67 Vt. 122 | Vt. | 1894
These cases were heard together. The first named is replevin, and the last trover. The parties in interest are the-same in both cases. The first is to recover a circular saw-mill, a cider mill, and some machinery. The second is to recover for a shingle machine. The rights of plaintiff to the property in both suits, if any, are derived from a mortgage of a farm from the grantor of the defendant Hathaways, executed in 1866. At that time the part of the farm on which the property sued for was afterwards placed and used, was unimproved, and the mortgage contains no words descriptive of the property in controversy, subsequently placed thereon by the Hathaways. Hence the plaintiff’s rights to the property in controversy are to be determined upon the basis of whether the property, on the facts found, was real estate. Although in i860 the statute was enacted, now R. L. 1980, allowing “machinery attached to, or used in a shop, mill, printing office or factory,” to be mortgaged by a deed executed as required for the conveyance of real estate, that statute is not applicable, inasmuch as when the mortgage determinative of the plaintiff’s rights was executed, the machinery in controversy did not exist, and is not alluded to in the mortgage. The defendants, Hathaways, purchased a small piece of the land covered by the plaintiff’s mortgage, from the mortgagor in 1871, took a duly executed warranty deed thereof, created a water power, and erected a saw-mill and grist mill thereon. The other defendants stand upon the
“It is sufficient to say that the leading principle resulting from those decisions is, that actual annexation to the freehold and adaptation to its purposes is not sufficient to convert chattels into fixtures, unless they are fastened in such a manner as to show an intention to incorporate them firmly with the inheritance ; and, that if articles of machinery, used in a factory for manufacturing purposes, are only attached to the buildings to keep them steady and in their place, so that-their use, as chattels, maybe more beneficial, and are attached in such a way that they can be removed without any essential injury to the freehold, or to the articles themselves, they still remain personal property.”
The announcement of this principle followed the decisions of Hill v. Wentworth, of Fullam et at. v. Stearns el al., and of Bartlett v. Wood et al., in which the question of what was necessary to be done by the owner of a personal chattel to incorporate it into the freehold, so that it would become a fixture or part of the freehold, had been fully discussed, considered and determined, with reference to a great variety of machines used in buildings erected, and used for various manufacturing purposes. The circular saw-mill and parts connected therewith, the shingle machine and the cider mill, were each a machine dr personal chattel before it was set up by the Hathaways in their mill. The grist mill, though named in the replevin suit, was not replevied, and is not for consideration here. The shingle mill and the cider mill stood upon legs, and were held in place by their own weight. They were not attached to the building otherwise than by being connected with the motive power by belts. The circular saw-mill and parts connected therewith were not permanently attached to the building. All were so placed and constructed that they could be removed without injury to themselves and without injury to the building. They could be used with equal facility in any building where suitable power could be obtained. The
Judgments affirmed.