Anderson v. Englehart

• Decision Date: 02 June 1910
• Docket Number: 615
• Parties: ANDERSON v. ENGLEHART
• Court: Wyoming Supreme Court

108 P. 977

18 Wyo. 409

ANDERSON v. ENGLEHART

No. 615

Supreme Court of Wyoming

June 2, 1910

ERROR to the District Court, Carbon County; HON. DAVID H. CRAIG Judge.

The material facts are stated in the opinion.

Order affirmed.

N. R Greenfield, for plaintiff in error.

Although the statute implies that an injunction may be granted without notice, we submit that the practice of the District Court in granting an injunction or any other extraordinary remedy on an ex parte hearing should be discouraged. Neither the letter nor the spirit of the statute intends that an injunction may be granted without notice on such a doubtful and uncertain showing as made in the petition in this case. The power should not be so exercised, except to prevent injuries that are imminent and irreparable, and certainly the court should not interfere where the plaintiff's right is doubtful or where an action at law or in equity prosecuted in the ordinary mode will afford adequate redress. In the case at bar there is no allegation that injury is likely to occur before a hearing can be had, nor that the security will be insufficient if the alleged fixtures be removed. The allegation that the articles mentioned in the petition are a part of the realty is a mere conclusion. It sufficiently appears from the petition that they were at one time at least personal property, and no showing is made as to the manner in which they became a part of the realty. It does not appear by the petition or the affidavits that these articles were specially designed for the real property mentioned in the mortgage. It appears affirmatively from the petition that the articles were only necessary to carry on a business theretofore conducted on the premises, from which it may be assumed that they are not necessary for any other business that might be conducted on the premises. If that be true then no argument would seem to be necessary on the point that the articles retained their character as personalty and became in no way subject to the mortgage. (Fortman v. Goepper, 14 O. St. 567; Wagner v. R. R. Co., 22 O. St. 577.) It is therefore submitted that the court clearly abused its discretion in the first place, in granting an injunction without notice, and, in the second place, because the petition does not state a cause of action against the defendant calling for injunctive relief.

The motion to dissolve should have been sustained not only because the petition stated no grounds for injunction, but also because it appears from the affidavits upon which the motion was heard that the articles in question are personal property and in no way covered by the mortgage. The articles in question are merely implements or tools to facilitate trade or business and the annexation of such articles to realty cannot convert them into a part thereof, unless such intention plainly and affirmatively appears from some other fact than mere annexation. Articles added by the owner to real estate for its more convenient use, or for his greater enjoyment, or as furnishings or ornament, are not such part of the realty as will pass by a deed, unless they are substantial additions and clearly intended to be permanent. (19 Cyc. 1060, note 21.) A bar, counter and shelf attached to the floor and wainscot by nails, etc., are trade fixtures and removable by the party who places them there. (Berger v Hoerner, 36 Ill.App. 360; Guthrie v. Jones, 108 Mass. 191; Brown v. Wallis, 115 Mass. 156; Kimball v. Masters &c., 131 Mass. 59; Shaperia v. Barney, 30 Minn. 14 N.W. 270; Moore v. Wood, 12 Abb. Prac. 393; Bartlett v. Haviland, 92 Mich 552, 52 N. W., 1008; Brewing Co. v. Smith, 110 N.Y.S. 8; Royce v. Latshaw, 15 Colo.App. 420, 62 P 627; Electric Co. v. Transit Co., 42 A. 101.) The bar, back-bar and partition in question not being specially designed or fitted for the particular premises described in the mortgage, cannot be regarded as a part of the realty, even though slightly attached to the building. (Oliver v. Lansing, 59 Neb. 219, 80 N.W. 829; Ins. Co. v. Semple, 38 N. J. Eq. 575; Murray v. Bender, 125 F. 705; Bender v. King, 111 F. 179; Ins. Co. v. Allison, 107 F. 179; Knickerbocker T. Co. v. Penn. Cor. Co., 62 N. J. Eq. 624; modified in 58 A. 409, 105 Am. St. Rep. 640; Mfg. Co. v. Cohn, 3 Cal.App. 657, 86 P. 829.)

