Mollie Gibson Consolidated Mining & Milllng Co. v. McNichols

51 Colo. 54 | Colo. | 1911

Mr. Justice Gabbert

delivered the opinion of the court.

When a. building is erected for a particular purpose, and machinery placed therein reasonably necessary to effectuate that purpose, and in some substantial manner attached to such building, it becomes part of the realty. Roseville A. M. Co. v. Iowa G. M. Co., 15 Colo. 29; Farmers’ L. & T. Co. v. Minn. E. & M. Co., 35 Minn. 543; Symonds v. Harris, 81 Am. Dec. 552; 51 Me. 14; Laflin v. Griffiths, 35 Barb. (N. Y.) 58; Parsons v. Copeland, 38 Me. 537; Gray v. Holdship, 17 Am. Dec. 680; 17 S. & R. 413.

. Applying this test to the facts of the case at bar, we think it is' clear that the Fru-Vanner tables were fixtures. The mill building certainly is real estate. It was constructed for the purpose of enclosing the machinery placed therein; without the machinery it would be useless as a mill for the reduction of ores. The purpose of the owners, in erecting the plant, which includes the building and the machinery, was to construct a concentrating plant. To render it suitable for the use designed, the tables were placed therein and fastened to the building in such manner, and to such an extent, as would render them adaptable to promote the ends for which the entire plant was constructed. To remove the tables would reduce the efficiency of the mill, if not entirely destroy it, just as much as to remove other dis* tinct pieces of machinery therein, like the rolls, the crushers, or the motive power, all of which, and many other appliances, are essential and necessary to assemble, place, arrange and connect as a whole, in order to construct, complete and operate a plant for the reduction of ore.

The fact that the return to the assessor made on behalf of the owners stated valuations of improvements one sum, and machinery another, or that the mill, machinery and improvements' were returned under one valuation, does not,' when considered in the light of the fact that the machinery was unquestionably a part of the realty, establish that it was personal property; neither does the fact that the assessor designated the machinery upon the assessment roll as personal property cut any figure. His mistaken notion that the machinery was personal property, when, in fact, it was part of the real estate, cannot change the real situation or the real facts.

On behalf of the defendants much stress was laid upon the provisions of the contract between the plaintiffs, whereby the party ceasing to use the mill may remove the machinery belonging to it, exclusively, or, in case of the termination of the contract, either party, upon notice to the other, may remove all joint machinery, accounting to the other for its interest therein. These are merely provisions for the protection of the parties under certain contingencies, but the fact that either party may remove the machinery belonging to it exclusively, or the machinery owned jointly, does not make such machinery personal property until such time, at least, when, by the terms of the contract, the right to remove exists.

The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views expressed in this opinion. Reversed.

Chief Justice Campbell and Mr. Justice Hill concur.