114 Ga. 765 | Ga. | 1902
James B. Wrigbt filed an equitable proceeding in the superior court of Glynn county against John E. duBignon,in which he sought to restrain the defendant from removing certain fixtures placed by him on a lot of land which was owned by the plaintiff. It was alleged that the fixtures which the defendant sought to remove were permanent and such as were attached to the freehold. The defendant, in his answer, admitted that it was his purpose to remove the fixtures, and insisted that he had a right to do so, because he had rented the lot from the plaintiff for. a term of years, and the fixtures were in the nature of conveniences to the house which he proposed to occupy as a dwelling for himself and family, and they had been erected by him with the intention of removing them at the expiration of his term, and plaintiff had consented that he should remove them at that time. The case was submitted to a jury; and while the evidence was in some respects directly conflicting, that of the plaintiff tended to show that he was the owner of the land and rented it to the defendant for a term of three years; that the defendant desired to have certain improvements done on the house, to which the plaintiff agreed, and gave him a check for one hundred dollars; that in addition to certain repairs placed on the interior of the house the defendant erected a servant’s room attached to the main body of the dwelling, attached to the roof certain galvanized iron gutters as receptacles for rain-water, laid under the ground iron pipes for the purpose of conducting water and maintaining a fountain, made a cement walk, and other improvements; that there was no agreement, expressed or implied, between the defendant and himself that these fixtures should be removed.by .defendant at the expiration of his term of lease; and that their removal would be an injury to the freehold. On the contrary, the evidence for the defendant tended to show, in relation to the improvements and fixtures which were constructed, that the plaintiff sent defendant a check for one hundred dollars to have certain repairs made and work done jn the interior of the house, but declined, on defendant’s application, to put up a servant’s room in the yard, and defendant then told the plaintiff that if he would not build the servant’s house, as he (defendant) was compelled to have one, he would do so himself, which
There was much evidence introduced by the respective parties, but the above brief outline is, in view of the appliqation of the legal principle which we think controls the case, sufficient for the purposes of this decision. The jury returned a verdict for the defendant, giving him the privilege of removing from the premises, the servant’s house, the gutters, and the water-pipes; arid requiring him^to deposit the suiri'of fifty dollars with the court, to coyer the expense of repairs necessary to put the house in as good condition as it was'before; and a decree was entered accordingly. The plaintiff submitted a motion for a new trial, on a number of grounds. Inasmuch, however, as the sole question involved in the case relates to the right of a tenant to remove from a dwelling-house fix--1"" tures of the character indicated which he had placed thereon and for which he had paid with the intention of removing them, it is unnecessary to consider and pass upon the grounds of the motion seriatim, but we will address ourselves to a consideration of the question of the right of the tenant so to remove. It will be noted, from the statement of the case made above, that the answer of the defendant sets up, among other alleged facts, that the plaintiff had agreed with Mm that he should have the right to remove the improvements or fixtures at the termination of his lease. We have diligently searched the brief of evidence to ascertain whether this averment in the petition was supported by the evidence of any
So that, in interpreting this section of the code, we have no difficulty in arriving at the conclusion that the section must be construed to refer only to trade fixtures. So interpreting it, it is in entire harmony with other sections of the code first above quoted. Not only so, but we are also in entire harmony with the great current of adjudicated cases, as well as the conclusions of all modern text-writers on this subject. Chief Justice Holt once ruled that trade fixtures might be removed by the tenant during his term, not by virtue of any special custom, but by the common law in favor of trade and to encourage industry. Mr. Taylor in his treatise on Landlord and Tenant, vol. 2, § 545, says: “ As regards fixtures, it may be stated in general terms, that a tenant may take away whatever he erects for the purpose of carrying on trade, whether it be machinery or buildings, even though affixed to the soil or freehold. To the same effect see Ewell on Fixtures, 84,8 9,91. Under the principle above stated it has been ruled that a tenant who was a soap-boiler, and who for the convenience of his trade put up vats and copper tables upon' the demised premises, might remove them during his term. Similar adjudications have been made as to a baker’s oven, salt-pans, carding-maehines; steam-engines and boilers, cider-mills, furnaces, ,ice-houses, platform-scales, copper-stills; counters or counting-rooms nailed to the floor; heavy machinery, such as a trip-hammer, forge-blower, or the like. And there can now be no doubt that the ancient rule in relation to fixtures has been so modified as to trade fixtures that a tenant may remove such from the leased premises during his term. For a very full discussion of the doctrine of trade fixtures, seethe opinion of Mr. Justice Cobb, in the case of Charleston Railway Co.v. Hughes, 105 Ga. 23, 24. The defendant, however, can gain nothing under this view of the law, because the fixtures which he sought to remove were permanentin character, audit was not claimed that they came under the definition of trade fixtures.
Judgment reversed.