86 Cal. 335 | Cal. | 1890
1. Appellant is the owner in fee of lot L, block 784, New San Diego. He leased the same for the term of five years to the defendant Apfield, who took one Newkirk into partnership with him, and they proceeded to erect a four-story building upon the lot, upon which divers liens were filed for labor and materials, upon which suits were brought, four of which suits were consolidated and tried together, resulting in judgments in favor of the claimants, from which judgments the defendant Low appeals, also from an order denying his motion for new trial. The lease contains the following provision: “No buildings or improvements shall be removed until the taxes shall be fully paid, and until all rents and indebtedness have been paid. And at the expiration of said term the said party of the second part will quit and surrender the said premises in as good state and condition as reasonable use and wear thereof will permit (damage by the elements alone excepted).” The demised premises are described as being “ all that real property,” etc., “ with the appurtenances,” etc.
There is no clause in the lease either reserving or granting to the lessee the right to remove any buildings
Again, as we have before said, there was neither a reservation of right nor a grant of right to remove any buildings; but, on the contrary, there was an express covenant to surrender, at the expiration of the term, “in as good state and condition as reasonable use and wear thereof will permit, damage by the elements alone excepted.” This at least was an express provision negativing the right to remove. “A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last section.” (Civ. Code, sec, 820.) The preceding section, being the one referred to as “the last section,” gives him the right to “occupy the buildings, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy.” Nowhere does the code give the right to remove buildings, unless that right is expressly granted or reserved in the instrument creating the tenancy, or the buildings are such, or so erected, as not to partake of the realty. “ When a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed, except as provided in section 1019, belongs to the owner of the land, unless be chooses to require the former to remove it.” (Civ. Code, sec. 1013.) “ A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.” (Civ. Code, sec. 1019.) This would hardly authorize the removal of a four-story building erected to be used for stores and as a lodging and boarding house. It may
2. Appellant claims that it was error to exclude the evidence of the defendant Apfield as to his intention in reference to a future removal of the building. While
3. There was no error in refusing to continue the case, and make Newkirk’s executor a party. It was a partnership of Newkirk and Apfield that erected this building. No judgment was sought against the estate of Newkirk, and the surviving partner alone was fully authorized to defend for the partnership interest. Besides, Newkirk’s interest had already been assigned before his death, and his assignee was also a party to the action.
4. The objection to the lien of the West Coast Lumber Company, filed May 26th, is not well taken. It shows upon its face that the original charge was made against Newkirk alone, because the claimant did not know at that time that Apfield was interested in the building, or a partner of Newkirk's, but that before the claim of lien was filed the company learned the fact, and the claim was filed against the firm. Defendant was not misled or prejudiced by reason of the claimant stating the whole fact in its notice of lien. The remaining objections to the claims of liens all go to the question of the time of filing, — whether the same were filed at the proper time or not. The record is not very clear as to when this building was finally and fully completed. As we read it, the last of the liens was filed within the time required by law after the last work was done on the building.
On the other hand, some of them would seem to have been filed before all work had ceased, but not until the building was so nearly completed as that only “ trivial
5. It is claimed that the court erred in finding that the building wa.s constructed with the knowledge and consent of the appellant. The finding of consent was unnecessary, and may be treated as surplusage. The finding that it was done with his knowledge is in accordance with the admissions of the pleadings.
Judgment and order affirmed.
Paterson, J., and Sharpstein, J., concurred.
Hearing in Bank denied.