McLain Inv. Co. v. Cunningham

• Decision Date: 08 May 1905
• Citation: 113 Mo. App. 519,87 S.W. 605
• Court: Missouri Court of Appeals
• Parties: McLAIN INV. CO. v. CUNNINGHAM et al.<SMALL><SUP>*</SUP></SMALL>

87 S.W. 605

113 Mo. App. 519

McLAIN INV. CO. v. CUNNINGHAM et al.^*

Kansas City Court of Appeals. Missouri.

May 8, 1905.

LANDLORD AND TENANT — FIXTURES — STEAM BOILER.

Defendants leased plaintiff's building, in which was a steam boiler connected with pipes and with the building in such a manner that it could be unscrewed from the pipes and then removed by sections from the pit in which it stood. Finding the boiler insufficient, defendants put in another similar boiler, with the intention of removing it, and replacing the old one when the term expired. Held, that the new boiler was not a fixture, but that defendants were entitled to remove it.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by the McLain Investment Company against M. E. Cunningham and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Haris L. Moore, for appellant. Wm. A. Craven and Simrall & Trimble, for respondents.

BROADDUS, P. J.

This is a suit in replevin for the possession of a certain steam-heating boiler used for the purpose of heating a hotel in the city of Excelsior Springs, which at the time of the institution of the suit was occupied by defendants as plaintiff's tenants. Defendants took possession of the building in the fall of 1901 under a lease for two years, by which they accepted the building, and agreed to keep it in repair, and to turn it over at the expiration of their lease in as good condition as when they received it. At the time defendants took possession of the building there was in the basement of the same, set in a pit, a heating boiler, consisting of different sections, attached to pipes that ran through the floors and partitions to the different rooms therein. This boiler was the means of heating the building, and was adapted to no other purpose. In order to remove the boiler it was necessary to unscrew the attachments that connected it with the pipes, and to then remove it from the pit by sections. The boiler was not much used in the winter of 1901-02, owing to an insufficient supply of water. In the following spring it was discovered the boiler was almost useless, as many of the sections had bursted, which had resulted from the freezing of water therein. The evidence was conflicting as to whether its condition was brought about because plaintiff had left water in it when it was turned over to defendants, or caused by the neglect of defendants by letting water into it and permitting it to stand during the winter. In the summer of 1902 defendants removed said boiler, and replaced it with the one in controversy. It was shown that at the time of putting in the new boiler it was their intention to remove it before the expiration of the lease and replace the old one. There was evidence tending to show that plaintiff agreed that defendants might remove the boiler in question at the expiration of their lease. And they were so removing it with the view of replacing the other when plaintiff instituted this suit. A jury was waived, and the case was tried before the court. The finding and judgment being for defendants, plaintiff appealed.

The court refused the following declarations of law asked by the plaintiff: "(1) If the defendant accepted a lease from the plaintiff of a hotel building equipped with a steam-heating plant fed by a boiler, and covenanted to keep the premises in repair, and so return them to the landlord, and during his term defendant removed the boiler and substituted a new boiler in its place, and if a boiler was necessary in the use of the premises for the purposes for which they were adapted, then such new boiler became a fixture in the building. (2) Fixtures, to be capable of removal by a tenant, must be additions made by the tenant to the property of the landlord, and not substitutions for essential parts of it, which the tenant has removed."

The court gave the following at the instance of defendants: "(1) The court declares the law to be that the boiler in plaintiff's house at the time defendants rented it was a fixture, and if defendants removed it because inadequate, and put the boiler in controversy in its place, with the intention of removing it before his lease expired, and restoring the original boiler to its original position, and was proceeding to remove it for the purpose of replacing the original boiler before his lease expired, when plaintiff's suit was instituted, then the finding should be for the defendants. (2) The court declares the law to be that, if the defendants removed the boiler in plaintiff's house at the time they rented it because it was inadequate, and replaced it with the boiler in controversy, with the understanding with plaintiff that they should be permitted to remove the latter before the expiration of their lease, and were proceeding to do so before the expiration of their tenancy, when plaintiff's suit was instituted, then the finding should be for the defendants."

The plaintiff contends that the court committed error in not giving his said declarations of law. The substance of these declarations is that the boiler in question was a fixture. And the substance of defendants' declarations is that, if they put it into the building with the intention of removing it before the expiration of their lease, or that plaintiff agreed that they might remove it before that time, they were entitled to remove it. It is often a difficult question to determine what is and what is not a fixture. The books contain many different attempts to define fixtures; but, after all, we deduce...