Roseburg Nat. Bank v. Camp

173 P. 313 | Or. | 1918

HARRIS, J. —

1. A judgment debtor can redeem realty but he cannot redeem personalty when sold on execution: Sections 240 and 244, L. O. L. The unpatented placer mining claims, embraced within the 680 acres, and the ditches are by statute declared to be real estate: Sections 5132 and 5136, L. O. L. Camp had a right, therefore, to redeem the mining claims and the ditches bnt he conld not redeem the pipe, giants and mining tools if they were personalty. That some of the property was personalty is admitted by the plaintiff, for the mortgaged property is thrice referred to in the complaint as “real and personal property.” The Circuit Court recognized that some of the property was personalty for as many as five several time's the decree speaks of the mortgaged “real and personal property.” Although the tools, the pipe valve, the loose pipe and the two disconnected giants are adapted for use either separately or in connection with the line already laid, nevertheless they are not necessary to make complete, nor are they component parts of, the pipe-line already laid. The joints of pipe which are connected and ready for use make a complete pipe-line; and, therefore, even though it be conceded that the pipe-line laid upon the ground and the two giants connected with the line are a part of the realty, nevertheless the tools, the pipe valve, the 2,000 feet of loose pipe and the disconnected giants are personalty.

2, The statute provides that sales of real property shall be made at the courthouse door, while sales of personal property capable of manual delivery, and not in the possession of a third person, shall be within the view of those who attend the sale: Section 238, L. O. L. The statute also provides for the posting of three notices not less than ten days successively in the case of personal property and for both publishing in a newspaper and posting of a notice for four weeks in the case of real property. The Code does not contemplate a sale of realty and personalty en masse but it is plain from every provision of the Code that the personalty must be segregated and sold separately from the realty. Camp could not in any event redeem the personal property; and yet if the order appealed from stands he could not know how much to tender for the redemption of the realty. If obliged to tender the whole purchase price it would be equivalent to compelling him to pay for the redemption of the realty “the amount of the purchase money” of both the realty and personalty, when the statute only contemplates payment of the amount of the purchase price of the property redeemed. Some of the property sold on execution was indisputably personal property and hence a resale will be necessary.

The plaintiff contends that the pipe and giants which are connected together and laid upon the ground for use in carrying water from the ditches are real property while the defendants insist that they are still personalty; and, since the mortgaged property must be resold, it becomes necessary to determine whether the joints of pipe and giants were transformed from personalty into realty when the owner of the land connected them together and laid them upon the ground for use in placer mining. The pipe and giants are essential for hydraulic mining operations] Placer mining requires water; pipes are necessary to carry the water; and giants are essential to apply it. A placer mining claim without water is only a site for a mine. It is a mere prospect. The pipe and giants were not intended to be used in some employment distinct from the use of the soil but they were placed in position so that the owner could work the ground.

3. The old rule that all things annexed to the realty become a part of it has been much relaxed. Annexation is not the sole test for determining whether a fixture is removable or irremovable. The line between removable and irremovable fixtures is sometimes so close and difficult to ascertain that it is impossible to frame a precise, unbending and infallible rule which can be applied to all cases. Each case must depend largely upon its own special facts and peculiar circumstances: Oregon Ry. & N. Co. v. Mosier, 14 Or. 519, 520 (13 Pac. 300, 58 Am. Rep. 321); Helm v. Gilroy, 20 Or. 517, 522 (26 Pac. 851). In the celebrated case of Teaff v. Hewitt, 1 Ohio St. 511 (59 Am. Dec. 634), the conclusion was reached that there could be no one test by which to determine in all cases whether a chattel had become a part of the freehold, but that it required the united application of the following tests:

(1) Real or constructive annexation of the article in question to the realty.

(2) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected.

(3) The intention of the party making the annexation, to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been made.

