99 Me. 465 | Me. | 1905
Trespass by mortgagees against mortgagor for taking and removing from the mortgaged premises a hot water heating apparatus consisting of a heater, radiators and piping, and a copper hot water tank and fixtures. The defendant mortgaged his dwelling house and the land on which it stood to the plaintiffs, April 8, 1902. At that time all the property mentioned had been set up by the owner and was in use in the house. The heater was set on the cellar
It was said in Hayford v. Wentworth, 97 Maine, 347, a case between landlord and tenant, that a chattel is not merged in the realty unless there be physical annexation, at least by juxtaposition, adaptability, and an intention on the part of the person making the annexation, to make it a permanent accession to the realty. The rule thus stated is in accord with the general run of authorities. And it cannot be questioned, we think, that a steam heating apparatus and a hot water boiler connected with sink and bath room in the dwelling house, as in this case, are clearly within the rule, as to annexation and adaptation. It only remains to speak of intention.
In Readfield Tel. & Tel. Co. v. Cyr, 95 Maine, 287, it was declared that while it was impossible to reconcile all the cases upon this subject, “the most modern and approved rule appears to be to give special prominence to the intention of the party making the annexation.” Then after noticing some apparent exceptions to the rule the court said, “they will be found to involve no real conflict with the rule above stated, when we remember that the intention which is material is not the hidden, secret intention of the party making the annexation, but the intention which the law deduces from such external facts, as the structure and mode of attachment, the purpose and use for which the annexation has been made and the relation and
The reason for distinction is well stated in Cooley on Torts, 2nd JEd. pp. 499, 500, 501, and we adopt the language of the learned author of that work, who says, “ The actual or presumed intent on the part of a party attaching a chattel to the realty that it shall constitute a part of the realty, or on the other hand that it shall remain a chattel, is usually the most important circumstance to be considered in determining the fact; and if no one were concerned with the question but the party by whom the annexation was made it might well be suffered to be controlling in all cases. But as the question of ownership often depends upon the question whether a fixture is removable or not, and men make purchases and accept liens upon property, supposing it to be of that nature, either real or personal, that appearances would indicate, it would be not only impolitic, but in many cases unjust, to suffer a secret intent to control where appearances would indicate the existence of an intent of a different nature. The law, therefore, usually acts upon the presumed rather than upon any actual intent.....If a building is erected by the owner of a freehold by way of improvement thereof, and apparently for permanent use and enjoyment with it ... or any erection whatsoever made which apparently is calculated to increase the permanent value of the estate for use and enjoyment, a reasonable presumption arises that the owner intended to make them a part of the realty, and the law accepts this intent as conclusive, and considers them real estate from the time they are constructed or affixed. The owner’s deed, mortgage or lease of the land will convey them as a part of it, and when he dies they pass with the land to his devisee or heir at law. . On the other hand,
In Teaff v. Hewitt, 1 Ohio St., Rep. 511, a frequently cited case, the court, after saying that intention of the party annexing is one of the requisities for determining whether a chattel had become merged in the realty, added : — “This intention being 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.” Parsons v. Copeland, 38 Maine, 537.
As between mortgagor and mortgagee, then, it is clear from the authorities that annexations affixed to an estate by the owner before mortgage, of such character as are apparently calculated to be for the permanent use and enjoyment of the realty, are presumed to be intended to form a part of the realty, and pass with it by mortgage. And such a description certainly includes the heating apparatus and boiler in controversy here. It was covered by the mortgage, and it was a trespass for the mortgagor to remove it. Linscott v. Weeks, 72 Maine, 506.
The only evidence relating to value is found in the testimony respecting the original cost, the length of time used, and the apparent condition at the time of removal. After making all proper allowances for depreciation, we think the plaintiffs are entitled to recover three hundred dollars.
Judgment for plaintifs for $300.