Motorola Communications Electronics, Inc. v. Dale, 81-4307

• Citation: 665 F.2d 771
• Decision Date: 15 January 1982
• Docket Number: No. 81-4307,81-4307
• Parties: 32 UCC Rep.Serv. 1656 MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., Plaintiff-Appellant, v. Clarence N. DALE, Jr. and Barbara Camin Dale, Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 771

665 F.2d 771

32 UCC Rep.Serv. 1656

MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., Plaintiff-Appellant, v. Clarence N. DALE, Jr. and Barbara Camin Dale, Defendants-Appellees.

No. 81-4307

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1982.

Dudley H. Carter, Columbus, Miss., for plaintiff-appellant.

J. Gordon Flowers, Hunter M. Gholson, Columbus, Miss., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, RUBIN and SAM D. JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This diversity case involves only the question whether, under Mississippi law, a radio transmission tower, affixed by the tower's lessee to a concrete base on leased real estate, became a fixture so that, on termination of the real estate lease for nonpayment of rental, the tower became the landowner's property. Applying familiar state law, the district judge found that it had become a fixture principally because of its annexation by bolts to the slab. We conclude, however, that under Mississippi law annexation to realty is a necessary but not sufficient condition for conversion to fixturedom, that it is only one of the factors to be considered, and that the other considerations all pointed against depersonalization. We, therefore, reverse.

Motorola Communications & Electronics, Inc. leased a radio transmission tower and an accompanying lighting kit, which we refer to together as "the tower," for five years to Miss-Corp. Services, Inc. ("MCS"). Motorola filed the appropriate financing statements covering the tower as equipment, thereby perfecting its security interest in it. Motorola did not, however, make the fixture filing required to perfect its security interest in the tower in the event it were later found in fact to be a fixture. See Miss. Code Ann. §§ 75-9-313(1)(b); 75-9-313(4)(b); 75-9-402(5) (1980 Supp.) (codifying §§ 9-313(1) (b), 9-313(4)(b) and 9-402(5) of the 1978 Official Text of the Uniform Commercial Code).

Three weeks later, Clarence N. Dale, Jr., and his wife, Barbara Camin Dale, entered into a five-year lease with Industrial Communications Corporation ("ICC") entitling ICC to erect and operate the tower on land owned by the Dales. The record does not disclose how ICC came into possession of the tower, but it shows that the same person was the president of both MCS and ICC.

As erected on the Dales' property, the tower is over 400 feet tall. Its base is attached by means of a "pier pin and plate" to a concrete slab measuring ten feet by ten feet and extending eight feet into the ground. Five sets of three guy wires are attached to the tower at the following levels: 60', 140', 220', 300' and 380'. The wires are attached to the ground by anchor rods sunk six feet below the surface at points 146 feet and 230 feet out from the base of the tower. With its anchoring system, the tower occupies 7.96 acres.

Not quite two years after the signing of the leases, MCS and ICC defaulted on their rent payments to both Motorola and the Dales. Motorola sought to take possession of the tower, but the Dales refused it permission to enter their premises. Consequently, Motorola filed this suit in replevin seeking permanent possession of the tower and damages for its conversion.

The district court, deciding the case on cross-motions for summary judgment, quoted Ziller v. Atkins Motel Co., 244 So.2d 409 (Miss.1971), for the proposition that, "A fixture was originally personal property, but by reason of its annexation to or use in association with real property has become a part of the realty as by means of concrete, plaster, nails, bolts or screws." Id. at 411 (citing 35 Am.Jur.2d, Fixtures § 1 (1967) and Black's Law Dictionary 766 (4th ed. 1951)). Relying on this statement of the law alone, the court concluded that the tower had been "annexed to (the Dales') real estate in a manner which (was) sufficient" to render it a fixture under Mississippi law; therefore, under Miss. Code Ann. § 75-9-313(4)(b) (1980 Supp.), the Dales' interest in the tower was superior to Motorola's security interest, which was unperfected because of the absence of a fixture filing.

The Mississippi jurisprudence, read as composite, makes the status of property as personalty or fixture depend on the intention of the party who accomplishes annexation to real estate. Annexation is circumstantial evidence of intent. It is indispensable but not conclusive.

Over a century ago, in Stillman v. Hamer, 8 Miss. (7 Howard) 421 (1843), the Mississippi Supreme Court noted that "many exceptions and qualifications have been engrafted upon" the rule that "whatever is fixed to the land is thereby made a part of the realty.... The greatest relaxation of the rule is admitted in the case of landlord and tenant, in favor of the latter ...." Id. at 422. Mississippi law on the subject was described as "less certain and fixed, than any other department of the law" in Richardson v. Borden, 42 Miss. 71, 75 (1868). Its principles were, however, there explicated: "reference must be had to the nature of the thing itself; the position of the party placing it where found; the probable intention in putting it there, and the injury which would result from its removal; and we must also consider the object of the party in placing the article on the premises with reference to trade, agriculture or ornament." Id. at 75-76. "(T)he rule of construction ... is relaxed and liberal ... as between landlord and tenant," id. at 76, presumably because it is not likely that the tenant intends to convert his personalty into the landlord's property.

These propositions are supported and further amplified in Weathersby v. Sleeper, 42 Miss. 732 (1869), perhaps the leading Mississippi case on fixtures:

Whether an article is personal property or a fixture, must be determined by taking into consideration its nature, mode of attachment, purpose for which used, and the relation of the party making the annexation, and other attending circumstances indicating the intention to make it a temporary attachment or a permanent accession to the realty. And inasmuch as it requires a positive act on the part of the person making the annexation to change the nature and legal qualities of a chattel into those of a fixture, the intention to make the article a permanent accession to the realty must affirmatively and plainly appear; and if it be a matter left in doubt or uncertainty, the legal qualities of the article are not changed, and the article must be deemed a chattel. In some instances the intention to make the article a fixture may clearly appear from the mode of attachment alone, as where a removal cannot be made without serious injury to the property by the act of severance. But where the attachment is but slight, and does not enter into the physical structure of the realty, this intention must be gathered from the nature of the article and the other attending circumstances.

Id. at 741-42 (emphasis supplied).

Intention is again emphasized as the "leading test" in Perkins, Livingston & Post v. Swank, 43 Miss. 349, 362 (1870). See also Boone v. Mendenhall Lumber Co., 97 Miss. 554, 52 So. 584 (1910) (engine attached by the landowner to a concrete foundation with steel bolts held to retain chattel status); Tate v. Blackburne, 48 Miss. 1...