tenant, the chattel nature of the thing is not lost by its annexation. For many, if not most purposes, however, during the continuance of the annexation, the thing is treated as a parcel of the realty; and though it is in the power of the party making the annexation to reduce the thing again to the state of goods and chattels by severance, yet until so severed, it remains a part of the realty; and this seems to apply as well to trade fixtures as to other fixtures.” See also Preston v. Briggs, 16 Vt. 124; Bliss v. Whitney, 9 Allen, 114; Stockwell v. Marks, 17 Maine, 455; Davis v. Buffum, 51 Maine, 160; Sawyer v. Long, 86 Maine, 541. Under these authorities, the assessment being laid while the annexation continued it was invalid.
But the property in the case at bar never constituted a fixture. It is undoubtedly true that the rules of law defining fixtures have grown less rigid in later years and especially is this true of trade fixtures as between lessor and lessee. It is also true that as to such fixtures the intention of the party making the annexation is given special prominence in applying the rule and that the burden of showing the existence of the requisites for a merger is upon the party claiming such merger. Hayford v. Wentworth, 97 Maine, 347. The three requisites specified in the case last cited are physical annexation, adaptability or usableness, and intention. The first two of these requirements are fully met in the case at bar, as the description before given clearly shows. As to the third, the intention of the lessee, that must be proved not by the unrevealed and secret intention of the party which would be well nigh impossi
It is a well recognized principle that trade fixtures which are in substitution for essential parts of the leased premises and not additions thereto are not removable but are presumed to be permanent additions. Cyc. 1066 ; Ewell on Fixtures, page 146, note. This is but another way of stating that this fact when proved has great and possibly controlling weight upon the question of intention. In
"The lessees chose to remove the pillars, the partitions, the sewers, the cement floor, and to replace them by others which they considered better suited to their business. If they chose to replace wooden pillars with iron ones, plate-glass fronts and partitions with refrigerators and mirrors solidly built in the partition walls, and to take up the sewers and floors, and replace them with others better and more expensive, the new ones do not thereby become trade fixtures, subject to removal by the tenant. The law does not permit tenants to remove fixtures which are built into the building and become a part of it.” In Bovet v. Holzgraft, 5 Texas, Civ. App. 141, 23 S. W. 1014, a new stairway was substituted for an old one. Held that the former became a part of the realty and irremovable by the tenant. See also Ashby v. Ashby, 59 N. J. Eq. 536, 46 Atl. 528.
The tenant in the case at bar tore out the original floors in the rear thirty feet of the building and replaced them with double wooden floors eighteen inches thick filled with wood shavings. When completed the new floor simply took the place of the old and became a part .of the building. They could no more be removed by the tenant than the original.
Another principle equally well settled is that the right of removal can only be exercised when it causes no material injury to the estate. The value of this principle also is its bearing upon the question of intention. But it is a rule universally recognized and nowhere more carefully than in the cases first cited where the right of removal was granted, it being proved that no substantial injury would ensue. In Collamore v. Gillis, 149 Mass. 578, a baker’s oven, built of bricks and mortar, and so united with the building that the two were inseparable without the destruction of the oven
"Where the chattel is so annexed that it cannot be removed without material injury to the realty it would ordinarily be a necessary inference that the intention was not to remove it,” says this court in Hayford v. Wentworth, 97 Maine, at page 350, supra. That necessary inference must be drawn here. The appellant did not place any fixture in the building that it intended to remove. A part of the structure itself was changed and remodelled. It was for the most part a case not of construction but of reconstruction, not of addition but of substitution. Floors were removed and thicker floors were substituted. The walls Were doubled with a thickness of six inches of shavings between, and a similar double wall was constructed to separate these several rooms from the rest of the building. To remove all this would be to leave the building with thirty feet in the rear without floors and open from basement to roof. And after removing what was put in, the tenant would have not a structure or machine the parts of which could fit into one another and be reassembled and set up in some other place, but a worthless mass of old lumber, hardware and shavings. The burden of proof as to merger is fully sustained here, by the character of the changes made, by the fact of substitution, by the material injury to the building consequent upon removal, and by the valueless condition of the so-called fixture when removed. The inference is irresistible that the property became a part of the building itself and that the appellant is correct in its contention that it had no ownership therein.
Appeal sustained with costs and case remanded to the court at nisi prius for the determination of the question of over-valuation in accordance with the stipulation of the parties.
So ordered.