Northern Cent. Ry. Co. v. Canton Co.

• Decision Date: 12 March 1869
• Citation: 30 Md. 347
• Parties: THE NORTHERN CENTRAL RAILWAY COMPANY v. THE CANTON COMPANY OF BALTIMORE.
• Court: Maryland Court of Appeals

30 Md. 347

THE NORTHERN CENTRAL RAILWAY COMPANY v. THE CANTON COMPANY OF BALTIMORE.

Court of Appeals of Maryland

March 12, 1869

APPEAL from the Circuit Court for Baltimore County.

This was an action of Replevin instituted by the appellant, to recover from the possession of the appellee, a lot of iron rails, frogs, spikes and bolts, claimed to be the property of the former, in the possession of, or being upon the property of the latter. The writ was issued October 27th 1865, and the property replevied and delivered to the appellant on the 31st day of the same month.

The case was submitted to the Court below for its determination without the aid of a jury on an agreed statement of facts which will be found sufficiently stated in the opinion of this Court. The Circuit Court (EMORY, J.,) having given judgment for the defendant, the plaintiff prosecuted this appeal, in pursuance of the right reserved when the case was submitted to the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER, ALVEY and ROBINSON, J.

Bernard Carter and Wm. Henry Norris, for the appellant:

Wherever a structure of any kind, being the property of A, is by him erected or placed, at his cost, on the land of B under a license from B, under such circumstances as show that A did not intend such structure to cease to be his property, nor to become the property of B, and did not intend the same to lose its character of chattel or personal property, then in all such cases the said structure, though affixed and attached to the soil, continues to be the property of A, to all intents and purposes, and subject to his control, and even liable to his debts, to the same extent as if it had never been placed on the land of B. Wood vs. Hewett, 8 Ad. & Ell., N. S., 914, (55 E. C. L., 913;) Raymond vs. White, 7 Cowen, 319; 1 Washburne on Real Prop., 402, 403; Van Ness vs. Pacard, 2 Peters S. Ct., 143, 144; Wells vs. Banister, 4 Mass., 514; Dame vs. Dame, 38 N. H., 429; Barnes vs. Barnes, 6 Verm., 388; Holmes vs. Tremper, 20 Johns., 32.

When the license has been revoked, and possession resumed by the land owner, the person whose property still remains on the land, may enter thereon to take or remove the property which he originally placed there by the license of the owner of the land, and maintain trespass against such land owner if his right be denied. Nettleton vs. Sikes, 8 Metcalf, 34; Wood vs. Manley, 11 Ad. & Ellis, 34; Doty vs. Gorham, 5 Pickering, 489; Pierrepont vs. Barnard, 2 Selden, 279; Elwes vs. Mawe, 2 Smith's L. Cases, 220, 221, (4 th edition;) Prince vs. Case, 10 Conn., 383;

Nor indeed, according to the law of this State can the land owner compel the removal of structures erected by his license until he has tendered a reasonable amount to reimburse the person thus erecting them. Addison vs. Hack, 2 Gill, 221; Carter and Lewis vs. Harlan, et al., 6 Md. Rep., 20.

The right of the appellant to the iron rails and other things taken under the replevin is clear, when the fact is established that they were placed on the land of the appellee with its license; even without the necessity of maintaining that such permanent structures as houses, barns, &c., can be removed by the licensee, because, in the very nature of a railway track, the temporary character of a set of rails forming it is seen; these rails are constantly and necessarily after use for a short number of years, taken up and replaced by others; in no sense, therefore, can a railway be said to be a fixture, and least of all, could the iron rails be said to be fixtures as they were not in any way fastened to the ground, but only to the sleepers, which themselves were only kept down by the stone ballast. Elwes vs. Mawe, 2 Smith's Lead. Cases, 220, 221, (4 th edition,) and 288, last edition; Curtiss vs. Hoyt, 19 Conn., 164; White's Appeal, 10 Penn., 253. In West vs. Flanigan, 4 Md., it was conceded by West, on whose land a railway had been erected by Flanigan, his tenant, that on the termination of his tenancy, he had the right to remove the railway.

