Wright v. Macdonell

• Decision Date: 08 April 1895
• Citation: 30 S.W. 907
• Parties: WRIGHT v. MACDONELL et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

30 S.W. 907

WRIGHT v. MACDONELL et al.¹

Supreme Court of Texas.

April 8, 1895.

Error to court of civil appeals of Fourth supreme judicial district.

Action by C. B. Wright, Jr., against Allan Macdonell and others. From a judgment of the court of civil appeals (27 S. W. 1024), affirming a judgment for defendants, plaintiff brings error. Reversed.

Nicholson, Dodd & Mullally, for plaintiff in error. E. A. Atlee, for defendants in error.

GAINES, C. J.

This suit was brought by plaintiff in error against defendants in error to recover damages for the conversion of certain structures, such as houses, railroad track, and coal chutes, built upon land which had been leased by the defendants to the plaintiff. C. M. Macdonell and Teresa P. De Benavides were owners of a tract of land known as the "Santo Tomas Tract," upon which there was a coal mine, and in 1881 leased the mine to one A. C. Hunt for the term of 50 years. The defendants succeeded to the title of the lessors in that lease. Before this, however, the lessors dispossessed Hunt, and he brought a suit against them for the recovery of the demised premises. This suit was not determined until the 30th day of January, 1891, when the supreme court affirmed a judgment of the trial court rendered in Hunt's favor. 15 S. W. 396. On the 1st day of March, 1887, the defendants leased the mines to plaintiff for the term of one year. This lease contained the following provision: "This lease does not cover the use of the land for any but mining purposes, except the privilege is hereby extended to the parties of the second part (the lessee) to put up all necessary buildings or structures for the conduction of a mining business, and for the accommodation of persons and their families employed in or about the mines. And at the termination of this lease the parties of the second part (the lessee) shall have the right to remove all structures, buildings, engines, tools, machinery, cars, track, and other fixtures that do not now belong to the parties of the first part (the lessors): provided, however, at the termination of this lease, the parties of the first part (the lessors) have the right to purchase any or all of the above-named property at a fair valuation." Upon the expiration of the term so created, the lease was expressly renewed for the term of two years, extending from March 1, 1888, to March 1, 1890; and it was expressly stipulated that the new lease was subject to the same terms and conditions as those contained in the former, except that the royalty upon the coal taken out should be increased from 15 to 20 cents per ton. On the 20th day of February, 1890, the plaintiff and defendants executed another contract of lease, of which the following is a copy: "This memorandum witnesseth, whereas, the mining rights and privileges heretofore let and leased to C. B. Wright, Jr., by the owners of a tract of land known as the `Santo Tomas Tract,' are in litigation between said owners and A. C. Hunt et al., in the district court of Webb county, Texas, and the cause No. 649, A. C. Hunt, Trustee, vs. The Rio Grande & Eagle Pass Railway Co., is pending appeal in the supreme court of the state of Texas, and desiring to continue the operation of the mines on said tract of land, and to preserve the mining properties thereon pending said appeal, therefore it is hereby agreed: (1) The said owners, to wit, Allan Macdonell, who represents and herein acts for the estate of C. M. Macdonell, deceased, as administrator, Teresa P. De Benavides, Ester B. De Herrara and her husband, Natividad Herrera, Jose Benavides, Margarita B. Mowry and her husband, W. H. Mowry, and he for himself, and Zaragosa Benavides, hereby let and lease unto C. B. Wright. Jr., for the full time pending the said appeal in the supreme court of the state. In consideration whereof the said lessee hereby undertakes and agrees that he will operate the said mines and preserve the mining properties on said tract of land for and during the full time pending said appeal, and for all coal mined shall pay the said lessors the sum of twenty (20) cents for each and every ton of coal of 2,000 pounds; and upon the determination of said appeal the said lessee shall deliver to the said lessors the mines and mining properties hereby conveyed, preserved in good condition, so that the mining operations may be continued by said lessors. This agreement is understood to be an extension of the lease heretofore made, to wit, on the 1st day of March, 1887, of record in the records of deeds of Webb county, in volume 15, on pages 404-8, which lease was heretofore extended by an instrument in writing also of record in the records of deeds of Webb county, in volume 16, on pages 592-5, and reference thereto is hereby made; it being understood that the terms and conditions therein not inconsistent with the provisions of this instrument, prescribing the manner of working the said mines and operating the said mining enterprise, shall be binding on the lessors and the lessee herein." The judgment in Hunt's favor having been affirmed in January, 1891, in March next thereafter the plaintiff was dispossessed by the sheriff, and Hunt was placed in possession of the property.

