Wright v. Michelman

141 N.E. 234, 246 Mass. 401, 1923 Mass. LEXIS 1254

• Court: Massachusetts Supreme Judicial Court
• Decided: October 10, 1923
• Status: Published

Opinion

Braley, J.

It is “ well estabhshed by the cases, that things which the tenant has at his own expense affixed to the freehold for purposes of ornament or domestic convenience, or for purposes of trade, business or manufactures, may be removed by him before the expiration of his term.” But the “ right of removal depends upon the mode in which the thing to be removed is annexed to the freehold, and the effect which its removal would have upon the premises.” Hanrahan v. O’Reilly, 102 Mass. 201, 203. Collamore v. Gillis, 149 Mass. 578, 581.

The bowling alleys in question, which were first installed by a tenant of the plaintiff in the basement or cellar of the demised premises, passed by arrangements between successive tenants until they apparently became the property of Ferry Brothers, who did not remove them at the termination of their tenancy. The defendant at the close of their tenancy at first came into occupation under a lease to his father, but subsequent leases were made directly to him, and after a period of many years and shortly before the expiration of bis last lease he removed the alleys without the plaintiff’s consent, and converted them to his own use. The evidence was in some respects conflicting, but the judge was warranted in finding that the alleys had been so affixed or adjusted to the building, to which their use had been constantly confined, as to become trade fixtures which could be seasonably removed by the outgoing tenant and owner. Gaffield v. Hapgood, 17 Pick. 192. Bliss v. Whitney, 9 Allen, 114. Hanrahan v. O’Reilly, 102 Mass. 201. Guthrie v. Jones, 108 Mass. 191. Holbrook v. Chamberlin, 116 Mass. 155. Houle v. Abramson, 210 Mass. 83,85. Natural Autoforce Ventilator Co. v. Winslow, 251 Mass. 462. But the removal in the absence of any special agreement with the landlord must be exercised before the expiration of the term. Bliss v. Whitney, 9 Allen, 114, 115. Noyes v. Gagnon, 225 Mass. 580, 585. The defendant does not question but concedes the finding to be correct, that when Ferry Brothers vacated they abandoned the alleys, and, having done so, they retained no title nor did the defendant acquire any as against the plaintiff, the owner of the freehold. Bliss v. Whitney, supra. Talbot v. Whipple, 14 Allen, 177, 181. Watriss v. First National Bank of Cambridge, 124 Mass. 571, 575. The plaintiff therefore was entitled to damages, the measure of which as assessed is not questioned; and, the defendant’s requests having been denied rightly and, the rulings properly made, the exceptions should be overruled.

So ordered.