Fifield v. Maine Central Railroad , 62 Me. 77 ( 1873 )

Peters, J.

The defendants contend that the rails in controversy were a fixture, or part of a fixture, and not attachable as personal property.

In Hunt v. Bay State Iron Co., 97 Mass., 282, it was decided, that rails delivered under an agreement that they should be laid down on a specific part of a railroad, and continue the property of the vendors until a specific price was paid for them, remained the personal property of the vendors until payment, and were not, when laid, so inseparably annexed to and incorporated with the realty that they could not be removed for non-payment of the price. The same question was decided in the same way in Pierce v. Emery, 32 N. H., 484, and in Haven v. Emery, 33 N. H., 66.

In these cases it is said that, without notice, subsequent bona fide purchasers of title to the road would not be affected by such private agreement, changing the natural and legal character of the road from real to personal, but would have a right to suppose that they acquired all the incidents and appurtenances, which, by the general rules of law, would result from such a purchase. How far this qualification of the general principle, stated in these cases, would obtain as a rule of construction in this State, may be an important question not now necessary to decide. The case of Russell v. Richards, 10 Maine, 429, and subsequent cases, establish the doctrine here, that bona fide purchasers, who even without notice, acquire the title to land, are not entitled to claim such structures as a house, store, or mill standing on the land at the time of purchase, if such buildings were, at such time, the property of a third person, although from their situation upon the land, they had the appearance of being a part of the realty. The case of Russell v. Richards does not accord with the adjudged cases in Massachusetts and New Hampshire in this respect, and the general course of decision is rather opposed to it. See enumeration of cases compared in the extensive notes to the case of Elwes v. Mawe, 2 Smith’s Lead. Cas., 99.

We arrive at the conclusion, that the rails in controversy, were attachable as personal property, upon the ground, that they in no respect partook of the character or quality of fixtures, but that they were merely personal chattels, belonging to the original party sued; and therefore were no part of the iron laid on “the track” of the one corporation leased to the other. Thus they were the acknowledged property of Wilson, Tennant & Co., from whom the title had not, at least, voluntarily passed. No one else claimed them ; they were merely loaned to the railroad corporation, returnable whenever called for; were laid entirely for temporary and not permanent purposes; had before that time been removed from place to place, and were designed for or altogether used in, no particular locality; were no part of the road track proper, nor a necessary incident or appendage of it. Such tracks constitute a part of the means used in constructing a road, but are not a part of the structure. They are usually of hasty and rude construction, and as often as otherwise, passing over lands outside the limits of the corporation prescribed by charter. It makes no dif ference that the two tracks were connected by frog and switch, certainly further than the immediately connecting rail was concerned, as the others could be removed without in the least degree disturbing the uses of the road ; nor, that the rails were laid upon sleepers, as these too were seized and sold with the rails. It might as well be contended that the scaffolding, ladders and appliances, used in constructing, which a mechanic temporarily leaves about a newly finished house, becomes the property of the householder, so as to pass as a fixture upon his conveyance of the real estate.

As there was no intervening change of title, it is immaterial whether the attachment was valid or not, if the rails were legally sold upon execution. The legality of this proceeding is contested by the defendants, upon the alleged ground that the officer never obtained an actual custody and possession of them. It may be, as contended by the plaintiff, that no actual delivery was necessary to establish title as between the officer and him; but the objection urged is rather that by such seizure and possession only as were taken, the officer had no rails to deliver, and could give no title. It is not pretended but that if the rails had been taken up and removed, a sufficient seizure would have been made of them; and, what essential difference would there be whether the rails, when sold were arranged upon, sleepers or were differently situated ? They were as much within the control and possession of the officer in the one condition as the other. There can be no doubt that an. attachment of such property, without removal, would be valid and effectual, if a return to the town clerk’s office was made instead of keeping possession and custody. R. S., c. 81, § 24. Nichols v. Patten, 18 Maine, 231. It is not perceived why property in a condition to be attached, could not in such condition also as well be sold. An officer who sells a house or a mill as personal property, makes no removal of the building, but merely surrenders a possession of it upon the premises where it stands. The purchaser afterwards may keep such possession as he is entitled to. We deem the steps taken in this case sufficient and effectual to pass to the plaintiff a title to the rails. ' Hemmenway v. Wheeler, 14 Pick., 408; Doty v. Gorham, 5 Pick., 487; Polley v. Lenox Iron Works, 4 Allen, 329; Vining v. Gilbreth, 39 Maine, 496.

Has there been a conversion of the rails by the defendants ? To constitute it there must have been either a wrongful taking, or wrongful detainer, or an illegal using, or a misusing, or an illegal assumption of ownership. Polley v. Lenox Iron Works, 2 Allen, 184. The defendants did not wrongfully take them, because it was by consent. Have not claimed to own them. Have not abused, nor is there any evidence that they have wrongfully used them; that they were used since the written demand was served, does not appear; and there is nothing in the case to show that up to that time, the defendants had any notice whatever that the title to the rails had passed from their bailors. Using the rails subsequently to the sale, could not be regarded as a wrongful act of the , corporation as long as they liad no notice that the title to the rails had changed. Where the owner of chattels in the possession of another as bailee to such owner, makes a sale of them to a third person without notice to the bailee and without disturbing his possession in any way, the title of the vendee is necessarily affected .by- and subject to the possession in the bailee, and will so remain until by notice or in some other way the right of the bailee tp continue such possession is terminated. Otherwise the undertakings of agents, trustees, bailees, carriers and the like would be exposed to hazardous and unreasonable consequences. The defendants as bailees would undoubtedly be liable to the plaintiff for the value of the use of the rails since he acquired title by the sale upon execution, but not to the extent of their value for a conversion.

Nor have the defendants wrongfully detained the rails. They were under no obligation to make an actual delivery to the plaintiff anywhere, and they have not objected to or resisted his taking them. It is said in Dame v. Dame, 38 N. H., 459, that a refusal to assent to the removal of a’building, owned by one person, from the land of another, would not constitute conversion if no resistance was made. Here there was no refusal even, but only a noncompliance with a written demand for a delivery served upon an officer of the defendant corporation when in Bangor, while the property demanded was in Brooks, without any statement as to when or where the plaintiff desired to receive the property demanded.

There are cases in which it has been decided that a written demand left at a house or place of business, or sent through the mail and received, may be sufficient; but it is where a person is in possession under some contract or permission, and under such circumstances that a duty is imposed upon him to make a re-delivery; as, for instance, where one person has borrowed of another and has neglected to return. This case differs from the class of cases where such a demand has been held sufficient. White v. Demary, 2 N. H., 546; Pattee v. Gilmore, 18 N. H., 460; Durgin v. Gage, 40 N. H., 302.

The plaintiff should have undertaken to take the rails, or have-forbidden the defendants to use them;. or at least have notified! them of a change of ownership; and a resistance to such taking; or using the property after such notice would have been evidence of’ cpnversion; but upon the case as presented it is not established; and, on this account the result must be,

Exceptions sustained.

Appleton, C. •!., Cutting, Walton, Dickerson and Barrows, JJ., concurred.