Fitzgerald v. Anderson

• Decision Date: 23 February 1892
• Citation: 51 N.W. 554,81 Wis. 341
• Parties: FITZGERALD v. ANDERSON.
• Court: Wisconsin Supreme Court

81 Wis. 341

51 N.W. 554

FITZGERALD

v.ANDERSON.

Supreme Court of Wisconsin.

Feb. 23, 1892.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Replevin by Thomas Fitzgerald against N. J. Anderson. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Replevin to recover a frame dwelling-house, 16 by 20 feet in size, standing upon blocks upon appellant's land. The house was built by one Rudd while in possession of the premises as tenant of Anderson. When Rudd left the premises, he sold the house to Fitzgerald, who sublet the house to one Eastman. Afterwards, Fitzgerald prepared to move the house off from appellant's land, and appellant stopped the removal, whereupon this action was brought by Fitzgerald. Upon the trial a verdict for respondent was directed and rendered, and, from judgment entered thereon, Anderson appeals.Swift, Murphy & Bundy, for appellant.

Ross, Dwyer & Smith, for respondent.

WINSLOW, J., ( after stating the facts.)

It is settled that landlord and tenant may, by their agreements, treat as personal property improvements which would otherwise be part of the realty, and thus convert them into personal property, to all intents and purposes, as between themselves. Smith v. Waggoner, 50 Wis. 155, 6 N. W. Rep. 568. It is also settled that the right to remove such improvements must ordinarily be exercised by the tenant while still in possession under his lease, or it will be lost. Keogh v. Daniell, 12 Wis. 164;Josslyn v. McCabe, 46 Wis. 591, 1 N. W. Rep. 174. It appearing here that Rudd, the original tenant and builder of the building, abandoned the premises without removing the building, the purchaser of the building cannot recover unless, by some agreement with the owner of the real estate, the right of removal was preserved until after possession was given up by Rudd. The plaintiff's case must depend entirely upon the existence of such an agreement; and, unless it be proven by uncontradicted testimony, the verdict for the plaintiff should not have been directed. Plaintiff depends upon the following testimony of Rudd, which was not contradicted by Anderson, to establish this fact: “Was there anything said as to whether you had or had not the right to move the house? Answer. No.” “Was there anything said between you and Anderson in reference to your having the right to move the house at the time? A. Well, it was that said you know; it was...