Story Case

Samuel Brothers owned a movable photograph gallery, and usually stayed a comparatively short time in each locality where he did business. When he reached Blue Springs, Nebraska, he leased a village lot from Elmer Kramer. On this lot Brothers placed his gallery, took off the wheels and banked dirt around the structure. When the lease expired, Samuel prepared to leave the village. He removed the bank of earth and began to replace the wheels on the gallery. But Elmer Kramer objected, demanding that Brothers leave the gallery upon the ground, because it had become part of the realty. Is it possible for Kramer to substantiate his claim?

Ruling Court Case. Snow Vs. Smith, Volume 86 Vermont Reports, Page 58; Volume 83 Atlantic Reports, Page 209

Snow leased certain land to Cushman to be used for mining purposes. Cushman erected cheap wooden structures, and put into them machinery suitable for mining operations. Both the machinery and the buildings were adapted solely for the purpose for which they were erected, and were of little value for anything else. Smith and the other defendants now succeeded to the right of Cushman, and having given up mining operations, are engaged in the removal of the building and machinery from the land. Snow brought this action to prevent such removal. If the chattels have become a permanent part of the realty he can recover by virtue of his title to the land, but if they did not, the right to remove them remained in the tenants, and could be exercised by them.

Mr. Justice Powers, speaking for the court, held in substance as follows: "The determining part, or as to whether or not fixtures may be removed by the tenant, is the use for which they were intended. If they were intended as accessory to the land, without regard to the business there carried on, they are presumed to be annexed to the land and are not removable. Here, however, the buildings and machinery were placed on the land solely for the furtherance of the business to be carried on there, and not for the benefit of the premises apart from the business. In such case, indicating the character of the fixtures, they may be removed by the tenant during the term, when such removal will not injure the premises." Here, no injury would result to the premises from the removal of the buildings and machinery, and since they are trade fixtures, their removal is proper. Judgment, therefore, is given for Smith and the other defendants.

Ruling Law. Story Case Answer

The lessee or tenant of premises may place upon and affix to the realty, property of such a nature that it will be presumed that it was never intended to be permanently transferred to the owner of soil. So-called trade fixtures belong to this class of property. Thus, casings in an oil well, a bowling alley placed in a leased room, counters, shelves, bar fixtures, cupboards, racks, boilers, engines, all employed in trades or business generally fall under the designation of trade fixtures. This exception to the rule that fixtures annexed for trade may be taken out by the lessor, is made to encourage men in their vocations, and to promote trade.

The right to remove fixtures is regulated in some states by statute, permitting the tenant during his term to remove fixtures annexed for the purpose of trade, manufacture, ornament, or domestic use. In some states, also, agricultural fixtures may be removed by a tenant. It is the general rule, however, that a tenant must remove before the expiration of lease, otherwise the right is lost. In making a new lease, he loses the right to remove what has been placed on the property during the old lease, unless the right is reserved to himself. When fixtures cannot be removed without permanent injury to the premises, the right to remove does not exist. The test as to whether or not they can be removed does not depend upon the degree or permanence of attachment to the soil, but rather upon the intention of the parties concerned. This intention may be gathered from the express words of agreement between the parties or may be drawn from all the circumstances of the case, and the courts always favor the tenant.

The Story Case is one involving a fixture which the circumstances immediately show to be a trade fixture.

Clearly, the presumed intent is that the. photograph wagon was removable.