Reader v. Christian

• Decision Date: 13 July 1921
• Docket Number: (No. 705.)
• Citation: 234 S.W. 155
• Parties: READER v. CHRISTIAN et al.
• Court: Texas Court of Appeals

Page 155

234 S.W. 155

READER v. CHRISTIAN et al.

(No. 705.)

Court of Civil Appeals of Texas. Beaumont.

July 13, 1921.

Rehearing Denied October 12, 1921.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by Ben H. Christian and others against Jabe C. Reader. Judgment for plaintiffs, and defendant appeals. Affirmed.

John M. Cobb and Homer Stephenson, both of Houston, for appellant.

Baker, Botts, Parker & Garwood, of Houston, for appellees.

O'QUINN, J.

This is a suit by appellees against appellant for the title and possession of a water tower tank, and in the alternative for its value. Tried before a jury on special issues, which the jury answered in appellees' favor, upon which judgment was rendered, and from which appellant appeals.

The record discloses that the Chamber of Commerce of the city of Houston, on July 20, 1917, leased 270 acres of land in Harris county, Tex., from Max A. and Bertha E. Roy and then subleased same to the United States government, which, in part, composed the site upon which Camp Logan was established. The purpose for which Camp Logan was established and the use to be made of the lands leased were fully understood by all the parties. Among other things, the government erected on said lands a certain water tower tank, the subject-matter of this suit. Said lease was dated July 20, 1917, and among other provisions, contained the following:

"(3) That the said lessor shall keep the premises in good repair to the satisfaction of the government officer in charge, but all buildings and other improvements fixed to or erected or placed in or upon the said premises by the lessee shall be and remain the exclusive property of the lessee, provided, however, the same, unless sold or otherwise disposed of, shall be removed by the lessee within ninety (90) days after the said premises are vacated under this lease."

"(11) That the lessee shall have free and unrestricted access to and use of the water found upon the premises for the use of persons, animals and appliances, with the privilege of erecting upon the land such buildings as may be required for all military purposes, and of installing water lines and means of drainage and sewage disposal."

"(8) That the lessee reserves the right to quit, relinquish and give up the said premises at any time within the period for which this lease is made or may be renewed by giving to the said lessors or agent thirty days' notice in writing. * * *"

Accordingly on May 10, 1919, the government served notice in writing on the Chamber of Commerce of the city of Houston that 30 days after receipt of the notice, the United States would quit, relinquish, and give up the said premises, and that said lease would then be terminated and canceled. This notice was received by the said Chamber of Commerce on May 12, 1919. Said notice of relinquishment contained the following:

"It is hereby agreed that the government shall have the right to remove any improvements six months after the expiration of the ninety days allowed by the lease has expired, and that the government shall have the use of water and sewer mains for such period of time as may be necessary to remove said improvements."

On the next day, May 13, 1919, the Chamber of Commerce of the city of Houston duly served said notice upon Max A. and Bertha E. Roy. However, the notice in the record from said Chamber of Commerce to said Max A. and Bertha E. Roy did not contain the statement as to the 6 months' time allowed after the 90-day period had expired.

On May 21, 1919, the government sold a portion of the property it had situated at Camp Logan to George T. Broun, among which was the water tower tank in question, stipulating delivery to him not later than September 15, 1919, and in the contract of sale agreed to continue its leases or rights of possession of said camp site for a period of not exceeding 5 months from the date purchaser was given possession for removal. Broun sold certain of the property so bought to G. D. Samuels and T. J. Marett on June 6, 1919, among which was the tank in question. Samuels and Marett then sold same to the Gulf Salvage Company on June 17, 1919. The Gulf Salvage Company then sold same to Christian Bros. Lumber Company, composed of Ben H. Christian and J. R. Christian, Jr., these appellees, who, on about November 10, 1919, while engaged in the removal of said water tank were stopped by appellant, who asserted he had bought 4.26 acres of land from the said Max A. and Bertha E. Roy, on which 4.26 acres the said tank was situated, and claimed said tank by reason of its not having been removed within the 90-day period from and after 30 days from the surrender of said lease and vacation of said premises by the government, and who, by writ of injunction, restrained appellees from further attempting to remove same. Appellees then instituted this suit, and also, by writ of injunction, restrained appellant from destroying, removing, or appropriating said tank.

