Board of Com'rs of Pitkin County v. Brown

• Decision Date: 24 October 1892
• Citation: 2 Colo.App. 473,31 P. 525
• Parties: BOARD OF COM'RS OF PITKIN COUNTY v. BROWN et al.
• Court: Colorado Court of Appeals

31 P. 525

2 Colo.App. 473

BOARD OF COM'RS OF PITKIN COUNTY v. BROWN et al.

Court of Appeals of Colorado

October 24, 1892

Appeal from county court, Pitkin county.

Action by George B. Brown and another against the board of county commissioners of Pitkin county to recover value of vault removed from leased premises, and for use and occupation. From a judgment for plaintiffs, defendant appeals. Affirmed.

C.S Wilson, for appellant.

J.M Downing and H.L. McNair, for appellees.

BISSELL J.

On the 1st of February, 1890, Brown and Hoag leased certain rooms in a building in Aspen to the authorities of Pitkin county. The lease was for a year at a reserved rental of $200 per month and contained an express agreement that at the expiration of the term the lessees could remove furnishings and fixtures from the premises. Under this lease the county authorities went into possession, and built a brick vault for the use of the officers of the county, and laid the foundation on the ground. Shortly before the term expired the county began to remove what it had put into the building, and through some individual members of the board of county commissioners had a conference with the lessors as to the time within which this work should be done. The vault was treated as a fixture, and the authorities commenced tearing it down and taking away the material which composed it. During this proceeding the keys of the place were tendered by some member of the board to the lessors, who refused to receive them while the county still occupied the premises. Negotiations were then initiated between the parties. It is fairly deducible from the record that the result was substantially the consent of the lessors to the removal of the structure. The county continued to occupy the rooms and to remove the stuff which they had placed in the building. This lasted for about two months. At the end of that time they surrendered possession. The lessors accepted the surrender, but then asserted a claim against the county for the value of the use of the premises during that period, and damages for the removal of the vault. This action was brought to recover what they claimed, and resulted in a verdict of the jury against the county for the sum of $400, which would have been the amount of the rental value if the action had been brought directly on the lease. There was a great deal of contention on the trial, and there has been much urged in the argument, regarding the right of the tenant to remove the vault as a fixture under the express reservation contained in the lease. The general maxim, of course, is quicquid plantatur solo, solo cedit, but the rule is subject to many exceptions and modifications. It has never been true that trade fixtures became the property of the landlord if they were removed either during the term or afterwards by his consent, even though there was no express covenant in the lease. There are likewise many mixed cases where the fixtures are not exactly trade fixtures, in the sense in which those words are ordinarily used, but they are fixtures essential to the business carried on by the lessee.

Ewell, Fixt. p. 81 et seq. If it were necessary, we should be inclined to hold, under the proofs in this case, that these fixtures come within the principle applicable to the removal of trade fixtures, and the county had the right to take them away before the expiration of the term. The lease was granted for a special purpose and a particular occupation. A vault was absolutely indispensable to the safe transaction of the business of the county. It is not essential to the application of the rule that the business should be distinctively a commercial one. The law will endeavor to protect the tenant in the removal of what he has been compelled to add to the property for the safe, convenient, and economical transaction of the business carried on in the premises with the consent of the landlord, due regard being given to the rights of the owners of the realty. We think, however, that the proof shows very satisfactorily that the removal was virtually without objection from the lessors, and that the county was permitted to remain in possession during the time they were occupied in tearing it down and taking it away. Both parties treated it as a fixture, and apparently recognized the right of removal, so that, in any event, the question of the character of the structure remains a question which need not be authoritatively determined.

This action was commenced directly in the county court to recover...