Oliver v. Lansing
| Decision Date | 09 November 1899 |
| Docket Number | 10,229 |
| Parties | HENRY OLIVER, APPELLEE, v. JAMES F. LANSING, APPELLANT, ET AL |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Lancaster county. Heard below before HOLMES, J. Reversed.
REVERSED AND REMANDED.
Lionel C. Burr and Roscoe Pound, for appellant:
The criterion of a fixture is in the united application of three tests: (1) Actual annexation to the realty, or something appurtenant thereto; (2) appropriation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make the article a permanent accession to the freehold--this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation the structure and mode of annexation, and the purpose and use for which the annexation has been made.
The elements mentioned in this rule are not alternative. They must concur. It is not meant that an article becomes a fixture in case any one of these tests is satisfied. No one of them is enough of itself, but it is their united application that determines the nature of the article. See Teaff v. Hewitt, 1 O. St. 511; Ward v Kilpatrick, 85 N.Y. 413; McRea v. Central Nat Bank, 66 N.Y. 489; Binkley v. Forkner, 117 Ind. 176; Winslow v. Bromich, 54 Kan. 300; Honeyman v. Thomas, 25 Ore. 539; Henkle v. Dillon, 15 Ore. 610; Helm v. Gilroy, 20 Ore. 522; Thomas v. Davis, 76 Mo. 72; Rogers v. Crow, 40 Mo. 96; Chase v. Tacoma Box Co. 11 Wash. 377; Cherry v. Arthur, 5 Wash. 787; Clore v. Lambert, 78 Ky. 226; Wolford v. Baxter, 33 Minn. 12; Farmers' Loan & Trust Co. v. Minneapolis Engine & Machine Works, 35 Minn. 543; McKeage v. Hanover Fire Ins. Co. 81 N.Y. 38; Loan v. Gregg, 55 Mo.App. 581; Keeler v. Keeler, 31 N.J.Eq. 181; Rogers v. Brokaw, 25 N.J.Eq. 497; Matthiesen v. Arata, 50 Pac. [Ore.], 1015; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519; Hoyle v. Plattsburgh & M. R. Co. 54 N.Y. 319; Walker v. Sherman, 20 Wend. [N.Y.], 636; Peck v. Batchelder, 40 Vt. 233; Hubbell v. East Cambridge Savings Bank, 132 Mass. 447; Manwarring v. Jenison, 61 Mich. 117; Maguire v. Park, 140 Mass. 27; Wall v. Hinds, 4 Gray [Mass.], 271; National Bank v. North, 160 Pa. St. 309; Washington Nat. Bank v. Smith, 15 Wash. 160; Case Mfg. Co. v. Garven, 45 O. St. 290; Balliett v. Humphreys, 78 Ind. 388; Atchison, T. & S. F. R. Co. v. Morgan, 42 Kan. 23; Haeussler v. Glass Co. 52 Mo. 452; D'Eyncourt v. Gregory, 3 L. R. Eq. Div. [Eng. ], 394; Southbridge Savings Bank v. Mason, 147 Mass. 500; Cooper v. Johnson, 143 Mass. 108; Carpenter v. Walker, 140 Mass. 416; Fortman v. Goepper, 14 O. St. 558; Hill v. Wentworth, 28 Vt. 428; Cole v. Roach, 37 Tex. 413; Capen v. Peckham, 35 Conn. 88.
There is no special and peculiar law of fixtures in theatres, and no ground for applying to buildings of that character rules different from those applied to all buildings.
Loose, portable articles, such as desks, step-ladders, center-tables, electric light globes not in use, and pictures on the walls, are personalty. See Peck v. Batchelder, 40 Vt. 233; Chase v. Tacoma Box Co. 11 Wash. 377; Scudder v. Anderson, 54 Mich. 122; Chapman v. Union Mutual Life Ins. Co. 4 Brad. [Ill.], 29.
