AARON D. TREADWAY, Respondent, v. WILLIAM SHARON, et al., Appellants
Treadway v. Sharon
AARON D. TREADWAY, Respondent, v. WILLIAM SHARON, et al., Appellants.
AARON D. TREADWAY, Respondent, v. WILLIAM SHARON, et al., Appellants.
Fixtures — Steam Saw-Mill Boiler, Engine and Machinery. Where a steam saw mill, put upon land for the purpose of sawing up the timber upon it, had its foundation planted in the ground, and the engine, boiler and machinery were attached by bolts, belts, shafts and pipes to the frame work, which was built upon such foundation: Held, that such boiler, engine and machinery-were fixtures.
. Intention not Material on Question of Fixture or not Fixture. The fact that there is but a limited supply of timber on land upon which a steam saw-mill is put, and that it is the intention to remove the mill as soon as the timber is sawed, does not render the boiler, engine and machinery, otherwise fixtures, any the less such.
0APBN vs. Peckiiam, 35 Oonn. 88, and other oases, holding that on a question of fixture or not fixture, intention is a universal criterion and controling test, are in direct antagonism with well established principles.
Principle of Tenant’s Right to Remove Fixtures. The law indulges a tenant with the right of removing fixtures during his term, not out of any regard to his intention, but by way of exception to a rule which 'would otherwise work hardship or retard improvement.
Removal after Patent, of Fixtures erected on Public Land. Where occupants of public land erected fixtures, consisting of a saw-mill, thereon, but failed to take any steps to acquire the title to the same; aud afterward the land was selected by the state, and (not being applied for by the occupants within six months) was duly sold and patented to other parties, subsequent to which the occupants removed the mill: Held, that they were trespassers, and liable in damages for such removal.
Gold Coin Judgment in Trespass Case. A judgment for gold coin in a trespass case is in conformity with- the statute, (Stats. 1869, 228) which is constitutional.
Custom — Insufficiency of Proof. Where a custom was claimed to exist in relation to the machinery of saw-mills, that after being put up on timber land and the timber in the vicinity all sawed it was moved away to other land- — the object of said alleged custoni being to show that certain saw-mill machinery ■was not a fixture — and testimony was given by a single witness, that “saw-mills, in this country, are built to saw the timber in their vicinity, and when the timber is sawed the machinery is moved away and the frame left, as a general thing;” and the court found that the machinery in question was a fixture : Held, that even if a custom could be proved by one witness, the finding against the alleged custom should not, under the testimony here, be disturbed.
Appeal from the District Court of the Second Judicial District, Ormsby County.
This was an action against William Sharon and Joseph A. Ri'gby to recover damages for alleged trespass in removing a saw-mill, including its boiler, engine and machinery, from the southeast quarter of section 34, township 16 north, range 19 east, in Ormsby County. The land is the same which was in controversy in the ease of O'Weale v. Cleveland, reported in 3 Nev. 485. Cleveland, who had been in possession of it, appears to have transferred the occupancy to John R. Knox & Co., Avho put up the saw-mill in 1867, and in the same year sold out to Mr. Sharon. The state selected the land July 3d, 1868 ; and the patent to TreadAvay Avas issued October 27th, 1869. The mill was removed in November, 1869. There was a judgment for plaintiff in the sum of $3,500, gold coin, from which, a motion for new trial having been denied, this appeal was taken.
On the trial Thomas Andrain, a witness for plaintiff, on cross-examination, testified, among other things, as follows ; “ I owned saw-mills in El Dorado County, California. I know how saw-mills are built in this country ; they are built to saw the timber in their vicinity; and when the timber is sawed the machinery is moved away and the frame left, as a general thing. The mill in dispute is one of those I spoke of.” The foregoing was the only proof of custom.
JSillyer, Wood ¿" Deal, for Appellants.
I. The property was personal, and belonged to defendant. It formed no part of the realty, and did not vest in the plaintiff by his patent. Whether a fixture passes with the land, depends upon various considerations, as the circumstances under which it was placed upon the land, the intention of the party who placed it there, the character of the fixture and its use, the means by which it is attached to the land, and whether it can be removed without material injury to the freehold.
