Opinion
10-15-1903
HOLMES v. STANDARD PUB. CO.
James E. Degnan, for complainant. John S. Applegate & Son, for defendant.
Bill by Amanda V. Holmes against the Standard Publishing Company to restrain defendant from removing an alleged fixture. Decree in favor of complainant.
James E. Degnan, for complainant.
John S. Applegate & Son, for defendant.
EMERY, V. C. Defendant occupies as tenant premises of which complainant is the owner by purchase of the fee from defendant's lessor. The question at issue is whether defendant has the right to remove a frame building erected by it on the premises, or whether the building is a fixture attached to the realty. The frame building is a one-story addition or extension erected in the rear of the southerly portion or half of a two-story brick building. Defendant was the lessee of the first floor of this southerly half of the building, together with the lot in the rear of the southerly half. At the time of the lease the southerly half of the store building was divided by a partition, and defendant proposed the erection of a building in the rear for its business of printing. The lease, dated February 1, 1897, between Curtis and Davis, lessors, of the first part, anddefendant, lessee, of the second part, was for the term of five years at the yearly rent of $700, and contained the following clause as to erections on the premises: "And it is hereby understood and agreed that the said party of the second part may take away the partition now dividing the store into two, and to put a new front in (said front to be subject to the approval of the said parties of the first part), and also to put up a building in the rear of the present store building, one story high, and of size and kind suitable for the requirements and business of the said party of the second part, and also to make such interior improvements and changes as the said party of the second part may desire, provided that no waste or material injury be done to the building already on the lot." At the execution of the lease there was a small one-story frame building on the rear of the southerly half of the building, about 30 feet in depth, 17 feet in width, annexed to the main building, and communicating With it by a door. This frame building supported an extension connecting with the second story of the main building, and used in connection with a photograph gallery, the second-story extension being about 2-1 feet long and 12 feet wide. This one-story frame building was entirely removed by the defendant, and defendant erected on the rear of the lot, and connecting with the portion of the main building leased by it, a frame building about 20 feet in width and 61 feet in depth, and about 12 feet high. In height this building erected by defendant is the same as a frame extension erected on the northerly half of the main store building. The building erected by defendant is supported on the south and west sides upon foundations. Its north side, as used, is the south side of the extension on the northerly part of the lot, and for one-half of its width the east side of the building is the main wall of the two-story store building. The remaining portion of this main wall of the southerly portion of the store building has been removed by the defendant, and the southerly portion of the building, from the front of the building to the rear of the frame extension built by defendant, forms one apparently continuous room or building, the ceiling and floor being apparently continuous. The floor beams of the extension rest upon and are spiked to the sill of the northerly extension. The roof beams rest upon and are spiked to the plate in the roof of the northerly extension. The ridge or slope on the roof of this extension was removed in order that a continuous sloping tin roof might cover both extensions at the junction. The frame building is also attached to the main building, and it supports the second-story extension. If removed, new supports for the second-story extension will be necessary, and the use of this portion of the premises will be substantially affected. If the building erected by defendant be now removed, it will leave one-half of the southerly portion of the first story entirely open, and waste to a lesser extent will occur by the separation of the floor, ceiling and roof of the two extensions and the disconnection of the extension from the main building. Among other things, an entrance formerly existing at the rear of the building to the cellar of the main building has been removed, and this entrance is now through the floor of the extension by a trapdoor. The building in question is in fact annexed to the realty and to the buildings already on the premises, and to some extent it is a substitute for, and supplies the use of, a building for which it has been substituted. It cannot be removed without the commission of waste, by leaving the building to which it had been attached exposed and in need of repairs. In its present condition it is adapted to the use of the remaining buildings. It cannot be removed without cutting it up into sections, and, if removed, it has little or no value, except for the materials to be used in reconstruction.
Actual annexation to the realty and appropriate use in connection therewith, being clear, the question is whether, from all the proofs in the case, the conclusion is to be reached that the defendant, in making the addition, intended it as a permanent fixture. The lease, it will be observed, was for five years, and contained an option to renew the lease at a rent to be agreed on, or of purchase, in case the lessor concluded to sell during the defendant's occupancy. Taking this privilege of a long lease or purchase, in connection with the character of the building, the mode of its annexation, its use in connection with the building to which it is an extension, the exposed condition of the main building if it be removed, the uselessness of the structure as a building if it be removed, and all the circumstances of the case throwing light on the intention of the defendant in the annexation of the building, I reach the conclusion that this structure was intended as a permanent fixture. The fact that the clause of the lease containing permission for the erection of a building made no provision for its remaining upon the premises is relied on as a conclusive indication of the intention of both parties that the building should be removed, and Pope v. Skinkle (Sup. Ct. 1882) 45 N. J. Law, 39, is referred to on this point. That case holds that prima facie such clause may give rise to a presumption of the right to remove, but the case decides clearly that the whole question is one of intention, to be determined by all the circumstances showing the intention, the erection by permission being only one circumstance from which an inference is to be drawn. And the express condition that no waste or material injury should be done to the building already on the lot would seem to negative the inference that the removal of a building was intended if the building was so annexed that its removal would occasion waste. The offer of defendantat the argument (but not in the answer, or in the application for injunction) to repair the waste has no bearing upon the question of his intention in making the annexation, and cannot affect the complainant's rights. Fortescue v. Bowler, 55 N. J. Eq. 741, 746, 38 Atl. 445 (Grey, V. C, 1897). The building being a permanent fixture, which the defendant has no right to remove, complainant is entitled to an injunction against its removal, in order to prevent waste. Id.
A decree for injunction against its removal will be advised.