Cortelyou v. Baker

WILBUR, J.

The appellant, as sheriff, attached certain property claimed by the respondent, and later sold the same on execution, on a writ issued against the property of one B. I. Potter. This property was used in the operation of two oil wells on a five-acre lease. Respondent sued for the value of the property sold and recovered judgment for

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$3,667 and interest. No third party claim was made by respondent, as required in the case of personal property by section 689 of the Code of Civil Procedure. The main difficulty in the case arises from conflicting contentions as to whether or not the property was real or personal. (Code Civ. Proc., sec. 692, subd. 2.) If real property, it was sold without the required twenty days’ notice of sale and without the right to redeem (Code Civ. Proc., sec. 700). The respondent, being an aggrieved party, was, therefore, entitled to recover the value of the fixtures sold and removed by the purchaser as damages. (Code Civ. Proc., see. 693.) If it was personal property, respondent, having failed to give the notice required by section 689, is precluded from recovery by the provisions of that section which make service of a third party claim upon a sheriff a condition precedent to recovery. This section provides: “The sheriff is not liable for damages for the taking or keeping of such property to any such third person, unless such a claim is made.” As to the personal property, the wrong by the sheriff consisted in taking and keeping it. The sale thereof vested no title in the purchaser other than that of the judgment debtor. (Code Civ. Proc., sec. 708.) Some of the property was clearly personal, and some constituted fixtures, under the usual rule for determining whether or not property is . affixed to the land. (Civ. Code, sec. 660.) Respondent contends that the property comes under section 661 of the Civil Code, which is as follows: “Sluice-boxes, flumes, hose, pipes, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine, are to 'be deemed affixed to the mine.” This section was adopted in 1872.

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The kind of property therein described shows that it was intended to apply to a mine in the ordinary meaning of the term, such as a quartz or placer mine. While the development and production of petroleum is, for some purposes, classed as mining