Oregon Ry. & Nav. Co. v. Mosier

• Decision Date: 19 February 1887
• Parties: OREGON RY. & NAV. CO. v. MOSIER and others.
• Court: Oregon Supreme Court

13 P. 300

14 Or. 519

OREGON RY. & NAV. CO. v. MOSIER and others.

Supreme Court of Oregon

February 19, 1887

Rufus Mallory, for appellant.

A.S Bennett, for respondent.

LORD C.J.

This was a proceeding in pursuance of the statute to condemn certain lands described therein for a right of way for a railroad, and for grounds for a depot, water station, etc. The plaintiff entered and constructed its road and buildings on the land in 1881, and has since continued in the use thereof. Prior to such entry, the plaintiff had bought and paid the defendant J.H. Mosier, who was in possession and claimed to be the owner of the land, for a right of way, and received from him and his wife a deed therefor, and in pursuance of the same entered upon said land, and constructed its said railroad; that the defendant Lydia S. Mosier, during this time, was not within the state, and had no other tenant or person in possession of her interest in said land than her father, the said J.H. Mosier; and that she owns a one-seventh interest in the land sought to be appropriated, and to condemn which the proceedings were instituted. Without further detail, it is sufficient to say that the several assignments of error relate to the rejection of certain evidence, the giving of certain instructions and the refusal to give certain others requested; all of which raise but a single question, and that is, whether the defendants are entitled to have the value of these railroad improvements included in assessing the damages. The theory upon which the court below proceeded was that the plaintiff having entered upon the land without the consent of the owner, and without having instituted the necessary proceedings required by statute for the ascertainment of damages or compensation to which the defendant was entitled and the payment of the same, was a trespasser, and that the rails, ties, and other structures, which the plaintiff had affixed to the lands in the mode ordinarily done for railroad purposes, became a part of the freehold, and vested in the proprietor of the soil.

It is evident from the language of the instructions that the court applied the common-law maxim, quicquid plantatur solo, solo cedit, with ancient rigor and strictness, and regarded the fact of attachment to the soil of such structures as decisive of their character as fixtures, and of the right of the owner of the land to them. The old rule that all things annexed to the realty become a part of it, has been much relaxed, and several exceptions recognized, as where the intention is manifest to use the alleged fixtures in some employment distinct from the use of the soil or husbandry, or where the chattel has been affixed for the purposes of trade or the mechanical arts. In modern times, for the encouragement of trade, manufactories, and transportation, and owing, no doubt, in part to the increased value and importance of personal property, many things are now considered as personalty which are attached to the soil. The necessities and convenience of an advancing civilization have demanded a relaxation of the strict rule, so that now attachment to the soil is only one of several conditions to help in determining whether a given thing belongs to the realty. The books indicate that various considerations have been applied by the courts in the determination of this question, and that few decisions, although involving fixtures of a similar character, can be considered of absolute authority for its disposition; but that, in the nature of things, every case must depend, more or less, upon its own special facts and peculiar circumstances. Schouler, Pers.Prop. § 117.

In Railroad Co. v. Deal, 90 N.C. 111, the exceptions to the general rule, and the reasons for them, are clearly and succinctly stated by MERRIMON, J. He said: "The general rule of law is that buildings and other structures, erected on land for the better enjoyment of it, become identified with, part of, and go with, the land, and the tenant has no right at any time to remove them. Anciently the law was more strict, in respect to making things erected upon and attached to the land, directly or indirectly, a part of the freehold than in modern times. As civilization has advanced, and trade and the mechanical arts and other industries have multiplied and increased in development, and, correspondingly, in their necessities and wants of reasonable convenience, there has been a growing relaxation of the strict rules of law mentioned in their favor. It is the policy of the law to encourage trade, manufactories, and transportation, by affording them all reasonable facilities. Buildings, fixtures, machinery, and all such things certainly intended and calculated to promote them, are treated, not as a part of the land, but as distinct from it, belonging to the tenant, to be disposed of or removed at his will and pleasure. Hence, if a house or other structure is erected upon land, only for the exercise of trade, or the mixed purpose of trade and agriculture, no matter how it may be attached to it, it belongs to the tenant, and may be removed by him during his term, and, in some classes of cases, after it is ended; though the tenant, after his term is over, would, in going back upon the land to get his property, be guilty of a trespass in going on the land, and, only in that respect, the property would remain his. The exceptions to the general rule pointed out above are well settled, and the practical...