Douglass v. Anderson , 28 Kan. 262 ( 1882 )

The opinion of the court was delivered by

Horton, C. J.:

The conclusions of law found by the trial judge upon the findings of fact made by him, appear to us to be erroneous. Admitting that the tenant was entitled to the improvements erected by him upon the lot, this did not give him such an interest in the premises beyond that of a mere tenant as prevented the plaintiff from having restitution thereof by the action of forcible detainer.

The stipulation-in the lease “that in ease of failure of the lessor’s title to the- lot, payment was to be made for all the lessee’s permanantand valuable improvements thereon,” does not figure in this controversy, as there is no pretense that the lessor’s title failed, and in the absence of express agreement the landlord is not bound to pay for improvements made by the tenant during his term. Therefore, there is nothing in the conclusions of fact which forbade the lessor to take possession until he had paid the value of the improvements. Admitting for the purpose of argument that the cottage which was erected by the lessee upon the lot was done so with the assent of the lessor and upon an agreement or understanding that the lessee might remove it when he pleased, the tenant did not thereby acquire such an interest in the premises as to permit him to hold possession without payment of rent. So far as concerns landlord and tenant, th.e general rule is, that the tenant’s right to remove fixtures continues during his original term and during such further period of possession by him as he holds the premises under a right still to consider himself as tenant. In some cases, an outgoing tenant has the right to enter and remove improvements erected by him during his term; but in the absence of any agreement between landlord and tenant at what time fixtures are to be removed, the tenant may rightfully remove the improvements at any time before his right or enjoyment expires.

The judgment of the district court must be reversed, and the case remanded with directions to the court below to render judgment upon the conclusions of fact in favor of the plaintiff.

All the Justices concurring.