Powell v. McAshan

Decision Date31 January 1859
Citation28 Mo. 70
PartiesPOWELL et al., Appellants, v. MCASHAN et al., Respondents.<sup>a1</sup>
CourtMissouri Supreme Court

1. By the general law, if a tenant make erections and improvements upon the leased land and so connect the same with buildings already erected that they can not be separated or removed without material injury to the landlord's property, such erections or structures will be deemed in law fixtures as against such tenant, and he can not remove the same.

2. An agreement on the part of the landlord, that the tenant may take off and carry away any and all buildings, sheds and other temporary houses and improvements he may erect, would not be construed to authorize the taking away of erections, the removal of which would cause material injury to the property of the landlord.

3. Such an agreement on the part of the landlord would be valid although oral; it would not be within the statute of frauds.

Appeal from Buchanan Court of Common Pleas.

This was an action to recover the value of a building and shed alleged to have been wrongfully detached and removed from a certain main building on a lot belonging to the plaintiffs. The facts as they appeared in evidence are substantially as follows: The lot belonged to the heirs of one Peter Powell. At a sale in partition among said heirs on the 30th of March, 1855, the said lot was sold and the plaintiffs became the purchasers. On the 10th of April the plaintiffs notified the defendants to quit the possession. The defendants did not surrender the premises until June. Before doing so they removed the building and shed spoken of in the petition. This building and shed were erected by one McGhee, who had leased the lot and main building of the heirs of Powell. It was agreed orally that McGhee should have the right to take off and carry away any and all buildings, sheds and other temporary houses and improvements which he might erect. McGhee sold out his improvements and erections to the defendants, and leased the premises to them. The testimony bearing upon the question whether the building and shed were structures of a temporary, or of a permanent character--whether their removal would or would not materially injure the main building, was conflicting. The instructions given and refused are numerous.

Gardenhire, for appellants.

I. The improvements were fixtures. Defendants had no right to remove them. (2 Kent, 343; 20 Johns. 29; Gibbons on Fixtures, 38; 7 Taunt. 188; Phillipson v. Mullanphy, 1 Mo. 442.) Admitting that the buildings were temporary and not fixtures, defendants had no right to remove them after the expiration of their term. They admit that they were notified to quit the possession of said lot on the 10th day of April, and they made no objections to the form or sufficiency of the notice. They virtually acknowledged that their lease had expired. They had the right of removal, if at all, under the agreement with Hovey. That agreement did not give them this right. The court erred in refusing the instructions asked by plaintiffs, and in giving those asked by defendant.

Loan, for respondents.

I. The defendants not being parties to the suit for partition between Powell's heirs, are not bound by the judgment. If the contract made by Hovey as agent for Powell's heirs with McGhee is valid under the law, the plaintiffs are bound by it and the instructions No. 7, 8, 9, 10, 11 and 12 were properly refused as they contain only abstract principles of law not affecting this case, and the instructions given on the part of the defendants were proper. The contract is valid. (5 Johns. 5.) If the contract made by Hovey as agent as aforesaid with McGhee is not valid so far as it relates to improvements made by McGhee, yet the said McGhee or his assigns while in the lawful possession of said premises have the right to remove all improvements made by them that will not cause permanent injury to the freehold. (9 Mo. 360.)

NAPTON, Judge, delivered the opinion of the court.

The inclination of courts has been, of late years, to consider every erection upon land by a tenant, for manufacturing or commercial purposes, which can be removed without injury to the owner of the land, as a personal chattel, belonging to the tenant and removable by him at any time previous to his surrender of the premises. The law was not in ancient times so liberal to the tenant, and many nice questions arose as to what degree or character of connection between the chattel and the land should make the one an inseparable part of the other. The question now is, not whether the building is secured to the ground by posts of wood or by mason-work of rock or brick; nor whether it is attached to the ground...

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16 cases
  • Endler v. State Bank & Trust Co. of Wellston
    • United States
    • Missouri Supreme Court
    • May 2, 1944
    ...damage would be done to the landlord's property in removing them, become the property of the landlord at the end of the leasehold. Powell v. McAshen, 28 Mo. 70; Finney Watkins, 30 Mo. 291; 22 Am. Jur. 776; Ambs v. Hill, 10 Mo.App. 108; Taylor v. White, 68 Mo.App. 607; Globe A.S. Co. v. Boes......
  • Spalding v. Columbia Theatre Company
    • United States
    • Missouri Court of Appeals
    • April 6, 1915
    ... ... Iron Works, 143 ... Mo.App. 1; Bircher v. Parker, 40 Mo. 118; ... Morrison v. Sohn, 90 Mo.App. 76; Kuhlman v ... Meier, 7 Mo.App. 260; Powell v. McAshan, 28 Mo ... 70; Philadelphia Mortgage Co. v. Miller, 20 Wash ... 607, 44 L.R.A. 559; Cooper v. Johnson, 143 Mass ... 108; Blancke v ... ...
  • Red Diamond Clothing Co. v. Steidemann
    • United States
    • Missouri Court of Appeals
    • December 31, 1912
    ...installed by the tenant during the term and which may be dissevered without material injury to the property of the landlord. [See Powell v. McAshan, 28 Mo. 70; Kuhlmann v. Meier, 7 Mo.App. When the agreement is considered under this rule, it appears that it is available to plaintiff and aff......
  • Seibel v. Siemon
    • United States
    • Missouri Supreme Court
    • October 31, 1880
    ...7 Bing. 460; State to use, etc., v. Smith, 31 Mo. 566; Conard v. Pacific Ins. Co., 6 Pet. 268; Spencer v. Vance, 57 Mo. 430; Powell v. McAshan, 28 Mo. 70; Goodman v. H. & St. Jo. R. R. Co., 45 Mo. 33: Ombony v. Jones, 19 N. Y. 234; Myers v. Burns, 33 Barb. 401; King v. Wilcomb, 7 Barb. 263;......
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