181 Ind. 81 | Ind. | 1914
This was an action in replevin, by appellee against appellant, to recover possession of about 15,000 tobacco sticks. The cause was tried by the court and resulted in a finding and judgment for appellee. The only questions here involved depend on the sufficiency of the evidence. There is some conflict in the testimony and therefore, in its consideration, this court is limited to that which is uncontradicted, and, where there is controversy, to that most favorable to appellee, together with such fair inferences, favorable to appelle, as might be drawn. Dickason v. Indiana Creosoting Co. (1913), 179 Ind. 640, 102 N. E. 1.
On March 28, 1910, appellee conveyed to appellant by warranty deed, a farm in Dearborn County. There were two bams on the farm, and in the one located on what is called the “hill place”, the sticks in controversy were situated. Appellant claims the sticks were fixtures. Appellee had owned the farm for about ten years, and, at the same time owned another one, and also a tobacco warehouse,
Appellant, during the year 1909, was a tenant of appellee, on the part of the farm conveyed, called the “hill place”, and where he raised a large quantity of tobacco. By the terms of the rental contract, which were the same as those with previous tenants of the farm, appellant grew the tobacco and delivered an agreed portion thereof to appellee, as rental, appellee furnishing the barn room for curing, also the sticks on which to hang the tobacco. When the deed was executed, the sticks in controversy and the tobacco crop of 1909 were in the barns. The tobacco was after-wards divided and hauled away in the following April or May. In July, 1910, appellee demanded the sticks. They were not reserved by the grantor, in the deed, and nothing was said by either party about them, either before, or at the time the deed was executed. Sticks of the same kind as here in controversy are commonly used in hauling tobacco from field to barn, in hanging it in barns for curing, and in hauling the tobacco to warehouses. In 1909, there were two houses on the farm; appellant occupied one, and another tenant the other. It appears that appellant raised tobacco chiefly, and stored it in the barn on the “hill place”. Aside from a small quantity of hay owned by appellee, this barn contained in the winter of 1909-1910, nothing but tobacco grown by appellant. Before appellant became a tenant, the barn had been used regularly for housing hay and live stock, as well as tobacco. Appellant was well acquainted with the manner of operating the farm, for some years before he occupied it as tenant.
Appellant cites Bishop v. Bishop (1854), 11 N. Y. 123,
Tobacco sticks, under the evidence here, are necessary to the proper handling of a crop. It does not appear however that they were any better adapted for use in the barns on the farm appellant purchased than in hauling the tobacco from the field, or to the warehouse, or in hanging it in the warehouse. They were, in fact, used for all such purposes, and were changed from warehouse to farm, and farm to farm, as need therefor required. Sticks of like character were borrowed and loaned, among neighbors in that community — a thing that conflicts with the theory of their appropriateness for annexation to realty. We cannot say that this evidence compels the inference that appellee intended to dedicate these articles to the realty, as a permanent accession thereto, or any part thereof, or that it fairly forces the conclusion that they were adapted to such purpose. We therefore hold that there was no error in holding that these articles were not fixtures.
Appellee made no demand for the sticks until July, 1910. Appellant contends that if it be conceded that the articles were not fixtures, appellee lost his right thereto by delay. Cases are cited by appellant, in actions by tenants against landlords, in relation to the tenant’s right to remove buildings, etc., after the expiration of the
There is no error in the record. Judgment affirmed.
Note. — Reported in 103 N. E. 837. See, also, under (1) 3 Cyc. 348, 360; (2) 19 Cyc. 1037; (3, 4) 19 Cyc. 1038; (5) 19 Cyc. 1040, 1045; (6) 19 Cyc. 1045. As to what are fixtures, see 14 Am. Dec. 303; 24 Am. Rep. 726; 84 Am. St. 877. As to whether things placed on land with the intention of annexing them are fixtures when they are never actually attached, see 69 L. R. A. 892.