113 Mo. App. 519 | Mo. Ct. App. | 1905
— This is a suit in replevin for the possession of a certain steamheating boiler used for the purpose of heating a hotel in the city of Excelsior
At the time defendants took possession of the* building there was in the basement of the same, set in a pit, a heating boiler consisting of different sections, attached to pipes that ran through the floors and partitions to the different rooms therein. This, boiler was. the means of heating the building and was adapted to no other purpose. In order to remove the boiler it was. necessary to unscrew the attachments that connected it with the pipes and to then remove it from the pit by sections. The boiler was not much used in the winter of 1901-02 owing to an insufficient supply of water. In the following 'spring it was discovered the boiler was. almost useless, as many of tfle sections had bursted,. which had resulted from the freezing of water therein. The evidence was conflicting as to whether its condition was brought about because plaintiff had left water in it when it was turned' over to defendants, or caused by the* neglect of defendants by letting water into it and permitting it to stand during the winter.
In the summer o’f 1902, defendants removed said boiler and replaced it with the one in controversy. It was showh that at the time of. putting in the new boiler, it was their intention to remove it before the expiration of the lease and replace the old one. There was evidence tending to show that plaintiff agreed that defendants might remove the boiler in question at the expiration of their lease. And they were so removing it with the view of replacing the other when plaintiff instituted this suit.
A jury ivas waived and the case was tried before-
1. “If the defendants accepted a lease from the plaintiff, of a hotel building equipped with a steam heating plant fed by a boiler, and covenanted to keep the premises in repair and so return them to the landlord, and, during his term defendant removed the boiler and substituted a new boiler in its place, and if a boiler was necessary in the use of the premises for the purposes for which they were adapted, then such new boiler became a fixture in the building.”
2. “Fixtures to be capable of removal by a tenant, must be additions made by the tenant to the property of the landlord, and not substitutions for essential parts of it, which the tenant has removed.”
The court gave the following at the instance of defedants:
1. “The court declares the law to be that the boiler in plaintiff’s house at the time defendant rented it was a fixture and if defendants removed it because inadequate, and put the boiler in controversy in its place, with the intention of removing it before his lease expired and restoring the original boiler to its original 'position, and was proceeding to remove it for the purpose of replacing the original boiler before his lease expired, when plaintiff’s suit was instituted, then the finding should be for the defendants.”
2. “The court declares the law to be that if the defendants removed the boiler in plaintiff’s house at the time they rented it because it was inadequate, and replaced it with the boiler in controversy, with the understanding with plaintiff that they should be permitted to remove the latter before the expiration of their lease, and were proceeding to do so before the expiration of their tenancy, when plaintiff’s suit was instituted, then the finding should be for the defendants.”
It is often a difficult question to determine what is and what is not a fixture. . The books contain many different attempts to define fixtures; but, after all, we deduce only certain general principles which can be useful in their application to a given casé. But it is well settled that an agreement between, landlord and tenant, giving the right to the tenant to remove his fixtures, thereby makes them personal property as between the parties. [Bronson on Fixtures, chap. 6, sec. 39a.] ~W,e suppose, as a proposition of law, the rule will not be disputed. The second declaration of law given for defendants being predicated upon this rule, it is therefore unobjectionable.
The mere intention of a tenant to remove a fixture put in by himself before the expiration of his lease would not have the effect of making the same personal property, because its removal might have the effect of injuring the realty; in which case, intention would not govern. But in order to determine whether defendants had the- right to remove the boiler in controversy we must take into consideration the character of the thing, the circumstances and the intention of the tenant who put it in the building. Defendants found that they could not get heat for the use of their hotel with the boiler then in the building and they substituted one of their own for their purpose with the announced intention of removing it before the lease expired. The boiler was not attached to the walls in any way that' did not per
But, after all, was the boiler a fixture as between landlord and tenant? It Avas personal property and could only become a part of the realty as a fixture. We have a case in this State where a furnace used for heating a residence was in controversy. The plaintiff sought to enforce a vendor’s lien upon the same. It Aveighecl 15,000 pounds and Avas encased Avitli brick and mortar AAdiiclx Avere there before the furnace was put into the house, and had been used formerly as a stand for a similar heater. The pipes running through the house were no part of the furnace and were in place before it came and were used with the old heater. The court held,
We have not only considered plaintiff’s authorities, but have considered decisions of most of the States and of the United States court. And, whereas, there is much conflict in the authorities, they all, so far as our investigation has gone, agree that the common law rule has been relaxed as to the question between landlord and tenant; and what would be a fixture as between vendor and vendee, or mortgagor and mortgagee, does not apply to landlord and tenant. Upon principles deducible from all modern authorities, the tenants having put in the boiler for a temporary purpose with the intention of removing it before the expiration of their lease, it did not become a fixture. Pond v. O’Connor, 70 Minn. 266, relied on by plaintiff, we do’ not think should govern this case, although the article was a boil
From the foregoing it follows that the court committed no error in the first declaration of law. Affirmed.