Goldberg v. Stanton

HOUSER, J.

This is an appeal from a judgment in favor of plaintiff for damages alleged to have been caused to him by reason of the removal by defendant of a refrigerator from certain premises which defendant leased from plaintiff.

It appears that the building in which the refrigerator was installed had no studding in its construction, but that the walls thereof were built by placing wooden boards in an upright position and thereafter covering the cracks between such boards with battens. When the refrigerator was installed a section of the side wall of the building was removed and the refrigerator was taken into the building through the opening thus made. There was no floor in the floor space of the building occupied by the refrigerator, so that the refrigerator rested directly on the floor joists. The refrigerator was taller than the height of the walls of the building, and it became necessary to remove a part of the roof of the building in order to install the refrigerator, after which that part of the roof which had been cut away was rebuilt so as to form a proper but detached covering for the refrigerator, as well as for the building in which the refrigerator was located. No part of the refrigerator was physically attached by nails, bolts, screws, or otherwise to any part of the building excepting that on each of the sides of the refrigerator, at a point where it passed through the ceiling of the building, a strip of quarter-round molding was tacked to the ceiling and to the refrigerator, “making

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a neat-looking job inside the building.” It further appears that defendant was engaged in conducting a grocery business in the storeroom in which the refrigerator was placed, and that it was used by defendant in connection with the operation of his business as a grocer.

The principal questions in the case are whether the refrigerator was a fixture, and whether the tenant had the right to remove the refrigerator. Section 660 of the Civil Code provides that: “A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the ease of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.”