Bush v. Havird

• Decision Date: 13 June 1906
• Parties: ELLEN L. BUSH, Appellant, v. C. C. HAVIRD, Sheriff, et al., Respondents
• Court: Idaho Supreme Court

86 P. 529

12 Idaho 352

ELLEN L. BUSH, Appellant, v. C. C. HAVIRD, Sheriff, et al., Respondents

Supreme Court of Idaho

June 13, 1906

LANDLORD AND TENANT-TRADE FIXTURES-RIGHT OF REMOVAL BY TENANT-WHEN MAY REMOVE-RIGHTS OF MORTGAGEE OF FIXTURES.

1. Property consisting of front and back bar, ice-chest, etc placed in a saloon building by a lessee and fastened to the wall and floor, constitutes trade fixtures, and may be removed by the tenant during the continuance of his term.

2. Trade fixtures must be removed by the tenant prior to his surrender of possession to the landlord, and if not so done and there is no agreement to the contrary, the right of the tenant to re-enter the premises and sever the fixtures from the realty and remove them will be deemed lost and abandoned.

3. The mortgagee of trade fixtures acquires no greater rights in and to the property than those enjoyed by the tenant, and when the tenant's right to re-enter and sever and remove fixtures has ceased, the rights of the mortgagee also cease.

(Syllabus by the court.)

APPEAL from District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.

Action by plaintiff to recover damages for the wrongful and unlawful severing and removal of certain fixtures from a building owned by plaintiff. From a judgment in favor of defendants plaintiff appeals. Reversed.

Reversed and remanded, with direction. Costs awarded in favor of appellant.

Hawley, Puckett & Hawley, for Appellant.

The term "bar-room fixtures" means fixtures in a bar-room, and when the word "fixtures" is used in such connection it means something affixed to the realty. (Hogard v. California Ins. Co. (Cal.), 11 P. 594, 598.)

Bar fixtures placed in a saloon are not removable by the saloon-keeper at the termination of his lease. (O'Brien v. Kusterer, 27 Mich. 289.) Electric light fixtures are a part of the realty. (Canning v. Owen, 22 R. I. 624, 84 Am. St. Rep. 858, 48 A. 1033; Flint etc. Mfg. Co. v. Douglass Sugar Co., 54 Kan. 455, 38 P. 566.)

A fixture put in by a tenant, and which he has a right to remove during his term, cannot ordinarily be removed afterward, or after he surrenders possession after the expiration of his lease. The removal must be made before the termination or not at all. (Stockwell v. Marks. 17 Me. 455, 35 Am. Dec. 266; Bliss v. Whitney, 9 Allen, 115, 85 Am. Dec. 745; Keogh v. Daniel, 12 Wis. 163; Joslyn v. McCabe. 46 Wis. 591, 1 N.W. 174; Watriss v. First Nat. Bank, 124 Mass. 571, 26 Am. Rep. 694.)

The tenant's right of removal must be exercised during the term, or before he surrenders possession, or he cannot exercise it. (13 Am. & Eng. Ency. of Law, 648 et seq., and cases cited; Preston v. Briggs, 16 Vt. 125.)

The mortgagee can acquire no greater rights, and has no other rights so far as the removal of fixtures is concerned, than has the tenant under whom he claims. (13 Am. & Eng. Ency. of Law, 653; Free v. Stewart, 39 Neb. 220, 57 N.W. 991; Fuller v. Brownell, 48 Neb. 145, 67 N.W. 6.)

Karl Paine, for Respondents.

The record shows that none of the articles were fixtures. It was stipulated that the front bar, back bar, iron rail and chandeliers were attached to the building belonging to appellant, but they were not affixed thereto. By subdivision 2 of section 2825 of the Revised Statutes, that which is affixed to land is real estate. A chattel must be affixed to real estate before it will become a fixture. (19 Cyc. 1035, note 3.) That fixtures should be considered real property until severed seems clear upon principle, and the weight of authority is to that effect, though there are respectable authorities to the contrary. (13 Am. & Eng. Ency. of Law, 2d ed., 641.)

