Hill v. Sewald

• Citation: 53 Pa. 271
• Parties: Hill <I>versus</I> Sewald.
• Decision Date: 07 January 1867
• Court: United States State Supreme Court of Pennsylvania

Page 271

53 Pa. 271

Hill versus Sewald.

Supreme Court of Pennsylvania.

January 7, 1867.

ERROR to the District Court of Allegheny county.

Hopkins & Lazear, for plaintiff in error.—The question is, whether the agreement for the removal of the fixtures could be enforced, not only against Snodgrass, but against the defendants: 2 Smith's Lead. Cases 259. Such agreement is binding, not only on the owner of the freehold, but those claiming under him: Shell v. Haywood, 4 Harris 523; Piper v. Martin, 8 Barr 206; Goddard v. Gould, 14 Barb. 662; Russell v. Richards, 1 Fairf. 429; 2 Id. 371; Osgood v. Howard, 6 Greenl. 452; Smith v. Benson, 1 Hill 176; Doty v. Gorham, 5 Pick. 487; White's Appeal, 10 Barr 252; 2 Am. Lead. Cases 747, 3d ed.

Fixtures, whether attached to the realty or not, may, by consent of the parties having control of the property, be treated as personalty: Shell v. Haywood, 4 Harris 530; White's Appeal, 10 Barr 252; Mitchell v. Freedly, Id. 198; Mott v. Palmer, 1 Comst. 564.

Trover lies for fixtures before severance from the realty, by any person by whom they had been set up, subject to an express or implied agreement for their removal: Smith v. Benson, 1 Hill 176; Gould v. Goddard, 14 Barb. 662; Russell v. Richards, 1 Fairf. 429; Osgood v. Howard, 6 Greenl. 452; Taply v. Smith, 18 Me. 12.

J. L. Koethen, for defendants in error.—The property in dispute is in the abstract fixtures: Roberts v. Dauphin Deposit Bank, 7 Harris 71; Christian v. Dripps, 4 Casey 278; Harlan v. Harlan, 3 Harris 516. It follows that unless there is some circumstance that changes its character into personal property, as between the parties to this action, the plaintiff cannot recover against the defendants, who purchased the land and all belonging to it. Trover will not lie for realty: Mather v. The Trinity Church, 3 S. & R. 509; Powell v. Smith, 2 Watts 126.

The notice at the sheriff's sale could have no effect to change the rights of the parties: Heaton v. Findley, 2 Jones 309. Machinery fast or loose, if necessary to constitute the manufactory, is its fixtures: Gray v. Holdship, 17 S. & R. 413; Voorhees v. Freeman, 2 W. & S. 116; Oves v. Oglesby, 7 Watts 106; Harlan v. Harlan, 3 Harris 507; Overton v. Williston, 7 Casey 155.

The opinion of the court was delivered, January 7th 1867, by AGNEW, J.

Upon the assumption of the learned judge of the District Court, that the boilers, with the front, safety-valve, and pipe attached thereto, were annexed to the freehold by the owner thereof, his conclusion was sound, and supported by the authorities he cites. But this is the very point in the case, and depends on what constitutes a legal incorporation or conversion of a chattel into the realty. We agree with him that the act of Mrs. Snodgrass is to be viewed as the act of her husband, who, after his return from the army, did not disavow it. But this act was the hiring of a chattel. When Hill severed the boilers from the Braddock's Field saw-mill, they became chattels in his hands, and in that form came to the mill of Snodgrass. They never had been a part of his mill, and were therefore not subject to the mortgage of the Sewalds. In order to become subject to their mortgage, they must have been annexed to the freehold. This being the very question in the case, until annexation the mortgage has no bearing upon it. The fact that the old boilers of Snodgrass were taken out, does not change the state of the case. That might have been waste, for which the Sewalds had their remedy under the Act of 29th March 1822, though the proof in this case shows that they were worn out and unfit for service, and for this reason the boilers in question were hired of Hill. But this gave the mortgagee no lien on the boilers put in their place, unless they were incorporated into the realty. This, then, is the question.

It is not the character of the physical connection with the realty which constitutes the criterion of annexation, as the authorities hereafter cited abundantly show; but I may now observe that the brick structure upon which boilers are placed is essential for their use. The fire cannot be applied to the boiler to make steam unless it be built into a structure to prevent the escape of the heat. When these boilers and their connections were built into the mill of Snodgrass, it is clear it was with no intention on his part, or those who acted for him, to affix it to the realty as his property, or with an intention to make it his own by a wrongful conversion. They were placed there as the personal chattels of Hill under a valid contract of hiring for their temporary use, the right of removal being expressly reserved. How then can it be said that a chattel is converted into realty when it was neither the intention of the owner of the chattel nor that of the owner of the freehold to annex it? If it be considered as annexed, it must be purely on account of its physical attachment or because the mortgagee had acquired a lien upon it. The latter was not the fact, and the former we shall show is not the criterion of the law. Unquestionably the intention to annex, whether rightfully or wrongfully, is the true legal criterion. It is on this principle that when one fixes his own chattel on the land of another, it is in legal effect a gift of it to the owner of the land. So where the owner of the land wrongfully fixes the chattels of another (as materials in a building), it is a conversion of them into the realty, and by the change of their nature leaves the remedy of the owner only in damages: Gibbons on Fixtures, 13 Law Lib. 2, p. 4. The same want of intention to convert is imputed to a tenant who attaches to the land fixtures for the use of his business, the law presuming in favor of trade that he meant to remove them before the end of his term; and it is only on leaving without removal, the intention to make a gift of them to the landlord is imputed to him: Leman v. Miles, 4 Watts 330; Vanness v. Packard, 2 Wheat. 137. For the same reason even the owner of the freehold may...