The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1891-01-26


County-John L. Campbell, Judge.
For appellant, Waters & Grid.
For respondent, Harris & Gregg.
DEPARTMENT TWO.
MILLER, Appellant,
WADDINGHAM, Ell AL, w. Ao'oo0
Respondents.
This was a suit for an injunction to restrain
the defendants from removing six buildings
from the plaintiffs land, and for damages for
injuries sustained in that regard. The trial
court gave judgment for the defendants, and
the plaintiff appeals upon the findings.
The findings show the following case: The
plaintiff, who was the owner of two blocks of
land in "Ontario Colony" and of half of the
streets in FRI front thereof made "a con on
PENDANTS assgnor, who entered into posses
sion and paid the sum of So, COO son said con-
tract" While in possession he caused the
houses in question to be erected, but being an
able to pay the contractors he made over the
houses to him, and the latter sold them TO the
defendants who proceeded to move them. IL
does not clearly appear whether the houses
were erected upon the plaintiffs blocks of land
or upon the streets in front thereof. But the
counsel have assumed what in all probability,
was the fact that the houses We're upon the
blocks mentioned, and following the lead of
counsel we have SO assumed for the purposes OF
this opinion. .'Said houses were built on red
wood mudslls of two-inch by six-inch timber,
said mudsills resting upon the soil. The soil
was not disturbed in building or removing
said houses. Nothing was ever said about the
houses being built so they could be removed"
1t does not appear what was the price to be
paid to the plaintiff for the land. The in
ference is that only part of the price was
paid. Assuming that such was the case, it
docs not appear whether the unpaid portion
was due at the time of the removal of the
houses or at the commencement of the suit.
The vendee is still in possession, and the con-
tract sis subsisting and not disaffirmed.'
The first question to be considered is whether
the houses were afhXed to the land in such a
manner as to become q part of the realty.
The term fixture" is used in different
senses. Sometimes it is used in its general
sense of a thing which is affixed to land.
merritt VS.. Judd, Ia Cal. 63-4). sometimes
it is used to designate IL thing which can be
severed from land after having been affixed to
IT. In this sense it is term s'denoting the very
reverse of the name.o q Gritty Gen. Pr, p.
161). Less frequently it is used to designate
Il thing which cannot be removed after having
been affixed to the land. (Ewell on Fixtures, p.
and note. But whatever may be the true sig
MITIGATION OF the term, it is manifest that with
certain exceptions, such as heir-looms and the
like, the thing must first be affixed TO the land
IN legal sense, before any question as to its re-
moval can arise. Ifnot affixed to the land in
any sense, its owner may move it about at
pleasure.
The rule of the common law was that
thing was not to be deemed affixed to land un-
less fastened to it in some manner. And in
Pennybecker VS.. McDougall as Cal. 1907 it
was held that cabin set wooden blocks
not attached TO the soil was personal property.
But the value of the cabin was only $50 and
IT must have been more or less OF temporary
structure. In New York and other States the
common-law rule was relaxed so as to include
things permanently resting upon the soil
though not fastened thereto. Thus, in Snede-
ker VS.. Warning q Herman, 1850 it was held
that q statue resting upon pedestal in front
OF building was part OF the realty the
court saying: "a thing may be as firmly affixed
to the land by gravitation as by clamps or ce-
ment." land see Strickland VS.. Parker. 81
Me-, 266; Cavis VS.. Bedford 81 n. H. 229.)
And this principle is embodied in Section 660
of the Civil Code, which provides that IA
thing is deemed to be affixed to land when it
iG 4 ,INall frAf ia, +I.n. ,>f
walls; or pe9Tnonenhy resting upon IL, as III the
case of buildings" In this case the houses
seem to have been of a permanent character
(they cost 81, 100 and we think that, under
the CODE they must be considered as having
been ''afiXed' to the land
This being so, the question arises whether
the successors in interest of the yendee had
any right TO sever the houses from the land.
