Frederick v. Smith

*441 Cook, J., delivered the opinion of the court. The appellant, W. C. Frederick, instituted this suit in replevin against the appellees, seeking to recover possession of certain pieces of property which he alleged were fixtures and had been wrongfully removed from- a farm which the appellees had previously been in possession of and which was purchased by the appellant. At the conclusion of the testimony in the court below, the court peremptorily instructed the jury to find for the appellees, and from the judgment entered in pursuance thereof, this appeal was prosecuted. The proof shows that during the year 1910, and until he purchased the property on December 30, 1918, the appellee C. M. Smith was a tenant on this farm, which consisted of four hundred seventy-eight acres. On April 20, 1920, the appellees C. M. Smith and his wife, Emma *442 Smith, executed a deed of trust in favor of the Jefferson Standard Life Insurance Company in which this land was conveyed to secure the payment of a certain indebtedness to the beneficiary. On May 19, 1924, this deed of trust was foreclosed, and the property was purchased by the said Jefferson Standard Life Insurance Company; but the appellees continued in possession of the 'property as tenant of the said insurance company until the property was sold, on November 16, 1925; to the appellant. The appellees moved off this farm on January 1, 1926, and carried away therefrom the articles which are the subject of this suit, consisting of one Delco lighting plant, including gasoline engine and dynamo, one hundred fifty feet of three-fourths inch galvanized water pipe, one large zinc water tank, one water pump and gasoline engine used for pumping water, one kitchen sink, and one bath tub. The proof is that the Delco lighting plant and the gasoline engine used to operate it, and the dynamo and batteries, were all located in a small house in the back yard about one hundred feet from the dwelling, and were all considered one unit. The entire plant, except the batteries, was attached to a concrete block by bolts, and this concrete block was placed on the ground. The batteries were located on a shelf near the other part of the plant, and this light plant was used to light the dwelling house. This plant was purchased by the appellee C. M. Smith and placed on the premises in the spring or summer of 1916, at a time when he was a tenant thereon. The bath tub was purchased by the appellee during the year 1916, and was installed in the dwelling house by being attached to the service water piping leading into and from the dwelling house. The zinc water tank, water pump, and gasoline engine were purchased by the appellee, and installed on the premises, in the spring or summer of 1924, at a time when the appellee was a tenant of the Jefferson Standard Life Insurance Company. This tank was located on a tower about sixteen feet above the ground, near *443 the barn, and was attached to the engine and ground by means of a pipe. The engine was used to operate a pump, and thereby water was pumped into the tank, and from the tank water was conveyed by ¡lipes to the dwelling-house, pasture, and other parts of the premises, for use by the appellee, his family, his cattle, stock, etc., and was placed on the premises because, without it, the services of a high-priced man would have been necessary to supply the farm with water. This tank, engine, and pump were purchased by the appellee while he was a tenant, for the purpose of replacing similar property that was destroyed by a storm. The testimony is that this tank was blown down onto the engine and pump, thereby destroying the tank and pump, and injuring the engine; that the engine was turned over to a blacksmith for repairs and never returned. But the testimony does not show the extent of the injury to the engine, or whether the same could, in fact, be repaired so as to render it serviceable. The tank, engine, and pump which were injured by the storm, were purchased in the year 1920, at a time when the appellee was the owner of the premises, and were used to replace similar property already on the premises. The one hundred fifty feet of galvanized pipe, leading from the dwelling house to the commissary, was put in by the appellee in the latter part of the year 1924, and it was placed under the ground from three to six inches. The kitchen sink was purchased by the appellee during the year 1920, and it was installed in the kitchen by being attached to the walls thereof and to pipes leading' to and from the sink. The rules applicable in determining whether an article is personal property or a fixture are well defined in the prior decisions of this court, and the only difficulty arises in the application of these rules to the facts and circumstances of each particular case. In the case of Richardson v. Borden, 42 Miss. 71, 2 Am. Rep. 595, the court said: “It will he found upon examination, that, in determining the question whether a thing is a chattel or fixture, *444 reference must be had to the nature of the thing itself; the position of the party placing it where found; the probable intention in putting it there, and the injury which would result from its removal; and we must also consider the object of the party in placing the article on the premises with reference to