This court, as well as the courts in mány other jurisdictions, has approved the formula adopted in Teaff v. Hewitt, 1 Ohio St. 511 (59 Am. Dec. 634); 19 Cyc. 1037; Henkle v. Dillon, 15 Or. 610, 614 (17 Pac. 148); Helm v. Gilroy, 20 Or. 517, 522 (26 Pac. 851); Honeymam v. Thomas, 25 Or. 539, 540 (36 Pac. 636); Matthiesen v. Arata, 32 Or. 342, 346 (50 Pac. 1015, 67 Am. St. Rep. 535); Alberson v. Elk Creek Mining Co., 39 Or. 552, 558 (65 Pac. 978); Blanchard v. Eureka Planing Mill Co., 58 Or. 37, 40 (113 Pac. 55, 37 L. R. A. (N. S.) 133); Johnson v. Pacific Land Co., 84 Or. 356, 361 (164 Pac. 564); Gates v. Public Service Commission, 86 Or. 442, 451 (167 Pac. 791, 168 Pac. 939).

Annexation, actual or constructive, is an essential element. Pure examples of constructive annexation are found in cases where after having been actually-annexed an article is severed from the realty for some temporary purpose. There are a few cases, sometimes called cases of “ideal annexation,” like Byrne v. Werner, 138 Mich. 328 (101 N. W. 555, 110 Am. St. Rep. 315, 69 L. R. A. 900); Rahm v. Domayer, 137 Iowa, 18 (114 N. W. 546, 15 L. R. A. (N. S.) 727), and Patton v. Moore, 16 W. Va. 428 (37 Am. Rep. 789), which hold that the intention to devote a chattel to the uses of realty accompanied with the mere act of bringing it on the realty amount to annexation; but in most jurisdictions this doctrine of “ideal annexation” is rejected: 19 Cyc. 1044; Blue v. Gunn, 114 Tenn. 414 (87 S. W. 408, 108 Am. St. Rep. 912, 4 Ann. Cas. 1157, 69 L. R. A. 892). If a chattel is so annexed as to be incapable of severance without injury to the freehold it is usually conclusive that it has become part of the realty: Johnson v. Pacific Land Co., 84 Or. 356, 361 (164 Pac. 564). In the instant case the pipe and giants can be removed without impairing them or injuring the land and therefore the single element of annexation is not conclusive. As was said by this court in Doscher v. Blackiston, 7 Or. 144, 146: the courts in many of the states have abandoned the notion that to constitute an irremovable fixture the article must be attached to the land by bolts or nails or be imbedded in brick or stone, and

“the true rule now for determining whether a thing is to be regarded as a fixture or not is said to be to consider the character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intention of those concerned in the act.”

In the recent case of Johnson v. Pacific Land Co., 84 Or. 356, 361 (164 Pac. 564), it is said that, although annexation is an essential element to transform a chattel into an irremovable fixture nevertheless

“the extent and mode of actual annexation have but little weight except in so far as it relates to the nature of the article itself, the use. to which the same is applied, and other circumstances as indicating the intention of the party making the annexation.”

4. Although the pipe and giants are not so attached as to be conclusively a part of the realty, yet the attachment is sufficient to supply the element of annexation: Doscher v. Blackiston, 7 Or. 144, 146; 19 Cyc. 1040.

6. It must be conceded that the element of adaptation is present. This element is usually entitled to much weight especially when considered in connection with the element of intention; and as stated in Johnson v. Pacific Land Co., 84 Or. 356, 362 (164 Pac. 564),

“the tendency is to regard everything as a fixture which has been attached to realty with a view |o the purposes for which the realty is held or employed, however slight or temporary the connection between them.”

6. The intention of the party making the annexation is the most important element. The intention existing at the time of procuring the article in question, nor that which exists while the article is in transit to the realty on which it is to be placed, nor the secret intention with which it is affixed, does not govern; but the controlling intention is that which the law deduces from all the circumstances of the annexation. The intention is to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose and use for which the annexation has been made: Young v. Hatch, 99 Me. 465 (59 Atl. 950, 2 Ann. Cas. 374); Rahm v. Domayer. 137 Iowa, 18 (114 N. W. 546, 15 L. R. A. (N. S.) 727): Roseville Alta Min. Co. v. Iowa Gulch Min. Co., 15 Colo. 29 (24 Pac. 920, 22 Am. St. Rep. 373); Alberson v. Elk Creek Min. Co., 39 Or. 552, 559 (65 Pac. 978); 19 Cyc. 1046; 11 R. C. L. 1062.

