Chase v. Tacoma Box Co.

• Decision Date: 08 March 1895
• Citation: 11 Wash. 377,39 P. 639
• Parties: CHASE v. TACOMA BOX CO. ET AL.
• Court: Washington Supreme Court

39 P. 639

11 Wash. 377

CHASE v. TACOMA BOX CO. ET AL.

Supreme Court of Washington

March 8, 1895

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by Herman L. Chase against Tacoma Box Company and others to foreclose a real-estate mortgage. Robert Wingate, as receiver of defendant Merchants' Bank of Tacoma, filed a petition claiming chattels on the land under a mortgage to the bank. Judgment was rendered for plaintiff, and defendant Wingate receiver, appeals. Reversed.

Doolittle & Fogg, for appellant.

Dunning & Pratt and N.C. Richards, for respondent.

GORDON J.

The subject-matter of this litigation is machinery and apparatus in a box factory located upon block 7,632, in a certain addition to the city of Tacoma. Both parties here are claiming the property under and by virtue of decrees of foreclosure of mortgages, of which mortgages respondent's is prior in point of time. The appellant bases his claim to the machinery in question on the fact that his mortgage describes the real estate, together with the machinery and apparatus thereon situate, and claims that the property is personal property, and does not pass with the realty, and that he is entitled to the same as personalty under and by virtue of the description of the property in his mortgage which, after describing the land, is as follows: "And the machinery and apparatus upon said premises at the time of giving said mortgage." Appellant claims that these words show an express intention to convey what he contends is personal property, which was not conveyed under respondent's mortgage conveying the real estate, together with the tenements, hereditaments, and appurtenances thereunto belonging. There is no claim that appellant's mortgage was ever filed or recorded as a chattel mortgage. The court below sustained respondent's motion to dismiss appellant's petition, and the appellant, having excepted to such ruling prosecutes this appeal.

Of the major portion of the machinery and apparatus, the petition avers that "said machinery and apparatus can all be removed without injury to the freehold or to said machinery and apparatus; that there is no special adaptation of the real property to the said machinery and apparatus; that said machinery and apparatus are not attached to the walls of the said building, or in any way annexed in a permanent way to any part of said building; that said machinery and apparatus rest upon the floor of said building by means of iron legs, and are fastened to the floor, or to blocks set upon the floor, of said building, by screws or nails or bolts, for the purpose solely of steadying said machinery and apparatus when in use; and that said machinery and apparatus can be used for the purpose for which it was intended as well in any other place as where now located, and that said machinery and apparatus, although a portion thereof is connected with the shafting to said building by belting or otherwise, are all independent machines, complete in themselves, and that they are constructed after fixed patterns, and are solely implements bought and sold in gross, and in no way fixtures or part or parcel of the real estate, and that upon the removal of the said machinery and apparatus the value of the freehold would be unimpaired." Of the balance, consisting of chain blocks, belting, trucks, wrenches, tools, scales, safe, and stitching machines, etc., it is alleged that "none of it is affixed in any way or manner to the freehold." There is an immense mass of law learning upon the subject of fixtures, and the courts have striven to lay down some general rule by which the facts of each case might be tested, and the conclusion derived whether a particular thing, under certain circumstances, constituted a part of the realty or not; but no satisfactory rule has been devised, and probably never will be, owing to the difficulties inherent in the nature of the property itself. Between landlord and tenant many things are regarded as personal which might be considered a part of the realty as between vendor and vendee, mortgagor and mortgagee, or heir and executor. The older cases very generally hold to the idea that an actual physical annexation must be shown. But this strict rule of the old law has been much relaxed in favor of trade and manufacture, and the encouragement of new and constantly growing industries, and the doctrine of constructive annexation is now very generally, if not universally, recognized. And it is believed that any attempt to solve the question by applying the sole test of the character or extent of the actual annexation to the soil involves the question in many perplexing difficulties. In Johnson's Ex'r v. Wiseman, 4 Metc. (Ky.) 360, the court said: "The better opinion *** is in favor of viewing everything as a fixture which has been attached to the realty with a view to the purposes for which it is held or employed, however slight or temporary the connection between them. *** The question whether chattels are to be regarded as fixtures depends less upon the manner of their annexation to the freehold than upon their own nature and their adaptation to the purposes for which they are used." In Helms v. Gilroy (Or.) 26 P. 851, the court say: "The weight of modern authority, keeping in mind the exceptions as to constructive annexation admitted by all the authorities to exist, seems to establish the doctrine that the true criterion of an irremovable fixture consists in the united application of several tests: (1) Real or constructive annexation of the article in question to the realty; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made." And we think that the "annexation" is not of necessity an absolute fastening or continued physical union in all cases. It is doubtful if any general rule can be formulated that will be applicable to all cases, and regard must be had to the particular circumstances of each case. The relationship existing between the parties, the nature of the article, and its use as connected with the use of the freehold, should not be lost sight of; but the annexation may be either actual or constructive, and the intention of the owner of the fee is often of the utmost importance in determining whether, in a given case, a chattel has become a fixture.

But while the intention of the party affixing the machinery enters into the...