Winslow v. Bromich

[305] The opinion of the court was delivered by Horton, C. J.: This was a controversy in the court below over sugar wagons. They were furnished by Joseph Bromich to the American Sugar Company, manufacturing sugar at Minneola, in this state. They were constructed of sheet and cast iron, being 4 feet long, 3 feet wide, and 26 inches deep, Avith three adjustable Avheels on each wagon. They were used in the mill for the purpose of holding the syrup and ■conveying it from place to place on the floor of the mill until it was converted into sugar. The wheels of the sugar wagons were low, about eight inches in diameter, and the wagons, when in use, were pushed by hand from place to place within the mill. These wagons were of the same character as other similar wagons used in other sugar mills, and such mills cannot be successfully operated Avithout such wagons or other vessels of like character. The question for our determination is whether the sugar wagons were personal property, or fixtures. If personal property, then C. W. Winslow is entitled to judgment for costs; but if fixtures, the judgment in favor of Joseph Bromich and the Densmore Brothers must be affirmed. The supreme court of Ohio, in Teaff v. Hewitt, 1 Ohio St. 529, says: “The following requisites will be found the safest criterion of a fixture: (1) Actual annexation to the realty, or something appurtenant thereto. (2) Appropriation to the use or purpose of that part of the realty which jt is connected. (3) The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention being inferred from the nature of the articles affixed, the relation and situation of the party making the annexation, the structure aud mode of annexation, and the purpose or use for which the annexation has been- made.” See, also, Eaves v. Estes, 10 Kas. 314. In Railroad Co. v. Morgan, 42 Kas. 23, it was observed: “One of the tests of whether personal property retains its character or becomes a fixture is the uses to which it is put. If it is placed on the realty to improve it and make it more [306] valuable, it is some evidence that it is a fixture; but if it is placed there for a use that does not enhance the value of the realty, this is some evidence that it is personal property. . . . The simple fact of annexation to the realty is not the sole and controlling test of whether a certain article is a fixture or not, is very well illustrated by the fact that trees growing in a nursery and kept there for sale are personal property, while trees no larger, if transplanted to an orchard, become real estate. On the other hand, there are very many things although not attached to the realty which become real property by their use — keys to a house, blinds and shutters to the windows, fences and fence rails, etc.” The sugar wagons, as we understand the agreed facts, were placed in the mill for use, not to enhance the value. They are movable, and if taken out will not disturb the mill or in any way injure the building. They do not run upon wooden or iron rails attached to the building, nor are they connected in their operation by bands or in any other way with the permanent machinery. They are not like the wheels or stones to a mill, or the keys to a house, or the blinds and shutters to windows. • Being adapted to convey syrup from place to place in the mill, they must be considered in the same class as buckets, kettles, barrels, and similar vessels used for like purposes. As the sugar wagons were not actually or constructively annexed to the realty, or something appurtenant thereto, but'merely furnished for necessary use in the mill, and not intended to enhance the value of the realty, we must hold them to be personal property and not fixtures. (Walker v. Sherman, 20 Wend. 636; Haeussler v. Glass Co., 52 Mo. 452; Graves v. Pierce, 53 id. 423; Ex parte Astbury, 4 Ch. App. 630; Ewell, Fixt. [1876], 22, 23; 1 Jones, Mort., §§ 444-449.) The judgment of the district court will be reversed, and the cause remanded with direction to the court below to render judgment for C. W. Winslow. All the Justices concurring.