Markle v. Stackhouse

44 S.W. 808, 65 Ark. 23, 1898 Ark. LEXIS 27

• Court: Supreme Court of Arkansas
• Decided: January 29, 1898
• Status: Published

Opinion

Hughes, J.,

(after stating the facts.) It would not be profitable to set out the evidence. As we find the law to 'be, the main question in a case of this kind is, what was the intention of the party who had the structure erected? Did he intend it to be a permanent annexation to the soil, or was it erected with a view to its removal?

As evidence of what the intention was, the manner of its annexation to the soil, and the adaptation of the plant to the use or purpose to which that portion of the realty with which it is connected is appropriated, are circumstances that are to be considered, and “derive their chief value as evidence of such intention,” as held in Ewell on Fixtures, p. 22; Choate v. Kimball, 56 Ark. 55; Bemis v. First National Bank, 63 Ark. 629; Monticello Bank v. Sweet, 64 Ark. 502.

There is considerable conflict in the evidence as. to matters going to show with what intention the mill was erected, and there was some testimony from which it might be inferred that the mill was erected with a view to its removal.

But we are of the opinion that the manner of its substantial annexation to the soil, and its adaptation to the use or purpose to which that portion of the realty to which it was annexed was devoted, taken with the other evidence in the case, furnish a clear preponderance of evidence that the mill was erected with the intention that it should be permanent, and that it was a part of the realty, and passed to the intervener by purchase of the land upon which it was situate, or was subject to his vendor’s lien for the purchase money of the land.

Wherefore the decree of the circuit court is reversed, with instructions to enter a decree for the intervener in accordance herewith.

Mr. Justice Battle dissents.