Frederick W. Brune, for the appellee:

"The road-bed of a railway, the rails fastened to it, and the buildings at the depots are clearly real property." "The rolling stock of a railway company, such as locomotives, engines, passenger, baggage and freight cars, hand cars, snow plows, &c., are to be deemed fixtures, and will pass under a mortgage of the track or railway." Farmers' Loan and Trust Co. vs. Hendrickson, 25 Barbour, 484, 488; State vs. N. C. R. W., 18 Md., 193, 218; Strickland vs. Parker, 54 Maine, 263-267; Minnesota Co. vs. St. Paul Co., 2 Wallace, 609.

There is nothing to show that this iron was originally affixed to the soil, with the understanding or intent that it should continue to be regarded as personal property.

In Maryland, "the question is whether the thing claimed to be a fixture, is so attached as to become parcel of the freehold; and this is a question of fact, depending on the mode of annexation to the soil, or fabric of the house, and the extent to which it is united to them," and is not a question of intent at all. McKim & Kennedy vs. Mason, 3 Md. Ch. Dec., 186; Kirwan vs. Latour, 1. H. & J., 289; Coombs vs. Jordan, 3 Bland, 284.

Even if the railway company could have been regarded as a "tenant" of the Canton company, (which the Court of Appeals has expressly decided that it could not be, even by a Court of equity, 21 Md., 395, 399,) and these iron rails as "trade fixtures"--(which they were not)--the "term" of the "tenant," if it ever had any existence, ended with the judgment in ejectment; and it is well settled that trade fixtures and other personal property "are only considered as chattels in favor of the tenant and his creditors during the term; for, after that time, if left upon the land, they become parcel of the inheritance." Coombs vs. Jordan, 3 Bland, 284, 312; Ruffey vs. Henderson, 8 Eng. Law and Eq., 305; Davis vs. Moss, 38 Penn., 346; Kutter vs. Smith, 2 Wallace, 491; Williams on Personal Property, 14, marg.; 2 Smith's Leading Cases, 261, top; Amos & Ferrard on Fixtures, 71 to 79; Smith's Landlord and Tenant, 348, 349, (n.;) Heap vs. Barton, 12 C. B., 274; Merritt vs. Judd, 14 Cal., 59; Weeton vs. Woodcock, 7 M. & W., 14.

BRENT J., delivered the opinion of the Court.

It appears from the facts in this case, that the Northern Central Railway Company, after the year 1855, and before 1859, constructed, at its sole cost and charge, a railway track upon the lands of the Canton Company, with the license and permission of the latter. The route adopted was agreed upon between them, and at the time of the construction of the road, the appellant had reason to believe it was laying its railroad upon land over which it had the free right of way. Whatever may have been the misunderstanding, as subsequently developed, between the companies, it was then believed by both of them that arrangements could be effected by which a continuous road, resulting in their mutual benefit, would be constructed from some point, in or near Baltimore city, on the main stem of the appellant's road to navigable water. Its construction, however, was prevented by circumstances, which it is unnecessary for the purposes of this case to notice in detail. The appellee, satisfied that the connection would not be made, thought proper in 1859 to revoke the license under which the appellant was in possession of its land. This was followed in 1860 by two suits; one an action of ejectment, and the other of trespass quare clausum fregit. During the pendency of these suits, which had been referred by agreement to an arbitrator, the appellant filed a bill for specific performance, and also praying for an injunction. The appellee was successful in having the bill dismissed, and recovered judgment in both actions at law. A subsequent action of ejectment was brought in January, 1865, for the road-bed, which had not been embraced in the previous ejectment suit. A judgment therein was obtained in June following, and under a writ of habere facias possessionem, possession was delivered to the appellee in October of the same year. The rails and other materials, which formed a part of the railway constructed by the appellant under the circumstances above stated, were upon the land at the time, and the question arises who is the rightful owner of them?

The fact that they had been taken up and severed from the soil shortly before the...