Hanson v. Ryan

• Decision Date: 13 January 1925
• Citation: 185 Wis. 566,201 N.W. 749
• Parties: HANSON v. RYAN.
• Court: Wisconsin Supreme Court

185 Wis. 566

201 N.W. 749

HANSON

v.RYAN.

Supreme Court of Wisconsin.

Jan. 13, 1925.

Appeal from Superior Court, Dane County; August C. Hoppmann, Judge.

Action by Fred Hanson against William Ryan. From an order sustaining a demurrer to the complaint, plaintiff appeals. Order reversed and remanded.F. K. Shuttleworth and F. D. Shuttleworth, both of Madison, for appellant.

Olbrich, Brown & Siebecker, of Madison, for respondent.

JONES, J.

It was alleged in the complaint that the plaintiff was the owner and entitled to the immediate possession of personal property described as “one portable, moveable, and collapsable garage made of wood, valued at $200”; that he was in the business of renting such garages to customers; that in October, 1917, for an agreed amount per month, he had rented to D. W. Case, tenant of the defendant, one of these garages having no floor, and placed it upon the premises occupied by the said tenant in the city of Madison, which were then owned by the defendant; that the tenant moved from the premises during the latter part of December, 1917; that on receiving notice from the tenant to come and get the garage in question on or about the 20th of December, 1917, he found that the defendant had obtained a judgment against the tenant for unpaid rent, and had execution issued thereon, but that the garage was not sold under the execution, but was held by the defendant and privately sold, separate and apart from the premises. Then follow allegations of demand for the delivery of the possession of the garage and refusal and wrongful conversion, with a demand for judgment. There was filed a general demurrer which was sustained.

[1][2] Undoubtedly, the garage in question was personal property before it was placed on the land of the defendant. One of the questions presented is whether on the facts stated in the complaint it became such an appurtenance of the freehold that it could not be severed without violation of the rights of the defendant. It is not a question arising between a grantor and a grantee, but one in which the right of a landlord and a third person are to be considered. When chattels are attached to the freehold, a stricter rule has generally been applied in holding them to be an incident of the land as against a grantee or mortgagee than when the same arises between a landlord and a tenant. The courts seem to have adopted the view that tenants should not be discouraged from making improvements for their own use temporarily by forfeiting their right to remove articles when such removal causes no injury to the land. Many illustrations might be given in which it has been held that articles annexed to a building or the land by a tenant remain personal property as between him and the landlord even though a different rule might obtain as between grantor and grantee. Nor is the rule necessarily different where machinery or other articles have been affixed to the freehold provided their removal would leave the premises in as good condition as they were originally. 11 R. C. L. 1076; Tiffany, Landlord and Tenant, § 240; McAdam on Landlord and Tenant, § 218; O'Donnell v. Hitchcock, 118 Mass. 401;Baringer v. Evenson, 127 Wis. 36, 106 N. W. 801. A general rule is thus stated in McAdam on Landlord and Tenant, on page 801:

“In general it may be said that what a tenant has added he may remove, if he can do so without material injury to the premises, unless he has actually built it in so as to make it an integral part of what was there originally.”

This liberal rule in favor of tenants has been most often applied in the case of trade fixtures and domestic and ornamental fixtures, but there seems no good reason why it should be so strictly confined to those classes as to work serious injustice. Perhaps since the automobile has now become so necessary to domestic and family comfort and convenience, there is no good reason for holding as a matter of law that a portable cover for an automobile is part of the realty, while a different rule is applied to so many of the articles which are held removable from a house or barn or place of business. For illustration of the liberal rule extended to tenants see McAdam on Landlord and Tenant, § 218, and Tiffany on Landlord and Tenant, § 240b.

[3] In Taylor v. Collins, 51 Wis. 123, 8 N. W. 22, Mr. Justice Orton laid down the following rules or tests for the determination of whether articles of machinery are fixtures:

“First, actual physical annexation to the realty; second, application or adaptation to the use or purpose to which the realty is devoted; third, an intention on the part of the person making the annexation to make a permanent accession to the freehold.”

In this opinion it was also stated:

“This matter of intention is coming to be the main test in such cases, and the matter of physical annexation of comparatively little importance.”

This case has often been referred to and approved in subsequent decisions in which it has been held that the intention of the party making the annexation is the principal consideration. Walker v. Grand Rapids Flouring Mill Co., 70 Wis. 92, 35 N. W. 332;Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36;Fish v. Young, 127 Wis. 149, 106 N. W. 795. In holding that the intention of the annexor is a very important element in the determination of whether personal property placed on real estate is removable or not, these cases are in harmony with the rule as declared in other courts.

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