Untitled Texas Attorney General Opinion

’ I.:?
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
iI I
AUSTIN
j 46 Tex. 651, 664, 66 Am. Rep. 666, aa fol-
lowat
w*lat. Baa there be8n a real or conetruotite annera-
tlcn of the artiols in queetlon to the realty?
*‘2d. BDaathere a iitnesa or adaptation of suah
artiole to the uses or purposes of the realty with
whlah it 1.3 aonneotea?
l'6d. mether or not it wea the intentLon of the
party msk-int, the annexation that the chattel should
beoome~a"permanant aocasaion to the rreaholdT-thlr
intantion bedng inrerable from the nature of the utlole,
the relation and situatlan of the parties interested,
the polioy of thalaw in respaat thereto, the mode of
annesatlon, and purpose or use for whloh the annexatian
18 ride.
**And of these three testa, pre-eminence Is to be
given to the questfon of intention to make the artiole
a permanent aaceasion to the rreehold, while the other8
are ohfeily of value as evldenoo as to this intention.1
*mile appellant contends that the orip,inel leeee-
hold in guestion here from V:. T. Zaggoner to Barkley lb
keadows provided that the oe&ng, roda, tubing, tanks,
eta., may be renovad by the lessee irom the leasehold,
we find only a small part of said lease In the reoord
in this case and such a provlafon, ii made, was not
contained in that part of the leesehold in the reoord.
355 r
However, it stands to reason that the intention of
the partiee to the original lease sontreet wmld be
to place the oaeing,rods, tubing and evsn the pump6
and tanks on suoh a leasehold tor temporary use only
with the full intention of removing the% onto other
leases ii desired, and certainly in oaseproduotlon
beoame unprofitable es was the ease with the leasehold
iA queI3tiOn.
The applloable rules are also stated in 86 0, J. 3.
89%. aa roilore
I . Prdinarily the courts
hold that Gor an
arti& ;o beoams a tlrture thare must anlte the rollon-
ing requisites: (1) annexation to the realty or something
appurtenant thareto; (a) adaptability or appliaation oi
the ahattel airlxed to the use or purpoee to whioh the
realty is appropriatsd; and (3) the iatsntion or the
party making ths aanexetfon to msJce a perrnaaent asoes-
810~ t4 the fr ehold.*
lfhe requieit abeled “(I)* above is perhapa eaal4
eatleried. Aooorrliq \ to e t6ZnII ab the iAStraPl6At OOAvayiAg
the right of way, the grant&s weeo to burr the pipe line Ln
the ground below plow depth.
Bequiolte "(2)" ia apparently uatlsriea ror the
reason that the easement was aoqulred on4 for the purpoae Or
maintaining a pips line, or possibly two pips lines, aorQa8
the lend in question.
IA rsaent years mere and more weight has been gfrea
to requisite v(3)*, until it is AOWregarded as the major test
in determining whether ar not parsonal property has beaome a
rixture. As stated in the ieregoing Texas deaisions, *And of
these three tests, pre-eminence is to be given to the question
of intention to make the'artlale a permanent aooession to ths
freehold while the others ars chiefly of value as evidenoo
a8 to this iAtaAtiQA.*
Hon. Fred Erieman, page 9
The only eridenoe of the intention of' ths partiss
with rsspeot to whethar or not they Intend ths pipe line
In question to beomne a fixture is the above quoted exoerpt
from thee oonrepine instrumant, where it is reoited that the
grantee *may remove t?!e same (meaning the pipe line) in whole
or in part at will,*
Absent other and oontrolling svldanoe eatablloblng
sn lntantion of the parties to make the pips line a fixture,
we would be oonatrained to say that ths pips line is not a
fixture but is personal property and tharsfore not subjest
to being taxed as real property.
In our opinion the pumping equipment Is a part or
the realty. It Is losated on property owned In fse. by Ds-
fsnse PlantAorporation. wa hare baon plaosd In poaaaa8ion
of no fam whloh lndloate the pumping equlpmsnt was not
.intendedby the parties ts become a part of' the realty. A
number of deoieions support the propsaltion that pumping
eqtiwnt beoomes a part of the realty when annbnd tJmreto.
(See Blain Y. Corbin, 51 Ga. App. 498, 180 S. E. e54; First
State h 8aringa Bank T. Olirsr, 101 Or. 49, 198 P. 990~
Bell v. Bank of Perrle 58 Cal. Afir, (ad) 66, 185 P. (9d)
829; Rlnbrand well Dri&ing Co., ., t. L. h 3. Thsatres,
Ino., 80 A. (ad) 35.8.)~
,'
We also are of the.oplnion that the buildings
inquired about are taxable as real property. Although in
the great majority of oases the burden of proof is upon
one aseertlng that the olrou.matanoes of annexation of ger-
sonalty to realty are such as to make the article a part
of the realty, such is not the oase with buildings. Build-
ings ars presumed to be a part of the realty. 36 Cf. J. 3.
1006-1008.
Yours very truly
GPB:AkW