New Castle Theater Co. v. Ward
| Decision Date | 13 March 1914 |
| Docket Number | No. 8,265.,8,265. |
| Citation | 57 Ind.App. 473,104 N.E. 526 |
| Parties | NEW CASTLE THEATER CO. et al. v. WARD et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Henry County; Ed Jackson, Judge.
Action by Andrew H. Ward and others against the New Castle Theater Company and others. From a judgment for plaintiffs, defendants appeal. Reversed, with directions to grant a new trial.
Philip Wilkinson, of Indianapolis, for appellant New Castle Theater Co. Robert S. Hunter, of New Castle, for appellants Doolittle and Arganbright. Forkner & Forkner, of New Castle, for appellees.
Appellees filed a complaint in the trial court against appellants praying for a temporary restraining order, and upon final hearing for a perpetual injunction preventing appellants from removing from the real estate owned by appellees certain floors, heating plant, ticket office, stage, flies, drop curtains, scenery, dressing rooms, opera chairs, and other appurtenances necessary to the operation of a theater. This was followed by a supplemental complaint asking that a receiver be appointed to take charge of the property pending litigation. Appellants Gail Doolittle and Clara Arganbright, who held recorded chattel mortgages on the property in question, were granted permission to intervene, and separate cross-complaints were filed by these parties against the New Castle Theater Company asking judgment on their notes and a foreclosure of their mortgages. Various pleadings were filed by the several parties to the action before the issues were closed; but, as no question is made as to any of the pleadings, we deem it unnecessary to set them out in detail. There was a trial by the court, and a judgment rendered in favor of appellees on their complaint, and against each of the cross-complainants Doolittle and Arganbright.
Each of appellants separately assign as error the action of the trial court in overruling their separate motions for a new trial. The motions are identical in form, and the reasons assigned are that the decision of the court is not sustained by the evidence, and is contrary to law.
It appears from the evidence that appellees were the owners of the real estate described in the complaint, which consisted of a large brick building. This building was fitted with a level floor, some balconies, and a few chairs, and was used by appellees for a skating rink. On September 3, 1910, appellees executed a lease to the Crystal Amusement Company for the real estate described for the term of five years, beginning on the 1st day of October, 1910. The lease provided that the building was to be used by the lessee for a theater, dance hall, and for public gatherings, and that all contemplated repairs and alterations in the building were to be made by the lessee at its own expense, and that all bills for such repairs were to be paid, and the receipts therefor turned over, to the lessors before the lessee was given full possession under its lease.
The Crystal Amusement Company went into possession and made extensive repairs and alterations in the building under the terms of the lease. The floor was changed from a level to an inclined floor, a stage was built, and boxes and a balcony were placed in the building, with a stairway leading to the balcony. The entire interior of the building was plastered and decorated, and other changes and repairs of less importance were made. The cost of these changes and repairs was all paid for by the lessee as provided by the terms of the lease.
After these repairs and changes were made so as to adapt the building for use as a theater, the lessee purchased and placed in position a steam-heating apparatus consisting of a boiler placed in the basement, and connected by pipes with radiators so placed as to furnish heat for the room used for theater purposes. The lessee also purchased and placed in position on the floor of this room over 1,000 chairs for the purpose of seating audiences. It also purchased and placed in this room stage settings and scenery, stage furniture, a piano, a moving picture machine, carpets, and other articles of personal property suitable for use in conducting a theater.
On the 3d day of November, 1910, the lessee, with the written consent of the lessors, assigned the lease to the New Castle Theater Company. The latter company conducted a theater in the leased building, and paid the rent each month up to the 1st day of June, 1911. On the 25th day of May, 1911, the New Castle Theater Company started to remove the chairs and other property which it claimed from the room, and on the same day this action was brought by the lessors to restrain them from doing so. Upon the final hearing the court found that the lessor was the owner of all the property described in the complaint and cross-complaint, and enjoined appellants from removing any of such property from the building.
The only question presented for decision is the sufficiency of the evidence to sustain this finding. The question thus presented requires us to decide whether, under the undisputed evidence, the property claimed by the New Castle Theater Company was personal property, or whether it constituted a part of the real estate.
[1] The evidence shows, without dispute, that the piano, picture machine, the stage furniture, and some other articles of personal property were neither actually nor constructively attached to the building in any manner. The evidence does not show that these articles belong to that class of property which is on the border line between personal property and real estate, and which is usually designated as fixtures. As to such property, the right of the tenant to remove it is clear.
[2] Some of the other property claimed by the tenant, such as the opera chairs, the radiators, boiler, and attachments used for heating purposes, and some parts of the scenery and stage settings, are shown by the evidence to have been attached in some manner to the building, and may be properly designated as fixtures.
[3] The term “fixture” has been used in various senses. It is held to denote such articles of a chattel nature as, when once attached to the land, cannot be removed by the party annexing them as against the owner of the realty, while, on the...
To continue reading
Request your trial