153 P. 1017 | Mont. | 1915
delivered the opinion of the court.
In November, 1909, the Amazon-Montana Development Company held an option to purchase from Samuel Myhre the Silver Star quartz lode mining claim. It hired an electric hoist from the Montana Electric Company at a rental of $50 per month, and agreed to return it to the owner in Butte at the expiration of the term of hiring. The hoist was shipped to Amazon, placed upon a substantial foundation on the Silver Star claim, an en-
The question before us is: Did the hoist become a fixture and pass by deed from Myhre to Mallette, and from Mallette to the Mining Company? Section 4424, Revised Codes, classifies all property as real or personal. Section 4425 defines real property as consisting of land, that which is affixed to land, that which is incidental or appurtenant to land, and that which is immovable by law. Section 4427 specifies the manner in which a thing may be affixed to land, within the meaning of section 4425; and section 4428 declares: “Sluice-boxes, flumes, hose, pipes, railway tracks, ears, blacksmith-shops, mills and all other machinery or tools used in working or developing a mine are to be deemed affixed to the mine.” These provisions are identical with like provisions found in the Civil Code of California since 1872, and, with the exception of section 4428, were copied from the proposed draft of a Civil Code prepared for the state of New York by David Dudley Field and his collaborators. The purpose of the Code was not to introduce new rules or definitions into the law, but rather to reduce to concise form the rules of law as they were then recognized and applied by the courts. Reference to New York and California decisions aids in determining the scope which the provisions of our Code above, were intended to have, and from those decisions we deduce the fol
The manner in which the hoist was attached to the mining claim is not of consequence (sec. 4428, above). It could be removed without material injury to the realty and without injury to the hoist itself. Applying to our Code sections above, the rule of construction adopted in New York and California, and the correctness of the court’s conclusion cannot be questioned. The element of intention to cause the hoist to become a part of the mining claim is altogether wanting. The agreement between the electric company and the Amazon company is susceptible of but one construction — that it was not the intention of either that the hoist should become a part of the mining claim. It belonged to the electric company, which was not interested in the mining claim. It was hired by'the Amazon company for temporary use, to be returned to the owner upon the expiration of the term of hiring.
Some contention is made by appellant that the electric com-
Affirmed.
Rehearing denied January 5, 1916..