McNally v. Connolly

Ross, J. Whether the title to the property in question passed to the plaintiffs in the present action depends [4]upon its character at the time of the levy of and sale under the execution issued in the case entitled McNally et al. v. Connolly & Wheat,—that is to say, whether as between the plaintiffs, who were the creditors, and Connolly & Wheat, who were the debtors, the property was realty or personalty.

The facts of the case are these:—

In 1876 the defendant took a lease of a certain lot of land in the city of San Francisco for a term which was to expire January 1, 1881. Upon the lot there was a brick building which covered most but not all of it. Connolly paid the rent for the term in full, formed a partnership with Charles D. Wheat, and the copartners, under the firm name of Connolly & Wheat, thereupon proceeded to place upon the lot an engine, boiler, and machinery for a flouring mill. It is this machinery that forms the subject-matter of the present action.

The engine and boiler were erected in a wooden building adjoining the brick structure, and the motive power was communicated therefrom to the machinery by means of a shaft or shafts extending into and through the brick structure.

The foundation of the engine and boiler was made by sinking timbers in the ground from six inches to two feet, upon which a brick foundation was built, and the bed of the engine was placed upon the brick-work, and fastened to the wooden foundation beneath by bolts and screws. The mill-stones were bolted fast to the floor. Pieces of timber were put in the brick walls, and bolted through in the upper part of the building, to which the machinery was attached. The whole machinery seems to have been securely attached to the building, and to have been solid and substantial, but was secured and fastened usually by bolts and screws, which could be removed without material injury to the building, while some bridges were bolted directly to the walls. The principal difference in securing the machinery from that [5]ordinarily pursued consisted in using bolts with screws instead of nails. It was placed in the building with the understanding between the lessor and the lessee that the latter should be at liberty to remove it, and it was with that end in view that it was attached as above stated, in order that it might be severed with the least possible injury to the realty.