Hogan Lumber Co. v. City of Oakland

KERRIGAN, J.

This is an appeal from a judgment and from an order denying a motion for a new trial in an action of claim and delivery.

Very briefly the facts are these: Hansbrough Brothers Company entered into a contract with the city of Oakland to build a quay wall along a certain portion of the Oakland water front. For use in the construction of the quay wall,

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this company, with materials furnished by it, built a temporary wharf or platform on the land side of said wall, which was used to pass materials over, and to facilitate the work of construction. When the work was partially completed, the Hansbrough Brothers Company became insolvent and abandoned the work, and were adjudged bankrupt by the United States district court.

Upon abandonment, the city of Oakland took possession of the work, including the wharf, runway, or platform, as it was variously called, advertised for bids, and ultimately let a contract for the completion of the work to the Healy-Tibbetts Construction Company. The trustees in bankruptcy, under regular proceedings, sold to the plaintiff herein a quantity of lumber on the premises, including the lumber in the wharf or runway.

Upon demand defendant refused to give up possession of the part of the' lumber in controversy, whereupon this proceeding was commenced.

It is not claimed that the material of the wharf was to become a part of the quay wall; but defendant does claim that by reason of the manner of the construction of the wharf, it became real property, and that therefore an action in claim and delivery will not lie. It also claims that, under the terms of section 1200 (since repealed) and 1196 of the Code of Civil Procedure, the materials having been erected “on the ground,” became the property of the defendant.

Neither of these contentions commends itself to us with much force. As to the first contention, it is true that the wharf or substructure was built on piles driven into the ground; but it was plainly the intention of the parties, and conceded to be the fact, that it was of a temporary nature, and that, when the quay was finished, the wharf was to be cleared away, and the materials constituting the wharf were to be taken possession of by whoever at that time might be the owner thereof. Under these circumstances, the authorities support the conclusion that the materials are to be regarded as personal property. Whether a structure is a fixture or not depends upon the nature or character of the act by which it is erected, and the purpose for which it was intended to be used.