James Leo Co. v. Jersey City Bill Posting Co.

• Decision Date: 24 September 1909
• Citation: 78 N.J.L. 150,73 A. 1046
• Parties: JAMES LEO CO. v. JERSEY CITY BILL POSTING CO.
• Court: New Jersey Supreme Court

73 A. 1046

78 N.J.L. 150

JAMES LEO CO.

v. JERSEY CITY BILL POSTING CO.

Supreme Court of New Jersey.

Sept. 24, 1909.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Trespass by the James Leo Company against the Jersey City Bill Posting Company. Judgment for plaintiff for nominal damages, and plaintiff appeals. Reversed, and new trial ordered.

Argued February term, 1909, before REED, TRENCHARD, and MINTURN, JJ.

Peter & John Bentley, for appellant.

John J. Mulvaney, for appellee.

TRENCHARD, J. The plaintiff in this suit seeks damages for a trespass alleged to have been committed by the defendant's servants in entering upon the plaintiff's lands, and tearing down and carting away a fence, and to recover the value of the fence. At the trial in the First district court of Jersey City the evidence showed that, prior to the purchase of the lands in question by the plaintiff, the defendant had erected a fence thereon, pursuant to a license given by a written agreement with the tenant then in occupation of the premises, which permitted the defendant to erect and maintain a fence for advertising purposes, conditioned upon its vacating on 30 days' notice from the tenant; the defendant having the right upon such notice to remove its property. The plaintiff took title to the lands without notice of the license respecting the fence. About two weeks after the term of the tenant under whom the defendant held this advertising privilege had expired, and after having failed to come to terms with the plaintiff for the retention of the fence privilege, the defendant, by its servants, went to the premises in question and removed the fence, and carted it away. The learned trial judge, sitting without a jury, rendered judgment for the plaintiff for nominal damages only, and the plaintiff appeals.

The trial judge was of the opinion that under the facts stated the title of the fence was in the defendant, but he rendered judgment for the plaintiff upon the theory that the defendant in recovering its property committed a technical trespass. We think the judge was in error in his finding that the title of the fence was in the defendant. As a general proposition, a fence is a part of the freehold, and the ownership of it is determined accordingly. 12 A. & E. E. L. (2d Ed.) 1059. This is so as between vendor and vendee. Ruckman v. Outwater, 28 N. J. Law, 581. It is, of course, true, as pointed out by Chief Justice Beasley in Ivins v. Ackerson, 38 N. J. Law, 220, 222, that a fence is not "out and out" a part of the land, but may, as between the owner of the land and the owner of the fence before annexation, retain its character as personalty by an express agreement between them to that effect.

We are thus brought to a consideration of the main question in this case: Whether a subsequent innocent purchaser of the land without notice is affected by such an agreement. Most of the cases presenting the question of the right of a third party to chattels which have been annexed to the soil arise as between conditional vendors or chattel mortgagees and purchasers or mortgagees of the realty. Our own courts have recognized the title of the conditional vendor or chattel mortgagee as against a mortgage upon the realty executed before the personal property was affixed to the soil (Palmateer v. Robinson, 60 N. J. Law, 433, 38 Atl. 957; General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 460, 42 Atl. 101; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Rep. 889), but thus far, as far as we know, they have not been called upon to decide as to the rights acquired by a bona fide purchaser without notice after the fixture is upon the premises (Palmateer v. Robinson, 60 N. J. Law, 433, 436, 38 Atl. 957). In other jurisdictions the weight of authority is to the effect that a subsequent purchaser of the land, without notice, is not affected by an agreement between the owner of the land and the owner of an article at the time of annexation that the article shall retain its personal character and be subject to removal at the pleasure of the owner of the article. Hobson v. Gorringe, 66 L. J. Ch. 114, (1897) 1 Ch. 182; McDonald v. Weeks, 8 Grant, Ch. (U. C.) 297; Porter v. Pittsburg Bessemer Steel Co., 122 U. S. 267, 7 Sup. Ct. 1206, 30 L. Ed. 1210; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675; Joliet First Nat. Bk. v. Adam, 138 Ill. 483, 28 N. E. 955; Binkley v. Forkner, 117 Ind. 183, 19 N. E. 753, 3 L. R. A. 33; Bringholff v. Munzenmaier, 20 Iowa, 513; Rowand v. Anderson, 33 Kan. 264, 6 Pac. 255, 52 Am. Rep. 529; Ridgeway Stove Co. v. Way, 141 Mass. 557, 6 N. E. 714; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Climer v. Wallace, 28 Mo. 557, 75 Am. Dec. 135; Arlington Mill, etc., Co. v. Yates, 57 Neb. 286, 77 N. W. 677; Haven v. Emery, 33 N. H. 69; Brennan v. Whitaker, 15 Ohio St. 446; Muir v. Jones, 23 Or. 332, 31 Pac. 646, 19 L. R. A. 441; Forrest v. Nelson, 108 Pa. 481; McCrillis v. Cole, 25 R. I. 156, 55 Atl. 196, 105 Am. St. Rep. 875; Hutchins v. Masterson, 46 Tex. 551, 26 Am. Rep. 286; Davenport v. Shants, 43 Vt. 546; Wade v. Donau Brewing Co., 10 Wash. 284, 38 Pac. 1009; Frankland v. Moulton, 5 Wis. 1. As a reason for this rule,...