Brigham v. Overstreet

• Decision Date: 21 May 1907
• Citation: 57 S.E. 484,128 Ga. 447
• Parties: BRIGHAM v. OVERSTREET.
• Court: Georgia Supreme Court

57 S.E. 484

128 Ga. 447

BRIGHAM v. OVERSTREET.

Supreme Court of Georgia

May 21, 1907

Syllabus by the Court.

A sugar cane mill, erected by the owner of a farm thereon, by placing four large, lightwood posts firmly in the ground and fastening the mill to them by spikes driven through holes in the mill and into the posts, and a "sugar cane boiler," which was placed by him in a brick furnace which was on the ground and the chimney of which ran up through and above the roof of the sugar mill house, became a part of the realty.

The same is true as to an old, partially broken "sugar cane boiler" which he put down, under a building, in a large horse stable, and from which he ran a gutter to the well on the lot, and used as a watering place for farm stock.

When one who erected on his land a storehouse, placed therein shelving nailed and fastened to the walls, large and cumbersome counters, tables, and a large meat box to carry out the obvious purpose for which the building was erected to increase its value for such purpose, and to be permanently used in connection with it, they became a part of the realty even though they might have been removed from such house without being injured and without injury to the building.

Such fixtures consequently passed as a part of the realty, under a conveyance by the owner of the land to a purchaser thereof when they were not excepted from the operation of the same.

A tenant of the land although he may have placed such fixtures thereon while he was the former owner of the premises, has no right to remove them.

Nor has such tenant a right to remove from the premises manure, produced in the usual course of husbandry upon the farm during his tenancy, as such manure became appurtenant to the realty and is to be considered and treated as a part of the same.

In this state, when the power of a court of equity is invoked to prevent threatened injuries to realty, the old common-law distinction between waste and trespass still exists, and an injunction may issue to prevent the commission of waste, although the same, if committed, may not be irreparable in damages and the party threatening to commit it may be solvent; but the rule is otherwise as to mere trespass.

Error from Superior Court, Screven County; B. T. Rawlings, Judge.

Action by E. K. Overstreet against Charles Brigham and another. From a judgment for plaintiff, granting an interlocutory injunction, defendant Brigham brings error. Affirmed.

