Midland O. F. Co., Ltd. v. Rudneck

SHAW, C. J.

The defendants appeal from the judgment. The complaint states a cause of action to recover damages for the taking and conversion of plaintiff’s personal property by the defendants. It consisted of boilers and other machinery and tools comprising an oil-well drilling “rig,” together with the timber and other materials of a derrick belonging thereto.

The defendants claim that at the time of the taking and conversion they, and not the plaintiff, were the owners of the property.

The court found that the plaintiff was the owner of the property: that the defendants, in February, 1918, wrongfully took the same and converted it to their own use, to

[267]

the damage of the plaintiff in the sum of eighteen hundred dollars, for which sum it gave judgment for the plaintiff.

The main controversy arises upon the question whether the boilers and derrick were fixtures and as such a part of the realty at the time one Enwright, from whom the defendants bought the property, made his entry upon the land as a homesteader under the laws for the disposal of public lands of the United States, or was personal property.

Enwright entered upon the land on October 25, 1915, and on June 24, 1916, he duly made his application for a homestead entry thereof. He has occupied the land ever since his entry. At that time the property in question was on the land. On February 15, 1918, claiming it all as his own, he sold it to the defendants, who immediately took down the timbers of the derrick, removed them and the boilers, tools, and other materials comprising the rig from the land, and converted them to their own use. The right of the defendants to take the property depends on the question whether the title thereto passed to Enwright as a part of the land when he entered it as a homestead and that, in turn, depends on certain facts which we will now relate.

On and prior to September 5, 1909, the land was vacant public land of the United States. On that day R. E. Graham and others lawfully located a placer mining claim on the land. The location notice was posted on that day and was duly recorded in the office of the county recorder of the county on September 28, 1909, which was within the thirty days allowed by the code. (Civ. Code, sec. 1426d.) The other locators thereafter conveyed their respective interests in the claim to said Graham. The location was made in good faith in the belief that the land contained deposits of oil. There had been no previous discovery and the design was to put down a well for that purpose as soon as convenient and thereupon to take out the oil, if any was found. To accomplish that purpose, Graham, on January 6, 1910, made a contract in writing with one McCray, whereby McCray was to begin drilling a well on the land within ninety days and continue the work to a depth of two thousand five hundred feet, if necessary. The contract provided that, upon written notice to Graham, McCray might at any time abandon the work; that if he ceased work for thirty days continuously Graham might, upon written notice, terminate