Shipler v. Potomac Copper Co.

• Decision Date: 22 November 1923
• Docket Number: 5317.
• Citation: 220 P. 1097,69 Mont. 86
• Parties: SHIPLER v. POTOMAC COPPER CO.
• Court: Montana Supreme Court

220 P. 1097

69 Mont. 86

SHIPLER v. POTOMAC COPPER CO.

No. 5317.

Supreme Court of Montana

November 22, 1923

Appeal from District Court, Missoula County; John E. Patterson Special Judge.

Action by W. P. Shipler against the Potomac Copper Company, a corporation. Judgment for plaintiff, and defendant appeals. Judgment ordered modified on condition that plaintiff file remittitur, and otherwise case remanded, with directions to set aside and grant new trial.

Kremer Sanders & Kremer, of Butte, for appellant.

Harry H. Parsons, of Missoula, for respondent.

HOLLOWAY J.

In May 1919, plaintiff and defendant entered into a contract in writing by the terms of which defendant secured a lease upon and option to purchase certain designated mining claims in Missoula county. It went into possession and upon one of the leased claims erected a compressor and boiler building, a blacksmith shop, a storeroom, a stable, a tunnel portal, a closet, a pumphouse, a drain cover, and a water tank. It constructed 600 feet of track, installed a boiler and compressor, laid 500 feet of air hose for ventilating purposes and 500 feet of air pipe to conduct compressed air to the drills. After doing considerable development work and before the expiration of the term, it abandoned the enterprise, elected not to purchase the claims, and removed all buildings, machinery, and equipment which it had placed upon the property.

Immediately after the term expired, plaintiff instituted this action to recover damages, was successful in the lower court, and defendant appealed from the judgment.

1. It is insisted that the court erred in overruling the general demurrer to the complaint.

Plaintiff undertook to state three separate causes of action, but upon the trial the third cause of action was abandoned and further reference to it need not be made.

In the first cause of action, after reciting the history of the transaction and making the contract a part of the pleading, plaintiff alleged that under the terms of the contract the buildngs, track, air hose, and air pipe became his property as soon as defendant elected not to purchase the claims, and that in removing them defendant was guilty of a breach of contract to his damage, etc. There is also the charge that defendant destroyed a blacksmith shop and removed and converted to its own use certain personal property belonging to plaintiff. While it is true that in this first cause of action there is mingled a cause of action for damages for breach of contract and a cause of action for damages for conversion, there was not any motion made to compel plaintiff to separately state and number them, and there was not any special demurrer interposed. The defect could not be reached by general demurrer and was waived. Galvin v. O'Gorman, 40 Mont. 391, 106 P. 887; Marcellus v. Wright, 51 Mont. 559, 154 P. 714.

In the second cause of action plaintiff sought to recover damages for other personal property wrongfully converted by defendant, but he failed to allege that he was the owner or entitled to the possession of the property at the time of the alleged conversion, and for this reason the pleading is fatally defective. The court erred in overruling the demurrer to the second cause of action and in submitting it to the jury. Paine v. British-Butte Min. Co., 41 Mont. 28, 108 P. 12.

2. It is urged that the evidence is insufficient to sustain the verdict, but the argument has its foundation in an erroneous theory of the law. The contention that the particular manner of annexation and the undisclosed intention of the defendant should have controlling consideration in determining the character of the buildings and track as personalty or realty is without merit. The contract between the parties provided that in the event the defendant did not purchase the claims "then any permanent improvements placed upon said property or any thereof, shall become the property of the said W. P. Shipler and his associates, but it is expressly understood that any machinery placed thereon or upon any portion thereof by the party of the second part shall belong to the party of the second part which shall have a reasonable time to remove the same."

