Stout v. Stoppel

Mitchell, J.

This is an action to recover the value of certain shelving and counters, the personal property of plaintiff, and alleged to have been wrongfully converted by defendant. The two points urged by defendant here, as well as in the court below, are (1) that the property which is the subject of the action being attached to and a part of the realty, this form of action will not lie; (2) that the plaintiff having annexed the property to the building of defendant while occupying it as his tenant, and having failed to remove it during his term, it became, under a familiar rule of law, the absolute property of defendant.

As well suggested by the court below, the difficulty with this argument is that it assumes that the property' was a fixture, and became a part of the realty, and that the relation of landlord and tenant existed between the parties. These were the precise questions in issue under the pleadings and in dispute under the evidence, and which were submitted, under proper instructions, to the jury. Therefore their verdict necessarily establishes the facts that the relation of landlord and tenant never existed between the parties, and that the property was put in the building by plaintiff by the permission of defendant, and under an "agreement on bis part that plaintiff might remove it at any time, and therefore that it never became a part of the realty, but preserved its character as the personal property of the plaintiff. It moreover appears that it was capable of being severed and removed without material injury to the building. The verdict is, in our opinion, amply sustained by the evidence.

The general rule, which obtains where the common-law distinctions between the different forms of action are preserved, undoubtedly is that replevin or trover will not lie for anything attached to the realty. This proceeds upon the theory that it ce'ases to be a chattel by being affixed to the land, and becomes real property, but reducible again to a chattel state by separation from the realty, and that replevin or trover will only lie for a chattel. It may well be doubted whether the more sensible as well as logical rule would not have been, that whenever the right of removal exists, the fixture retains its chattel nature even during annexation, and that, therefore, trover or replevin would lie, even before severance from the realty, in favor of him having the right of removal against.the owner of the realty, who, upon demand, refuses him permission to enter and remove.

But whatever may have been the propriety, in common-law forms of action, of this rule invoked by defendant, it can have no application under our system of practice, in which all distinctions in the forms of action have been abolished; and, even under the common-law practice, the rule referred to was not applicable to articles in their nature furniture merely, which, though fastened to the walls for safety or convenience, did not lose their character as personal chattels, nor to houses or other structures built on the land of another with his consent, and under an agreement, express or implied, that they should continue the personal property of the party erecting them, notwithstanding that they had not been severed from the land when the action was brought. Warner v. Kenning, 25 Minn. 173; Smith v. Benson, 1 Hill, 176; Tifft v. Horton, 53 N. Y. 377; Hill v. Sewald, 53 Pa. St. 271; Osgood v. Howard, 6 Greenl. 452; Davis v. Taylor, 41 Ill. 405; Adams v. Goddard, 48 Me. 212; Guthrie v. Jones, 108 Mass. 191; Finney v. Watkins, 13 Mo. 291; Vilas v. Mason, 25 Wis. 310. Therefore, the plaintiff having the right to remove this property, and defendant having upon request refused him permission to enter the building and remove it, an action would lie for damages for wrongful conversion, notwithstanding the fact that the property had not been dissevered from the realty.

Order affirmed.