7, 8. The relation and situation of the party making the annexation is an important factor and must be taken into consideration when attempting to ascertain his intention. The rule governing a grantor and grantee would likewise control a mortgagor and mortgagee and hence whatever would be an irremovable fixture as between a grantor and grantee would also be deemed realty as between a mortgagor and mortgagee. When an article is annexed by a tenant a more liberal rule is applied so that what would be deemed to be realty as -between a vendor and purchaser might be no more than a trade or domestic fixture as between a landlord and tenant. The difference in the relationship emphasizes the difference in the intention attributed to the party making the annexation. When additions are made to land by the owner the purpose is usually to enhance the value and to be permanent; but on the other hand when additions are made by a tenant they are usually made for a temporary purpose and not with a view of making them a part of the land; and consequently in order to encourage trade, manufacture and industrial pursuits, the tenant is generally allowed to remove what is apparently annexed to the freehold if affixed for the purpose of trade and not merely for the better enjoyment of the premises: Doscher v. Blackiston, 7 Or. 144; Johnson v. Pacific Land Co., 84 Or. 356, 361 (164 Pac. 564); Overman v. Sasser, 107 N. C. 432 (12 S. E. 64, 10 L. R. A. 722); Young v. Hatch, 99 Me. 465 (59 Atl. 950, 2 Ann. Cas. 374); Liscombe Falls Gold Min. Co. v. Bishop, 35 Can. Sup. Ct. 539 (2 Ann. Cas. 735).

9. If the annexation is not intended to he permanent an article of personal property will not be deemed realty; and for the purpose of discovering whether the annexation was intended to be permanent the degree and mode of annexation may be considered, and also whether the annexation is to make the chattel or the land more useful. Permanence does not imply that the annexation must be perpetual but it means as stated in 19 Cyc. 1047 “that the article shall, if actually affixed, remain where fastened until worn out, oT until the purposes of the realty are accomplished”*, or as said in Fisk v. People’s Nat. Bank, 14 Colo. App. 21, 27 (59 Pac. 63),

“that chattels may be permanently an accession to the land, a purpose that they should remain there forever, or even until they are worn out by use, is not necessary. It is sufficient that their situation is to be as permanent as the business in which they are to be used.”

10. It is probable and we may assume that the pipe and giants were purchased by the owner and placed upon the ground with the intention of using them for the sole purpose of washing the 680 acres of placer mining ground and without any expectation of after-wards carrying them away or of entirely removing them from the premises; and yet this assumption is not determinative, for the same assumption could also be made with respect to the picks, mattocks and other tools. The very purpose for which the pipe-line was used necessarily involved annual or possibly more frequent changes in the line, because the pipe-line is taken to the work, wherever that may be, instead of the work to the pipe-line. The pipe-line must be extended from time to time so as to keep pace with the progress made in washing the ground in any given area; or when the place of work is changed the pipeline must be changed. The joints of pipe are not riveted together but they' are connected after the fashion of an ordinary stove-pipe. In brief, the pipe and giants were moved from time to time and from place to place on the premises as convenience might require; and as stated by one witness the pipe “is reset usually every year, being transferred from one place to another, wherever we want to carry the water.” The pipe-line was nothing more than a large and heavy implement. Although heavier and consequently more difficult to move, the pipe-line may appropriately be likened to a garden hose. The mortgagor did not intend to make the pipe and giants a permanent accession to the land and therefore the pipe-line did not become1 an irremovable fixture: 19 Cyc. 1047; Rogers v. Brokaw, 25 N. J. Eq. 496; Feder v. Van Winkle, 53 N. J. Eq. 370 (33 Atl. 399, 51 Am. St. Rep. 628); Atlantic Safe Deposit & Trust Co. v. Atlantic City Laundry Co., 64 N. J. Eq. 140, 145 (53 Atl. 212). The order appealed from is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and Remanded.

Bean, Benson and Burnett, JJ., concur.