Fisher v. Pennington

WARD, J.,

pro tem.

Defendants and appellants Pennington owned and operated an apartment house in San Francisco. Plaintiff and respondent Aileen Fisher paid one month’s rent in advance for a furnished apartment. On the morning of the thirteenth day of March, 1929, plaintiff was occupying a bed in the furnished apartment when the door to which the bed was attached fell inward over the top of the bed, causing injuries to plaintiff. A jury returned a verdict against the defendants.

The door was used as a partition between a room and a closet and was attached to the floor and the overhead wall. Its removal would have marred the appearance of the apartment to its detriment, and therefore may be considered part of the realty. The bed was connected to the door by small plates fastened by a few screws that could easily be removed. Section 660 of the Civil Code provides as follows:

“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.” In this section “permanently attached to what is thus permanent” is the legal rule; “as by means of cement, plaster, nails, bolts or screws” is merely illustrative. An article may be attached other than by the examples given. For instance, lumber may be attached by means of strips of hides; paper

[250]

may be placed upon the walls by the use of some adhesive substance; mouldings may be made permanent by proper fittings without the use of nails or screws. The fact that a screw or nail fastens an article to the realty is not determinative of its permanent attachment to the realty. In

Gosliner

v.

Briones,

187 Cal. 557, at page 559 [204 Pac. 19, 20], the court said: “This section of the code is simply a rule for general guidance concerning itself more with ultimate than with probative facts. Whether or not in any case a building is ‘permanently resting upon’ the soil so as to be deemed ‘affixed to the land’ within the meaning of the section remains a question of fact to be determined upon the evidence of that case.” The intent of the parties is the determining factor; the use made of the article is of importance in determining this intent. A bed ordinarily is not part of the realty though it may be made such by permanently attaching it to the realty as by building it into the wall so that it would be immovable and its destruction would result in injury to the realty. The mere erection of a building upon land does not necessarily make it a fixture