Updegraff v. Lesem

• Decision Date: 11 June 1900
• Parties: UPDEGRAFF et al. v. LESEM. [1]
• Court: Colorado Court of Appeals

62 P. 342

15 Colo.App. 297

UPDEGRAFF et al. v. LESEM. ^[1]

Court of Appeals of Colorado

June 11, 1900

Appeal from district court, Arapahoe county.

Action by Samuel Lesem against Joseph S. Updegraff and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J.E. Havens and J. McD. Livesay, for appellants.

Wells Taylor & Taylor, for appellee

THOMSON J.

Samuel Lesem brought this action against Joseph S. Updegraff, Curtis P. Updegraff, Nelson Halleck, and William R. Havens to recover damages for the wrongful taking by the defendants and their conversion to their own use, of certain articles of personal property belonging to the plaintiff. The complaint alleged that on the 1st day of October, 1889, the plaintiff and one Byron J. Smith took from the defendants and Elizabeth Updegraff a written lease of certain mining premises for the term of three years from that date, with the privilege of purchasing the same at any time during the term, or while the lease should remain in force and unforfeited, for the sum of $30,000. The substance of the lease is set forth in the complaint. It provided that the lessees should immediately commence work upon the premises; continue it with reasonable diligence, and in a thorough and workmanlike manner; keep accurate accounts; render monthly statements to the lessors showing the amount and yield of the ore taken from the premises; and pay monthly to the lessors the rents or royalties reserved in the lease. The contract also provided that, in case of failure by the lessees to comply with any of their agreements, it should be lawful for the lessors to declare the lease void, and to enter upon, and take possession of, the premises. The complaint further alleged that, in accordance with the terms of the lease, the plaintiff and Smith entered upon the property, and worked it diligently, and in the manner required, for a certain period of time, at the expiration of which Smith "dropped out" of the lease, and the plaintiff continued the work at his own expense; that when the plaintiff and Smith took possession of the premises they were without improvements, and that the plaintiff, at his own cost, erected a shaft house upon them, and, for their proper working, supplied them with an engine, boiler, hoister, rope, belts, and buckets, and the tools and appliances requisite for the operation of the machinery and the working of the mine; that the shaft house was built, and the engine placed, upon a stone foundation, and the boiler rested upon brick, and was incased in brick and mortar; that in April, 1891, the plaintiff was notified by the defendant J.S. Updegraff that the lease was forfeited, and that he would not be permitted upon the premises; and that on the 20th day of March, 1892, the defendants wrongfully took possession of the several articles which the plaintiff had placed upon the property, and unlawfully converted the same to their own use. He laid his damages at $3,000. The suit was commenced in the district court of Arapahoe county. The defendants moved for a change of venue, and also demurred to the complaint. The ground of the motion was that the action was brought for the determination of a form of right or interest in real property, which property was situate in Clear Creek county; and that hence Clear Creek county was the proper county for the trial of the cause. The motion was accompanied by the affidavit of the defendant Updegraff, showing that the shaft house, engine, boiler, and hoister and other appliances were made fast and attached to the land, and were not portable. The grounds of demurrer were--First, that the complaint did not state a cause of action, in that, being based upon a written lease, it did not allege that the lease was executed by either the plaintiff or the defendants, nor set forth a copy of the lease, and in that it did not allege that the lease contained any provision allowing the lessees to remove improvements placed by them on the leased premises; and, second, that it appeared that there was a defect of parties plaintiff and defendant, because the complaint did not allege any assignment by Smith to the plaintiff of his interest in the lease, and, without such assignment, Smith was a necessary party plaintiff, and because the complaint did not allege any assignment by Elizabeth Updegraff of her interest in the lease to the defendants or any one else, and hence she was a necessary party defendant. The motion was denied, and the demurrer overruled.

