Bastas v. McCurdy, 28802
| Citation | 266 S.W.2d 49 |
| Decision Date | 16 March 1954 |
| Docket Number | No. 28802,28802 |
| Parties | BASTAS et al. v. McCURDY et al. |
| Court | Court of Appeal of Missouri (US) |
William H. Wessel, Hermann and Theodore P. Hukriede, Washington, for appellants.
Frank W. Jenny and James A. Cole, Union, for respondents.
Action by plaintiffs (respondents), Pete J. and Marie F. Bastas, to recover damages resulting from the removal of a gas tank and gas hot water heater from premises they had purchased from defendants (appellants), Henry S. and Ethel P. McCurdy. Defendants filed a counterclaim seeking to recover the reasonable value of certain items of personal property which they alleged the plaintiffs would not permit them to remove from the farm in question. Upon a trial of the cause the jury returned a verdict for plaintiffs, on their cause of action, in the sum of $650 and also found for them on the counterclaim. From the ensuing judgment defendants have duly appealed to this court.
The defendants were the owners of a farm located about three miles west of New Haven, Missouri. The major portion of the farm, upon which was located a modern brick house, lay on the north side of Highway 100. Directly across the road was a tract upon which was located a restaurant building and a barn that had been converted into a dance hall. The residence was occupied by defendants and equipped with a gas hot water heater and a small gas space heater. The hot water heater was connected with water and gas pipes but had no other attachment to the building. Gas was also used to operate the refrigerator and cook stove. At first the defendants purchased 'bottle gas' in 100 pound drums which were kept in a cabinet attached to the outside of the house. However, in 1947 they purchased a 500 pound gas tank which was placed a short distance from the home. It rested upon two concrete blocks but was not otherwise attached to the ground. Gas was transmitted from the tank into the house by an underground pipe which went through the foundation into the basement and thence up through the floor and connected with the various appliances, all of which were located on the first floor. Mr. McCurdy testified that an underground pipe also ran from this tank to the barn (dance hall) across the road and thus furnished fuel for heating that building. There was nothing to indicate that plaintiffs had any knowledge of the existence of this pipe.
On April 14, 1951, defendants entered into a contract to sell to the plaintiffs substantially all of the farm located north of the highway. Mr. Bastas testified that the residence was represented to the plaintiffs as a modern house with gas heat and gas hot water heater. Under the terms of the contract a deed conveying the premises sold was executed and delivered to plaintiffs on May 14, 1951, but defendants were permitted to retain possession for not more than 90 days thereafter. After 30 days they were required to pay plaintiffs a stipulated rental.
The defendants moved most of their belongings from the premises about July 28 and plaintiffs at that time entered into possession. It is admitted that the defendants removed the gas tank, hot water heater and space heater from the premises but they later returned the space heater to plaintiffs.
In their brief the defendants have not raised any points concerning the counterclaim and therefore the facts relating to it have not been stated.
The contract of sale specified that certain items of personal property and fixtures, among them 'electric and gas fixtures', be included in the sale. However, it is not contended that 'gas fixtures', as used in the contract signified anything more favorable to the purchasers than the usual legal definition of the term as the case was tried on the theory that plaintiffs, as a condition of recovery, had the burden of proving that these articles had become a part of the real estate.
A fixture is an article of the nature of personal property which has been so annexed to the realty that it is regarded as a part of the land and partakes of the legal incidents of the freehold and belongs to the person owning the land. The term is expressive of the act of annexation and necessarily implies something that has existed apart from realty but which may, by being attached thereto, become a part thereof. Whether an article is a fixture or not depends upon the facts and circumstances of the particular case.
In the case of Matz v. Miami Club Restaurant, Mo.App., 127 S.W.2d 738, 741, this court stated the well established rule that the 'elements of a 'fixture' * * * are commonly said to be annexation, adaption, and intent, with the latter ordinarily of paramount importance, at least in the case of controversies between seller and purchaser, * * * where the controlling question is usually that of whether the intention in annexing the article to the realty was to make it a permanent accession to the land.' These elements or tests all present questions of fact and are not ordinarily resolvable by law. Goodin v. Elleardsville Hall Assn., 5 Mo.App. 289.
In determining the intention of the person making the annexation ...
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