Mirrors are not fixtures. See McKeage v. Hanover Fire Ins. Co. 81 N.Y. 38; Loan v. Gregg, 55 Mo.App. 581.
Gas fixtures are personalty and do not pass by a grant or mortgage of the realty. See McKeage v. Hanover Fire Ins. Co. 81 N.Y. 38; Vaughen v. Haldeman, 33 Pa. St. 522; Jarechi v. Philharmonic Society, 79 Pa. St. 403; Heysham v. Dettre, 89 Pa. St. 506; Rogers v. Crow, 40 Mo. 91; Towne v. Fiske, 127 Mass. 125; Capehart v. Foster, 61 Minn. 132; Chapman v. Union Mutual Life Ins. Co. 4 Brad. [Ill.], 29; Shaw v. Lenke, 1 Daly [N.Y.], 487; Manning v. Ogden, 24 N.Y.S. 70; Kirchman v. Lapp, 19 N.Y.S. 831; Smusch v. Kohn, 49 N.Y.S. 176; Montague v. Dent, 10 Rich. Law [S. Car.], 135.
The following articles are personalty and did not pass to the purchaser at the partition sale: carpets, rugs, curtains and hangings (Loan v. Gregg, 55 Mo.App. 581; Walker v. Sherman, 20 Wend. [N.Y.], 636; Manning v. Ogden, 24 N.Y.S. 70); radiators (National Bank of Catasaqua v. North, 160 Pa. St. 309; Freeland v. Southworth, 24 Wend. [N.Y.], 191; Towne v. Fiske, 127 Mass. 125); loose, portable stage properties (Hubbell v. East Cambridge Savings Bank, 132 Mass. 447; Chase v. Tacoma Box Co. 11 Wash. 377; Wolford v. Baxter, 33 Minn. 12; Scudder v. Anderson, 54 Mich. 122).
Joseph R. Webster and Halleck F. Rose, contra:
The court not only had power, but ought in duty to protect and vindicate the right of its purchaser. See Parrat v. Neligh, 7 Neb. 458; State Bank v. Green, 10 Nebr, 130; Penn Mutual Life Ins. Co. v. Creighton Theatre Co. 51 Neb. 659; Paulett v. Peabody, 3 Neb. 197; Frasher v. Ingham, 4 Neb. 531; Mahoney v. Allen, 42 N.Y.S. 11; Van Rensselaer v. Van Rensselaer, 113 N.Y. 214; Morrissey v. Broomal, 37 Neb. 779; Swift v. Dewey, 20 Neb. 107; Disher v. Disher, 45 Neb. 100.
The properties removed from the theatre and destroyed were part of the property sold in the partition suit, and the purchaser was entitled to compensation by abatement from the purchase price. See Kloess v. Katt, 40 Ill.App. 99; Woodham v. First Nat. Bank, 50 N. W. [Minn.], 1015; Reyman v. Henderson Nat. Bank, 98 Ky. 751; Brown v. Roland, 33 S.W. [Tex.], 275; Maginnis v. Union Oil Co. 47 La. Ann. 148; Tewksbury v. Provizzo, 12 Cal. 21; Morris v. Harris, 9 Gill [Md.], 26; Patterson v. Lanning, 10 Watts [Pa.], 135; Venable v. Beauchamp, 3 Dana [Ky.], 321; Feather v. Strohoecker, 3 P. & W. [Pa.], 505.
Intent with appropriation to uses of the realty or business there carried on is now the criterion to determine when a chattel becomes a fixture. See Norton v. Dashwood, 65 L. J. Ch. [Eng.], 737; D'Eyncourt v. Gregory, 3 L. R. Eq. [Eng.], 394; Fifield v. Farmers Nat. Bank, 148 Ill. 163; Davidson v. Westchester Gas Light Co. 99 N.Y. 558; Kloess v. Katt, 40 Ill.App. 99; Woodham v. First Nat. Bank, 50 N. W. [Minn.], 1015; Reyman v. Henderson Nat. Bank, 98 Ky. 751; New Orleans Canal & Banking Co. v. Leeds, 21 So. [La.], 168; Hopewell Mills v. Taunton Savings Bank, 6 L. R. A. [Mass.], 249; Parker Land & Improvement Co. v. Reddick, 47 N. E. [Ind.], 848; Simpson Brick Press Co. v. Wormley, 166 Ill. 383; Hill v. Munday, 4 L. R. A. [Ky.], 674; Farrar v. Stackpole, 6 Greenl. [Me.], 155; Eckstorm v. Hall, 90 Me. 186.