The theory of the motion for a change of venue was that the suit was brought for the determination of some kind of interest in real estate, and hence should be tried in the county in which the real estate was situate. If this were such an action as the motion supposes, unquestionably it should be tried in Clear Creek county, and the change prayed for should have been ordered. Civ.Code, §§ 25, 29. But the theory was wrong. No interest in real estate was involved. No question affecting title to real estate, or right to possession of real estate, or ownership of any interest, legal or equitable, in real estate, could be tried under the allegations of the complaint. That pleading was framed upon the hypothesis that the articles, the conversion of which was charged, were not part of the real estate, but were personal property; and if it should be determined that they were not personal property, but had been incorporated into the real estate, there could be no recovery by the plaintiff. The complaint fixed the character of the suit, and it charged the wrongful conversion by the defendants of personal property belonging to the plaintiff. Such an action is to be tried in the county in which the defendants, or any of them, may reside when it is commenced. Civ.Code, § 27. It appears from the affidavit of Updegraff that one of the defendants, William R. Havens, was, when the suit was brought, a resident of Arapahoe county. The cause was therefore triable in that county, and the motion for a change of venue was properly denied.

The demurrer assumed that the contract of lease was the foundation of the suit, and the deduction was that an allegation of its due execution, or something equivalent to an allegation of its due execution, was necessary, and that Smith, being one of the lessees, and Elizabeth Updegraff, one of the lessors, the former was a necessary party plaintiff, and the latter a necessary party defendant. We are not prepared to say that the statement that the plaintiff and Smith took a written lease from the defendants and Elizabeth Updegraff would be an insufficient allegation of the execution of the instrument, even if the purpose of the suit had been the enforcement of its provisions or the recovery of damages for their violation; but we are prepared to say that for the purposes of this suit it was amply sufficient. The action was not based upon the lease. No complaint was made of the violation by the defendants of any of its covenants. The statements concerning it amounted only to matter of inducement. They showed how it was that property of the plaintiff happened to be upon land of the defendants. But the gravamen of the action was the conversion of the property. The question to be tried related to its ownership by the plaintiff, and its wrongful taking by the defendants. The statements concerning the lease might have been omitted without injury to the complaint. Allegations of ownership by the plaintiff, and of conversion by the defendants, would have been enough, and the facts of the lease, and the proceedings under it, would have been admissible in evidence as explanatory of the claims of the parties. But the lease having been set forth, and the purchase and placing of the machinery alleged, a statement that the lease authorized the removal of the machinery by the plaintiff was unnecessary. As we shall see hereafter, prima facie, the plaintiff, as a tenant, had the legal right to remove the machinery without special permission, and whether facts existed which would defeat the right was a question to be determined upon the evidence. According to the allegations of the complaint, Byron J. Smith was not a proper party plaintiff, and Elizabeth Updegraff was not a proper party defendant. Smith had no interest in the machinery. It was the sole property of the plaintiff, and he alone could sue for its conversion. Elizabeth Updegraff did not participate in the wrong, and therefore incurred no liability to the plaintiff. There would have been a misjoinder of parties if the former had been a plaintiff or the latter a defendant. There was no error in the disposition made by the court of the demurrer.

The answer averred that the plaintiff and his co-lessee failed of compliance with the terms of the lease in respect to their manner of working the mine, the rendering of statements showing the amount of ore taken from the premises, and the payment of rental or royalty; that about the 15th day of August, 1890, they refused to work the property, and abandoned it, together with all improvements upon it; that by reason of the failure of the lessees to comply with the terms of the lease, the defendants declared the lease forfeited, and entered upon and took possession of the premises; and that by reason of the manner in which the shaft house, machinery, appliances, and connections were annexed to the land, and by reason of the failure of the lessees to comply with the terms of the lease, the shaft house, machinery, appliances, and connections became part of the realty, and as such became the property of the defendants. The case was tried without a jury, and, after hearing the evidence, the court found that the machinery, tools, and appliances were trade fixtures; that they were placed upon the property with no...