Opinion
Argued January 8, 1932
Reversed April 19, 1932 Motion to dismiss appeal denied June 16, 1931 Rehearing denied June 7, 1932
Appeal from Circuit Court, Multnomah County, HALL S. LUSK, Judge.
Action by J.C. Dober, as trustee in bankruptcy for the Oregon Hardwood Mills, Inc., against the Ukase Investment Company. From a judgment for defendant, plaintiff appeals.
REVERSED. REHEARING DENIED.
W.E. Richardson, of Portland, for appellant.
H.L. Lyons and W.S. Poole, both of Portland, for respondent.
This is an action of claim and delivery, based upon Oregon Code 1930, §§ 4-301 to 4-312. Such an action, which is substantially the former action of replevin, is strictly possessory. See Moser v. Jenkins, 5 Or. 447, and Reed v. Mills, 78 Or. 558 ( 154 P. 113). The action was prosecuted by J.C. Dober, as trustee in bankruptcy for the Oregon Hardwood Mills, Inc., against the defendant corporation, for the recovery of certain personal property situated upon the defendant's realty. The case was tried to the court, without the intervention of a jury, and the trial court found, in substance:
That the plaintiff was the duly appointed and acting trustee in bankruptcy of the Oregon Hardwood Mills, a corporation, and that the defendant was likewise a corporation.
That, based upon a petition filed by creditors on or about May 16, 1925, the Oregon Hardwood Mills was adjudicated bankrupt on or about February 2, 1927.
That the defendant was the owner of certain real property situate in Portland, Oregon, which property it leased to Joseph S. Gill for a term of three years from May 1, 1922, by a written lease executed on or about that date.
That it was provided in that lease that, upon the termination thereof, the buildings, roadways, and sidetracks should become the property of the lessor, but that the lessee should have the right to remove the machinery and other property.
That soon after the execution of the lease, it was, with the consent of the lessor, assigned by Gill to the Oregon Hardwood Mills, which company occupied the property covered by the lease, placed thereon certain trade fixtures and other personal property, and operated a sawmill thereon for about two years.
That about one year before the expiration of the lease, the Oregon Hardwood Mills ceased to operate its mill, and left upon the premises its trade fixtures and other personal property, a portion of which constitute the identical articles set out in the pleadings and sought to be recovered by the plaintiff as its successor in interest.
That thereafter, the Western Hardwood Mills, also an Oregon corporation, operated the mill property until about April 17, 1925, when it ceased operations and surrendered possession thereof to the defendant herein.
That the lease of the Oregon Hardwood Mills was terminated on or about April 30, 1924, and, although a reasonable time had elapsed since the expiration thereof, this company had failed and neglected to remove the trade fixtures and other personal property from the leased premises.
That the plaintiff had failed to show that he was entitled to the immediate possession, or any possession, of the personal property described in the complaint.
As conclusions of law, the court found:
That the Oregon Hardwood Mills, by its failure to remove the personal property described in the complaint at the expiration of the lease, or within a reasonable time thereafter, abandoned that property and lost its right to the immediate possession thereof; that the plaintiff was not entitled to the possession of that property, and was not entitled to a judgment against the defendant, and that the defendant was entitled to a judgment against the plaintiff for its costs and disbursements in the action.
The court ordered that the plaintiff take nothing, and that the defendant have and recover from the plaintiff a judgment for its costs and disbursements, taxed at $16.50.
The plaintiff moved for a new trial, upon the grounds of insufficiency of the evidence to justify the findings or the verdict; numerous errors at law occurring at the trial; error of the court in overruling plaintiff's demurrer, and in not giving the plaintiff a verdict as prayed for in his complaint. This motion was overruled, and from the judgment entered the plaintiff appeals.
In order to justify its claim of right to possession of the property sought to be recovered by the plaintiff, the defendant herein asserts that the property was abandoned by the plaintiff.
As applied to property, "abandonment" is defined by the editors of R.C.L. as follows:
"It means the voluntary relinquishment of the possession of a thing by the owner with the intention of terminating his ownership, but without vesting it in any other person." 1 R.C.L., p. 1.
It has often been held that to constitute an abandonment there must be an intention to abandon, and that intention must be accompanied by some act by which the property is actually abandoned. See Stevens v. Norfolk, 42 Conn. 377.
And the editors of C.J. have written:
"The intention to abandon is to be derived from all the facts and circumstances of the case. There must be a clear, unequivocal, and decisive act of the party to constitute abandonment in respect of a right secured — an act done which shows a determination in the individual not to have a benefit which is designed for him." 1 C.J., 7.
Upon the question of abandonment, as upon the question of fraud, the courts have held that a wide range should be allowed as to the evidence. See 1 R.C.L., p. 7. On the same page this authority declares that:
"Intent to abandon can hardly be presumed from lapse of time. An intention to abandon property for which the party has paid a consideration will not be presumed. * * * The burden of showing an abandonment rests upon the one who asserts it."
See, also, Watts v. Spencer, 51 Or. 262 ( 94 P. 39).
In Huffman v. Smyth, 47 Or. 573 ( 84 P. 80, 114 Am. St. Rep. 938, 8 Ann. Cas. 678), this court held that when a settler has established an actual residence on public lands, his removal and absence therefrom because of his confinement for crime is not as a matter of law an abandonment of his rights.
In the case at bar, the property involved was in the custody of the law by virtue of legal process issued out of the courts and during the time such property was so held it should not be treated as abandoned.
A very instructive case relating to when personalty may become realty on being attached to real estate is Roseburg National Bank v. Camp, 89 Or. 67 ( 173 P. 313). In that case this court, speaking through Mr. Justice HARRIS, said:
"The intention of the party making the annexation is the most important element. The intention existing at the time of procuring the article in question, nor that which exists while the article is in transit to the realty on which it is to be placed, nor the secret intention with which it is affixed, does not govern; but the controlling intention is that which the law deduces from all the circumstances of the annexation. The intention is to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose and use for which the annexation has been made [citing numerous authorities].
"* * * When an article is annexed by a tenant a more liberal rule is applied, so that what would be deemed to be realty as between a vendor and purchaser might be no more than a trade or domestic fixture as between a landlord and tenant. The difference in the relationship emphasizes the difference in the intention attributed to the party making the annexation. When additions are made to land by the owner the purpose is usually to enhance the value and to be permanent; but on the other hand, when additions are made by a tenant, they are usually made for a temporary purpose, and not with a view of making them a part of the land; and consequently in order to encourage trade, manufacture and industrial pursuits, the tenant is generally allowed to remove what is apparently annexed to the freehold if affixed for the purpose of trade and not merely for the better enjoyment of the premises [citations]."
In the case at bar the lease expressly provided that the tenant should have the right to remove the trade fixtures set out in the complaint. The evidence fails to sustain the findings of the trial court. In order to carry out the intention of the parties to the original lease, the cause must be reversed. It is so ordered.
BEAN, C.J., KELLY and RAND, JJ., concur.