Lovett v. Bermingham-Seaman-Patrick Co.

Brooke, J. (after stating the facts). The primary question for determination is whether the court was [378] in error in holding, as a matter of law, that the steam pipes for radiation on the second, third, and fourth floors, the arc lights, and the electric elevator motors, passed to the defendant under the terms of the lease. It is undisputed in this record that the plaintiffs never owned, or claimed to own, any of the property in question, unless a claim of ownership is to be inferred from the language of the conveyance (lease). In the early case, of Adams v. Lee, 31 Mich. 440, this court through Justice Cooley said: “When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only.” In that case the machinery was annexed to the building in a substantial 'manner, and was such as was used in the manufacture of wool. In Scudder v. Anderson, 54 Mich. 122 (19 N. W. 775), the property in question included several hundred feet of gas pipe which was affixed to the freehold. The court said: “But movable pipes, or anything else, which are in fact moved from time to time, and used for different purposes and in different places, could hardly be so considered [i. e., as fixtures annexed to the freehold] ” —and further: “It is impossible to regard personal property capable of removal from the land, which does not belong to the landowner, as part of the realty” (citing Adams v. Lee, supra, and Robertson v. Corsett, 39 Mich. 777). In Felcher v. McMillan, 103 Mich. 494 (61 N. W. 791), after holding that iron pillars, plate glass fronts, partitions with refrigerators, mirrors, etc., were not trade fixtures, but passed with the realty, the court said: [379] “This might not apply to the chandeliers and such articles as are temporarily attached and can be removed by unscrewing, the removal of which would not mar or injure the walls or partitions.” See, also, Bronson on Fixtures, § 53, where the rule is stated as follows: “Gas chandeliers and gas burners screwed on the ends of gas pipes have be.en uniformly held to be personalty, even as between vendor and vendee, on the ground that they are removable without injury to the premises, and are merely substitutes for lamps and chandeliers, which were always considered personalty.” The general rule is stated in 19 Cye. p. 1065: “Where additions to the realty are to the pecuniary advantage of the tenant, they are probably ‘trade fixtures.’ ” In Bowen v. Quigley, 165 Mich. 337 (130 N. W. 690, 34 L. R. A. [N. S.] 218), this court defined the word “fixtures” as: “Such chattels as merchants usually possess and annex to the premises occupied by them, to enable them the better to store, handle, and display their goods and wares. * * * They are generally removed without material injury to the premises” (citing cases). As between plaintiffs and the Jacob F. Maier Company, there can be no doubt that the Jacob F. Maier Company had the right to remove the property in question upon the expiration of its lease, it being the unquestioned owner thereof, it follows, therefore, that, there being no unity of title as to the fixtures in question and the realty demised, the title to the fixtures did not pass to the defendant by the lease in question. Much argument is indulged in on behalf of defendant as to the meaning of the word “appurtenances.” It may be noted that the word appears only,in the habendum clause, and not in the granting clause. It is elementary that the language of the habendum can [380] not enlarge the demise. 2 Am. & Eng. Enc. Law (2d Ed.), p. 526, and eases there cited. We conclude that the court was in error in holding as indicated in that part of the charge quoted, and that a verdict should have been directed for the plaintiffs for the amount claimed. The judgment is reversed and new trial ordered. Stone, C. J., and Ostrander, Bird, Moore, Steere, and Person, JJ., concurred with Brooke, J. Kuhn, J., concurred in the result.