Estus v. Weber

California Court of Appeal Nov 6, 1946 No. Civ. 3448Published

Before: Barnard

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Holding. The court held that the evidence supported the trial court's finding that the building was not a fixture attached to the land, but rather personal property owned by the defendant, who had the right to remove it.

Issues

Whether the building was affixed to the land so as to become a part of the realty under Civil Code section 660.
Whether the evidence was sufficient to support the trial court's findings regarding ownership and the right to remove the building.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“It is well settled that the question whether a building has been affixed to and has become a part of real property is one of fact and is one dependent upon the peculiar circumstances of each case.”

“The intent of the parties is usually the controlling factor”

“The evidence, as a whole, justifies the inference that the appellant knew that the building was owned by others, and that he waived any right to object to the fact that it was not removed at an earlier time.”

[725]

BARNARD, P. J.

This is an action for damages based on the removal of a small building from land owned by the plaintiff. The plaintiff purchased the land from the city of Newport Beach, his deed being dated January 2,1945. It appears that the city of Newport Beach had acquired title to the land through a tax sale. Prior thereto, under some arrangement with the then owner, the building had been placed on this land, and for some 12 years it had been used, seasonally, as a “hot dog” stand. The purported ownership of the building, as distinguished from the land, had been transferred a number of times, during these years and it was finally purchased by the defendant on May 1, 1945. The building was

feet by 12.feet in size and was made of corrugated sheet iron. No wood was used in its construction and there is evidence that it was worth from $15 to $20. The defendant removed the building from this land on May 29, 1945, and this action followed.

So far as material here, the complaint alleged that the defendant unlawfully removed this building, and “that the building so removed was attached to and a part of the land within the meaning of section 660 of our Civil Code.” The answer denied these allegations and alleged that the plaintiff had no right to, or interest in, the building. After a trial, the court found that this building was not a part of the real property owned by the plaintiff, and further found that the defendant was the owner thereof and that he had a right to remove it from the premises. Judgment was entered accordingly and the plaintiff has appealed.

The appellant contends that the evidence is insufficient to support the findings above mentioned. The controlling question is whether this building was attached or affixed to the land in such a manner as to become a part of the realty, it having been incumbent upon the appellant to establish that fact.

It is well settled that the question whether a building has been affixed to and has become a part of real property is one of fact and is one dependent upon the peculiar circumstances of each case.

(Alderman

Estus v. Weber

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BARNARD, P. J.

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