Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-11-07
UPDEGRAFF v. LESSEN.
Court of Appeals Of Colorado.
June IL. 1000.


MACHINERY PLACED ON MINING
PREMISES FOR THE OPERATION
OF THE MINE. THONGH FIRMLY
ATTACHED TO THE LAND, IS A
TRADE FIXTURE, AND CAN BE
REMOVED AFTER THE FOR
FIXTURE OF THE LEASE OF
THE LAND.
The point decided appears from the
opinion of the court.
The court says:
The general rule respecting fixtures
unquestionably is that whatever is
once annexed to the freehold becomes
part OF 1t. and passes with the land.
But there Is an exception to the rule,
which is probably as old as the rule it
self, and which is applied as between
landlord and tenant. to articles affixed
by the latter to the premises for the
purpose of carrying on the business
for which the premises were leased.
Such articles are denominated trade
hXtures," and are removable by the
tenantAnd it does not matter much
how firmly the articles may be at
tached TO the land.
The articles in question here were
placed upon the mining premises for
the purpose of carrying on the bust
ness for which the lease was taken;
that is. for the purpose of working the
IhiIt. iuCy Nclc lHelelOTc
lures. That they were intended mere
~ to facilitate the work in which the
1essces proposed to engage under the
provisions Of their lease, and that it
was not their intention to incorporate
them into the realty, appears to us to
be clearly evident from the facts
But the general language of the
books is that the right of the tenant to
remove his fixtures must be exercised
during his term of lease; and 1t is said
that this rule aplies not only TO cases
where the tenancy terminates by the
lapse Of time, but also to cases where
IT is determined by the tenants own
act, as where he surrendcrs his lease
to his landlord. or abandons the prem
Uses under such circumstances as to
indicate q purpose not only to relin-
quish his possession and CONTROL but
also to permit the resumption OF pos
session and control by the landlord.
In this case the tenancy had not ter
minated by lapse of time, nor were the
premises abandoned. The possession
was not voluntarily relinquished. and
there was no evidence of an intention
to relinquish 1t. Down to the time
when Updegraff locked up the Shaft
house the plaintiff was in actual pos
session OF the premises, and by the act
of Updegraff at that time he was for
chilly dispossessed.
Where the tenancy expires by the
terms of the lease, or is terminated by
the voluntary act of the tenant, the
situation is within his control, and 1t
is his own fault if he fails to remove
his fixtures in time. But where a pc
Rod is put to his tenancy by the act
Of his landlord and against his consent.
the case is different. His term may
end so suddenly that It is impossible
for him to make any provision for TAX
Ing away his property. In this case
the notice of forfeiture was served on
one day and possession taken the next.
and it is manifest that the plaintiff
had no opportunity to remove his ma
chinery. 1t belonged to him, he had
the right to remove it, and his right
could not be cut off except by his own
act or neglect. The law does not exact
Representatives,. and in cases where the
tenancy is of uncertain duration, or is
liable to be determined by the happen
Ing OF some contingent or uncertain
event on which it depends. or by the
act OF the landlord. the tenant has
reasonable time after the termination
of the tenancy for the exercise of his
right.
Affirmed. ~