Miller v. Waddingham

Harrison, J. In March, 1887, the plaintiff entered into an agreement in writing with one Clubine for the sale and conveyance to him of two blocks of land in Ontario, in this state, receiving from him the sum of nine thousand dollars on account of the purchase price of the property, and placed his vendee in possession of the land. Clubine subdivided the land into lots suitable for residence and business purposes, and employed the defendant Newman to construct certain dwelling-houses upon the land, and to furnish the materials - therefor for the sum of four thousand one hundred dollars, payable in weekly installments as the work progressed. Shortly after Newman began the construction of the houses, Clubine, failing to make such payments, agreed with him that the houses should belong to said Newman until paid for, and thereupon Newman proceeded with his work, and finished the houses, having received from Clubine only the sum of $725 upon account thereof. Prior to the commencement of this action Newman sold the houses to the defendants Waddingham and Cargan, and they very soon thereafter commenced to remove them from the land, and had partly completed such removal when the plaintiff commenced this action. The houses were built on redwood mudsills of two-inch by six-inch timber, resting upon the soil, and the soil was not disturbed in building or removing the houses. The plaintiff brought this action for the purpose of perpetually restraining the defendants from removing the houses from the land, and also to recover from them the sum of three thousand dollars damages, alleged to have been done to his property by the attempted removal. At the commencement of the action a restraining order was issued by the court, and upon the trial of the cause the court rendered judgment in favor of the defendants, [379]and dissolved the restraining order. From, this judgment the plaintiff has appealed upon the judgment roll alone.

Although the principal ground urged by the appellant for the reversal of the judgment is, that upon the construction of the houses they became fixtures attached to the land, and that by their removal the defendants were committing waste, we think that the respective rights of the parties are to be determined upon principles other than those applicable to the subjects of waste and fixtures. The court below did not find that the buildings in question were fixtures; and in the absence of a finding by it upon that subject, we cannot say upon the facts that were found that they did become fixtures. Whether, in any case, buildings that are placed upon land become fixtures, is a question of fact to be determined upon the evidence of that particular case. The mere erection of a building upon land does not necessarily make it a fixture (Pennybecker v. McDougal, 48 Cal. 160); and in order to determine whether it be a fixture depends upon various circumstances and relations connected with its being placed upon the land. (Lavenson v. Standard Soap Co., 80 Cal. 250; 13 Am. St. Rep. 147.) The rules applicable to fixtures have been created by a series of judicial decisions, and these decisions are not always capable of being reconciled. The attempt in the Civil Code to give a definition of a fixture only in part removes the difficulty. Section 660 declares that “a thing is deemed to be affixed to land when it is ... . permanently resting upon it, as in the case of buildings”; but it still requires evidence to determine what is “permanently resting ” upon the land. The finding in the present case that “ said houses were built on redwood mudsills of two-inch by six-inch timber, said mudsills resting upon the soil,” and that “ the soil was not disturbed in building or removing said houses,” is consistent with a determination of the court below that the buildings in question were not fixtures; and for the purpose of upholding its decision, it may be assumed that such determination was made by it. But,