Korbe v. Barbour

Colo?, J. The bake-house and oven were erected on the defendant’s land with her consent, while Kent occupied the premises as her tenant. They were built on stone foundations, in a way to make them a part of the realty in the absence of any agreement to the contrary. It is settled that, when one erects a building for a temporary purpose on the land of another with the knowledge and consent of the owner, an agreement for the separate ownership of the building and a right to remove it may be implied from the circumstances and conduct of the parties. It is not necessary in all cases to prove a contract in express terms. First Parish in Sudbury v. Jones, 8 Cush. 184, 190. It seems to have been held in some of the States, if not in this [258] Commonwealth, that such an agreement may be implied from the mere fact that the building was erected with the consent of the owner of the land. Howard v. Fessenden, 14 Allen, 124. Madigan v. McCarthy, 108 Mass. 376. Wells v. Banister, 4 Mass. 514. Curtis v. Riddle, 7 Allen, 185. Osgood v. Howard, 6 Greenl. 452. Russell v. Richards, 2 Fairf. 371. Aldrich v. Parsons, 6 N. H. 555. Dame v. Dame, 38 N. H. 429. It is not necessary in this case to put the plaintiff’s right to recover upon the mere consent of the defendant. There was evidence which, under our decisions, would fully warrant a jury in finding that, before the building and oven were erected, an agreement that it should remain the personal property of Kent was made with him by the authorized agent of the defendant. The premises were then occupied by Kent as tenant at will. The understanding as testified to by him implies that the building was to remain his property, to be taken and paid for by the defendant in case Kent “ should be taken away, or anything should happen,” at a fair valuation. This implies ownership in Kent or his representatives at the time of the proposed valuation. But, in addition to this, there was evidence that, when the agent of the defendant afterwards consented to the sale of the bakery business, together with the new buildings and fixtures from Kent to the plaintiff, and agreed to accept the latter on the same terms as tenant in place of Kent, he also agreed that the plaintiff might remove everything he purchased of Kent, including the oven. This agreement with the plaintiff has the character of an agreement made for the purpose of inducing the latter to buy the business and fixtures, and continue the occupation of the premises as the defendant’s tenant; but whether conclusive as an estoppel or not, it is evidence from which the original agreement with Kent may be fairly inferred. It is settled that the agreement may be shown by the subsequent admissions and dealings of the parties. Howard v. Fessenden, above cited. Morris v. French, 106 Mass. 326. Shaw v. Carbrey, 13 Allen, 462. Upon the facts reported, it could not be properly ruled that there was no evidence which would justify a finding that the defendant agreed that the building, with the oven and the materials of which they were constructed, should continue to be [259] personal property, and subject to distinct and independent ownership as such, apart from any title to the soil on which they were erected. Curtiss v. Hoyt, 19 Conn. 154. Prince v. Case, 10 Conn. 375. Smith v. Benson, 1 Hill (N. Y.) 176. In this view, the plaintiff can maintain trover for the conversion of the building and materials as personal property. The ease is distinguishable from those where it is held that trover will not lie for the conversion of trade-fixtures which have become part of the realty so long as they remain annexed, although removable by the tenant during the term. Guthrie v. Jones, 108 Mass. 191,196. Minshall v. Lloyd, 2 M. & W. 450. The reason is, that such fixtures, when annexed by the tenant without special agreement, become part of the freehold, and remain so till removed. The tenant has only the right of removal. Here, the building by force of the agreement remained all the time personal property. The defendant claimed title to the property. The plaintiff, after receiving notice as tenant at will to quit the premises, attempted to remove it, and was forbidden by the defendant’s agents. He demanded the property, and was told that he would not be allowed to remove it. This was evidence of a conversion proper to be submitted to the jury under proper instructions. Dolliver v. Ela, 128 Mass. 557. New trial ordered.