Hedderich v. Smith

• Decision Date: 25 September 1885
• Docket Number: 11,583
• Citation: 2 N.E. 315,103 Ind. 203
• Parties: Hedderich v. Smith
• Court: Indiana Supreme Court

2 N.E. 315

103 Ind. 203

Hedderich v. Smith

No. 11,583

Supreme Court of Indiana

September 25, 1885

From the Marion Superior Court.

Judgment affirmed with costs.

B. F Davis and S. A. Forkner, for appellant.

T. S Rollins, for appellee.

OPINION

Mitchell, C. J.--

Elizabeth D. Smith, as owner of certain premises in the city of Indianapolis, brought this suit against Hedderich, who was in possession, to restrain him from removing therefrom a "club-house" which had been erected thereon, and other alleged fixtures, which it was claimed were a part of the freehold.

The case was put at issue and tried by the court, the result being a finding and judgment for the plaintiff below.

On appeal to the general term, the only error assigned was that the court at special term erred in overruling the appellant's motion for a new trial. Under the settled practice, no alleged errors will be considered here except such as were assigned at the general term. Miller v. State, ex rel., 61 Ind. 503.

It is a question whether the bill of exceptions containing the evidence is certified by the judge in such manner as to entitle it to consideration here, but, waiving the alleged irregularities in that regard, we find the following undisputed facts exhibited in the evidence:

The plaintiff took title to the premises from her deceased husband, Ebenezer Smith. The place was known as "Volk's Garden," and had upon it one building which was used as a saloon, and another called the "club-house." The club-house was built by one Baldus while occupying as tenant of Smith. In April, 1879, Hedderich, with the knowledge and consent of Smith, purchased the club-house and fixtures of Baldus, paying therefor seven hundred dollars in cash. Contemporaneously with the purchase from Baldus, he took a lease of the premises from Smith for a term of three years. Whether by the terms of this lease the right to remove the property in dispute was reserved, does not appear. During the continuance of this lease Smith died, and his widow succeeded to his title.

At the expiration of the term, Hedderich leased the premises from Mrs. Smith for a term of one year, at a stipulated rent, payable monthly. The rent reserved for the new term was different from the old. The lease contained the usual covenants for repair by the tenant, and for the surrender of the premises at the expiration of the term without waste. There is in it no reservation of a right to remove any building or fixtures annexed to, or situate upon, the land. Some repairs and alterations were made to the club-room by the tenant during his term, and he asserted the right to remove it and the fixtures which he had purchased from Baldus. Whether the building was so annexed to the freehold as to become part of it, or whether it could be removed without injury to the reversion, were propositions asserted on one hand and denied on the other, but as the finding of the court was for the plaintiff, it must be assumed here that it was so annexed.

That a tenant who, for the better enjoyment of the leasehold, erects thereon buildings, may, at any time before his right of enjoyment ceases, remove such buildings if the removal can be accomplished without permanent injury to the freehold, is well settled. It is equally well settled that if he neglects to remove them during his rightful continuance in possession, unless his right to do so afterwards is reserved by agreement with the landlord, he is presumed to have abandoned them, and his right ceases. Cromie v Hoover, 40 Ind. 49; Allen v. Kennedy, 40 Ind. 142; Hamilton v. Huntley, 78 Ind. 521 (41 Am. Rep. 593); Griffin v. Ransdell, 71 Ind. 440...