trade, agriculture, or ornament. ’ ’ In the case of Weathersby v. Sleeper, 42 Miss. 732, the rule for determining the question is stated as follows: “Whether an article is personal property or a fixture, must be determined by taking into consideration its nature, mode of attachment, purpose for which used, and ■the relation of the party making the annexation, and other attending circumstances indicating the intention to make it a temporary attachment or a permanent accession to the realty. ... In some instances the intention to make the article a fixture may clearly appear from the mode of the attachment alone, as where a removal cannot be made without serious injury to the property by the act of severance. But where the attachment is but slight, and does not enter into the physical structure of the realty, this intention must be gathered from the nature of the article and the other attending circumstances.” In the case of Richardson v. Borden, supra, in discussing the application and effect of these rules, the court said: “The doctrine is well established that, as between the executor and heir, the vendor and vendee, mortgagor and mortgagee, the strict rule is applied in favor of the heir, vendee, and mortgagee, holding many articles to be fixtures, and as belonging to the freehold, which would not be so as between landlord and tenant. In one class of cases the rule of construction is rigorous and stringent, in the other it is relaxed and liberal. ’ ’ Applying these rules to the facts in the case at bar, we have no difficulty in reaching the conclusion that the Delco lighting plant, the bath tub, and kitchen sink were “fixtures” and belonged to the freehold. It is true that *445 the light plant and bath tnb were purchased and installed while the appellees were tenants on this plantation; but when they purchased the premises in 1918, this rule against the owner came into play, and determines the character of these articles as being fixtures and belonging to the freehold. While it is possible for a family to use a dwelling house which contains neither bath tub nor kitchen sink, it cannot be contended, with reason, that the owner of á dwelling house who has installed therein such articles would have the right to remove the same upon a sale of the property without reservations. Likewise, it would have been possible to have used this dwelling house and to have operated the farm without a lighting plant. Tallow candles or oil lamps might have been used to furnish light, but that fact alone is not the controlling test of the character of this plant. A plant of this kind, which is useful, if not necessary, for the use, enjoyment, and operation of the premises, and which is attached to the freehold and used by the owner of the premises for years, becomes a “fixture” which passes to the vendee upon a sale of the premises without any reservations of such plant. We think the appellant was entitled to recover possession of this lighting plant, bath tub, and kitchen sink, and that the court below should have peremptorily instructed the jury to so find. As to the remaining articles sued for, we think the action of the court below in peremptorily instructing the jury to find for the appellees was correct. The undisputed testimony shows that the water tank, pump, and engine, were destroyed, or, if not totally destroyed, rendered useless, by a windstorm which occurred during the year 1924, while the appellees were tenants on this farm. By virtue of the provisions of section 2834, Code of 1906 (section 2332, Hemingway’s Code), in the absence of any covenant to be so bound, the lessee was relieved of any obligation to restore or pay for this property which was destroyed without negligence or fault on his part. These articles having been purchased and placed on the *446 leased premises by the tenant for Ms own and convenience, we think, under the liberal rule in favor of a tenant, they did not become fixtures, and that be had the right to remove the same upon the termination of his tenancy. As to these articles, the appellant invokes the doctrine that machinery or trade fixtures that are placed upon the leased premises in substitution-for essential parts of the leased premises, and not as additions thereto, are not removable but are presumed to be permanent “additions.” This doctrine is supported by ample authority from other states, but we do not think it is applicable to the facts here involved. There was no substitution of the tank, pump, and engine for similar articles already in use, but rather a replacement of articles destroyed or rendered useless by a storm, when 'there was no obligation upon the tenant to do so. After the destruction of this water plant, the articles placed upon the premises to aid the tenant in securing water for the operation of the farm were mere additions which he had the right to remove upon the termination of the tenancy. The galvanized pipe extending from the dwelling to the commissary was likewise an addition to the leased premises, which the tenant, had a right to remove. The judgment of the court below will therefore be reversed, and a judgment will be entered here awarding the possession of the lighting plant, bath tub, and kitchen sink to the appellant; and the remainder of the property sued for to the appellees. Reversed, and judgment here.