#### Emma L. Hood and The People of the State of New York, Plaintiffs, *v.*John A. Whitwell and The Thomas Crimmins Contracting Company, Defendants.

(Supreme Court, Orleans Special Term,

January, 1910.)

Canals — Contracts — Construction.

Where, in the work of constructing the Barge canal, buildings are required to be removed from the site, and, in a contract with the State for the construction of a portion thereof, it is provided that “ these buildings will become the property of the contractor, who may dispose of them as he sees fit” and also that the buildings “to be removed shall become the property of the contractor, who shall remove the same without cost to the State,” the contractor has the right to sell such buildings; and one to whom he has sold a building has the right to remove it.

A provision in such a contract that no dwelling house or other building within the site shall “be disturbed except with the written consent of the State Engineer,” is not applicable to a building whose removal from the site of the work is required but relates to buildings whose removal is not required.

Action for an injunction. Case submitted on an agreed statement of facts.

L’Hommedieu & Whedon, for plaintiff Hood.

D. E. Brong, Deputy Attorney-General, for plaintiff State of New York.

•Ryan & Skinner, for defendant Whitwell.

Gerald B. Eluhrer, for defendant Crimmins Company.

Pound, J.

On or about May 5, 1908, the State of Hew York, under the provisions of the Barge Canal Act, acquired title to and took possession of Mrs. Hood’s land and store building in the village of Knowlesville for canal purposes. On March 18, 1908, the State entered into a contract with *50the Orimmins Company, for the construction of a section of the Barge canal between the Eagle Harbor bridge and Beal’s bridge. Mrs. Hood’s building was on the site of said contract, and the contractor took possession thereof from the State. On July 27, *1909\*the contractor sold or attempted to sell the Hood building to Mr. Whitwell, by bill of sale. Whitwell paid $500 in cash therefor and agreed to remove the building from the site of the contract on or before November 15, 1909. Before the 15th day of November, 1909, and before Whitwell had removed the building, Mrs. Hood began this action against him and secured a temporary injunction restraining him from removing the building. The State and the contractor became, by consent, parties plaintiff and defendant, respectively. The State, by virtue of the terms of its contract, after July twenty-seventh, changed the site thereof, so as to exclude therefrom the Hood land, and now seeks to restore the same, with the building thereon, to Mrs. Hood, as it would have the right to do, with her consent, if the sale of the building to Whitwell was inoperative to transfer title thereto. The contractor and the purchaser claim that the latter owns the building and has the right to remove the same.

The only question in the case is whether the contractor, at the time of the transfer of the Hood building to Whit-well, was the owner thereof, with power to make such transfer, so that Whitwell acquired the right to remove the building from its present site.

The Hood building was one of thirty-one buildings which the contractor agreed to remove from the site of the contract. By the terms of the specifications, under which the contract was awarded, *“*these buildings *ivill become the property of the contractor, who may dispose of them as he sees fit,*except that all parts shall be entirely removed before the completion of the work, together with their foundations and all accessories.” Specifications 17-a.

> *“*The buildings so *to be*removed *shall become the property of the contractor, who shall remove'the same,*without cost to the State; *and in addition thereto shall pay to the State the amount fixed in this contract, to be deducted from*
>       *51
>       *the moneys due or to become due under the contract ”*Specifications 17-c.

> The contract further provides: “25. The Contractor

> agrees that no public or private road that crosses or intersects the line of said canal or work shall be obstructed, nor shall any crops of any kind or nature, *or any dwelling house or other building within the site be disturbed, except with the written consent of the State Engineer, and then only in such manner and for such time as may be specified in said written consent.”*

The State Engineer has refused his consent to the removal of the Hood building’, and it is urged that this defeats the right of the purchaser to remove it.

We have two seemingly inconsistent provisions of the contract, if they both apply to the Hood building. *First,*that the building is the property of the contractor who *must*remove it before the completion of the contract and *may*dispose of it as he sees fit - and, *secondly,*that it is not to be *disturbed*without the consent of the State Engineer, and then only in such manner and *for such time*as he may indicate. But it seems clear that the contract contemplates two classes of buildings within the site of the contract. *First,*those which become the property of the contractor who may dispose of them as he sees fit; and, *secondly,*those which do not become the property of the contractor but which he may be permitted to *disturb,*not remove, *in such manner and for such time*as the State Engineer may authorize.

Ho reason is apparent why the State Engineer should be called upon to authorize the contractor to remove buildings which are his own property and which he must remove before the .completion of the contract; while a good reason exists why buildings on the site which belong to the State should not be *disturbed,*except by the written consent of the State Engineer as to time and manner. I am, therefore, of the opinion that the consent of the State Engineer was not a prerequisite to the removal or destruction of the Hood building by the contractor, and that the State has not reserved to itself a *locus pcenitentice*in this regard.

*52To hold otherwise would be to hold that the contractor could not go on with his work, clear the site by the removal of the buildings, or avail himself of the benefits of his contract, without the written consent of the State Engineer.

But it is also argued that the buildings are real property, belonging to the State, and do not become the personal property of the contractor until they are actually removed from the site; and that the contractor has no right to dispose of them by sale or to transfer the right to remove them to the purchaser, but only the right to convert them into personalty by actual removal.

The State became the owner of the land and buildings after the contract was let. The buildings " *to be*removed ” then became the property of the contractor, according to the terms of the contract.

The title and ownership of permanent erections generally follow the title of the land, but it is perfectly competent for parties by contract so to regulate their respective interests that one may be the owner of the buildings and another of the lands. People ex rel. Muller v. Board of Assessors, 93 N. Y. 308.

And, where buildings alone are conveyed by the owner of the land, they will, in contemplation of law, be regarded as divided and severed from the soil and will vest as chattels in the grantee, even before actual severance. Schuchardt v. City of Hew York, 53 N. Y. 202.

At least, such would be the rule in this case, where the removal of the buildings is a mere incident of the work contracted for and where the contractor has actually exercised: his right to dispose of th© buildings.

The ownership of the Hood building as personal property vested in the contractor when the State appropriated the lands; and it had the right to dispose of the same “ as it saw fit,” whether by actual removal or by sale, so long as' it did so before the site of the contract was changed.

Defendants are entitled to judgment. Ho costs.

'Judgment accordingly.