The law of fixtures had its origin in the maxim "quicquid plantatur solo, solo cedit"--"Whatever is affixed to the soil belongs thereto." Broom's Legal Maxims, *387. Under that maxim annexation was the decisive test, but with the development of the law and particularly with the introduction of trade and ornamental fixtures it was found to be altogether inadequate, and was long since abandoned. In some of the early English cases the particular manner of annexation was given primary consideration. It was said that irreparable injury to the freehold by the removal of the thing annexed was the test by which to determine that it was a part of the realty and irremovable (Lawton v. Lawton, 3 Atk. 14, 26 Eng. Rep. Reprint, 811), but that test likewise failed. While the degree and manner of annexation was a test formerly applied by the courts to determine whether a fixture was removable or not, the weight of authority now seems to regard this only as a factor in determining the intention of the parties--in fact rather unimportant as compared with the test of the purpose of annexation or adaptability of the chattel to the use of the realty. Bronson on Fixtures, § 18g; 11 R. C. L. 1060.

In Green v. Phillips, 26 Grat. (Va.) 752, 21 Am. Rep. 323, the court said:

"It is true that many cases may be found which hold that to give chattels the character of fixtures, and deprive them of that of personalty, they must be so firmly attached to the real estate that the connection cannot be severed without breaking or otherwise injuring the freehold. But the general course of modern decision, both in England and in the American courts, is against adopting, as the criterion for determining the character of chattels as fixtures, whether the annexation to the realty be slight and temporary, or immovable and permanent, and in favor of declaring everything a fixture which has been attached to the realty with a view to the purposes for which it is held or employed, however slight or temporary the connection between them."

As illustrating further the development of this branch of the law, it is said in 26 C.J. 661:

"Retention in place by gravity, without any fastening, has been not infrequently held to be insufficient, but the later cases usually regard this as sufficient, provided the intention to make the article part of the realty plainly appears and the article or structure is so heavy that it is as effectively kept in place by gravity as if it were fastened."

While a few courts apparently continue to give the test of injury by removal prominent effect, by the overwhelming weight of authority it is treated simply as a circumstance tending to establish the intention of the parties. Bronson on Fixtures, § 18d, 1; 26 C.J. 663.

In Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634, the Supreme Court of Ohio announced these tests for determining the character of the thing annexed:

"(1) Actual annexation to the realty, or something appurtenant thereto. (2) Appropriation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexation, to make the article a permanent accession to the freehold."

The doctrine of that case has been approved and followed by the courts of this country generally for nearly three-quarters of a century. 11 R. C. L. 1059.

In Ewell on Fixtures, § 22, the author says:

"Of these three tests the clear tendency of modern authority seems to be to give preeminence to the question of intention to make the article a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention." The question is not a new one in this jurisdiction. In Montana Elec. Co. v. Northern Valley Min. Co., 51 Mont. 266, 153 P. 1017, we said:

"As a general rule, the manner in which the attachment is made, the adaptability of the thing attached to the use to which the realty is applied, and the intention of the one making the attachment determine whether the thing attached is realty or personalty."

We said further:

"Whether what would otherwise be personal property has become a fixture by reason of its attachment to the soil, is primarily a question of intention on the part of the person attaching it."

In 1 Washburn on Real Property, § 34, the author says:

"Whether a thing which may be a fixture becomes a part of the realty by annexing it depends, as a general proposition, upon the intention with which it is annexed."

The intention mentioned in all of these authorities is not the secret intention of the person making the annexation, but the intention deducible as a presumption of law from the character of the chattel, the manner and effect of its annexation, its adaptability to the use of the realty, the purpose to which it is put, the relation of the parties, and the policy of the law (Hopewell Mills v. Taunton Sav Bank, 150 Mass. 519, 23 N.E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235; Hayford v. Wentworth, 97 Me. 347, 54 A. 940; 26 C.J. 655; 11 R. C. L. 1062), and, in this particular instance, from the provisions of the contract. It is significant that in concluding the agreement defendant promised, if it did not purchase the claims, "to surrender quiet and peaceable possession of said premises and each and all of them unto the party of the first part [plaintiff] and his associates and to vacate said premises, reserving however unto itself a reasonable time within which to remove any machinery that shall have been installed therein or thereon by the party of the second part [defendant]...