Powell v. McAshan

| Mo. | Jan 15, 1859

Lead Opinion

Napton, Judge,

delivered the opinion of the court..

The inclination of courts has been, of late years, to consider every erection upon land by a tenant, for manufacturing or commercial purposes, which, can be removed without injury to the owner of the land, as a personal chattel, belonging to the tenant and removable by him at any time previous to his surrender of the premises. The law was not in ancient times so liberal to the tenant, and many nice questions arose as to what degree or character of connection between the chattel and the land should make the one an inseparable part of the other. The question now is, not whether the building is secured to the ground by posts of wood or by mason-work of rock or brick; nor whether it is attached to the ground by either of these modes or merely set upon blocks or rollers, but the question is simply for what purpose it is erected, and whether its removal will leave the land in the same condition it was in when rented. If the building is erected for trade or manufacture, and can be removed without injury to other buildings already on the ground, the tenant may remove it, and the landlord has no ground for complaint.

The term “ fixture” has been employed in so many different senses as to create some confusion. It has been sometimes used to designate such personal chattels as were so fixed to the land that their removal would prejudice the owner of the land, and would not therefore be permissible either to the tenant or vendor. Frequently, however, the same term is applied to such erections as may be removed by a tenant, but would still pass by a sale and could not be removed by the vendor. The present is a case of landlord and tenant, and $he distinction is unimportant to its decision.

There was also an express contract in this case between the landlord and tenant, authorizing the latter to put up additional sheds and other temporary buildings for warehouses and to remove them when his term expired. > It is true this contract was by parol, but it is not the less valid on that account. It was not a contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them. (Frear v. Hardenburgh, 5 John. 273.)

There was no question in this case as to the right of removal subsequent to the expiration of the tenancy. The buildings were removed before the premises were surrendered to the owners. Whether the premises were held longer than the contract of lease authorized, and what rights and remedies accrued by reason of such holding over, are matters nowise connected with the present suit, and the instructions asked upon this point were with propriety refused.

There was, however, one question of fact upon which instructions were asked, which was not submitted to the jury. If improvements or erections are so connected with the buildings already upon the leased premises that they can not be separated without material'injury to the landlord’s property, they ought not to be removed. This is so by the general law without reference to any contract, and a reasonable interpretation of the contract proved in this case would tend to the same inference. In such cases the property is not left in the same condition in which it is found. If a stranger so mixes up his property with mine that it can not be separated without destroying or materially injuring mine, upon well settled principles of law and justice he must lose his property. This question ought to have been left to the jury. The witnesses differed about it, and although we might readily determine it here satisfactorily to ourselves, the plaintiffs had a right to the opinion of the jury.

Judgment reversed and cause remanded ;

Judge Richardson concurring.

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Dissenting Opinion

Scott, Judge,

dissenting. As the defendant had by contract the right to remove the improvements he made on the lot, he was authorized in removing the materials he placed on it. If any injury was done to the plaintiffs’ structure, that injury must have been done in making the improvement, not in removing it. The parties interested acquiesced in the improvements as made, and did not complain that in removing the materials their house must necessarily be injured. They should have objected at the proper time. If the defendant in removing his materials, as by contract he had a right to do, did an injury to the plaintiffs’ property, be was entitled to damages for such injury. The law in relation to fixtures has nothing to do with the case: it rests on contract entirely. As the defendant would only rent on condition that he should remove his materials, it is not to be supposed that he intended to give them away in making his improvements. Judging from the character of the structure on the lot, no question can arise as to the length a tenant, with the right to remove the improvements made on the demised premises during the tenancy, would be permitted to go in removing the materials of an improvement made on a valuable building and which could not be taken away without great injury to the landlord. In such cases a presumption might arise that the improvement was made for the convenience of the tenant without any intention of removing the materials of which it was composed. But in such a case a party, I imagine, would not resort to an action of trover for the materials. The very form of this action negatives the idea that there was any room for the application of any such principle in the suit now before the court.

I am in favor of affirming the judgment.