Pocahontas Coal & Coke Co v. Byprod.S Pocahontas Co, 7185.

• Decision Date: 31 May 1932
• Docket Number: No. 7185.,7185.
• Citation: 164 S.E. 504
• Court: West Virginia Supreme Court
• Parties: POCAHONTAS COAL & COKE CO. v. BYPRODUCTS POCAHONTAS CO. et al.

164 S.E. 504

POCAHONTAS COAL & COKE CO.

v.BYPRODUCTS POCAHONTAS CO. et al.

No. 7185.

Supreme Court of Appeals of West Virginia.

May 31, 1932.

Syllabus by the Court.

In determining the intention of the parties as to whether articles attached to the

freehold become fixtures, consideration should be given to the circumstances and purposes of the annexation.

Appeal from Circuit Court, McDowell County.

Suit by the Pocahontas Coal & Coke Company against the By-Products Pocahontas Company and 'others. An injunction was granted, and, from decrees refusing to set aside the injunction, and from the final decree, defendants appeal.

Affirmed.

James S. Kahle and John Kee. both of Blue-field, for appellants.

Joseph M. Crockett, of Welch, A. W. Reynolds, of Princeton, and Theodore W. Reath, of Philadelphia, Pa., for appellee.

MAXWELL, J.

This suit involves the right of a trustee under a deed of trust executed by a lessee to remove from a coal mining property certain improvements and equipment used in the dumping, grading, cleaning, screening and loading of coal. If these articles are a part of the realty, fixtures, the circuit court was right in enjoining their removal, otherwise the injunction was not warranted.

Coal leases were executed by the plaintiff to Cirrus Coal & Coke Company and Kimball-Pocahontas Coal Company May 15, 1908, and May 1, 1912, respectively. The defendant, By-Products Pocahontas Company, became assignee of the leases August 24, 1920. The said defendant actively operated the properties for the production of coal for nearly ten years.

By deed of trust of January 1, 1930, the By-Products Pocahontas Company conveyed to Jairus Collins, Jr., trustee, the said leaseholds, with improvements, machinery and equipment thereon to secure the said Kimball-Pocahontas Coal Company in the payment of certain promissory notes aggregating about $108,000.00. On the 24th of April, 1930, the Pocahontas By-Products Company having defaulted in the payment of royalties, plaintiff declared a forfeiture of the leaseholds and reentered and took possession of the properties. The lessor formally assented to the assignments but the record does not disclose that it assented to the deed of trust

The latter part of May, 1930, Collins, trustee, entered the properties and removed therefrom numerous articles of equipment, claiming that they were embraced in the deed of trust. The plaintiff then instituted this suit to enjoin further removal and to require the return of articles taken away. The plaintiff's position is that upon forfeiture of the leases the improvements became the property of thelessor. A temporary injunction was entered June 2, 1930. There was no appearance for the defendants. On hill taken for confessed the injunction was made permanent September 8, 1930. This last order not only enjoined the removal of any other equipment but commanded the return of that which had been removed.

Collins died and in his stead Richard H. Kelley was appointed trustee December 1, 1930. At the March term, 1931, the circuit court overruled a motion of the defendants, Kimball-Pocahontas Coal Company and Kelley, trustee, to reverse and set aside the decree of September 8, 1930, for errors apparent on the face of the record. In June, 1931, a hearing was held upon a rule charging Kelley, trustee, with contempt of court in his failure to return to the leaseholds the tipple equipment which Collins, trustee, had removed. The court, finding that its mandatory injunction of September 8, 1930, had not been complied with, entered an order requiring Kelley to return the items which had been removed. This order specifically enumerates the said articles.

From these two decrees, the one of March term, 1931, (exact date of entry not given) and the other of June 25, 1931, the defendants appeal.

The ground of the motion to set aside and vacate the decree of September 8, 1930, was that the said decree and all the papers in the cause are so indefinite and uncertain in their attempted descriptions of the equipment involved that the defendants cannot know therefrom what articles are specified by the said decree. The defendants, appellants, take the position that by reason of said alleged indefiniteness and lack of sufficient description there was error on the face of the record, and that by reason thereof the said decree should have been reversed and set aside.

The decree of September 8, 1930, enjoined the defendants and their agents "from further removing, appropriating, concealing, making sale of or otherwise disposing of the property heretofore removed by them from the leased premises referred to in the bill, being parts of the improvements claimed by the plaintiff upon the said leased premises, and from removing, appropriating, concealing, making sale of or otherwise disposing of the property claimed by the plaintiff as being improvements upon the said leasehold premises or any part thereof. And it is further adjudged, ordered and decreed that the defendants shall return those parts of the improvements claimed by the plaintiff which have been removed by the defendants from the leased premises described in the bill, to the plaintiff...