Capehart v. Foster, s. 9451 - (140).

• Decision Date: 15 May 1895
• Docket Number: Nos. 9451 - (140).,s. 9451 - (140).
• Citation: 61 Minn. 132
• Parties: AUGUSTUS R. CAPEHART v. GEORGE E. FOSTER.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

61 Minn. 132

AUGUSTUS R. CAPEHART v. GEORGE E. FOSTER.¹

Nos. 9451 - (140).

Supreme Court of Minnesota.

May 15, 1895.

Appeal by defendant from an order of the district court for Ramsey county, Egan, J., granting a motion for a new trial. Affirmed.

Horton & Denegre, for appellant.

J. C. Michael, for respondent.

CANTY, J.

Plaintiff was the owner of certain hotel property, which he mortgaged to defendant. At the time the mortgage was made the hotel contained 268 gas fixtures, consisting of gas chandeliers and burners, 184 steam radiators, an office desk, a cigar counter, and an electric annunciator. Defendant foreclosed his mortgage, purchased the property at the foreclosure sale, and the time to redeem expired. Plaintiff, being still in possession, threatened to remove all of these articles; whereupon defendant procured a temporary writ of injunction restraining him from doing so. Defendant also obtained possession of the hotel by an action of forcible entry and detainer, and the action in which the injunction was issued was then dismissed by stipulation. Thereafter plaintiff brought this action for damages for the conversion of said property. The jury returned a verdict for defendant, and on motion of plaintiff the court below granted a new trial. From the order granting the same, defendant appeals. The defendant claims that the articles in question are and always were a part of the realty, while plaintiff claims that they are and always were personal property.

1. During all of said time these gas fixtures were screwed to the ends of the gas pipes projecting from the walls and ceilings, and can be readily unscrewed. It is held by the great weight of authority that, under such circumstances, such gas fixtures are not a part of the realty, even as between vendor and vendee or mortgagor and mortgagee; that they are merely a part of the furniture of the room, — a substitute for the lamps and lamp holders, candlesticks and chandeliers, formerly used to hold candles. McKeage v. Hanover Ins. Co., 81 N. Y. 38; Jarechi v. Philharmonic Soc., 79 Pa. St. 403; Towne v. Fiske, 127 Mass. 125; Montague v Dent, 10 Rich. Law, 135; Rogers v. Crow, 40 Mo. 91; Ewell, Fixt. 299. While this doctrine is rather doubtful in principle, it is too well established as the law of the country generally to be now overturned.

2. The steam radiators were attached to the steam pipes at the floor on which they rested, by being screwed to those pipes. We are of the opinion that these radiators should be held to be a part of the realty. The distinction thus made between them and the gas fixtures is not clear in principle. But the rule applied to gas fixtures must be regarded as rather an arbitrary exception to the general rule, and should not be extended to such fixtures as radiators. These radiators were put in immediately after the building was erected. There is no reason for holding that the owner did not intend them to be permanently annexed to the steam plant, and therefore permanently annexed to the realty. He might remove or change them, and so might he remove or change the boiler or the furnace, which is also a part of the steam plant. Such radiators are an essential part of...