Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-01-07
c. COURT ! | !. i. / !. DECISIONS.
DIoEsTED Ry w. B. MARTIN.
Exc,usively for vlrgin.an-pilot,
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.

WI SVptCt
TUNIs LUMBER co. ". DENNIS
LUMBER CO.
Supreme Court of Appeals Of, Virginia.
h. December z, 1899.
BUILDINGS ERECTED BY A TEN
ANT ON LEASED PREMISES PUR-
SUANT TO a COVENANT IN A
LEASE CANNOT BE REMOVED BY
THE TENANT AS TRADE FIX
TURDs, UNLESS THE LEASE 50
PROVIDES.
WHEN SUCH BUILDINGS ARE
ERECTED BY THE TENANT
NOT IN PURSUANCE OF
SUCH A COVENANT, WHETHER
HE CAN REMOVE THEM AS
TRADE FIXTURES IS FOR THE
JURY UNDER PROPER INsTRUC%
TIoNS FROM THE COURT.
AN EXCEPTION AS TO THE ADJ
MISSION OF EVIDENCE CANNOT
BE CONSIDERED UNLESS A BILL.
OF EXCEPTIONS rs TAKEN TO
THE RULING.
This was an action brought by the
Tunis Lumber Company to recover
damages against the R. G.. Dennis
Lumber Company for the removal by
the latter OF the piping and machinery
in three dry kilns from certain land
which had been leased by the Tunis
Company to one Henry Serves, which
lease had become the property Of the
defendant, the Dennis Company. The
lower court gave judgment for the de-
PENDANT and the Tunis Company ap-
pealed.
The Court Says:
The principal error assigned Is the
action of the Circuit Court in refus-
ing to give instruction No. offered by
the plaintiff, and In giving its own in
struction, numbered II, In lieu thereof.
The lessee agreed to pay $1,000 per
year for the rent of the property, and
Ito erect on said property two i'm
proved Serves dry kilns q"
If 1t were conceded that, in the alb
sence Of any agreement upon the SUBJ
ject, the dry kilns were trade fixtures
and that they were removable during
the term by the tenant how Is that
right or privilege affected by the pro-
visions OF the lease?
1t Is we'll settled that by agreement
the parties may fix the character and
control the disposition of property
which. In the absence of such q con-
tract, would be held to be a fixture
where no absurdity or general incon-
venience would result from the tfans-
action.
The general rule is that buildings
erected by the tenant on the leased
premises. pursuant to covenant in
the lease, are not removable as trade
fixtures. unless the lease expressly or
implicitly reserves to the lessee the
right to remove them.
1t is said to be an essential quality
of all removable erections that they
shall have been made under such cir
Gums tances as show that the tenant
made them of his own volition and for
his own benefit. intending that they
should remain his property, and not in
fulfillment OF a duty or obligation
which he owed the lessor u
Two of the dry kilns were erected by
the tenant pursuant to his undertaking
In the lease, which undertaking was
manifestly for the benefit Of the lessor
and not for his own benefit, for with
out any such stipulation he could have
erected-them.-He-w as-bound-to erect.
them. He had no choice in the matter.
His agreement to do SO was as much
a part of the consideration for the
rights which he acquired under the
lease rs was his promise to pay the
stipulated rent.
To hold that the dry kilns were not
to be returned to the lessor along with
the leased premises at the expiration
Of the lease, would practically annul the
provision which required the lessee to
erect them. OF what value would they
be to the lessor If the lessee had the
right 10 remove them?
1t follows from what has been said,
that we are of opinion that the Circuit
Court did not correctly construe the
lease as to the right Of the defendant
to remove the two dry kilns provided
for in the lease, and to that extent
it's instruction No. II is erroneous.
The plaintiffs instruction No. was
also erroneous. It correctly construed
the lease as to the rights Of the par
ties in the two dry kilns which the
lessee had bound himself to erect, but
it was plainly erroneous in so far as it
declared as a matter OF law that the
defendant had no right to remove the
third dry kiln unless there was an
agreement that they might do so.
Whether or not that kiln was trade