57 Ind. App. 473 | Ind. Ct. App. | 1914
Appellees filed a complaint in the trial court against appellants praying for a temporary restraining order, and upon final hearing for a perpetual injunction preventing appellants from removing from the real estate owned by appellee, certain floors, heating plant, ticket office, stage, flics, drop curtains, scenery, dressing rooms, opera chairs and other appurtenances necessary to the operation of a theatre. This was followed by a supplemental complaint asking that receiver be appointed to take charge of the property pending litigation. Appellants, Gail Doolittle and Clara Arganbright, who held recorded chattel mortgages on the property in question, were granted permission to intervene and separate cross-complaints wore filed by these parties against the Newcastle Theatre Company asking judgment on their notes and a foreclosure of their mortgages. Various pleadings were filed by the several parties to the action before the issues were closed, but as no question is made as to any of the pleadings we deem it unnecessary to set them out in detail. There was a trial by the court and
Each of appellants separately assign as error the action of the trial court in overruling their separate motions for a new trial. The motions are identical in form and the reasons assigned are that the decision of the court is not sustained by the evidence and is contrary to law.
It appears from the evidence that appellees were the owners of the real estate described in the complaint which included a large brick building. This building was fitted with a level floor, some balconies and a few chairs, and was used by appellees for a skating rink. On September 3, 1910, appellees executed a lease to the Crystal Amusement Company for the real estate described for the term of five years, beginning on October 1, 1910. The lease provided that the building was to be used by the lessee for a theatre, dance hall and for public gatherings, and that all contemplated repairs and alterations in the building were to be made by the lessee at its own expense and that all bills for such repairs were to be paid and the receipts therefor .turned over to the lessors before the lessee was given full possession under its lease. The Crystal Amusement Company went into possession and made extensive repairs and alterations in the building under the terms of the lease. The floor was changed from a level to an inclined floor, a stage was built, and boxes and a balcony were placed in the building with a stairway leading to the balcony. The entire interior of the building was plastered and decorated and other changes and repairs of less importance were made. The cost of these changes and repairs was all paid for by the lessee as provided by the terms of the lease. After these repairs and changes were made so as to adapt the building for use as a theatre, the lessee purchased and placed in position a steam heating apparatus consisting of a boiler placed in the basement and connected by pipes with radiators so placed as to
The only question presented for decision is the sufficiency of the evidence to sustain this finding*. The question thus presented requires us to decide whether, under the undisputed evidence, the property claimed by the Newcastle Theatre Company was personal property or whether it constituted a part of the real estate.
Tbe judgment is reversed with directions to grant a new trial.
Note. — Reported in 104 N. E. 526. As to what are fixtures, see 14 Am. Dec. 303; 17 Am. Dec. 686. As to when a tenant may remove fixtures, see 11 Am. Dec. 241; 64 L. R. A. 662. As to scope of provision that lessee shall leave alterations, improvements, additions, etc., on premises, see 42 L. R; A. (N. S.) 546. As to whether the right as between landlord and tenant to remove trade fixtures is conditional upon their susceptibility to removal without injury to themselves, see 18 L. R. A. (N. S.) 423 ; 7 D. Ed. IT. S. 374. As to contracts involving theatre fixtures, see Ann. Cas. 1914 B 18. See, also, under (1) 19 Cyc. 1065, 1067; (2, 6, 7) 19 Cyc. 1065; (3) 19 Cyc. 1035; (4) 19 Cyc. 1036; (5) 19 Cyc. 1047; 1915 Ann. 1065-new; (8) 19 Cyc. 1067; (9) 19 Cyc. 1047; 1915 Ann. 1066-new; (10) 19 Cyc. 1048; (11) 19 Cyc. 1075.