Mortgages (§ 533*) — "Real Property" or "Personal Property"—Rock and Earth Placed on Land.
Plaintiff's husband for a consideration permitted a railroad company to deposit rock and earth on certain land belonging to him; the contract contemplating that all such material not removed before the work of double-tracking the railroad should be completed should remain permanently. He then executed a deed of trust of the land without reserving the material so deposited, and on the morning of the day the land was sold, on foreclosure of the deed, he attempted to convey such material as personalty to complainant. This deed was not recorded until after the sale, and no notice was given thereof to the purchaser. Complainant made no effort to remove the material or to assert any claim thereto until five years after its deposit, when it had been largely overgrown with vegetation. Held, that the material was realty and not personal property, and passed to the purchaser on foreclosure of the trust deed.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1554, 1505, 1565%; Dec. Dig. § 533.*
For other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753; vol. 7, pp. 5939-5951.]
Error to Circuit Court, Culpeper County.
Detinue by M. E. R. Smith against E. J. Eggborn to recover certain dirt and rock placed on land formerly belonging to plaintiff's husband under a contract between him and the railroad company. Judgment for plaintiff, and defendant brings error. Reversed.
The following are the instructions given and those refused to defendant:
Those given for plaintiff were:
"No. 1. The court instructs the jury that, to convert a chattel into a real fixture, the person making the annexation must intend to make such chattel thereby a permanent addition to the realty, such intention being evidenced by the manner in which the fixture is annexed, its adaptability to the use to which the land was being put, and the conduct of the party with respect thereto; and if the jury believe from the evidence that the Southern Railway Company severed the rock in controversy from its land, and hauled the same and piled it upon the land of S. R. Smith, and agreed with said Smith that, upon the completion of its work at that place, the said rock should become the property of the said Smith, then, until the completion of the said work, the said rock were the personal property of the railroad company, upon the land of said Smith; and if the jury further believe from the evidence that Smith, when he so acquired the said rock, did so without intending to permanently annex and make them a part of his land, but intended to hold them for sale or use as material for ballast, road building, or other like purpose to which they were adapted
and if they further believe from the evidence that said rock had been blasted and shivered and in their then condition were suitable for and adapted to such use, rather than for the purposes for which the said land was being used, and that the conduct of said Smith with respect to said rock was consistent with his said purpose, then the said rock became and were his personal property, and did not pass under the subsequent conveyances of said land through which the defendant claims, and they should find for the plaintiff.
"No. 2. The court instructs the jury that one of the potent facts to be considered as indicating the intention of the annexor, and as determining the character of the article as a fixture or not, is its character as related to the uses to which the laud has been appropriated, it being regarded as a fixture only in case it is in its character adapted to the use to which the land is devoted; and in determining whether or not S. Russell Smith intended that the rock in controversy should become a part of his land, or be used and disposed of as personal property, they should take into consideration the previous character and condition of said land, and the use to which it was put, the adaptability of said rock to the purposes for which said land was being used as compared with their adaptability for use as personal property; and if they believe from the evidence that said rock were not adapted to the purposes for which the land was being used, but were adapted to use as personal property, the presumption is that they were personal property intended for the use to which they were adapted.
"No. 3. The court instructs the jury that, if they believe from the evidence, under the instructions of the court, that the rock sued for were personal property when placed on the land of S. R. Smith, the burden of proof is on the defendant to show, by a preponderance of evidence, that they were converted by him into real estate."
"No. 5. The court instructs the jury that, if they believe from the evidence, under the instructions of the court, that the rock sued for were personal property, the owner thereof bad the right to hold the same until such time as in his judgment it was to his interest to dispose of them or make use thereof, without being deemed to have converted the same into real estate; and the mere length of time which he has so held them upon his land is not of itself sufficient to rebut the presumption that they are personalty or to prove a conversion thereof by him into real estate.
"No. 6. The court instructs the jury that if they believe from the evidence that it was apparent from an inspection of the rock sued for, as piled upon the lands of S. R. Smith, that said rock were not originally apart of said land, but had been severed and brought from the land of another and piled upon the land of said Smith, and that said rock were in no way adapted to the use which was being made of said land, and were only suitable for use as peronal property, such as material for ballast, road construction, and the like, the presumption would be that said rock were personal property, and purchasers of said land would be effected with notice of the facts which an inspection of the property itself disclosed, as well as of such facts as by the use of ordinary care and diligence they might have obtained knowledge of."
Those refused to defendant follow:
"No. 1. The court instructs the jury that land signifies any ground forming a part of the earth's surface, whether soil or rock or water covered; that it is the solid material of the earth, whatever may be the ingredients thereof, whether soil or rock or other substance; and if you believe from the evidence that the Southern Railway Company or H. H. Thrasher & Co. acquired of S. Russell Smith the right to place upon the lands then owned by him earth and rock taken from a railroad cut near by, with the understanding that the said earth and rock, when so placed, should be the property of the said Smith, and that, in pursuance of the said contract, the said Southern Railway Company or H. H. Thrasher & Co. did place upon the lands of the said S. Russell Smith rock and soil, whether intermingled or not, then the said rock and soil became a part of the lands of the said Smith upon which placed, and passed as land under the deed of trust to John B. Miller, trustee, and is real estate in the hands of the purchaser from the said trustee, and cannot be recovered in this suit.
"No. 2. The court instructs the jury that if they believe from the evidence that the said S. Russell Smith got from the Southern Railway Company $1,100 for the right to pile the waste from the railroad cut upon his lands, and for the temporary use of a portion of his land as a right of way, then the adaptability of the said waste for the uses of the said land is not to be considered by the jury in ascertaining whether the said Smith intended to use such waste as real estate or personal property.
"No. 3. The court instructs the jury that if they believe from the evidence that the Southern Railway Company acquired from S. Russell Smith the right to waste rock and earth taken from the cut being excavated by it upon the land of the said Smith, and did so waste the said rock and earth, piling it in different piles with the understanding that same should be the property of the said Smith, then the said rock and earth became a part of the real estate upon which placed, and would pass as such, unless same was reserved under a deed for
the said real estate, unless said Smith did some act other than talking of selling it, to show he intended to utilize it as personal property.
"No. 4. The court instructs the jury that rock, in the common acceptation of the term, is real estate; and where land is conveyed with rock located thereon, unless the rock is reserved on the face of the deed, it passes to the grantee in the deed along with the land conveyed, and this is true whether the rock is piled up or scattered over the land conveyed.
"No. 5. The court further instructs the jury that, if S. R. Smith claimed the rock at the time of the conveyance from himself to J. B. Miller, trustee, he should have notified the said Miller of his claim at the time of the conveyance to him; and, if he failed to do so, the rock passed to Miller, trustee, under the deed conveying the land, as a part of the land; and the burden is upon the plaintiff to show, by a preponderance of the evidence, that such notice was given; and this is true notwithstanding the jury may believe the rock was personal property.
"No. 6. The court instructs the jury that if they believe from the evidence that the Southern Railway Company acquired of S. Russell Smith the right to waste its rock and material taken from the railroad cut near the land of the said Smith upon the said land, with the understanding that such waste material was to be the property of the said Smith after the railroad company had finished therewith, and did so place same upon the land, and the said Smith had in his mind an idea that he might thereafter be able to sell and dispose of...