II. At the commencement of this action defendants were in possession, claiming the right to the premises. They entered by permission of the state. Their title was good against all the world except the state at the time the patent was issued to plaintiff. The relations that existed between the state and defendants were those of landlord and tenant, and it was a tenancy under an implied agreement that defendants might remove all improvements placed upon the land by the tenants.
III. The machinery was placed in the mill for the purpose of sawing the timber that could be sawed with profit, and then of being removed to some other locality, there to be again used for the same purpose. It had been used in the same manner before, it was placed in the mill. Whatever conflict there may be in the books in regard to fixtures, there is no respectable authority to support the position that trade fixtures cannot be removed by the tenant. It is the custom in this state to remove such machinery.
IV. It would be disastrous to the interests of this state if those who have settled upon public lands may be deprived of costly machinery placed by them upon the public land for manufacturing purposes, by those who have the shrewdness to ascertain the fact that such machinery is upon the land, and that the land is for sale. This state has been settled and its resources developed by its pol icy of permitting its lands to be occupied by the first comer and protecting him in his possession. It certainly ought not to be permitted to take away the property of such settler who has entered under its. permission and made improvements under its encouragement.
V. There was error in entering judgment for gold coin. This is not a case of contract. Legal tender notes can be paid in satisfaction of any debt except in the ease of one created by specific contract. The legislature has as much authority to enact that all payments for work done shall be in gold commas in the case of damages.
A. O. milis, for Respondent.
I. This is,an action in a 'state court, the remedies in which the Federal Government has no control over. Rut when defendants tender currency in satisfaction of the judgment, it will be time enough to raise the point that legal tenders will and ought to satisfy it.
II. The mill was a part of the land; its foundation was^ buried or dug into the ground; the boiler bricked over; the pipe connecting boiler and cylinder fastened by screws and solder, and.the* foundation of the cylinder let into the ground, and the whole connected with the other machinery by belts and shafts, and attached to and under the general building.
The mill ivas part of the realty, and passed with it. 14 Cal. 59 ; 20 Wend. 639 ; 35 Barb. 58 ; Pyle v. Pennoch, 2d Watts &' Leigh, 390 ; 4 Humph. 431; 3 Hill S. C. 331; 11 N. II. 540 ; Parren v. Stachpole, 6 Greenl. 154.
III. The proposition that defendant Sharon AYas a tenant of the state, and hence had the right of removal, as trade fixtures, cannot be maintained. Defendant fails to shoAY any compliance - Avith any laAv of Nevada which would entitle him to possession of the land for a moment. He was a naked trespasser, stripping the state land of its timber. Because in every case cited,, the relation of landlord and tenant existed beyond__any question ^ and Avhere removal was tolerated at all,'it Avas always Avithin the term and solely in the interest of trade; and the rule reiterated, as it was at common law, that, as between heir and executor, grantor and grantee, the strictest construction was given to the doctrine of fixtures. What becomes, then, of the doctrine of intention, as referred to in 1st Ohio St. 511 ?
IV. Before intention can be considered as having any bearing upon a question of fixtures, the relation of landlord and tenant must be clearly established. There must be some privity of estate between the party claiming the right of removal and the party resisting the claim, or those claiming under such party.
QlarJce Wells, also for Respondent.
By the Court,
G-arber, J.:
The boiler and engine in controversy were actually and firmly annexed to the soil' — solo infixa, in the strictest sense of the term; and the other articles, if not actually, were constructively annexed, and follow the nature of the principal portion of the machinery, as essential parts of one entire combination. The machinery was'" annexed to the freehold for the better enjoyment of the freehold, attached to the soil for the soil's -use, and essential to the inheritance for its only valuable purpose." It therefore became a fixture. It is true, the parties testified that they erected the mill with the intention of removing it. But such evidence was palpably inadmissible ; and although admitted without objection, is entitled to no weight whatever. Wadleigh v. Janvrin, 41 N. H. 512.
It is urged that an intention to devote these articles as a permanent accession to the freehold, -jvas a prerequisite to their conversion from chattels into realty; and that, as there was only a limited supply of timber in the vicinity of this mill, which could be hauled to and sawed by it without loss, such intention is not only not proved, but the contrary is clearly inferable.