Upon this question many modern authorities
lay great stress upon the intention with which
the thing was affixed. Vail VS.. Weaver, 80
Pa. st. 1868; Walker VS.. Grand Rapids Co.,
20 Wis. 90; Schaper VS.. Bibb, II Nd 149;
Docking VS.. Frazell, 3S Kans. 423); while
Others say that the intention is of secondary
Importance (Coliamore VS.. ellis, 149 Mass.
6Sl). But whatever may be controlling prin-
clple the preponderance OF authority is to the
effect that n building of permanent char
acter erected by vendee in possession under
an exeeutory contract of purchase is part OF
the realty, and cannot be removed by him or
his successors in interest i'll the absence of an
agreements 10 that effect.
In Ogden VS.. Stock ga III. 1921 the action
WAS IepSNJn IOr a mouse WHICH mad been
erected by the vendee in possession under n
contract of purchase who, after falling to per-
form his contract, sold the house to the de-
1endant who removed il. The court gave
judgment for the plaintiff saying that it
could not be presumed that the vendee, when
he affixed the house to the soil, had any ill.,
tention of removing it.
IN Hemmenway VS.. Cutler (51 Me. 4O7) a
question arose, upon a writ of entry, as TO the
effect OF an omission from a levy, Of a barn
erected by vendee in possession undera bond
for n deed. If the barn was real estate the
omission rendered the levy void; otherwise it
was valid. The court held that the levy was
ion, said: 1T is well settled that erections
made by mortgagor, or one occupying land
under a bond for deed are TO be regarded as
real estate, and are not removable by the oe-
cupant as personal property" (See also King
ley VS.. Mcfarland, SO Me. 231.l
In Westgate VS.. Wixon q2S Mass. 300, the
action was for damages for the removal of Il
barn erected on the PLAINTIFFS land by one
Abbott VINO was i'll possession under bond
for deed. He failed to perform the condi-
lions OF the bond, but remained in possession,
and the barn was removed by the defendant
under a writ issued in q suit by q creditor. II
was held that the plaintiff should recover,
and the court, per Morton, j.. said /:
LAS a general rule buildings are part of the
realty, and belong to the owner of the land on
which they stand. Even if built by 81 person
who has no interest in the land, they become
q part of realty, unless there is an agreement
by the owner of the land, either express or
implied from the relations of the parties that
they shall remain personal properly. g >
The barn in question was q substantial struct-
ure. 1t IS clear from the facts agreed upon
that Abbott built it, not for any temporary
purpose but for the permanent improvement
of the land which he expected to become his
property according to the terms of the bond.
When built it became q part of the realty and
Injured to the benefit of the plaintiff as addi-
tional security for the performance of the con-
dition Of the bond. Abbott had no right TO
remove it, and his creditors had no right to
attach it as his personal property
The foregoing were cases at law. The same
rule is applied in equity.
In English VS.. Foote Is Smedes * NJ. 44i }
the suit was to forecloSe mechanics lien for
work upon house erected by q Vendee in
possession under a contract of purchase which
he failed TO perform. 1t was held that under
the statute in force in that jurisdiction the
lien extended only to the interest of the per-
son who caused the house 10 be erected, and
that the vendee had no interest in the house
after II was affixed to the land. The court, per
Clayton, j., said: "As n general rule. what
ever is annexed to the freehold becomes part
of 1t and cannot be severed from it, There are
many exceptions TO the rule, but il applies
With all its Strictness between vendor and
vendee."
In Mclaughlin vs. Nash ID Allen. I36. J the
suit was for an accounting after dissolution OF
partnership. Before the formation of the part
nership the plaintiff was in possession inder a
bond fora deed, and had aft xed certain articles
TO u building which was lpon the land. When
the partnership was formed the defendant
purchased an interest in the articles men,
toned. The plaintiff failed to perform the
condition of the bond, and after the dissoin-
ton of the partnership the owner leased the
premises to the defendant 1t was held that
such of the articles as had been permanently
afiiTed to the building were part of the realty,
ana the court. per Gray, j., said: 1.-The plain
TIL had not the same right TO remove fixtures
annexed by him to the land so occupied by
him without paying rent TO the owner, under
a contract Tor its purchase as an ordinary
tenant would have against his landlord
His rights in this respect were no
greater imam those OF a vendor or mortgagor