Gas fixtures are real estate. See St. Louis Radiator Mfg. Co. v. Hendricks, 72 Mo.App. 315; Keeting Implement & Machine Co. v. Marshall Electric Light & Power Co. 74 Tex. 605; Hutchins v. Masterson, 46 Tex. 554; Sewell v. Angerstein, 18 Law Times, n. s. [Eng.], 300; Johnson v. Wiseman, 4 Met. [Ky.], 357; Ex parte Acton, 4 Law Times, n. s. [Eng.], 261; Ex parte Wilson, 2 Mont. & Ayr. [Eng.], 61; Central Trust & Safe Deposit Co. v. Cincinnati Grand Hotel Co. 26 W. L. B. [O.], 149; Funk v. Brigaldi, 4 Daly [N.Y.], 359; Keeler v. Keeler, 31 N.J.Eq. 191.
A steam heating plant is a fixture. See Tyler v. White, 68 Mo.App. 607; St. Louis Radiator Mfg. Co. v. Hendricks, 72 Mo.App. 315.
The supreme court of Nebraska holds to the modern doctrine that the intention of the party to appropriate the chattel to use of realty is the material inquiry in determining whether it becomes a fixture. See Freeman v. Lynch, 8 Neb. 198; United States Nat. Bank v. Bonacum, 33 Neb. 820.
Theatre buildings are considered in reference to their uses, and include all fixtures, furnishings, carpets and paraphernalia necessary to make them going concerns. See Forbes v. Howard, 4 R. I. 365; Grosz v. Jackson, 6 Daly [N.Y.], 463; Waycross Opera House Co. v. Sossman, 94 Ga. 100; Cunningham v. Cureton, 96 Ga. 489; Grewar v. Alloway, 3 Tenn. Ch. 584; Halley v. Alloway, 10 Lea [Tenn.], 523; Grosvenor v. Bethell, 93 Tenn. 577; Sosman v. Conlon, 57 Mo.App. 25.
The opinion contains a statement of the case.
James F. Lansing and Henry Oliver erected a block in Lincoln, a part thereof being used as a theatre, furnished and set off in a manner common to such places of amusement. To aid toward the building and furnishing of this theatre, a considerable amount was subscribed and paid by third parties, the condition of such subscriptions being in effect that a theatre, modern in every respect, should be built and fully equipped.
Afterward Oliver sued Lansing for an accounting as to the moneys furnished by the two toward building and furnishing the same. In said suit, an accounting was had of all moneys expended by each party in such undertaking of building and equipping said theatre. A balance was found in favor of Lansing, and a decree in partition was entered directing that the real estate on which said building was erected, naming it by lots and blocks, should be sold, and that the proceeds should be divided in accordance with the account found between the parties. Neither the decree, order or notice of sale specified anything be sold other than the real estate. Sale was had, and the property was bid in by one William Oliver, subject to mortgage and other incumbrances. The amount of the bid was paid into court, the sale was confirmed and deed ordered. Before the latter was delivered, Lansing removed from the premises a large amount of property of varied character. William Oliver then filed in the original partition suit a petition setting forth the facts, claiming that the property so removed was real estate, and passed to him under the sale in partition, asked the court to enjoin Lansing from further interfering with or injuring the property, and for compensation out of the purchase-money then in court for the damages already inflicted, or if compensation could not be made, that the sale...
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