The case was submitted to the jury on the following special issues:

"Special Issue No. 1: Did the defendant, prior to September 13, 1919, knowingly and intentionally lead the plaintiffs to believe that they could leave the standing tower on the Roy tract without forfeiture of title to same by reason of his relations, if any, with the property?" To which the jury answered, "Yes."

"Special Issue No. 2: Did the defendant, by his acts and conduct subsequent to October 15, 1919, knowingly and intentionally lead the plaintiffs to believe that they could leave the tower on the Roy tract without forfeiture of title to same, by reason of his relations, if any, with the property?" To which the jury answered, "Yes."

"Special Issue No. 3: Did the owner of the property on which the tower was located acquiesce in a six months' extension for the removal of the improvements recited in the government's notice of cancellation of the lease?" To which the jury answered, "Yes."

Appellees, in the court below, by specially requested charge, asked for an instructed verdict in their favor, which was refused by the court, to which refusal they excepted, filed proper cross-assignment of error, and have duly brought up and urged same in their brief, which, with the proposition thereunder, is as follows:

"First Cross-Assignment of Error: The court should have given a peremptory instruction in this case in favor of the plaintiffs."

"Proposition: Where by the terms of a lease the lessee is expressly authorized to place improvements upon the property and it is stipulated that the title to the improvements belongs in the lessee, and that the improvements may be removed, and there is no stipulation that a failure to remove them within a certain time shall constitute a forfeiture of the lessee's title therein, the court has no basis to declare forfeiture of the title and should grant a peremptory instruction for lessee."

Appellant contends that, being the owner of the land on which the tank was erected, and the lease under which it was erected having expired and terminated, and that the time in which to exercise the right of removal contracted for having expired, the tank has become his by forfeiture. Appellees insist that —

As "the lease contract specially provided for the privilege of erecting upon the land such buildings as may be required for all military purposes, this clause, under all the authorities, amounted to an express license to construct improvements, and therefore not only prevented any vesting of title thereto in the lessor of same, but removed the improvements beyond the class of trade fixtures, which are themselves removable within a reasonable time, to the class of personal property belonging to the tenant, and removable by him at any time, the landlord having the right to recover such damages, if any, as may be suffered by the entry to remove same after expiration of the time stipulated in the lease contract."

Thus, we are confronted at the outset with the direct question of whether the title to the property erected upon the land under the terms of the contract above set out was subject to forfeiture after the 90-day period for removal had elapsed. It is well settled that the general rules of law pertaining to fixtures must yield to the provisions of the contract made by the parties (Ewell on Fixtures, 149); and in case of a special agreement the rights of the parties are to be determined by the intention as evidenced by the terms of their contract; and in applying the rules of construction in construing those terms, in arriving at their intention, the language employed in the instrument, the circumstances under which the contract was made, and the purpose for which it was made, are all to be taken into consideration. Wright v. Macdonnell, 88 Tex. 146, 30 S. W. 907; 11 R. C. L. 1070; Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64.

The correct interpretation of the following clause in the lease, we think, will determine the controversy, to wit:

"That the said lessor shall keep the premises in good repair to the satisfaction of the government officer in charge, but all buildings and other improvements fixed to or erected or placed in or upon the said premises by the lessee shall be and remain the exclusive property of the lessee, provided, however, the same, unless sold or otherwise disposed of, shall be removed by the lessee within ninety days after the said premises are vacated under this lease."

What do the words, "but all buildings and other improvements fixed to or erected or placed in or upon said premises by the lessee shall be and remain the exclusive property of lessee," mean? To our minds they can have but one meaning, and that is that the title to such buildings and improvements should not be divested out of the lessee except by sale or other disposal. Otherwise, how could the title be and remain in lessee? Does the expression, "Provided, however, the same, unless sold or otherwise disposed...