Middleton v. Alabama Power Co.

• Decision Date: 20 January 1916
• Docket Number: 5 Div. 582
• Citation: 196 Ala. 1,71 So. 461
• Parties: MIDDLETON v. ALABAMA POWER CO. et al.
• Court: Alabama Supreme Court

71 So. 461

196 Ala. 1

MIDDLETON v. ALABAMA POWER CO. et al.

5 Div. 582

Supreme Court of Alabama

January 20, 1916

Rehearing Denied March 30, 1916

Appeal from Circuit Court, Chilton County; W.W. Pearson, Judge.

Action by J.H. Middleton against the Alabama Power Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The trespass alleged is the tearing down and removing from a certain five acres of land 12 houses alleged to belong to defendant. The complaint was afterwards amended by adding the count in conversion of certain lumber. It appears that the Alabama Power Company by its contractors had leased its five acres of land from plaintiff for the purpose of quarrying rock for the building of its dams, and had placed thereon 15 or 16 houses for use in its quarrying operations, and when the lease expired, or rather when the quarrying had been finished, all of these houses but 3 were removed, together with the machinery and railroads. The contract provided, in substance, a lease of the five acres described, and the right to take rock and other mineral substances for building purposes in and under said land, and also the right to build and operate one or more railroad tracks over and across the same, and to locate and operate equipment and machinery on said land, and to build structures, houses, and habitations for workmen, all for the quarrying preparation, and transportation of said rock and other material, and the right to use the water of Blue Gut creek. It contained the following provisions also: The rights conveyed by this instrument, and all interest in the said land shall revert to the grantors upon completion of the quarry operations of the said land by said grantee, its successors and assigns, at the expiration of said period of three years. The plaintiff also offered to show by parol testimony that it was agreed between Mr. Middleton and the Alabama Power Company that the houses which they were to build on the land for the purposes of their operation were to be left on the land, and not to be removed from it. The court declined to permit this to be done.

Middleton & Reynolds, of Clanton, and Riddle, Burt & Riddle, of Talladega, for appellant.

Rushton Williams & Crenshaw, of Montgomery, and Smith & Gerald, of Clanton, for appellees.

ANDERSON C.J.

The general rule is that, when houses are erected upon the land of another, the prima facie intendment is that they become part of the realty, though this is by no means conclusive, as the intent of the parties usually controls, and the builder may reserve the right to remove same. Powers v Harris, 68 Ala. 409. On the other hand, if the improvements or fixtures are what is termed "trade fixtures," they do not become prima facie a part of the land. Walker v. Tillis, 188 Ala. 313, 66 So. 54 L.R.A. 1915A, 654. Though the parties may by contract make them a part of the land just as they may prevent a house or permanent fixture from becoming a part of the freehold (Powers v. Harris, supra; Broaddus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am.St.Rep. 61), it also seems that a reservation of the chattel or a right to remove same at the expiration of the lease may be done by an oral agreement (Broaddus Case supra; Harris v. Powers...