Radican v. Hughes , 86 Conn. 536 ( 1913 )

The motion to correct was unnecessary, as paragraphs of the draft-finding marked "proven" are to be regarded as a part of the finding.Grievance Committee v. Ennis, 84 Conn. 594, 610,80 A. 767.

The plaintiff contends that from the facts appearing of record this building was a fixture and a part of the realty owned by her. This proposition presents the controlling question in the case as it was presented to this court.

The doctrine of fixtures, by which the nature and legal incidents of the property must be determined, rests upon a course of judicial decisions made at different times, under a variety of circumstances, and running into numerous distinctions arising out of the peculiar relation of the parties and the peculiar circumstances of each particular case; so that it has been found extremely difficult to reduce this branch of the law to any uniform system. Tolles v. Winton, 63 Conn. 440, 443,444, 28 A. 542; Morey v. Hoyt, 62 Conn. 542, 546,26 A. 127. There are certain general principles, however, which have been well established. In the case ofCapen v. Peckham, 35 Conn. 88, 94, this court held: "That it is essential to constitute a fixture that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adoption of the article annexed to the uses and purposes to which that part of the building was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article."

"This rule, which requires a physical annexation of the article to the building, we consider well settled, but the annexation need not be such as to require any actual disruption for its removal. It may be attached to the building by mere adjustment of construction and putting in place, as in the case of doors and window blinds, which are obviously a part of the building, though attached only by hinges, or it may be held in a place prepared to receive it, by its mere size and weight."Stockwell v. Campbell, 39 Conn. 362, 364, 365. The controlling consideration is the intention with which the annexation is made; and in determining that intention the degree and permanence of the annexation, the nature and adaptation of the article annexed to the uses and purposes to which the realty was appropriated at the time of the annexation, and the relation of the party making the annexation to the realty, are of importance and weight. Alvord Carriage Mfg. Co. v. Gleason,36 Conn. 86, 87; Stockwell v. Campbell, 39 Conn. 362, 364,365; Tolles v. Winton, 63 Conn. 440, 444, 28 A. 542;Morey v. Hoyt, 62 Conn. 542, 559, 26 A. 127.

In this connection it should be noted that the intention to be sought is not the undisclosed purpose of the actor, but the intention manifested by his actions. In cases of this kind every fact and circumstance should be considered which tends to show what intention is properly imputable to him who located the article in position. Equitable Guarantee Trust Co. v. Knowles,8 Del. Ch. 106, 131, 67 A. 961.

It appears that the defendant purchased the building in question with the intention of locating it wholly on his land. Its location in part upon his father's land was intended by the defendant to be temporary. At this time the defendant was a member of his father's family, and it does not appear that he had an express agreement as to the occupation of the land when he located the building. In this connection it is important to note that Thomas Hughes never objected to such occupation, although he lived on this lot several years thereafter.

In the absence of express contract, the law often implies a license from the nature of the transaction, and when the circumstances authorize the assumption that such was contemplated by the parties. The implied promise in such case is such as justice would dictate under the particular facts presented to the court.Lakin v. Ames, 64 Mass. (10 Cush.) 198, 221. A license may be inferred from the acts of the parties, from their relations, and from the exigencies of the case. Where families are on intimate terms, and have long been in the habit of visiting each other, and crossing the grounds without objection, these facts will justify the jury in finding an implied license. Martin v. Houghton, 45 Barb. (N.Y.) 258, 31 How. Pr. 82.

Upon the facts now before us, it is fair to assume that Thomas Hughes, the father, authorized the defendant to locate the building upon land now owned by the plaintiff. It has been held that when the landowner consents to the placing of the building on his land by another without an express agreement as to whether it shall become a part of the realty or remain personal property, an agreement will be implied that it is to continue personal property. 14 L.R.A. (N.S.) 439, note, and cases cited on pages 439 and 440. The building was not annexed to the land or anything appurtenant thereto. Its size and construction were not such as to render it impossible to remove it. Its proper removal would not injure the premises. It was not adapted to or necessary for the use and enjoyment of the land upon which it stood. As between Thomas Hughes and his son, the defendant, this building remained the property of the defendant and was removable by him.

