Hamilton v. Charlebois

• Decision Date: 20 May 1933
• Docket Number: 6119
• Court: North Dakota Supreme Court

248 N.W. 676

63 N.D. 504

WILLIAM T. HAMILTON, Respondent,
v.
JOHN H. CHARLEBOIS, Appellant

No. 6119

Supreme Court of North Dakota

May 20, 1933

Appeal from the District Court of Ward County, Moellring, J.

Affirmed.

George A. McGee, Harry E. Dickinson, E. R. Sinkler, G. O. Brekke, and John J. Coyle, for appellant.

Where fixtures are erected upon and attached to leased real property, by a tenant or other person rightfully there, for a specific use connected with the occupancy during the leasehold term -- they may be removed by the tenant -- during the term of the tenancy, provided the severance can be accomplished without injury to the landlord's freehold. Moran v. Otoe County Nat. Bank, 213 N.W. 824; Frost v. Schinkel, 238 N.W. 659.

All fixtures need not be actually attached to the soil. Klocke v. Troske, 57 N.D. 404, 222 N.W. 262; 26 C.J. 699; Bronson, Fixtures, 239; Frost v. Schinkel, 238 N.W. 666.

The tenant's right to remove is rather considered a privilege allowed him than an absolute right to the things themeselves. Free v. Stuart, 57 N.W. 991; Morey v. Hoyt, 19 L.R.A. 611.

As between landlord and tenant, unless the right to remove fixtures after the expiration of the term is specially reserved in the lease, the rule is well settled that such fixtures must be removed by the tenant before his term expires, or at least while he continues to hold possession as tenant. Erickson v. Jones (Minn.) 35 N.W. 267; Ombony v. Jones, 19 N.Y. 238; Loughran v. Ross, 45 N.Y. 797; Shepard v. Alden, 201 N.W. 537, 39 A.L.R. 1094; 11 R.C.L. 1071; Sweet v. Myers (S.D) 53 N.W. 187; Phelps v. Ayers (Wis.) 125 N.W. 919; Friedlander v. Ryder (Neb.) 47 N.W. 83; Fuller v. Brownell (Neb.) 67 N.W. 6; Bank v. Shinn, 18 A.D. 276, 46 N.Y.S. 329; Van Vleck v. White, 72 N.Y.S. 1026.

Halvor L. Halvorson and L.W. Halvorson, for respondent.

As between landlord and tenant the greatest latitude and indulgence are to be allowed in favor of the tenant's claim to have particular articles considered as personal chattels rather than as part of the freehold or inheritance. 26 C.J. 695.

Machines may remain chattels for all purposes, even though physically attached to the freehold by the owner, if the mode of attachment indicates that it is merely to steady them for their more convenient use, and not to make them an adjunct to the building or soil. Carpenter v. Water, 5 N.E. 160; Bartlett v. Haviland, 52 N.W. 1008.

A chattel mortgage given in good faith upon a trade fixture by the owner preserves its status as personalty unless the rights of innocent third persons will be prejudiced. Frost v. Schinkel, 238 N.W. 661; Cooper v. Johnson, 9 N.E. 33.

The injury which would result from the removal of the fixture must, in order to preclude removal, be a substantial in jury. 26 C.J. 700.

If an article has acquired the character of a "trade fixture," the later cases hold that it is removable by the tenant, no matter how firmly attached, so long as such removal does not result in material and permanent injury to the freehold. Northwestern Lumber & Wrecking Co. v. Parker, 145 N.W. 964; Moran v. Otoe County Nat. Bank, 213 N.W. 824.

A dispossessed tenant is entitled to a reasonable time in which to remove his chattels. Bergh v. Herring-Hall-Marvin Safe Co. 136 F. 368, 70 L.R.A. 756; Gartland v. Hickman, 67 L.R.A. 694; Updegraff v. Lesem, 62 P. 342.

Birdzell, J. Nuessle, Ch. J., and Burke, Christianson and Burr, JJ., concur.

OPINION

BIRDZELL [248 N.W. 677]

[63 N.D. 507] This is an appeal from a judgment in favor of the plaintiff in a claim and delivery action and from an order denying the defendant's motion for judgment notwithstanding the verdict or in the alternative for a new trial in so far as the same was denied. In disposing of the motion, the court granted a new trial limited to a determination of the damages for the detention of the property. The plaintiff does not appeal from this portion of the order, so we are concerned only with the judgment and the order in so far as the plaintiff recovers the property or its value. The facts essential to an understanding of the issues presented on the appeal may be briefly stated as follows: In July, 1930, the plaintiff, Hamilton, leased from the defendant, Charlebois, for a period of five years certain premises in the city of Minot to be occupied and used as a laundry. Hamilton immediately installed certain personal property by way of laundry equipment, some of which was involved in litigation which has heretofore reached this court. See Martyn v. Hamilton, 62 N.D. 445, 244 N.W. 15. The property involved in this suit, as enumerated in the judgment, is as follows:

"Four washing machines, American and Troy:

1	28 X 30
1	30 X 30
1	36 X 54
1	30 X 54
1	Desk and chair
1	Office...