122 Neb. 259 | Neb. | 1932
On September 9, 1925, Thomas H. Dohrse purchased all of the stock of the French Dry Cleaning Works, located in
The appellant is the owner of the fee, and erected a new building upon the premises, at a cost of some $12,000, and the lease gave the appellees the option to purchase the building for the sum of $15,000. While the building was being erected, the question of the installation of a large boiler for use in heating the building and in furnishing steam necessary to operate the cleaning plant arose between the parties. As the lease provided for a rental of 1 per cent, a month upon the cost, if a new boiler was installed, under the option to purchase the tenant would pay 1 per cent. a. month of its new cost, or a total of 60 per cent, plus 100 per cent, of its cost if he elected to purchase the property at the end of his lease under his option, thereby making him pay 160 per cent, of the cost of the boiler that would have been used for five years; and thereupon the tenant elected to buy the boiler and install the same, and was allowed a credit of $300 for the value of the old boiler. The boiler was set up before the walls were built around it, and a section of such boiler' room wall will have to be taken down and replaced, at the expense of the tenant, to remove the boiler. The present value of said boiler is $500.
The sole question to be decided in this case is: Did the boiler in question, together with the pipes attached thereto, become a part of the real estate, and therefore the property of the plaintiff, or did it retain its character as personalty?
In the case at bar, the tenant did not succeed in removing the fixtures before the termination of the lease; but, by an agreement between the litigants and their attorneys in writing, it was stipulated that whatever rights the tenant had for the purpose of removing said boiler would be granted to him after the expiration of the lease, and such fact alone would not bar the recovery of the tenant in the case.
It appears from the record in this case, and the evidence taken, that it was the clearly-expressed intention of the tenant, at the time he purchased and installed the new boiler, that the same would be and remain a trade, fixture and one of his business appliances in the cleaning establishment; and this court finds that the tenant had a right to remove the same, and the decision of the district court in dissolving the temporary injunction, and declaring that the boiler ,was a trade fixture and might be removed by the tenant, is right and is
Affirmed.