Neufelder v. Third Street & S. Ry.

• Decision Date: 12 December 1900
• Court: Washington Supreme Court
• Parties: NEUFELDER v. THIRD ST. & S. RY.

63 P. 197

23 Wash. 470

NEUFELDER v. THIRD ST. & S. RY.

Supreme Court of Washington

December 12, 1900

Appeal from superior court, King county; O. Jacobs, Judge.

Action by E. C. Neufelder against the Third Street & Suburban Railway. From a judgment for defendant, plaintiff appeals. Affirmed.

Morris B. Sachs, John P. Hoyt, and Pierre P. Ferry, for appellant.

Bausman Kelleher & Emory, for respondent.

FULLERTON J.

In 1884 the Western Mill Company, being then the owner of certain real property, mortgaged the same to Myer Lewis to secure a loan made to it on that day by Lewis. The mortgage was in the usual form of a real-estate mortgage, and the description of the property was ample to cover everything on the mortgaged premises that could properly be said to be a part of the realty, but contained nothing from which it could be inferred that it was intended to cover the personal property then on the premises, or which might thereafter be put thereon by the mortgagor. At the time of the execution of the mortgage there was a saw mill on the land, having a capacity of about 45,000 feet of lumber per day. In 1888 and 1889 the mortgagor erected a new sawmill building thereon, and fitted it out with machinery in part taken from the old mill and in part newly purchased, giving the new mill a capacity of about 100,000 feet of lumber per day. The old building was turned into a planing mill and sash and door factory, and was fitted out with the usual machinery used in conducting a business of that character. Subsequent to that time the property was sold and conveyed to the respondent herein. The mortgage was not paid, and in 1895 a suit to foreclose the same was duly commenced by the then owner of the mortgage. While this foreclosure proceeding was pending, respondent removed from the premises certain of the machinery used in the saw mill and sash and door factory. Subsequent thereto the real property was sold under a decree of foreclosure of the mortgage, and purchased by the mortgagee at a sum less than the amount the court found to be due upon the mortgage debt. This is an action brought by the successor in interest of the mortgagee to recover damages alleged to have been suffered because of the removal of the property, the contention being that the property removed was a part of the realty. The trial court found the following facts: 'I find that all the machinery in the planing mill and sash and door factory removed by the defendant herein as aforesaid was attached to the building by lag screws, for the purpose of steadying it while in use; that all of this machinery was capable of being moved from the premises without material injury thereto; and that it was in fact removed by the defendant without material injury thereto. I find that all the machinery in the planing mill and sash and door factory removed as aforesaid by the defendant, was machinery of common sort and description; that it was machinery of a sort bought and sold by price list and sample, according to catalogues, and that it was not specially made or designed for that building or those premises; that it can be used as well in any other premises of like nature; and that like machinery can be purchased and put in use upon these premises for the purposes of a planing mill and sash and door factory without alteration of the premises. As to block A (the saw-mill property), I find that with the exception of one engine, hereinafter referred to, all the machinery and apparatus in the saw mill thereon, removed as aforesaid by defendant, was machinery of common lot and description, bought and sold in the markets according to price list and sample, and found in catalogues; that it was not more specially adapted to that structure than to any other milling structure; that it can be used in any other mill as well as in that; that when the mill itself was built some of this machinery was contemplated, but that it was built substantially in the manner of any other saw mill; and that it can again be equipped with machinery suitable for its purposes without alteration of the structure. I find, also that all the machinery on block A so removed was never intended to become a part of the premises; that it was attached to the mill structure only for the purpose of steadying it while in use; that it could be removed from the premises without any material damage or alteration thereof. The machinery in the mill removed by the defendant was in some cases fastened to the floor by screws or lag bolts. In other cases the machinery was fastened to the frame of the building by the use of bolts of various lengths, averaging in size from a half inch in diameter to an inch and one-quarter in diameter. ...