Ward v. Earl , 86 Ill. App. 635 ( 1900 )

Mr. Justice Adams

delivered the opinion of the court.

It is contended by appellant’s counsel that the structures removed by appellant were trade fixtures which he had purchased from Henry, the former tenant, who had purchased them from Eoberts & Co., who put them in the premises, and that, appellant having removed them while in possession as tenant of appellee, and before the expiration of the lease, there can* be no recovery. Whether they" were trade fixtures is the question mainly contested. That they were placed in the premises for the convenience of Eoberts & Co., in carrying on the business of a meat market, in other words, for the purpose of their trade, is substantially admitted by appellee.

In appellee’s examination, as a witness, the following occurred:

Q. “ It was wainscoted the whole height of the room ? ” A. “ Yes, sir; you see it was for a meat market, and they hung their meat on that side of the wall, and the meat had damaged the wall, soiled the wall, and that wainscoting was put up to protect it.”

Roberts & Co. were engaged in the meat market business. On cross-examination, appellee testified that he knew when the structures described were being put in by Roberts & Co., and how they were put in, and made no objection, and also knew that they were used by them in their business. That the damage to the floor and plastering occasioned by taking out the structures was not material, is apparent from the evidence. It was so trifling that appellee did not think it of sufficient importance to produce evidence of what it would cost to repair it, or any figures or data by means of which the jury could estimate the pecuniary damage.

In Secord v. Lane, 122 Ill. 487, 496, the court say :

“To determine the immovable character of a fixture, three tests are, by the modern authorities, applied, viz.: First, actual annexation to the realty, or something appurtenant thereto; second, application to the use or purpose to which the part of the realty with which it is connected is appropriated; and third, the intention of the parties making the annexation to make a permanent accession to the freehold.”

The court, in the case cited, also say:

“ It is not held that parties may, by contract, make personal property real or personal at will, but that where an article personal in its nature is so attached to the realty that it can be removed without material injury to it or the realty, the intention with which it is attached will govern.” See also Hewitt v. Gen. Electric Co., 164 Ill. 420, 424, and Hacker v. Munroe & Son, 176 Id. 384, 396, to the same effect.

Washburn, discussing fixtures, says:

“ The word is used here in its technical sense as £ something substantially and permanently annexed to the soil,' though in its nature removable. But the old notion of physical attachment, as the principal test in determining whether a given thing is a fixture or not, may now be regarded as exploded. Whether it is a fixture depends upon the nature and character of the act by which the structure is put in its place, the policy of the law connected with its purpose, and the intent of those concerned in the act. And while courts still refer to the character of the annexation as one element in determining whether an article is a fixture, greater stress is laid upon the nature and adaptation of the article annexed, the uses and purposes to which that part of the building is appropriated at the time the annexation is made, and the relation of the party making it to the property in question, as settling that a permanent annexation is intended.” Washburn on Real Property, 5th Ed., Ch. 1, Sec. 18.

In 8 Am. & Eng. Ency. of Law, p. 44, we find the following in a note: “ Many cases hold that the intention of the party making the annexation is the chief element to be considered, in determining what are fixtures,” citing numerous cases, the following of which we have examined and find they support the note: Allen v. Mooney, 130 Mass. 155, 157; Taylor v. Collins et al., 51 Wis. 123, 129; Hill v. Sewald, 53 Penn. St. 271; Seeger v. Pettit, 77 Ib. 437; Ottumwa Woolen Mill Co. v. Hawley, 44 Ia. 57; Jones v. Ramsey et al., 3 Ill. App. 303.

In Taylor v. Collins et al., supra, the court say:

“ This matter of intention is coming to be the main test in such cases, and the matter of physical annexation of comparatively little importance.”

The cold storage room, which is nothing more than a large ice box, was admittedly placed in the building for use in the business of Eoberts & Co., which business was carrying on a meat market. The premises were demised to them for that purpose, and we think it apparent from the evidence that their intention was not to make it a permanent accession to the freehold. Nor do we think that appellee could have understood that it was so intended. For the general purpose of renting the premises, the cold storage room would have been undesirable, except on the hypothesis that appellee would not lease it for any other use than as a meat market, which is hardly presumable in view of the fact that, after appellant vacated the premises, he demised them' for use as a storage room for bicycles, and says he did not require the removed structures. There was not, as already stated, any material damage caused to the premises by the removal of the cold storage structure.

“ In modern times the rule is understood to be that upon principles of general policy, a tenant, whether for life, for years, or at will, is permitted to carry away all such fixtures of a chattel nature as he himself has erected-upon the demised premises for the purpose of ornament, domestic convenience or to carry on trade; provided the removal can be effected without material injury to the freehold.” Taylor on Landlord and Tenant, 8th Ed., Vol. 2, Sec. 544.

Among numerous articles of which this author says ithas been adjudicated that they could be removed, are ice houses, counters or counting rooms nailed to the floor, etc. Ib., Sec. 545. See also Joslyn v. McCabe, 46 Wis. 591.

In C. & A. R. R. Co. v. Goodwin et al., 111 Ill. 273, the court say:

“ It does not necessarily and invariably follow that structures, or even buildings, placed by one person on the land of another, become a part of the real estate. When they are trade fixtures they are regarded as personal property.”

Appellee’s counsel object that it was necessary to cut the cold storage room in order to remove it. It appears both by the testimony of appellant and that of Breckinridge, who helped remove the cold storage room, that after its removal it was set up in another building occupied by appellant; and appellee himself testified that appellant and his partner used it after its removal. The fact that it was so bulky that it was necessary to divide it into quarters in order to remove it, could not 'affect appellant’s right of removal. Park v. Baker, 7 Allen (Mass.), 78; Wood’s Landlord and Tenant, 2d Ed., Vol. 2, p. 1227.

Appellee’s counsel contends that as neither Roberts & Co. nor Henry asserted right to the fixtures when they vacated, respectively, appellant can not now claim them, citing as authority Leman v. Best, 30 Ill. App. 324. That case is not in point. The court say: “The tenancy of the houses had changed several times by expiration of terms and new demises since the fixtures were first put in,” etc.

Here there was only a single demise, which had not expired when the fixtures were taken out. Henry, an assignee of the lease and purchaser of the fixtures from Roberts & Co., had title to the fixtures (Gubbins v. Ayres, 72 Tenn. 329), and appellant acquired title by purchase from Henry.

We are of opinion that it can not reasonably be held otherwise than that the cold storage room was a trade fixture, and as such removable by the tenant before the expiration of the lease. We are also of opinion that the office, partition and sheeting were trade fixtures,and as such removable by the tenant.

But even though it should be conceded that the sheeting, or wainscoting, as the witnesses call it, was not removable, the judgment can not be sustained. The only structure valued separately by the witnesses is the cold storage room, which appellee testified was worth $150, and Louden $175 to $200. The verdict of the jury was evidently based on these valuations. Appellee did not testify as to any value of the sheeting as it ivas in the building, and Louden, the only other witness as to values, valued the office and sheeting together at the sum of $60, not stating their values separately, so that no intelligent verdict could be rendered in respect to the sheeting.

Appellee having had the opportunity to prove the pecuniary loss or damage to the floor and wall caused by the removal of the structures, omitted to make such proofs, so that no intelligent verdict could be rendered for such damage. The judgment will be reversed.