Lee-Moore Oil Co. v. Cleary

234 S.E.2d 456 (1977) 33 N.C. App. 212

LEE-MOORE OIL COMPANY
v.
Terrance V. CLEARY and wife, Lynn L. Cleary.

No. 7611DC763.

Court of Appeals of North Carolina.

May 4, 1977. Certiorari Allowed July 14, 1977.

Gerald E. Shaw, Sanford, for plaintiff.

Ray F. Swain, Siler City, for defendants.

Certiorari Allowed by Supreme Court July 14, 1977.

MARTIN, Judge.

Plaintiff contends that the trial court erred in granting defendants' motion for a directed verdict. It argues, first of all, that the pumps and air compressor were not attached to the realty in such a way as to become a part of the realty. In any event, even if the equipment is deemed to have been annexed to the realty, the plaintiff argues that each item of equipment in question is still removable as a trade fixture.

"The rule with respect to the right to remove trade fixtures which have been attached to the land is intended to cover those cases in which a tenant installed such fixtures for use during his occupancy with the understanding, express or implied, that they may be removed." Stephens v. Carter, 246 N.C. 318, 320, 98 S.E.2d 311, 312 (1957).

Neither Kimbrell nor defendants ever occupied the land as tenants. The equipment was installed while Marley owned the real property. Plaintiff may have had the right to remove the equipment, pursuant to its oral agreement with Marley, while Marley possessed the property. However, at Marley's death, Kimbrell inherited the property and conveyed it to defendants by deed which contained no exceptions as to fixtures.

"``Real fixtures' consist of things, originally chattels personal, which have been annexed to land, or to things permanently attached to land, by the owner of the chattels or with his assent, and with the intention to make the annexation permanent. All other annexations are ``personal fixtures.' " Webster, Real Estate Law in North Carolina, § 12, page 16.

In the absence of clear evidence indicating a contrary intention, it is presumed in this State that an owner-vendor who has attached an item of personalty to his own land intends to make it a real fixture. Thus, the vendee of the real property will be entitled to have it conveyed to him by deed pursuant to the contract as a part of the realty. Webster, supra, § 18, page 22. However, in the instant case, the question of title does not arise between vendor and vendee. The agreement that the plaintiff would install the equipment on the premises of Marley's Store for purpose of distribution of plaintiff's products created a mere bailment of the equipment.

A case almost identical to this case is Standard Oil Co. of New York v. Dolgin, 95 Vt. 414, 115 A. 235 (1921). There plaintiff had entered into a written lease with Healy and Allen, which provided, among other things, that the title to the gas tank in question would remain in plaintiff but Healy and Allen could use it for a nominal rent in handling plaintiff's petroleum products. The tank was installed in a shallow excavation and dirt filled in over the tank to lessen fire hazard and protect the tank. Healy acquired Allen's interest in the premises and then conveyed the premises to defendant without reserving the tank. Defendant refused to allow plaintiff to remove the tank and plaintiff brought an action in replevin. The trial court rendered judgment for plaintiff and the Supreme Court affirmed, saying:

"As between the parties to the lease, its character and ownership remained unchanged. The plaintiff has never parted with its title or consented to a change in the character of the property, unless such a result follows from the method of installation and subsequent conveyance of the real estate. The rule of law governing such cases is easily stated, though not always easily applied. It is this: The annexation by a bailee to his own real estate of personal property bailed, with or without the knowledge and consent of the bailor, does not change the character of the property, and the bailor may recover it of the bailee's grantee, even though the latter be an innocent purchaser, unless the annexation is of such a character that the identity of the chattel is thereby lost, and it cannot be removed without substantial injury to itself or the real estate. The purpose and intention of the installation are incidentally involved, but the ultimate tests are as above stated....

. . . If the identity of the property is lost, as where bricks are built into a building, stone laid in a wall or walk (citations omitted), it becomes a part of the real estate. In determining this question, the intention of the party in making the attachment and the damage involved in its removal are for consideration." Standard Oil Co. of New York v. Dolgin, supra at 415, 115 A. at 236.

The court further affirmed the trial court in submitting to the jury an issue on the amount of damages to which defendant was entitled as the result of removing the tank from the excavation made when it was installed. The case of Stephens v. Carter, supra, cited by defendant in his brief is clearly distinguishable on its facts.

We hold that plaintiff is entitled to remove the tank in question but is liable to defendant for such damages as the jury might find defendant sustained in its removal. The same principle is equally applicable to the pumps and compressor.

Plaintiff seeks damages for the conversion of its property by defendant in refusing to allow plaintiff to remove the items sought to be recovered. It is entitled to those damages, if any there be.

Reversed and remanded.

MORRIS and VAUGHN, JJ., concur.