Metropolitan Life Ins. Co. v. Jensen, 8579

CourtSupreme Court of South Dakota
Writing for the CourtROBERTS, P.J.
PartiesMETROPOLITAN LIFE INS. CO., Respondent, v. J. B. JENSEN, Appellant.
Docket Number8579
Decision Date07 April 1943
69 SD 225, 9 NW2d 140 (1943)

METROPOLITAN LIFE INS. CO.,
Respondent,
v.
J. B. JENSEN,

Appellant.


South Dakota Supreme Court
Appeal from Circuit Court, Yankton County, SD
Hon. C. C. Puckett, Judge.
#8579—Affirmed.

Lars A. Bruce, Yankton, SD
Attorney for Appellants.

Louis N. Crill, Sioux Falls, SD
Attorney for Respondent.

Opinion filed April 7, 1943

[69 SD 226]

ROBERTS, P.J.


Plaintiff brought this action to enjoin the removal and disposal of the storm windows, screens,

[69 SD 227]

sink, bathtub and the electric motor alleged to be a part of the realty described in the complaint. The cause was tried to the court without a jury and resulted in a judgment for plaintiff granting an injunction. From this judgment, defendants have appealed.

Defendants J. B. Jensen and his sister Agnes Jensen were the owners of the premises described in the complaint. Plaintiff acquired title to the premises by foreclosure of a mortgage given by defendants. The court found “that the aforesaid storm windows and screens were ordinary ready made and manufactured storm windows and screens and fitted to the size of the windows in the house located on said described real property and were used for the comfort and convenience of the persons residing in said house. That said sink and bathtub were attached to said house and real property by soil pipes with the intention of being a permanent part thereof and did and do constitute a part of said real property. That the aforesaid electric motor was a part of a unit of the pump and water system of said house located on said real property; that the same was securely affixed to said real property and was so attached with the intention that the same be and remain a permanent part of said house and real property described. That all of the aforesaid described property constitute fixtures to said described real property.”

Defendants contend that the storm windows and the other properties in controversy were not affixed to the realty by one or more of the means of affixation mentioned in SDC 51.0104 and are not an integral part of the realty. The section referred to reads: “A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.”

The Supreme Court of California construing the same section in the statutes of that state held that it is “simply a rule for general guidance, concerning itself more

[69 SD 228]

with ultimate than with probative facts.” Gosliner v. Briones et al., 187 Cal. 557, 204 P 19, 20. The contention that an article cannot become an appurtenance to realty without physical attachment or annexation does not permit of serious consideration. As was said by the Supreme Court of California in San Diego Trust & Savings Bank et al. v. San Diego County et al., 16 Cal2d 142, 105 P2d 94, 98, 133 ALR 416: “A door...

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12 practice notes
  • Appeal Of Defense Plant Corporation.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 17 Noviembre 1944
    ...Life Ins. Co. v. Kimball, 163 Or. 31, 94 P.2d 1101; Pennsylvania cases are cited above; Metropolitan Life Ins. Co. v. Jensen, S.D., 9 N.W.2d 140; Danville Holding Corp. v. Clement, 178 Va. 223, 16 S.E.2d 345; Pocahontas Coal & Coke Co. v. By-Products Pocahontas Co., 112 W.Va. 390, 164 S.E. ......
  • Granite Buick GMC, Inc. v. Ray, No. 26842.
    • United States
    • Supreme Court of South Dakota
    • 5 Noviembre 2014
    ...373, 712 A.2d 1148, 1150–51 (1998) ). [¶ 10.] In this case, all claims and defenses were equitable. See Metro. Life Ins. Co. v. Jensen, 69 S.D. 225, 230, 9 N.W.2d 140, 142 (1943) ( “Injunction is distinctly an equitable remedy.”); Deckert v. Independence Shares Corp., 311 U.S. 282, 289, 61 ......
  • Max Drill, Inc. v. United States, No. 102-68.
    • United States
    • Court of Federal Claims
    • 12 Junio 1970
    ...basement or attic." Brown, supra, at p. 712. Cf. Roderick v. Sanborn, 106 Me. 159, 76 A. 263 (1910); Metropolitan Life Ins. Co. v. Jensen, 69 S.D. 225, 9 N.W.2d 140 (1943). Since a fixture is deemed to be physically annexed to the realty, it may be argued that the exterior of a storm window......
  • Durkee v. Van Well, No. 22242.
    • United States
    • Supreme Court of South Dakota
    • 4 Diciembre 2002
    ...by jury. Injunction is an equitable remedy for which Durkee was not entitled to trial by jury. Metropolitan Life Insurance Co. v. Jensen, 69 S.D. 225, 230, 9 N.W.2d 140, 142 (1943). Moreover, Durkee's right to injunctive relief was dependent upon equitable or incidental legal claims for whi......
  • Request a trial to view additional results
12 cases
  • Appeal Of Defense Plant Corporation.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 17 Noviembre 1944
    ...Life Ins. Co. v. Kimball, 163 Or. 31, 94 P.2d 1101; Pennsylvania cases are cited above; Metropolitan Life Ins. Co. v. Jensen, S.D., 9 N.W.2d 140; Danville Holding Corp. v. Clement, 178 Va. 223, 16 S.E.2d 345; Pocahontas Coal & Coke Co. v. By-Products Pocahontas Co., 112 W.Va. 390, 164 S.E. ......
  • Granite Buick GMC, Inc. v. Ray, No. 26842.
    • United States
    • Supreme Court of South Dakota
    • 5 Noviembre 2014
    ...373, 712 A.2d 1148, 1150–51 (1998) ). [¶ 10.] In this case, all claims and defenses were equitable. See Metro. Life Ins. Co. v. Jensen, 69 S.D. 225, 230, 9 N.W.2d 140, 142 (1943) ( “Injunction is distinctly an equitable remedy.”); Deckert v. Independence Shares Corp., 311 U.S. 282, 289, 61 ......
  • Max Drill, Inc. v. United States, No. 102-68.
    • United States
    • Court of Federal Claims
    • 12 Junio 1970
    ...basement or attic." Brown, supra, at p. 712. Cf. Roderick v. Sanborn, 106 Me. 159, 76 A. 263 (1910); Metropolitan Life Ins. Co. v. Jensen, 69 S.D. 225, 9 N.W.2d 140 (1943). Since a fixture is deemed to be physically annexed to the realty, it may be argued that the exterior of a storm window......
  • Durkee v. Van Well, No. 22242.
    • United States
    • Supreme Court of South Dakota
    • 4 Diciembre 2002
    ...by jury. Injunction is an equitable remedy for which Durkee was not entitled to trial by jury. Metropolitan Life Insurance Co. v. Jensen, 69 S.D. 225, 230, 9 N.W.2d 140, 142 (1943). Moreover, Durkee's right to injunctive relief was dependent upon equitable or incidental legal claims for whi......
  • Request a trial to view additional results

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