When one enters on land, to use and occupy it, with the consent and permission of the owner, but for no definite time, he is a tenant at will. 1 Swift's Digest, s. p. 90; Gould v. Thompson, 45 Mass. (4 Met.) 224, 228; Cheever v. Pearson, 33 Mass. (16 Pick.) 266, 271. Such an estate, however, is revocable, not only at the will of the owner, but by his death, or by alienation or demise of the land by him, and by whatever should deprive him of the right to do the acts and to give permission to do them. Clapp v. Boston, 133 Mass. 367, 368. The death of Thomas Hughes, in 1899, operated in law as a determination of the defendant's tenancy at will, and under ordinary circumstances the defendant should have exercised his right of removal within a reasonable time. But it appears that from 1899 to March, 1908, the owners of the estate of Thomas Hughes made no objection to the presence of the building and its use by the defendant on the land where it stood; and it may fairly be inferred that they impliedly assented that the defendant might continue in possession under the same conditions which had existed between him and his father.

On March 12th, 1908, the defendant, as executor of his father's estate, obtained a certificate of distribution, whereby the plaintiff had set to her the parcel of land upon which the building in part was then located. Until this time the defendant had been occupying this land under a license as a tenant at will. This tenancy terminated upon the final distribution of the estate, when the plaintiff had the right of possession to the lot of land where the building stood.

It is not clear on what authority the court below found that the defendant was liable in damages for the removal of the building. His right to the building was not derived from the license, but existed in him from a separate and distinct title, the validity of which, between the parties to this case, was not dependent upon an interest in the land. Although he may have lost his right of removal, yet he remained in possession of the building. He did not abandon it, as the plaintiff now contends, but continued his occupation and possession until he removed it in 1910.

The rule which governs as between vendor and vendee is not controlling between the parties to this action. The plaintiff, as devisee, took her interest in the premises subject to all the legal rights of the former owner therein, and she must be presumed to have known them and assented thereto.

As between the defendant and his father, this building was personal property with the right of removal. As between the parties to this action, nothing had taken place since the building was placed upon the father's land to change its character from one species of property to another. Assuming that the defendant's right of removal had terminated, it cannot be said that he had forfeited his right to the building.

The gist of the plaintiff's causes of action is the alleged unlawful entries upon the plaintiff's land by the defendant. In actions of this character, tried under a general denial, the title to the land is not in issue, and the plaintiff, in order to maintain the action, must establish his actual, exclusive possession of the locus, or a constructive possession by proof of his title and the absence of actual, exclusive possession by another.Waterbury Clock Co. v. Irion, 71 Conn. 254, 262,41 A. 827. It appears that when the acts complained of were done, the defendant had not been dispossessed, nor had he abandoned or surrendered his possession of this building and the land upon which it stood. In the absence of any evidence of actual possession by the plaintiff, the trial court should have found that by the maintenance, occupation, and removal of this structure under a claim of right, the defendant had been in the possession of the locus since the building was erected thereon. Waterbury Clock Co. v. Irion, 71 Conn. 254,262, 41 A. 827. Under such circumstances the defendant's removal of the tool-house was not unlawful.

The amount of the judgment is $155, and it appears from the finding that the sum of $125 was awarded the plaintiff as damages for the removal of the tool-house. To the extent, therefore, of $125 the judgment is erroneous. As the appeal does not question the correctness of the trial court's action in awarding the additional $30, the judgment to that amount was justified.

There is error, the judgment is set aside and the cause is remanded for the rendition of a judgment in favor of the plaintiff for $30.

In this opinion the other judges concurred, except HALL, C. J., who concurred in the result, but died before the opinion was written.