Earle v. Kelly
Before: James, Allen
Synopsis
Landlord and Tenant—Fixtures Defined.—Fixtures are those things which are so attached to realty as to be considered in law a part thereof.
Id.—Eight of Tenant to Remove Fixtures.—At common law a tenant of real property has no right to remove fixtures, whether placed on the realty at his own expense or not.
Id.—Agreement for Removal of Fixtures.—But a lessor may be bound by an agreement permitting his lessee to remove fixtures erected by the latter.
Id.—Eight to Remove Fixtures Designed for Special Use.—And a tenant may remove structures or appliances designed for special uses, such as trade, domestic, or ornamental fixtures. Agricultural fixtures are usually not regarded as within this special class.
Id.—Bight to Remove Fixtures—Time for Exercising.—A tenant under an express agreement permitting him to remove fixtures has a larger right as to the time when he is permitted to make the removal than where he is depending upon a privilege which the law by implication attaches to Ms lease. He may exercise such right of removal within a reasonable time after the expiration of Ms term.
Id.—Time for Behoving Trade Fixtures.—But if a tenant would remove trade fixtures, he must do so during the term.
Id.—Bight to Behove Fixtures—Effect of New Lease or Benewah. Where a tenant makes a new lease which contains no stipulation giving him the right to remove fixtures which he might have removed during the first term, he loses the right of removal, although the new lease is for the same rental and term as the former, or is in effect merely a renewal.
Id.—Effect of Tenant Holding Over.—Where a tenant holds over and the landlord accepts rent, a new tenancy is created, and the tenant’s right to remove fixtures is lost.
Id.—Agreement for Bemoval of Fixtures—Authority of Agent.— The evidence in this action by a lessor for damages for the removal of a building from the premises shows that his agent was not authorized to make a contract with the tenants to remove fixtures before the termination of their holding.
Id.—Holding Over by Tenant—Creation of New Lease.—Under section 1945 of the Civil Code, a new term and a new lease arise by force of law upon a tenant holding over and paying rent; the statute does not extend the old term, it creates a new one for a period not exceeding one year.
Opinion — James
JAMES, J.
Plaintiffs brought this action to recover the sum of three thousand dollars as damages alleged to have been sustained through the act of defendant in removing from the land of plaintiffs a certain building. The facts, in so far as they are necessary to be stated to illustrate the controversy, are as follows: In 1888 the grantor of plaintiffs leased certain ground, which was a lot of land situated in the city of San Diego, to one Goddard, for a term of five years. At the time this lease was made the ground was bare of any buildings or other improvements, and Goddard proceeded to place thereon a structure which he moved from another part of the city.
[482]
The structure was in form a frame building, in the main designed to be used for a livery stable, but having some rooms upstairs and several small side rooms which were subsequently rented for store purposes. That portion designed to be used for a livery stable had no floor. Goddard intended to use the building in carrying on his business as a livery stable keeper, and he did so use it, as did also successive tenants of the property, including the defendant. All of the building was used for such purposes, except a portion upstairs thereof and the small storerooms, which were let to subtenants. The building was placed upon mud sills, some of which were imbedded in the ground to a depth of about eighteen inches, and some rested upon the surface. This condition of foundation was made necessary because the surface of the lot was not level and regular. In 1892 Goddard sold out his interest in ,the lease and building to one Jones, and Jones in turn sold the same property and rights to one Smith in 1894, and in 1896 defendant Kelly became the purchaser of the business and fixtures connected therewith. Meanwhile, and before the five-year lease given to Goddard had expired, A. L. Ross, the husband of the plaintiff Ross, purchased the real property affected by the lease. He testified that he made the purchase on behalf of the plaintiffs here, and took title as their trustee; at any rate, in April, 1894, he conveyed the title to plaintiffs who since that time have remained the owners thereof. The amount of the monthly rental as fixed by the Goddard lease was the sum of one hundred dollars. At the time defendant became a tenant of the property, the rental had been reduced to twenty-five or thirty-five dollars, and an arrangement was made by which defendant was to pay twenty-five dollars per month. In April, 1906, this rental, by notice, was changed to seventy-five dollars per month, and again in 1907 to one hundred dollars per month, and later still, to the sum of one hundred and twenty-five dollars per month, which amount defendant was paying at the time he vacated the premises. At about February, 1909, defendant decided to vacate the premises and end his tenancy, and proceeded to move off from the ground the building before mentioned. A. L. Ross, as agent for the plaintiffs, served upon defendant a notice demanding that he do not molest the building and asserting that the same was the property of plaintiffs. Not'
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