Muir v. Jones
| Decision Date | 26 December 1892 |
| Parties | MUIR et al. v. JONES. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county; R.P. BOISE, Judge.
Replevin by Muir & McDonald against S.W. Jones. Judgment for defendant. Plaintiffs appeal. Affirmed.
Bonham & Holmes, for appellants.
Bingham & D'Arcy, for respondent.
This was an action in replevin to recover a steam engine and boiler which the plaintiffs claim to be the owners of by purchase from one Sarah E. Dennis. Substantially, the facts are these: Sarah E. Dennis, owning a farm on the Willamette river, purchased an engine, boiler, and other fixtures and attachments necessary to make a steam sawmill, and erected the same on her land, to saw timber thereon, and also to saw timber which was cut from another farm owned by her, on the same river, a short distance above, and floated down to the mill. When Mrs. Dennis put up and erected this steam sawmill on her land she did not intend to make it a part of the realty; her intention was to preserve its character as personal property. Subsequently she sold the land on which the mill was so situated to one Bowman, orally informing him that the steam saw mill was no part of the realty, and reserving the right to enter upon the land and take it away. Bowman sold the same land to Fairchild with like notice and reservation of the rights of Mrs. Dennis, and Fairchild sold it to Stranahan, to whom he gave like notice of the rights of Mrs. Dennis in regard to the status of the mill property. Stranahan sold to the defendant, Jones without informing or giving him any notice of the parol agreement or reservation in respect to the mill property. Mrs. Dennis sold the mill, including the engine and boiler in controversy, to the plaintiffs, who undertook to haul them away, but, the wagon miring down, they were compelled to leave them by the roadside, where the defendant, when he heard of their removal from the land, recaptured them. The engine and boiler was a stationary one, which was permanently affixed to the soil; the boiler being inclosed by brickwork and the engine fastened to timbers imbedded in the ground by means of bolts. The flood of 1890 washed off some portions of the mill, leaving it in a damaged and dilapidated condition in which state it was during the transactions above mentioned. All of the deeds to the land upon which this mill was located were warranty deeds, with full covenants, and without any reservation whatever, conveying it to the grantees, together with the tenements and appurtenances thereunto belonging.
It is conceded that the defendant, when he purchased the land from Stranahan, had no knowledge or information that the sawmill or the engine and boiler in controversy were not the property of his grantor, or that any one else other than his grantor claimed to own the sawmill or the boiler and engine, but that he purchased the same in good faith, and paid full value for the land and all things pertaining thereto, and believed that he was obtaining a good title to the farm and the sawmill. Upon this state of facts the court charged the jury, in effect, that, if Mrs. Dennis, when she sold the land upon which this sawmill, engine, and boiler were situated reserved to herself the sawmill, engine, and boiler, and the right to enter upon the premises and remove them, and if the defendant had notice of such reservation, then the plaintiff would be entitled to recover in this action but that, if she suffered them to remain on the premises and attached to the same, and the defendant had no notice of any such reservation at the time he purchased the premises, then the defendant would not be bound by such reservation, and the mill or the engine and boiler would pass to him with a conveyance of the real property. No exception was made or taken to the first part of this instruction, but only that portion of it which declares that the engine and boiler, when so attached to the soil as to become a part of the realty, pass to the grantee with the conveyance, unless he had notice of the intention to preserve them as personal...
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