Security Loan & Trust Co. v. Willamette Steam Mills L. & M. Co.

Fitzgerald, J. This is an action brought by plaintiff to recover damages alleged to have been sustained by the entry of defendants upon its lot, and forcibly removing therefrom, against its will, and wrongfully converting to their own use a certain house, foundations, and bridges, which it is alleged were erected thereon and attached to the freehold.

Defendants in their answer admit the removal of the property from the plaintiff’s lot, but aver their right to do so on the ground that they were trade fixtures erected by the defendant corporation during its occupancy of the premises as tenants under a lease from plaintiff’s grantor, and that such removal was made before the termination of its tenancy thereunder.

The case was tried by the court without a jury, and upon the issues thus joined judgment was rendered in favor of plaintiff and against the defendant corporation alone, from which judgment and the order denying its motion for a new trial it prosecutes this appeal.

The facts are as follows: On April 1, 1884, Jotham Bixby, then owner of the premises in question, entered into a contract in writing to sell and convey the same to Frank L. Stearns for six thousand dollars payable on or before April 1, 1887. Stearns entered into the possession of the premises under this contract, which was never recorded, and on May 6, 1885, he executed to J. A. Russ a lease of the portion in dispute, for a lumber yard, for the term of five years from June 1, 1885. The lease contained [638]a provision “ that the balance of the land from Chavez Street shall be used in common,” and it was upon this latter portion of the premises that the house referred to was situated. The lease was duly acknowledged and recorded January 11, 1887, and on February 25, 1889, it was assigned by Russ to his principal, the defendant corporation, for whom it appears he acted as agent in the execution thereof; that in October, 1885, the building was erected upon the suggestion of the lessor by the defendant corporation on that part of the premises reserved in the lease for the common use of the parties, for office purposes, and was used by it as such in its business as a lumber dealer for the sale of lumber and the transaction of its business in connection with its yard and not otherwise, and that the said bridges were built to give access thereto.

On the contract of sale from Bixby to Stearns of the premises in question are the following indorsements: “Deed made to J. A. Russ at request of Stearns for within described property. Deed dated March 6, ’87, and delivered April 1, 1887.” This deed was recorded April 2, 1887. On March 3, 1888, Russ conveyed the premises to the defendant corporation. On April 20, 1888, the defendant corporation conveyed the premises to George L. and Frank L. Stearns. On January 6, 1890, George L. Stearns and Company conveyed the premises to Frank L. Stearns and Mrs. Snyder, and on March 1, 1890, George L. and Frank L. Stearns, Mrs. E. M. Snyder, and Stearns Manufacturing Company conveyed the same to plaintiff. That the defendant corporation was in the actual possession of the premises as tenant from the commencement of the lease up to the time of the removal of said property, and that it paid the rent therefor according to the terms of the lease up to June 1,1890; that in 1887 it paid upon the lessor’s demand an additional rent of fifty dollars per mouth for the use of all that part of the land reserved by the terms of the lease to be used in common, and upon which the said building was erected, which rent was paid up to the date of the expiration of the lease, aud that the property in controversy was removed by it therefrom prior to that time, and that during the whole of the terra of the lease the defendant corporation was in the open, notorious, and exclusive possession of the leased premises.