Bircher v. Parker

• Decision Date: 31 March 1867
• Citation: 40 Mo. 118
• Parties: RUDOLPH BIRCHER, Appellant, v. THEOPHILUS PARKER, Respondent.
• Court: Missouri Supreme Court

40 Mo. 118

RUDOLPH BIRCHER, Appellant,

v.THEOPHILUS PARKER, Respondent.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Krum, Decker & Krum, for appellant.

I. The general rule is, that whatever is once annexed to the freehold becomes part of it, and can be removed by him only who is entitled to the inheritance.

Modern innovations as between landlord and tenant have excepted improvements made by the tenant for purposes of trade or manufacture--Kelsey v. Durkee, 33 Barb. 410; Moore v. Wood, 12 Abb. Pr. 393; Penton v. Robart, 4 Esp. 33; Moore v. Smith, 24 Ills.; Empsen v. Soden et als., 4 B. & Adol. 655; Powell v. McAshan, 28 Mo., 70; Ombury v. Jones, 19 N. Y. 234; Van Ness v. Packard, 2 Pet. 137; Pemberton v. King, 2 Duer, 376; Kirwan v. Latour, 1 Har. & J. 289; Schlemmer v. North, 32 Mo. 207.

It seems that even where the improvements have been made for purposes of trade, the intention of the tenant to use them only temporarily must appear before he can be allowed to carry them away. Anything conveying the idea of a permanent improvement is part of the freehold--Buckland v. Butterfield, 4 Moore, 440; Woodf. Land. & T. 468; Teaf v. Hewitt, 1 Ohio, 511; Goff v. O'Connor, 16 Ills. 423; Wall et al. v. Hinds, 4 Gray, 256, 270-1.

The declaration of law by the court below, therefore, is too sweeping, and is not in conformity with the current of authority--Schlemmer v. North, 32 Mo., 207; Ombury v. Jones, 19 N. Y. 234.

II. The court below erred in their assessment of damages. The court

treated the appellant's injunction like an unlawful conversion and assessed damages as in a case of trover.

It is not true that the respondent could not lawfully enter and take away his improvements after the dissolution of the injunction. His title to the chattels remains unimpaired; within a reasonable time after the dissolution of the injunction he could have taken away his improvements. The fact of his term having expired can make no difference. The landlord cannot take advantage of his own wrong. The tenant could obtain his chattels by an action in trover if the landlord refused him entrance upon the land--Holmes v. Trempe, 20 Johns. 29; Mason v. Fenn, 13 Ills. 529.

Glover & Shepley, for respondent.

I. The lessee had the right to remove the improvements during the lease without material injury to the freehold.--Powell v. McAshan, 28 Mo. 70; King v. Wilcomb, 7 Barb. 253; Dubois v. Kelly, 10 Barb. 496; VanNess v. Packard, 2 Pet., 137; S. C. 8 Curtis, 53; Finney et als. v. City of St. Louis, et al., 39 Mo. 177.

II. The tenant under the law had no right to remove after the expiration of the lease; this is well settled;--but the plaintiff by his injunction prevented the removal till the time of this right of removal had ceased. The plaintiff must be considered as having caused this result, and prevented the removal in time, and as having appropriated the property in these improvements. No sooner did the defendant procure judgment for his damages than the plaintiff appealed and stopped the collection of it, In the meantime the plaintiff kept possession of the property and drew rents from it, and holds it now. The landlord never offered to release the property.

WAGNER, Judge, delivered the opinion of the court.

The defendant held over after the time for which the premises were originally let, but the holding was with the consent of the landlord, and was therefore a tenancy from year to year, upon the same terms and conditions as those contained in the lease; and whatever erections he made while in possession of the premises, for the more beneficial enjoyment of the same, he had a right to remove before the expiration of the term, provided they could be severed without material injury to the freehold. As between landlord and tenant, the rule in regard to the removal of fixtures is most liberally construed in favor of the latter. As the landlord pays nothing for the improvements put up by the tenant, policy and justice demand that the tenant should be allowed to remove the additions or improvements unless the removal would operate to the prejudice of the inheritance, by leaving it in a worse condition than when he took possession. The evidence discloses the fact that the buildings could have been detached and severed without any serious injury to the realty, and that the damage to the wall of the permanent house in consequence of the severance could have been repaired at a trifling or...