Kuhlmann v. Meier

• Decision Date: 27 May 1879
• Citation: 7 Mo.App. 260
• Parties: HENRY C. KUHLMANN ET AL., Respondents, v. ANTON MEIER, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 260

HENRY C. KUHLMANN ET AL., Respondents,

v.ANTON MEIER, Appellant.

St. Louis Court of Appeals, Missouri.

May 27, 1879.

1. Erections made by the tenant, under a stipulation that he may remove them at the expiration of the term of his lease, do not become the property of the landlord because they are affixed to the soil, but they may be removed by the tenant within a reasonable time, provided this can be done without substantial injury to the freehold.

2. The failure to remove the improvements within a reasonable time is evidence tending to show an abandonment to the land-owner.

3. What is a reasonable time for the removal is to be determined from all the facts and circumstances of the case.

4. An instruction, though abstractly a correct declaration of law, is improperly given where there is no evidence to warrant it.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

DAVIS & SMITH, for appellant: “The stable having been erected upon posts set in the ground, and firmly spiked with iron spikes, by the tenant, was a fixture.”-- Beckwith v. Boyce, 9 Mo. 556. If the improvements are fixtures, they must be removed before the expiration of the lease, whether by lapse of time, surrender or forfeiture, or otherwise, or they revert to the landlord.-- Taylor's L. & T., sect. 533; 1 Washb. on Real Prop. 6; Phillipson v. Mullanphy, 1 Mo. 620; Powell v. McAshan, 28 Mo. 70.

H. S. & T. W. LIPSCOMB, for respondents: The tenant having built under a stipulation allowing him to remove the erection, and having transferred the right, his assignee could remove the improvements within a reasonable time, it not appearing that such removal would injure the freehold.-- Russell v. Richards, 10 Me. 429; Osgood v. Howard, 6 Me. 452; Dame v. Dame, 38 N. H. 429-433; Hilbert v. Brown et al., 12 Me. 162; Tapley v. Smith, 18 Me. 12; Barnes v. Barnes, 6 Vt. 388; Kilsey v. Duke, 33 Barb. 310; Bircher v. Parker, 40 Mo. 118, and authorities cited; Goodman v. Railroad Co., 45 Mo. 33.

LEWIS, P. J., delivered the opinion of the court.

On March 6, 1876, the defendant leased to Hermann Lampe, for a term of five years, a lot containing about thirty acres, at an annual rent of $600, payable quarterly. It was stipulated in the lease that a failure to pay the rent when due should, if the lessor so determined, produce an absolute forfeiture and expiration of the term, and that the lessee should have the right to remove, at the expiration of the lease, all the improvements by him made or erected on the place, and “to use said place for the purpose of a milk dairy, as well as for any other purpose of good husbandry.” In February, 1877, the lessee being in arrear for rent, the lessor declared the lease forfeited, and obtained a judgment against the lessee for the amount due and for possession of the premises. Lampe had in the meantime erected on the place a cow-stable and a fence for the uses of his business as a dairyman. He relinquished the possession in February, 1877, without then attempting to remove the buildings. On July 13, following, he assigned his claim and title in the buildings to the plaintiffs, who three days afterwards asked permission of the defendant to remove the property. The defendant at first consented, but later in the same day refused the permission. The plaintiffs then undertook to remove the erections, when the defendant caused them to be arrested; whereupon they desisted from further efforts in that way, and instituted this suit for a wrongful conversion. The defendant, after putting in issue the material allegations of the petition, set up a counter-claim for trespass committed by the plaintiffs in attempting to remove the buildings. The jury found for the plaintiffs on the leading issues, assessing their damages at $200, and allowed to the defendant $50 on his counter-claim. The defendant appealed.

The defendant seems to rely on the common law to sustain his theory that because the stable was spiked upon cedar posts, which were set from one to two feet deep in the ground, therefore it was a fixture, and consequently became the property of the land-owner upon the expiration of the lease. His proposition ignores the legitimate operation of the contract allowing the lessee to remove his improvements at the expiration of the term. It is not true, even as a common-law rule, that the exclusive test of the right of removal lies in the question whether the structure is sunk in or attached to the ground, or is merely set upon blocks or rollers, so as to be easily removed. As between landlord and tenant, the general right of removal before the expiration of the term depends rather upon the question for what purpose the building was erected by the tenant, and whether its removal will leave the land in the same condition it was in when rented. Powell v. McAshan, 28 Mo. 72. The privilege always attaches to buildings...