Collamore v. Gillis

5 L.R.A. 150, 22 N.E. 46, 149 Mass. 578, 1889 Mass. LEXIS 223

• Court: Massachusetts Supreme Judicial Court
• Decided: September 4, 1889
• Status: Published

Opinion

C. Allen, J.

In determining whether an addition made by a tenant to a leased building is removable or not by him during his term, the chief element to be considered is the mode of its annexation, and whether it can be removed without substantial injury to the building or to itself. The intention with which it was put there, though often an element to be considered, is of secondary importance. Wall v. Hinds, 4 Gray, 256, 270. Whiting v. Brastow, 4 Pick. 810. Hanrahan v. O’Reilly, 102 Mass. 201, 203. Weston v. Weston, 102 Mass. 514, 519. Amos & Ferard on Fixtures, (3d ed.) 7, 65. It is true that machines or structures which cannot be severed without taking them in pieces may nevertheless often be removed. Antoni v. Belknap, 102 Mass. 193. In Penton v. Robart, 2 East, 88, which is sometimes cited as supporting a broader doctrine, all that was removed by the tenant was a superstructure of wood, which had been brought from another place and put upon a brick foundation let into the ground. He pulled down the wooden superstructure and carried away the materials, but did not undertake to remove the brick foundation, which perhaps was not placed there by him. The case of Van Ness v. Pacard, 2 Pet. 137, goes further; but the more recent case of Kutter v. Smith, 2 Wall. 491, 497, appears to recognize a narrower rule, though without any extended discussion of the question. Hill v. Sewald, 53 Penn. St. 271, follows Van Ness v. Pacard, and White’s appeal, 10 Penn. St. 252, is similar. |We are not inclined to extend the right of removal so far as to include a thing which cannot be severed from the realty without being destroyed, or reduced to a mere mass of crude materials. -

In the case before ns, the oven was not like a machine or a structure, the parts of which are fitted to each other and can be taken apart and put together again at pleasure in some other place. It had, so to speak, no removable identity, but when taken down it necessarily lost its character as an oven, and, with the exception of the iron lining and door, became mere bricks and mortar. When built, it was in the nature of a fixed and permanent structure, which was so united with the building that the two became inseparable without the destruction of the one, and a substantial injury to the other. Under such circumstances, we think the better reason is in favor of holding that the oven was not removable, and this view is more in accordance with the eases which have heretofore arisen in this Commonwealth. This result is also strongly supported by the decision in Whitehead v. Bennett, 27 L. J. Ch. 474. The authority of this case, it is said in Amos & Ferard on Fixtures, (3d ed.) 63, has never been impugned in England, and it was cited with approval and commendation by Lord Chancellor Selborne, in Wake v. Hall, 7 Q. B. D. 295, 301. See also Sunderland v. Newton, 3 Sim. 450; Jenkins v. Gething, 2 Johns. & Hem. 520; Ombony v. Jones, 19 N. Y. 234; Ford v. Cobb, 20 N. Y. 344.

The result, in the opinion of a majority of the court, is, that according to the terms of the report there must be judgment for the plaintiff for one hundred dollars.

Judgment for the plaintiff,