McIver v. Estabrook

W. Allen", J. Richardson, Merriam & Company, being tenants at will of Cleveland & Company, who were tenants for years of the Estabrooks, erected the building in question. The building, unless affected by some special act or agreement of the parties, was a fixture which the tenant had a right to remove at or before the end of his term. It became, when erected, a part of the realty, subject to the right of the tenant to sever it from the realty and convert it into personalty. If the tenancy at will should end before the estate for years, and the tenant at will had not removed the fixture,, it would remain as part of the demised premises, with the right in the tenant for years to remove it during his term. In this case, the tenancies at will and for years determined at the same time, and neither tenant removed the building. The Estabrooks resumed possession of the premises, and soon afterwards leased at will to Richardson, Merriam & Company a portion of the premises they had held under Cleveland & Company, including the land on 554 which the building stood, and the building, and some additional room, at an increased rent. We infer from the exceptions, though it is not expressly stated, that, after the termination of the lease for years, and until the lease just mentioned, Richardson, Merriam & Company occupied, as tenants at will of the Estabrooks, the premises they had before hired of Cleveland & Company. The plaintiffs subsequently purchased the right of Richardson, Merriam & Company, and the defendants represent the Estabrooks. There have been changes in the tenancies which it is not necessary to consider, as, if the status of the building as real estate was fixed by the transactions referred to, nothing has occurred since which can change it. That it was so fixed, unless affected by some agreement of the parties, is plain from the case of Watriss v. Cambridge National Bank, 124 Mass. 571. The exceptions state that “the building was erected with the knowledge and consent of the Estabrooks, and with the understanding and belief on their part that it could be removed as a trade fixture. Richardson, Merriam & Company also erected the building with that understanding.” The plaintiffs rely upon this as showing some agreement or consent of the parties, which will take the case out of the rule of Watriss v. Cambridge National Bank. But we do not see that this evidence changes the character of the erection. The fact that a landlord knows and assents to the erection of a fixture by a tenant, can afford no inference that he agreed that it should not be a fixture. It is argued that Richardson, Merriam & Company were strangers to the Estabrooks, and that the consent given cannot be taken as consent by a landlord to a tenant. But they were tenants claiming under the Estabrooks, and holding an estate granted by their lease to Cleveland & Company, and the legal inference would be that the erection was made by them as tenants, and that the Estabrooks knew and consented to such erection. But, without regard to the relations of the parties, the consent of a landowner that a building to be erected on his land shall be personal property cannot be inferred from his consent to the erection of a building which he and the person erecting it both understand shall belong to the realty. Exceptions overruled.