Metropolitan Life Ins. Co. v. Jensen

• Decision Date: 07 April 1943
• Docket Number: 8579.
• Citation: 9 N.W.2d 140,69 S.D. 225
• Parties: METROPOLITAN LIFE INS. CO. v. JENSEN.
• Court: South Dakota Supreme Court

9 N.W.2d 140

69 S.D. 225

METROPOLITAN LIFE INS. CO. v. JENSEN.

No. 8579.

Supreme Court of South Dakota

April 7, 1943

Lars A. Bruce, of Yankton, for appellants.

Louis N. Crill, of Sioux Falls, for respondent.

ROBERTS Presiding Judge.

Plaintiff brought this action to enjoin the removal and disposal of the storm windows, screens, 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 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 Cal.2d 142, 105 P.2d 94, 98, 133 A.L.R. 416: "A door or window in an ordinary dwelling house can be removed with very little damage to the realty. It also may be replaced by one of different design or by a new one if the former should become broken or defective, but no one would contend that either was not a part of the realty by reason of these facts alone." In Farrar v. Stackpole, 6 Greenl. 154, 6 Me. 154, 19 Am.Dec. 201, it was said: "Windows, doors, and window shutters are often hung, but not fastened, to a building, yet they are properly part of the real estate, and pass with it; because it is not the mere fixing or fastening which is regarded, but the use, nature, and intention." In the absence of physical annexation, there must exist an appropriation and an adaptation to the enjoyment of the realty as elements of distinction from mere personalty. This distinction is well stated in Wolford v. Baxter et al., 33 Minn. 12, 21 N.W. 744, 745, 53 Am.Rep. 1: ...