Now, every saw-mill may, sooner or later, exhaust the available timber in its immediate vicinity — yet, it would hardly be contended that a saw-mill, as such, is always and necessarily a chattel. That all the available ore in a quartz lode maybe extracted, is as true as that all the available timber near a mill may be sawed; and it rarely, if ever, happens that the machinery first erected on a ledge is suited or intended to do the work of hoisting and pumping from the deeper workings, which favorable developments may induce. Yet ever since the great case of Fisher v. Dixon, it has been settled law, that machinery annexed to the soil for mining becomes part of the soil; and in Merritt v. Judd, 14 Cal. 60, a small steam engine and pump were adjudged to be fixtures. If it was the intention, in the latter case, to work the ledge to any great depth, (it must also have been the intention to 'replace this small engine and pump with others, larger and of greater power. It cannot be, then, that an intention to remove, at any time, however remote— for instance, when the greatest depth consistent with profitable working shall have been attained, or whenever more powerful \ machinery must be used — controls the act of annexation, or rebuts | the presumption that thereby the chattel is made a part of the land. Then, where shall the line be drawn ? If a steam pump calculated to drain the mine to a depth of five hundred feet, or a mill with timber for three years' sawing, remain chattels, with how much power would the engine, and with how much timber would the mitlr — ^ become a fixture ? The millt in question, a large, w'ell equipped, and perfectly appointed steam mill, was actively operated nearly three years. The same body of timber might have supplied, a smaller mill, poorly constructed, for many years. Would the latter become real estate, and the former remain a chattel ? That it is1 the annexation, and not the intention, which controls in such a case as this, is shown by the law as to young trees, temporarily set out in a nursery and intended for transplantation and sale. These are part of the realty .; at common law, go with the land to the heir, and pass to a vendee of the land. Maples v. Mallon, 31 Conn. 598; Lee v. Risdon, 7 Taunton, 188; Smith v. Price, 39 Ill. 28.
If this machinery was personal property after annexation, common law larceny could have been committed of it. But not even growing corn is the subject of such felony, because it is " annexed to the freehold." 1 Hawkins P. C. 148. The cases cited for appellants, (one of the latest and best reasoned of which class is Capen v. Peckham, 35 Conn. 88) are shown to be in direct antagonism with well established principles, by the very illustrations relied upon to prove that, in questions of this kind, intention is a universal criterion and controlling test. For if, in order to constitute an article a fixture, it must appear that a permanent accession to the freehold Avas intended; and if, in cases arising between landlord and tenant, a presumption arises from the relation of the tenant to the property, that he did not intend to make trade fixtures erected by him a part of the realty, thus making a donation of them to the OAvner of the soil; it should follow, as these cases assume, that such trade fixtures retain their'quality of chattels, and are no part or parcel of the realty.
But Ave take the law to be, that trade fixtures do become part of the realty, whatever intention to the contrary on the part of the tenant erecting them may be inferred from his limited interest in the land. Lee v. Risdon, supra; Coombes v. Beaumont, 5 B & Ad. 72; MacIntosh v. Trotter, 3 M. & W. 184; Powers v. Dennison, 30 Vt. 752; Mott v. Palmer, 1 Comstock, 564; Pemberton v. King, 2 Dev. 376; Reynolds v. Shuler, 5 Cowen, 323; Boyd v. Shorrock, L. R. 5 Eq. 72.
Although part of the realty, the law indulges the tenant with the right of removing them during his term, not out of any regard to his intention, but by Ayay of exception to a rule Ayhich would other-' wise work hardship or'retard improvement. For the same-reason, they could be taken under a fi. fa., and passed to the executor, thus extending the benefit of the exception to the creditors of the lessee. Just as emblements, though part of the realty so as to pass the vendee or devisee of the land, and to belong to a successful plaintiff in ejectment, ^ent at common laAV to the executor and were subject to levy, by reason of an exception introduced for the benefit of the creditors of tenant in fee. 2* Black. Com. 404. Trade or removable fixtures, erected by a tenant for life or years, pass by a grant of the land, or a mortgage or assignment of the term or lease — by instruments in which no mention of them, eo nomine,.is made. Why ? Because they are part of the realty described,. If still chattels, they Avould no more pass than a horse of the tenant standing in a stable on the land.