Each article, the seizing of which appellant complains, was attached to the building to that extent only that was necessary to its advantageous use; neither the building nor the articles suffered appreciable injury by being removed. That articles that are attached to realty under similar circumstances are personal property, see the following decisions from the supreme court of Washington: Sherick v. Cotter, 28 Wash. 25, 92 Am. St. Rep. 821, 68 P. 172; Neufelder v. Third St. & S. Ry., 23 Wash. 470, 83 Am. St. Rep. 831, 63 P. 197, 53 L. R. A. 600; Hall v. Law Guarantee & Trust Soc., 22 Wash. 305, 79 Am. St. Rep. 935, 60 P. 643; Philadelphia Mortgage & Trust Co. v. Miller, 20 Wash. 607, 72 Am. St. Rep. 138, 56 P. 382, 44 L. R. A. 559; German Sav. & Loan Soc. v. Weber, 16 Wash. 95, 47 P. 224, 38 L. R. A. 267; Washington Nat. Bank of Seattle v. Smith, 15 Wash. 160, 45 P. 736; Chase v. Tacoma Box Co. , 11 Wash. 377, 39 P. 639; Cherry v. Arthur, 5 Wash. 787, 32 P. 744; Bergh v. Herring-Hall-Marvin Safe Co., 136 F. 368, 69 C. C. A. 212, 70 L. R. A. 756; Chapman v. Union Mutual Life Ins. Co., 4 Ill.App. 29.

The chandeliers were personalty according to a large majority of the decisions. (13 Am. & Eng. Ency. of Law, 2d ed., 666, note 2; 19 Cyc. 1060, note 21; Hall v. Law Guarantee & Trust Soc., supra; Chapman v. Union Mutual Life Ins. Co., supra; Condit v. Goodwin, 89 N.Y.S. 827, 44 Misc. 213.)

An agreement or an intention that the chattel shall remain personalty may be implied from the circumstances under which the chattel is bought and affixed, as from a conditional sale, from a lease of a chattel, or from a chattel mortgage by the buyer to the seller, prior to and in some states subsequent to the annexation. (19 Cyc. 1048, 1049; Bernheimer v. Adams, 75 N.Y.S. 93, 70 A.D. 114; Ames v. Trenton Brewing Co., 56 N.J. Eq. 309, 38 A. 858.)

In determining whether a thing is a fixture or not, the relation of the parties must be considered. (Bingham Co. etc. Assn. v. Rogers, 7 Idaho 65, 59 P. 31.)

Trade fixtures that do not fall within the category known as "real estate fixtures" will be treated as personalty, provided the lessee is authorized to remove them at the end of his term. (19 Cyc. 1067.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

In this case the lessees of a saloon building in Boise City placed the usual bar fixtures, ice-chest, etc., in the building, attaching them to the same with screws, and also put in electric chandeliers and linoleum on the floor, and such other fixtures as are usually found in such places. Some time afterward the tenant executed to one Poole a chattel mortgage on all this property as security for the payment of a promissory note in the sum of $ 300. The mortgage was executed on the eighteenth day of February, 1905. The tenant neglected and refused to pay his rent as provided for in the lease, and on the thirteenth day of June, 1905, the landlord, the plaintiff in this case, commenced an action for the sum of $ 85 rent due, and for treble damages for detention of the premises and for restitution thereof. The trial resulted in a judgment in favor of the plaintiff for rent and treble damages and the restitution of the premises, and on the seventeenth day of June, 1905, the sheriff evicted the tenant and placed the plaintiff in possession. The tenant does not appear to have claimed, or sought to remove, any of the fixtures he had placed in the building, nor did the sheriff remove them, nor does any demand appear to have ever been made for them by the tenant. On the first day of May, 1905, the mortgagee, Poole, sold and assigned his note and mortgage to the defendants, B. H. Coleman & Company, and on the fifth day of July, Coleman & Company commenced proceedings before the sheriff for the foreclosure of their mortgage upon the fixtures. The sheriff duly and regularly served notice of the foreclosure proceedings, and on the eighth day of July, 1905, demanded of the plaintiff the possession of the property described in the mortgage, and that she deliver to him the key to the premises that he might remove the property therefrom. The plaintiff refused to deliver up possession of the property or to surrender the key to the premises, and the sheriff thereupon, under direction of the owners and holders of the mortgage, broke open and forcibly entered the building and removed all of the property therefrom.

The present case was commenced by the landlord against the sheriff and the assignees of the mortgage to recover judgment against them for the value of the property forcibly removed by them from the saloon building after the expiration of the term of the tenant and after his eviction under judgment and process from the proper court. The property removed by the sheriff from the saloon building under the foreclosure proceedings was, undoubtedly, "trade fixtures," except the curtain, which was a mere piece of personal property. (Bronson on Fixtures, sec. 33b, pp. 186-189; 19 Cyc. 1065; 13 Am. & Eng. Ency. of Law, 2d ed., 642.) Being that class of property commonly known and designated as trade fixtures, and being common to and used in the saloon business, the tenant was entitled to remove it at any time prior to the termination of his tenancy. Section 2882 Revised Statutes, provides as follows: "A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for the purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises." This statute clearly...