E. K. Overstreet brought an equitable action against Charles Brigham and C. F. Rackley. The substance of the petition was as follows: In August, 1905, Brigham sold and conveyed, by warranty deed, certain described lands to the Southern States Phosphate & Fertilizer Company, which company subsequently rented the land to Brigham for the year 1906. In April, 1906, the company sold the premises to Overstreet and transferred to him the note given it by Brigham for the rent for 1906; possession of the lands being surrendered by the company to Overstreet, subject to the tenancy of Brigham for that year. Before Brigham sold to the fertilizer company, and while he was owner of the premises, he placed thereon a sugar cane house, sugar cane boiler, furnace and sugar cane mill; the boiler being placed in a brick furnace, which was on the ground and the chimney to which ran up through and above the roof of the sugar mill house, over the boiler and furnace, the mill being put up by placing four large substantial lightwood posts firmly in the ground, and being fastened securely to the posts by spikes driven through holes in the mill and into the posts. All of these were permanent and substantial fixtures, intended to remain on the premises. "Brigham further put down on said place, as a permanent fixture, an old, broken or cracked sugar cane boiler, same being put down in a large horse stable, under a building, which boiler was used as a watering place for stock, and from which he ran a gutter from the well of the lot on said premises, same being a substantial fixture put there by the said Charles Brigham, the then owner of said premises, with intention that it remain there; [and] while in possession of said property as the owner thereof said Charles Brigham erected thereon a storehouse, into which a number of shelves, such as are usually built in such buildings, were built, which shelves are attached and nailed to the building, and form part of the building; *** at the same time [he] put in said store several large counters and tables and a very large meat box, which, though not attached and nailed to the floor, are very cumbersome and too large to be removed conveniently, and were put there by the said Charles Brigham for the purpose of being allowed to remain there as permanent fixtures." In the deed to the premises from Brigham to the phosphate and fertilizer company none of these fixtures was reserved, and all were passed to petitioner under the sale of the premises to him by such company. There is a quantity of manure and compost in the stables, sheds, and lots on the premises made during the year 1906 from straw and manure from the stock. Brigham pretends to have sold all of said fixtures to Rackley, and they are threatening and are, without authority, about to remove the same from the premises, and "the damage to petitioner, should the said Charles Brigham and the said C. F. Rackley *** be allowed to remove said manure and fixtures from said premises, will be irreparable and inestimable." Injunction was prayed against the defendants, restraining them from removing any of such "fixtures" from the premises. There was no answer by Rackley. Brigham, in his answer, admitted that he had placed the things which the petitioner denominated "fixtures" on the premises, but denied that any of them was so attached to the realty as to become a fixture which passed with the sale of the land, and claimed that they were so constructed that they could be easily removed without damage to the realty. He claimed to have sold the shelving, counters, tables, etc., in the storehouse to Mary E. Daniel during 1904, and that she conducted a mercantile business in the store until May, 1905, when she sold the business, together with the "store fixtures and furniture referred to in" the petition to Mrs. M. L. Brigham. He denied that the removal from the premises of any of the things mentioned in the petition would cause "irreparable and inestimable damage to petitioner," but claimed that the money value of them all could be readily and easily computed and that petitioner had an adequate and complete remedy at law. On the interlocutory hearing evidence was submitted in behalf of the petitioner tending to prove all the allegations of the petition, except as to irreparable damages that the petitioner would sustain by the removal from the premises of the articles mentioned in the petition. The court granted an interlocutory injunction, and the defendant, Brigham, excepted."

H. S. White, for plaintiff in error.

E. K. Overstreet, for defendant in error.

FISH, C.J. (after stating the facts).

1, 2, 3, 4. The court was authorized by the evidence to find that all of the various things involved in this controversy, except the manure, were placed upon the premises, in the manner described in the petition, by Brigham while he was the owner of the premises. Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either. Civil Code, § 3045. Anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Id., § 3049. In Cunningham v. Cureton, 96 Ga. 489, 23 S.E. 420, it was held, in effect, that whatever is placed in a building to carry out the obvious purpose for which it was erected, or to permanently increase its value for such purpose, and not intended to be removed about from place to place, but to be permanently used with the building, becomes a part of the realty, although it may be removable without injury either to itself or the building; citing Waycross Opera House Co. v. Sossman, 94 Ga. 100, 20 S.E. 252, 47 Am.St.Rep. 144. See, in this connection, Wright v. Du Bignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669. "As between grantor and grantee the strict rule of the common law prevails, that, in the absence of an agreement to the contrary, all fixtures, whether actually or constructively annexed to the realty, pass by a conveyance of the freehold." Wolff v. Sampson, 123 Ga. 400, 51 S.E. 335. A tenant cannot remove permanent fixtures, or otherwise injure the rented property. Civil Code, § 3119. In view of the law which we have cited, as applied to the facts as the court was authorized, from the evidence, to find them, we have no difficulty in holding that all the fixtures in question which were on the premises when Brigham sold the land to the Southern States Phosphate & Fertilizer Company passed under his conveyance of the land to that company, and from such company to Overstreet, and that Brigham, who was the tenant of Overstreet, had no right to remove them from the rented premises.

5. Nor did the tenant have a right to remove the manure. Manure made in the usual course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of an express stipulation to the contrary, it becomes appurtenant to and is treated as part of the realty; it being considered that good husbandry requires that it should be applied to increasing the productiveness of the land whereon it is produced. 19 Am. & Eng. Enc. L. 927; 6 Lawson's Rights Rem. & Prac. § 2691; Taylor's Landlord & Tenant, § 693. And, when so made on rented land, it remains the property of the landlord, even...