After the decision of Hunt's Case in the supreme court, the plaintiff applied to Allan Macdonell, one of defendants, and the agent of his codefendants, to know if he desired to purchase the structures in controversy, and was told that he did not desire to purchase and that plaintiff might take them away. The plaintiff continued to work the mine until a day or two before he was dispossessed by Hunt, and subsequently paid Hunt for its use and occupation after the judgment was affirmed in this court. In May, 1892, Hunt agreed upon a compromise with the defendants, and on the 12th of June thereafter surrendered to them his lease and the possession of the property. The next day after the surrender the defendants made a contract with the plaintiff, which gave him the privilege of working the mines for 60 days, which before the end of that period was renewed for the same term. At the expiration of the second term of 60 days defendants took possession, have previously refused to permit the plaintiff to remove the structures in controversy. They were placed upon the land during the leases of 1887 and 1888.

Whether certain articles, under certain circumstances, are fixtures or not, is a question which has given rise to much contrariety of legal opinion. There are some questions as to the law of fixtures, however, which seem fairly well settled. The tenant may remove his fixtures at any time during his term, and after the term, while in possession of the demised premises, under some license or agreement, which creates what has been called an "excrescence" upon the term. It is conceded, also, that, where the term depends upon some event uncertain as to the time of its happening, the tenant has a reasonable time after its determination to remove his fixtures. But, in general, these rules of law must yield to the special provisions of the contract made by the parties. Ewell, Fixt. 149. In the absence of a special stipulation to the contrary, fixtures placed upon the demised premises by the tenant are personal property, subject, however, to become parts of the realty, if not removed by him during the time allowed him by law for their removal. By agreement they may become the property of the landlord, subject only to the lease; or they may be made personalty, and, as between the landlord and tenant, the absolute property of the latter. In case of a special agreement, the rights of the parties are to be determined by their intention, as evidenced by the terms of the contract.

Applying these rules to the lease which was entered into between the plaintiff and the defendants on the 1st day of March, 1887, the question which presents itself is, what was the intention of the parties with reference to the structures which it was contemplated would be placed by the tenant upon the land? Was it intended merely to declare them fixtures, and leave them subject to the law of fixtures? If so, the provision was unnecessary, for the law would have implied that intention as fully as it could have been expressed. It is true that it is not unusual for the parties to a contract, out of abundance of caution, to express that which the law would have implied; but, before such a construction can be placed upon the language, we think that it should clearly appear that it means neither more nor less than the contract would have been construed to mean had the words been omitted. All words employed in a written instrument should, if practicable, be given effect. The presumption is that they have been inserted for a purpose, and that construction should be avoided which would render them nugatory. The structures contemplated by the parties included houses, car tracks, and engines, — property which was presumably necessary for the operation of the mines, and which could not well be removed on the very day of the termination of the lease. We think that it was the intention that the defendant should have the right to remove them at any reasonable time after the lease had ended. In this respect, at least, it was evidently contemplated that the law of fixtures should not apply. But we think that the provision was intended for a still more important purpose. The object of the parties was not to leave their rights to be determined by the law of fixtures, but to fix them by express agreement. Property affixed to the land of another, under a license from the owner, is personal property (Northern, etc., Ry. Co. v. Canton Co. of Baltimore, 30 Md. 347), and it would seem that the party who so annexed it would have the right to remove it within a reasonable time after the expiration of the license, and probably within a reasonable time after he should receive notice of the owner of the soil to remove it. It is to be noted that the...