Carper v. Risdon

• Decision Date: 09 May 1904
• Parties: CARPER v. RISDON.
• Court: Colorado Court of Appeals

76 P. 744

19 Colo.App. 530

CARPER v. RISDON.

Court of Appeals of Colorado

May 9, 1904

Appeal from District Court, Gilpin County.

Action by John S. Risdon against F.D. Carper and another. From a judgment for plaintiff, and an order dismissing his co-defendant, Carper appeals. Reversed.

Branch H. Giles, for appellant.

Geo. S Redd, for appellee.

THOMSON P.J.

This suit was brought by John S. Risdon against F.D. Carper and E.C. Lindemann to recover damages for the alleged conversion by the defendants of a shafthouse and certain mining machinery belonging to the plaintiff. The complaint alleged ownership and right to possession of the property in the plaintiff, fixing its value at $3,000; also a demand upon the defendants for the property, and their refusal to deliver it. The answer denied the ownership of the property by the plaintiff and his right to the possession of it, denied its alleged value, and denied conversion, but averred that in so far as the property was in the possession of the defendants, or either of them, it belonged to them, or one of them. Before trial the plaintiff dismissed his claim as to the shafthouse. The cause was tried by the court which, after hearing the evidence, ordered a dismissal as to the defendant Lindemann, and rendered judgment against the defendant Carper for $450. Carper appeals.

The following were the facts disclosed by the evidence: On July 8, 1893, Daniel Procunier, the then owner of the Procunier lode mining claim, leased the claim to the plaintiff for three years. Nothing was contained in the contract of lease concerning the placing of machinery or improvements on the claim by the lessee, or their removal by him. He entered upon the property, and, having erected a shafthouse, purchased and placed upon the mining claim the machinery in controversy for the purpose of working it. Before building the shafthouse, he had a conversation with Procunier with reference to the improvements he proposed, in which it was verbally agreed by Procunier that he should have the right to remove them upon 30 days' notice. On June 15, 1895, Procunier caused to be served on the plaintiff a notice of forfeiture of the lease for failure of compliance with its terms. On the 20th of the same month, by agreement of the parties in writing, the forfeiture was waived, provided certain conditions of waiver were performed by the plaintiff. On December 17th of the same year, Procunier served upon the plaintiff another notice of forfeiture; stating that the latter had failed to perform the conditions of the agreement of waiver, and notifying him to remove his machinery, or he (Procunier) would do so, and hold it subject to the plaintiff's disposition of it, and at his expense and risk. In the following month, the machinery still remaining on the claim, the plaintiff, at Procunier's request, consented that it might remain where it was, for use by parties to whom Procunier proposed to lease the property. On August 11, 1896, Procunier conveyed the mining claim to Albert Rogers. On the 12th day of April, 1897, Rogers conveyed the claim to Geo. A. Lonsberry, who, on the same day, after executing to Rogers a trust deed of the property to secure the payment of $2,500, conveyed it to Carper. On the 15th day of September, 1898, Carper leased the claim to Lindemann, who a few days afterwards went into possession. The claim of the plaintiff to the machinery was understood by Rogers at the time of his purchase. Lonsberry seems to have been merely a conduit through which the title passed on its way from Rogers to Carper. He held it only long enough to execute the trust deed, and then turned it over to Carper. On the 10th day of December, 1897, a written agreement was entered into between the plaintiff and Carper whereby the plaintiff leased the machinery to Carper at a rental of $25 per month for four months--the rent to be paid only for the time the machinery was actually used--and gave him an option to purchase it for $1,500. Carper paid a portion of the rent, but did not exercise the option. About the 10th day of October, 1898, the plaintiff met Carper, and asked him if he (plaintiff) should remove the machinery, and Carper requested him not to do so. When demand was made upon Carper for the property, he refused to turn over any part of it; and on November 8, 1898, the plaintiff received a letter, signed by Carper's attorney, notifying him that the machinery belonged to Carper, and informing him that whoever--whether the plaintiff or any one else--removed the machinery from the claim without authority from Carper, would be held responsible to Carper for its value.

The ground of Carper's claim to the ownership of the property is that the machinery became permanently affixed to the land and was part of the freehold, so that his title to the land embraced the machinery. The rule invoked is unquestionably the general rule, but it does not obtain as between landlord and tenant. The plaintiff was lessee of the mine, and placed the machinery upon it for the purpose of operating it. Articles affixed by a tenant to the demised premises for the purpose of carrying on the business for which they are leased are removable by him, however firmly they may be attached. Ferry Co. v. Railway Co., 142 U.S. 396, 12 S.Ct. 188, 35 L.Ed. 1055; Updegraff v. Lesem, 15 Colo.App. 297, 62 P. 342. But the removal must be effected during the term of lease, if that remains in force for its full term. If, however, it is terminated by the act of the landlord before the time limited by itself for its expiration, the tenant has a reasonable time after it...