American Steel & Iron Co. v. Charles Taft

• Decision Date: 06 May 1938
• Parties: AMERICAN STEEL & IRON CO. v. CHARLES TAFT ET AL
• Court: Vermont Supreme Court

199 A. 261

109 Vt. 469

AMERICAN STEEL & IRON CO. v. CHARLES TAFT ET AL

Supreme Court of Vermont

May 6, 1938

February Term, 1938.

Railroad Tracks, etc., Removable on Abandonment of Right of Way---Rule for Determining What Constitutes Trade Fixtures---Replevin or Trover as Remedy for Recovery of Rails, etc.---Separate Suits against Five Defendants Held Inadequate Remedy---Joinder of Parties in Chancery to Avoid Multiplicity---Purchaser of Rails, etc., Held Entitled to Injunction to Restrain Interference by Landowners with Removal Thereof.

1. Tracks, railroad structures and other railroad equipment do not become part of realty and may be removed by railroad company or its assigns on abandonment of right of way or within reasonable time thereafter.

2. In determining what constitutes trade fixtures, general principle involved is distinction between business carried on in or upon premises and premises themselves, the former being personal in its nature, and articles that are merely accessory to the business and have been put upon premises for this purpose retaining personal character of principal to which they are subservient, while articles which have been annexed to premises as accessory to land, without regard to business there carried on, become subservient to realty and acquire its character.

3. Since rails, rail accessories and ties purchased from State as owner of abandoned railroad were chattels, purchaser could resort to replevin or trover to recover them from owners of land through which the road passed and could not resort to equity if either of such remedies was as practical and as efficient to the ends of justice as remedy in equity by way of injunction.

4. Where there were five defendants in suit in equity, all similarly situated and there was only an issue of law involved which was determinative of rights of all parties separate suit at law against each defendant would afford plaintiff inadequate remedy.

5. In chancery, one who has a common right against several persons establishment of which would otherwise require separate suit against each, may join such persons in one suit, not as joint tort-feasors in common law sense but in order to avoid multiplicity of suits.

6. Purchaser of rails, rail accessories and ties of abandoned railroad was entitled to bring suit in equity to restrain several owners of lands through which railroad passed from interfering with removal of such rails, etc., where facts were not in dispute and basic issues involved questions of law only, which would have to be decided by presiding judge in separate jury suits if tried at law.

APPEAL IN CHANCERY. Bill to restrain interference with removal from abandoned railroad of rails, rail accessories and ties brought by purchaser thereof against owners of lands through which railroad passed. The defendants demurred, chiefly on the ground that the plaintiff had an adequate remedy at law. Heard on bill and demurrer at the April Term, 1937, Windham County, Sherman, Chancellor. Decree overruling the demurrer and making permanent the temporary injunction which had been issued. The defendants appealed. The opinion states the case.

Decree affirmed.

Frank E. Barber, Ernest W. Gibson, Jr., and F. Elliott Barber, Jr., for the defendants.

Neil D. Clawson and Harold E. Whitney for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

SHERBURNE

The plaintiff has purchased from the State of Vermont, the owner of the West River Railroad, the rails, rail accessories and ties on the greater part of the length of the railroad, and seeks to enjoin the defendants, separate owners of lands through which the railroad passes, from interfering with the removal of such rails, accessories and ties. The bill alleges that some of the defendants have notified the plaintiff that they claim that the right of way and materials upon their lands belong to them, and that they have forbidden the plaintiff from entering upon the railroad right of way to remove the rails and materials; that all of the defendants have erected signs forbidding the removal of any material from the right of way; that some of the defendants have threatened to do violence to the employees, agents and servants of the plaintiff if they enter their lands to remove such property; that some have placed barriers and obstructions upon the right of way; and that one defendant has removed certain of such rails outside of the right of way. No concerted action upon the part of the defendants is charged. The bill also alleges that the State of Vermont has not abandoned the rights of way or easements which it acquired from the West River Railroad Company, and has never abandoned the rails and other chattels thereof. The defendants jointly and severally demurred to the bill of complaint. In the final decree the demurrer was overruled, the bill adjudged sufficient, and the temporary injunction made permanent, from which the defendants have appealed.

The principal ground of demurrer argued here is that there is no equity in the complaint because the plaintiff has a full, adequate and complete remedy at law. This necessitates a determination as to whether the property in question is such that the plaintiff has an adequate remedy in replevin or trover.

We agree with the defendants that the tracks, railroad structures and other railroad equipment do not become a part of the realty and may be removed by the railroad company or its assigns on abandonment of the right of way, or within a reasonable time thereafter. Jones v. Southern R. R. Co. (5th Cir.), 285 F. 19; Northern Central R. R. Co. v. Canton Co., 30 Md. 347; Wagner v. Cleveland & T. R. R. Co., 22 Ohio St. 563, 10 Am. Rep. 770; Hatton v. Kansas City, etc., R. R. Co., 253 Mo. 660, 162 S.W. 227; Talley v. Drumheller, 143 Va. 439, 130 S.E. 385, 388. See, also, Farrar v. Nashville, C. & St. L. Ry., 162 Tenn. 313, 36 S.W.2d 95; St. Louis, K. & S. R. R. Co. v. Nyce, 61 Kan. 394, 59 P. 1040, 48 L.R.A. 241; Wiggins Ferry Co. v. Ohio & Miss. R. R. Co., 142 U.S. 396, 35 L.Ed. 1055, 12 S.Ct. 188; St. Johnsbury & Lake Champlain R. R. Co. v. Willard, 61 Vt. 134, 17 A. 38, 21 L.R.A. 528, 15 Am. St. Rep. 886. In this last case the railroad company, instead of exercising its right of condemning the land for its road, entered upon it by the consent of the mortgagor in possession, the mortgage then being overdue, and constructed its road, but never acquired title nor paid for the land damages, nor made any agreement in respect thereto, and after it had operated its road for more than fifteen years without objection, for the first time instituted proceedings to have the land condemned. It was held that the defendant, who had purchased and foreclosed the mortgage against the mortgagor and the railroad, and who, after his decree had become absolute, claimed that it gave him title to the corpus of the railroad itself, was not entitled to the improvements and could not have their value as damages, and that in the circumstances the maxim quicquid plantatur solo, solo cedit, did not apply.

All of the above cases, either directly or by inference, treat lawfully erected railroad superstructures as chattels. In several they are said to be trade fixtures or in the nature of trade fixtures. In Snow v. Smith, 86 Vt. 58, 83 A. 269, 270, we had occasion to define trade fixtures, and cited Wagner v. Cleveland & T. R. R. Co., supra, to the effect: "That the general principle involved in a determination of such questions, is the distinction between the business which is carried on in or upon the premises and the premises themselves. That the former is personal in its nature, and articles that are merely accessory to the business and have been put upon the premises for this purpose, retain the personal character of the principal, to which they are subservient. But articles which have been annexed to the premises as accessory to the land, without regard to the business there carried on, become subservient to the realty and acquire its character."

The ordinary trade fixture may serve a useful purpose as an appurtenance to...