For affirmance: Church, Ch. J., Rapallo, Folger and Miller, JJ. For reversal: Allen, Andrews and Earl, JJ.1

1 For citations and discussions of this case, in cases reported herein, see pp. 235 and 260. - Ed.

b. The actual intent of the annexer.

Snedeker V. Warring

12 New York, 170. - 1854.

[Reported herein at p. 231.]

Mckeage v. Hanover Fire Insurance Co.

81 New York, 38. - 1880 [Reported herein at p. 245.]

c. The " reasonably presumable intent" in annexing, as inferred from the surrounding circumstances.

(1.) What is Meant by " Reasonably Presumable Intent."

The State Savings Bank V. Kercheval

65 Missouri, 682. - 1877.

Suit to enjoin the removal of a frame building.

Defendant Kercheval conveyed his lands to a trustee to secure a debt due plaintiff. Thereafter he employed defendant, Allen, to erect an office building on the premises. This structure was a temporary affair, built with intention that it should be removed. Kercheval becoming insolvent, transferred it, in settlement of account, to Allen, who is now about to remove it.

The court below granted a perpetual injunction. Defendant appeals.

Henry, J. - The questions for consideration here are: 1st. Was the building, which it is alleged the defendants were about to remove, personal property?

2d. If not, would an action for damages have afforded an adequate remedy.

It must be admitted that the law in regard to fixtures is in a somewhat chaotic state. It is frequently difficult to determine, upon principle, whether an article of property is a fixture or not; there is a most embarrassing conflict in the adjudged cases. On grounds of public policy, to encourage trade, manufactures and agriculture, many tilings are regarded as chattels in controversies between landlords and tenants, which would unquestionably be held as fixtures as between vendor and vendee; and the same rule prevails between mortgagor and mortgagee, as between grantor and grantee. l.\ determining whether a building is part of and passes with the land, a good deal depends upon the object of its erection, the use for which it was designed. The intention of the party making the improvement, ultimately to remove it from the premises, will not, by any means, be a controlling fact. One may erect a brick or a stone house, with an intention, after brief occupancy, to tear it down and build another on the same spot, but that intention would not make the building a chattel. "The destination which gives a movable object an immovable character, result from facts and circumstances determined by the law itself, and could neither be established not taken away by the simple declaration of the proprietor, whether oral or written." Snedeker v. Warring, 2 Kernan, 178. In Goff v. O'Conner, 16 I11. 422, the court said: " Houses in common intendment of the law, are not fixtures, but part of the land. This does not depend, in the case of houses, so much upon the particular mode of attaching or fixing, and connecting them with the land, upon which they stand or rest, as upon the uses and purposes for which they were erected and designed." In Cole v. Stewart, 11 Cush. 182, the building was intended by the owner to be temporary, and was built with a view to ultimate removal. In a contest between the mortgagee, whose mortgage was executed subsequent to the erection of the house, and a purchaser of the building from the mortgagor, it was held to be a fixture. In the light of these cases, and many others which we have examined, we do not regard the fact, that the building in question was erected as a temporary building, and with an intention of ultimate removal, at all decisive as to whether it became a part of the realty or not.

The manner in which a building is placed upon land, whether upon wooden posts, or a rock, or brick foundation, does not determine its character. As was said by Parker, J., in Snedeker v. Warring, above cited: "A thing may be as firmly fixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection." In Teaff v. Hewett, 1 Ohio St. 511, it was held that: 'The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation and the purpose and use for which the annexation has been made," is a controlling circumstance in determining whether the structure is to be regarded as a fixture or not. In the case of Benjamin F. Butler, Adm. v. Page, 7 Met. 42, Shaw, C. J., delivering the opinion of the court, said: "All buildings erected and fixtures placed on mortgaged premises by the mortgagor, must be regarded as permanently annexed to the freehold. They go to enhance the value of the estate, and will, therefore, inure to the benefit of the mortgagee so far as they increase his security for his debt, and to the same extent they enhance the value of the equity of redemption, and thereby inure to the benefit of the mortgagor." In controversies between mortgagor and mortgagee the rule is more favorable to the mortgagee in relation to fixtures than that which is applied as between landlord and tenant, and, applying the principles announced in the cases which we have cited, which we believe to be sound and salutary, we must hold that the building in question was a part of the realty, and that neither the mortgagor, nor the purchaser from him has a right to remove it. It becomes a part of the plaintiff's security for its debt.

The remaining question is, did the facts alleged in the petition warrant the court in restraining the parties by injunction from removing the budding. It is not essential that the injury threatened shall be irreparable, to warrant a resort to the remedy by injunction. Our statute provides, sec. 24, page 1032, Wag. Stat., that "the remedy by writ of injunction shall exist in all cases, when an injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever in the opinion of the court, an adequate remedy cannot be afforded by an action for damages." Would an action for damages here have afforded an adequate remedy, is the question, and not whether the threatened injury would have been irreparable. The building was erected to be used in connection with, and as an office, for the mill. It was erected to supply the place of an office formerly used, which had been appropriated to another purpose. Its immediate and constant use was of importance to the milling business. The value of the building which a jury might have given as damages would not have been sufficient compensation to the owner for its removal. The defendant Allen may have been solvent, amply able to respond in damages for his trespass, but it does not therefore follow that he could not be restrained from severing from the land a house which belonged, not to him> but to the owner of the land. If a man of large fortune, so wealthy as to place beyond a doubt his ability to pay any damages which might be assessed to me for his trespass, should determine and threaten to tear down my dwelling over my head, will it be said that a court of equity would be powerless to restrain him from executing his threats and that I would have no remedy but to suffer the wrong and sue for damages? There are inconveniences and perplexities to which one may be subjected by a trespass such as we are considering, for which a jury could not, under the rules of law, fully compensate him, and we think the provision of our statute broad enough, however the law may have been before its enactment, to authorize a resort to injunction proceedings in such cases. The judgment of the Circuit Court is affirmed.