Hartwell v. Kelly

117 Mass. 235, 1875 Mass. LEXIS 202

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1875
• Status: Published

Opinion

Ames, J.

The bill of exceptions sets forth that Sullivan had permission to occupy a part of the plaintiff’s land, for the purpose of carrying on, the business of marble and stone cutting. The building was thereupon erected on the land with the plaintiff’s consent, with a right, by express agreement, on Sullivan’s part to remove it. It was therefore personal property, and rightfully mortgaged as such to the defendant. Hinckley v. Baxter, 13 Allen, 139. Howard v. Fessenden, 14 Allen, 124. Shaw v. Carbrey, 13 Allen, 462. Morris v. French, 106 Mass. 326. Ham v. Kendall, 111 Mass. 297. The plaintiff had not given notice to Sullivan, according to the terms of the memorandum, for the purpose of terminating his occupation, and there have been no proceedings which would operate as a forfeiture of his right at common law. Chapman v. Harney, 100 Mass. 353. Kimball v. Howland, 6 Gray, 224.

As the building was personal property, and lawfully mortgaged to the defendant, he had a title which he might lawfully seek to enforce by a writ of replevin. Even if the right to remove the building was subject to conditions which Sullivan had not fulfilled, or the plaintiff held a lien upon it for his rent, it would not follow that the officer or his assistants would be trespassers in serving a writ of replevin in a proper manner. His justification does not depend upon the ability of the plaintiff in replevin to maintain his suit successfully. The precept would be a protection to the officer serving it, and also to the defendant and all other persons reasonably employed by the officer to assist him in taking and removing the building in obedience to the precept. Chase v. Ingalls, 97 Mass. 524. _

The right to take the building of course implies the incidental right to enter upon the lot of land where it stood, for the purpose of taking it. As the verdict for the plaintiff was for a nominal sum only, we may infer that no unnecessary, wanton or unreasonable injury was done to his freehold.

Exceptions sustained.