Annexation of trade fixtures, or furnishings placed in the building for the purpose of carrying on the trade or business conducted in the building, does not make the articles a part of the realty. (Baker v. McClurg, 198 Ill. 261; Dostal v. McCaddon, 35 Ia. 318; Carpenter v. Walker, 140 Mass. 416; Park v. Baker, 7 Allen, 78; Gale v. Ward, 14 Mass. 352; Manwaring v. Jenison, 61 Mich. 117; Hunt v. Maullanphy, 1 Mo. 508; Sisson v. Hibbard, 75 N.Y. 542; Bill v. Sewald, 53 Pa. St. 271; Moody v. Aiken, 50 Tex. 65; Sherrick v. Cotter, 28 Wash. 25; Cranston v. Beck, 70 N. J. L. 145; Security T. Co. v. Temple Co., 58 A. 865; Hall v. L. G. & T. Co., 22 Wash. 305; N. W. Mut. L. Ins. Co. v. George, 77 Minn. 319; Griffin v. Jensen, (Ky.) 39 Ky. 43; Neufelder v. Ry. Co., 23 Wash. 470, 63 P. 197.) For a thorough and extended discussion of law and foundation of the law of fixtures, see Teaff v. Hewitt, 1 O. St. 522, and Wolford v. Baxter, 33 Minn. 12, 21 N.W. 744.)

Charles E. Winter, for defendant in error.

It is not necessary that a mortgage mention the fixtures. They will be included in the general words of description of the freehold. (19 Cyc., 1063; Breweries &c. v. Shurtz &c., 38 P. 92; Ins. Co. v. Huntington, 48 P. 19; Wade v. Brewing Co., 38 P. 1009; McNally v. Connell, 11 P. 320; Ewell on Fixtures, p. 275; Jones on Mort., Secs. 426-435.) Injunction will issue to stay the removal of a fixture where the right and nature of the article is not disputed, and the injury will be serious. (19 Cyc., 1072A, and cases cited.) An injunction restraining a tenant from removing certain trade fixtures from the premises pending a suit involving the right to such removal is properly granted to preserve the status quo until the question of ownership can be determined. (Williams v. Chicago Ex. Co., 188 Ill. 119; 58 N.E. 611; Baker v. Natl. Biscuit Co., 96 Ill.App. 228.) A mortgagor may be enjoined from removing fixtures from the mortgaged property. (Dutro v. Kennedy, 22 P. 763.) The injunction was properly issued in conformity with the statute. It clearly appeared from the petition that the acts sought to be restrained, would, if committed, work irreparable injury to the plaintiff; that the defendant was doing and threatening to do an act in violation of plaintiff's rights respecting the subject matter of the action; an act tending to render the judgment in part ineffectual. Under such allegations Section 4039 of the Revised Statutes authorizes the temporary injunction. Section 4041 provides that a notice may first be required, if, in the opinion of the court, the party should be heard. But even in such a case the court may grant a restraining order. The allegations of the petition were neither doubtful nor uncertain, but covered the things stated in our statute upon which injunction may be granted. A direct allegation that injury is likely to occur before a hearing can be had is not required by statute as a condition to the allowance of a temporary injunction. The true test of the right of the mortgagee to have the removal of fixtures enjoined is whether the security is about to be impaired or would be impaired, if the act be committed. The mortgagor may not commit waste of any kind or do any other act which will impair the security, and equity will enjoin the same. (Williams v. Chicago Ex. Co., supra; 27 Cyc., 1270; Collins v. Rea, 86 N.W. 811; Dutro v. Kennedy, supra; Beaver Lumber Co. v. Eccles, 73 P. 201.) The petition clearly alleges the impairment of security. A court will not assume that the security is far in excess of the amount of the mortgage, or even if it were shown to be so, the court would not assume that a part of the security could be taken away, and that the balance, when sold, will pay the mortgage and costs. Too many considerations which affect the value of the security enter into the question to justify an assumption of that kind.

The allegation that the articles in question are a part of the realty is not a mere conclusion, but is an allegation of a fact. To state anything further in the petition would amount to pleading evidence. It is not a fair interpretation of the allegations of the petition that they affirmatively show that the articles are necessary only to carry on the business theretofore carried on upon the premises. The petition states that they constitute permanent fixtures and are necessary for the conduct of the business "carried on heretofore on and in said premises." Nothing is stated as to whether they are or are not necessary or useful in any other business. Even though the petition had been faulty in one or more of the respects urged by counsel for plaintiff in error, it would not follow that it would be insufficient, or that the court abused its discretion in granting the injunction in the first instance. The granting or refusal of a temporary injunction rests in the sound discretion of the court. It may be granted to maintain the status quo until the right or title in question is established, even where the complainant's right is doubtful. (22 Cyc., 746, 750, 752.)

In a leading American case the conclusion was stated that there is no one test for the determination of what are permanent fixtures but that whether a chattel has become part of the freehold requires the united application of the following elements: (1) Actual annexation. (2) Appropriation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party annexing it to the realty;...