Baker v. McClurg

• Decision Date: 19 June 1902
• Citation: 64 N.E. 701,198 Ill. 28
• Parties: BAKER et al. v. McCLURG et al.
• Court: Illinois Supreme Court

198 Ill. 28

64 N.E. 701

BAKER et al.

v.McCLURG et al.¹

Supreme Court of Illinois.

June 19, 1902.

Appeal from appellate court, First district.

Suit by Digory W. Baker and others against Aaron H. McClurg and others. From a judgment affirming a judgment in favor of defendants (96 Ill. App. 165), plaintiffs appeal. Affirmed.

The following statement of the case was made and opinion rendered by the branch appellate court for the First district:

Statement.

‘Appellants are owners of premises on Green street, Chicago, upon which, pursuant to an agreement in writing made in October, 1890, they erected a two-story and basement brick building, and by a written instrument dated January 15, 1891, leased the same to appellee McClurg and one George C. Aldrich, at that time composing the firm of McClurg & Aldrich. The building was erected and was rented to be used for a bakery. Upon taking possession under their lease, said McClurg & Aldrich proceeded to erect three ovens in the building, and also placed therein an engine, boiler, shafting, pulleys, wheels, etc. The principal oven, called a ‘reel oven,’ extended from foundations laid in the earth below the basement floor, through the first and second stories, nearly to the roof of the building. Square openings had been left in the several floors, including the cement floor of basement, when the building was erected, pursuant to the plans and specifications agreed upon between the parties, in order to enable said oven to be so built. This oven was built by the tenants upon foundations of its own, contiguous, but not attached, to the north wall of the building. These foundations were laid (necessarily, because of the projection of certain of the footings of the building's foundations within the space to be used for the purpose) partly upon said footings; the rest of the oven's foundations being laid upon or within the earth. Upon said foundations an arch was erected, on which the oven stands. The other two ovens erected by the tenants, known, respectively, as the ‘Fish Oven’ and the ‘Peterson Oven,’ rest likewise upon separate brick foundations, in part resting also upon the footings of the building wall, but do not extend quite to the basement ceiling. The boiler is inclosed in a brick masonry jacket, separate from the brick wall of the boiler room in which it stands; said room being outside of, and connected with, the main building.

‘The lease to McClurg & Aldrich provided for a term of ten years,-from January 15, 1891, until January 14, 1901. A new lease was, however, made for the balance of the same term by mutual agreement, December 2, 1891, owing to the withdrawal of Aldrich from said firm, and his desire to be released from liability. It was executed by and between appellants and appellee McClurg alone. Except that the lessee is McClurg alone, the second lease is in substance and effect practically identical with the original. It contains, however, one additional provision, viz., a consent of the lessors to its assignment to the McClurg Cracker Company. The business of McClurg and the McClurg Cracker Company, together with the leasehold interest, has since been transferred to the National Biscuit Company, but no formal assignment of the lease was made by McClurg.

‘Just before the expiration of the end of the term the appellees were commencing to remove the ovens and fixtures, when appellants filed a bill to restrain such removal, and obtained an interlocutory injunction. Upon hearing, that injunction was dissolved, and the bill dismissed. From this decree the present appeal is taken.’

Opinion.

‘The question to be determined is whether the appellees are entitled to remove the ovens, engine, and other fixtures erected by them upon the leased premises, and claimed as trade fixtures.

‘It is contended in behalf of appellants: First, that the building upon the premises leased to McClurg & Aldrich January 15, 1891, was erected and designed as a bakery, and that the ovens were erected by the tenants in pursuance of the same purpose and design, and became, therefore, a part thereof; second, that the removal of the ovens would result in material injury to the premises; third, that such removal would destroy their identity as ovens, and their character as fixtures. And it is urged the law is that fixtures are not removable where they are placed in a building to carry out the design and purpose for which the building to which they are attached was erected, or to permanently increase its value for occupation, nor where their removal would injure the freehold, or destroy their identity as fixtures. In the second place, it is contended that, when the original lease to McClurg & Aldrich was canceled, appellee McClurg took a new lease of the same premises, without reserving therein any right to remove the fixtures in controversy, and that he thereby lost the right to remove them, even if such right had before existed.

‘The facts in the case are mainly settled by stipulation. There are, however, according to appellants' counsel, two controverted questions of fact, viz., whether the ovens were erected to carry out the purposes for which the building itself was designed, and what, if any, injury would result to the premises from their removal. But the alleged controversy is, rather, what conclusions are to be drawn from conceded facts, than as to the facts themselves. It is stipulated the building was erected in accordance with plans prepared and submitted to the lessees, McClurg & Aldrich, and by them approved as suitable for the uses to which they were intending to put it. They intended to, and did, use it as a bakery, and with that intention and for that purpose erected the ovens in question. So far, therefore, as the building was planned for the purpose for which the tenants intended to use it, both building and ovens were constructed with the same immediate end in view. But it does not necessarily follow from that fact that the ovens and trade fixtures became thereby a permanent part of the building, or so entered into and influenced its character and construction that without them the ultimate design and purpose of the building would be frustrated. It is doubtless true that they were put in for the same purpose for which the building itself was intended during the term of the lease, but that fact is not enough to justify the conclusion that the building was designed and intended for a bakery, and nothing else, after the expiration of the term, and that it is unsuited to other uses. The evidnece does not so indicate. The only material difference of construction distinguishing it from other buildings designed for any business requiring the use of machinery appears to be that openings were left in the floors for the erection by the tenants of the ‘reel oven.’ With these closed, we find in the evidence no reason to suppose that the building was not designed and is not adapted for any of the ordinary uses of buildings of its general character as well as for a bakery. If so, the bakery fixtures are not irremovable because of the purpose for which the building was erected. Neither did they enter into its ultimate design and purpose to any greater extent than ordinary trade fixtures put in by a tenant, and suited to his special business. Nor is it apparent that the building itself will be injured by their removal. It is true, the removal of the reel oven would leave the original openings in the two floors, as well as in the cement floor of the basement. But these were left when the building was erected, and if they should be filed in by the tenants to correspond with the rest of the building, as may be the latter's duty in equitable compliance with their covenants, it is difficult to see wherein the freehold would be injured. It is also true, doubtless, that the brick structure of the ovens, when removed, would have to be taken down brick by brick; but this need not be injurious to the building or premises if the work should be properly done. We conclude, therefore, that the facts do not justify the conclusion that the ovens became necessarily a part of the building by reason of the purposes for which both building and ovens were constructed, nor that the removal of the fixtures would necessarily injure the freehold.

‘But it is said that fixtures...