To apply the other illustrations used in Capen v. Peckham to this case, suppose it had been found that the articles herein question were annexed for the single purpose of steadying them for more convenient use as chattels, without any intention to benefit or improve the realty; and that they were removable without any appreciable damage to themselves or to the freehold. If, as is asserted in Capen v. Peckham, these findings would " show for what purpose the annexation 'of the articles was made, that it was done with no design to make them part of the realty," it follows that such design, instead of being " material and important," is simply irrelevant. For the addition of the supposed findings to those already in the record would not vary the result. The machinery in question would still be deemed a fixture. Climie v. Wood, L. R. 4 Exch. 328; S. C. L. R. 3 Exch. 259; Longbottom v. Berry, L. R. 5 Q. B. 138; Mather v. Fraser, 2 Kay & Johns, 548; D'Eyncourt v. Gregory, L. R. 3 Eq. 382: Johnson v. Wiseman, 4 Met. (Ky.) 357.
These fixtures were not removable by appellants, either as tenants or by custom. At the time the mill was erected, and for more than a year thereafter, the land described in the complaint was public land of the United States and consequently, during all that time, the parties erecting and running the mill were naked trespassers. The mill passed to the state of Nevada, with the land, on the third day of July, 1868. Appellants claim that, by the state statute, they, as occupants, had the right of preemption for six months after July 3d, 1868 ; and that hence their position was analogous to that of a party holding possession under agreement to purchase after the agreement is ended; and, therefore, analogous to that of a tenant at will of the state. If this be conceded, the supposed tenancy at will must have had its inception on the third of January, 1869, more than a year after the completion of the mill, and was therefore a tenancy of the mill, as well as of the land.
The right of removing trade fixtures has been liberally construed in favor of the tenant: yet, we believe, never so liberally as to embrace, not only those erected during the term, but also such as constitute a portion of the thing demised.
The most appellants can claim is, that the statute was passed in contemplation of the selection of the land by the state, and the mill was erected on the faith of the right of preemption given by the statute; and that, consequently, they and their predecessors occupy the position of one entering into possession of, and erecting trade fixtures upon land, under a right to purchase subsisting at the time of the erection, but afterwards forfeited and lost by his own laches. Such an occupant has no greater right to the fixtures, as against the purchaser whom he'suffers to acquire the title to the land, than has the vendor of land as against his vendee. King v. Johnson, 7 Gray, 240; Hemenway v. Cutter, 51 Maine, 497; McLaughlin v. Nash, 14 Allen, 136.
Thpn, whether the mill was erected by trespassers on the land, or by parties clothed with a right of preemption, the result is the samp. On eithér view, the question is, would the machinery have passed to plaintiff, if, instead of obtaining a patent from the state, he had taken from the appellants a deed for the land? We think it would have passed, under the general rule that, Avhen .a chattel has been affixed to the soil, it passes with the soil. Between landlord and tenant this rule was relaxed, to relieve the tenant from the dilemma of submitting, either to the inconvenience of conducting his business with articles capable of use without annexation, or to the injustice of surrendering to his landlord, at the expiration of the term, articles unfit for use unless so fastened and steadied as to become fixtures. But 'this relaxation is strictly an exception to the general-rule, 4o bo |extended only to cases within the. policy and exigency which gave rise to it.
The appellants were ijot placed in the dilemma from which the exception rescued the tenant. All they had to do ivas, to avail themselves of their right to acquire the title to the land. Failing in this, they can with as little reason complain of the rigor of the rule of. law" as could a vendor, failing to avail himself of his right to disannex before selling, or to except the fixtures in the deed. As to the custom relied on, even if a custom can be proved by one witness, we cannot say the court below erred, in finding, as presumably it did, against the existence of a custom evidenced as this was. Bissel v. Ryan, 28 Ill. 556, and cases cited.
On the question of value, there was evidence to sustain the finding, irrespective of that based on profits.
The finding and judgment'for gold coin conform to and are author ized by the statute. (Stats, of 1869, 228, Sec. 202.) Of the constitutionality and validity of that statute, we entertain no doubt, and shall adhere to our former decision upholding it.
The judgment and order appealed from are affirmed.