Snow v. Smith

• Decision Date: 20 May 1912
• Citation: 83 A. 269,86 Vt. 58
• Parties: SNOW v. SMITH et al.
• Court: Vermont Supreme Court

83 A. 269

86 Vt. 58

SNOW

v. SMITH et al.

Supreme Court of Vermont. Bennington.

May 20, 1912.

Appeal in Chancery, Bennington County; Wm. M. Taylor, Chancellor.

Bill by William H. Snow against Webster T. Smith and others. From a decree dismissing the bill, the orator appeals. Affirmed.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

Charles A. Maurer and James K. Batchelder, for appellant.

Bennett & Graves and D. A. Guiltinan, for appellees.

POWERS, J. In the fall of 1904, the orator leased to Harry T. Cushman for a term of 50 years a part of the pasture on his farm in Bennington. The lease was in writing, and, among other things, provided that the lessee might take and remove all ores and minerals lying in or upon the premises, that he might erect such buildings as might be necessary for the proper conduct of the business, that he should pay a certain rent as therein specified, and, after the first year, a certain sum per ton for all ore taken in excess of 150 tons, that he should deliver up the possession at the expiration of the term "without let or hindrance," and that, in case he should for a period of 30 days fail to perform any of his agreements as contained in the lease, the orator might forthwith "re-enter upon and repossess the premises." Cushman took possession under the lease and erected the buildings and installed the machinery, the removal of which the orator seeks by these proceedings to restrain. A shaft was sunk some 37 feet and from this, at various depths, drifts were extended in different directions. One of the buildings stands over this shaft, and it is in this building that the machinery is installed. The buildings are cheap, wooden structures, and they and the machinery were designed solely for mining purposes and were of little value for other purposes. All the machinery except a dryer can be removed without injury to itself or the building, and the buildings can be removed without material injury either to themselves or to the land.

The defendants have succeeded to Cushman's rights under the lease. The orator says, and his statement is not disputed, though the master's report does not show it, that one installment of rent was due when this suit was begun, but it was not 30 days overdue when it was paid by the solicitor for the defendants, and no re-entry was attempted. When this suit was brought and the temporary injunction issued, the defendants were engaged in the removal of the buildings and machinery, and they admit that they do not intend to continue mining operations on the premises. Since these buildings and the machinery therein were placed upon the rented premises to advance the business for which the premises were leased, they must be held to be trade fixtures, and so removable by the tenant within the term. Updegraff v. Lesem, 15 Colo. App. 297, 62 Pac. 342; Conrad v. Saginaw Mining Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Rep. 817.

It was said in Wagner v. C. & T. R. Co., 22 Ohio St. 563, 10 Am. Rep. 770, that the general principle involved in a determination of such questions is the distinction between the business which is carried on in or upon the premises and the premises themselves. That the former is personal in its nature, and articles that are merely accessory to the business and have been put on the premises for this purpose retain the...