Rowand v. Anderson

• Decision Date: 07 March 1885
• Citation: 33 Kan. 264,6 P. 255
• Parties: E. M. ROWAND. v. PETER ANDERSON, et al
• Court: Kansas Supreme Court

6 P. 255

33 Kan. 264

E. M. ROWAND. v. PETER ANDERSON, et al

Supreme Court of Kansas

March 7, 1885

Error from Franklin District Court.

ACTION brought by E. M. Rowand against Peter Anderson and another to recover the value of a certain fence which was situate on his land, having been erected thereon by his vendor, and which was removed by the defendants, who claimed to own the same. It was tried upon the following agreed statement of facts:

"On the 12th day of March, 1878, Charles S. Anderson purchased of S. O. Thacher, and S. O. Thacher conveyed to Anderson, the southeast quarter of section 31, town 15, range 20, in Franklin county. This land, as also the southwest quarter of the same section, also owned by Judge Thacher, was open uncultivated prairie. Wishing to improve his lands, Anderson obtained permission from Judge Thacher to put a board fence on said southwest quarter, and a few feet from the line parallel therewith, in order to protect a hedge to be planted on the line dividing between the two quarters. Judge Thacher consented verbally that the fence might be so built, and removed by said Anderson when he wished. And thereupon Anderson planted out the hedge on the line and cultivated it and put up the fence at his own expense, six feet from the line and on Thacher's land, to protect the hedge, and there it remained until removed by defendants as hereinbefore stated. Anderson inclosed and cultivated his farm, using this fence as a part of his inclosure. On March 19, 1880, Judge Thacher conveyed the southwest quarter to Eli Circle. On October 10, 1881, Eli Circle conveyed said land to C. C. Mechem, and on May 1, 1882, C. C. Mechem conveyed said land to E. M. Rowand, plaintiff, who entered upon and improved the same. Before that, it had been fenced.

"On the first day of March, 1883, Chas. S. Anderson sold his farm, then inclosed and cultivated, as above stated, to the defendants, Peter Anderson and August Carlson. He sold the lands, fences, and whatsoever rights he had therein, but the deed contains no description farther than the land itself by its appropriate government subdivision, 'with the appurtenances.' They took possession from Chas. S. Anderson, and have continuously remained in possession thereof. None of the purchasers holding under Thacher had any knowledge of the agreement between Thacher and Chas. S. Anderson, and no notice thereof, unless the use of said fence and its situation imparted such notice.

"On April 25th, 1883, the defendants, Peter Anderson and August Carlson, removed the fence to their side of the line, leaving the hedge standing as a partition fence. They gave Rowand notice of their intention to remove the fence, but he did not consent. This action is brought to recover the value of the fence. The value of the fence when removed was sixty dollars."

On these facts the court, at the January Term, 1884, made and entered the following finding and judgment:

"The court having considered said facts and the argument of counsel thereon, doth find for the defendants; it is therefore considered, and adjudged by the court here, that the defendants go hence without day, and recover against said plaintiff their costs herein expended, taxed at $_____, for which execution is awarded. To which conclusion and judgment the plaintiff then and there duly excepted."

The plaintiff brings the case here for review.

Judgment reversed and cause remanded.

H. P. Welsh, for plaintiff in error.

A. W. Benson, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The only question presented for our decision is, whether the fence, the value of which is sued for in this action, was owned by the plaintiff at the time of its removal by Peter Anderson and August Carlson. The fence was built by the defendant, Charles S. Anderson, upon the plaintiff's land when it was owned by S. O. Thacher, under a parol permission given by Thacher that the fence might be built a few feet over upon Thacher's land as a protection to a hedge which Anderson was about to plant on the dividing line between his own land and that of Thacher, and that it might be removed by Anderson whenever he desired. It remained upon the land about five years before its removal by the defendants. About two years after it was built, Thacher conveyed the land to one Circle, who in about eighteen months afterward conveyed to Mechem, who on May 1, 1882, conveyed to the plaintiff. In these conveyances no reservation was made of the fence, nor had any of the purchasers holding under Thacher any notice of the arrangement between Thacher and Anderson, unless the location and use to which the fence was put imparted notice of such arrangement.

Plaintiff claims that the fence was a fixture attached to the soil, which had become a part of the realty and passed with the grant of the land to him, be being a bona fide purchaser without notice of the arrangement between Thacher and Anderson with respect to the erection and removal of the fence.

On the part of the defendants it is claimed that, as between Thacher and Anderson, the fence was personal property, and that its character was not changed by the subsequent conveyance of the land by Thacher, and did not pass as an incident of the land by the conveyance to the subsequent grantees. It is further claimed that the plaintiff was not a purchaser without notice; that the location of the fence and its use were sufficient notice that the defendants claimed an interest in it, and that that interest could have been ascertained by the inquiries that plaintiff was in law bound to make.

We cannot agree with the claim made by the defendants. The general rule of law is that whatever is once actually annexed to the freehold becomes a part of it, and cannot afterward be removed except with the consent of the land-owner. In this case the fence was a substantial structure made of boards, and was actually annexed to the soil. All improvements of a permanent character, such as fences and buildings that are firmly attached to the soil, are generally to be regarded as permanent fixtures, and are presumed to belong to the owner of the soil to which they are attached. Prima facie, then, the fence was real estate...