Pomeroy v. Bell

HARRISON, J. In April, 1894, the defendant, Bell, entered upon certain lands in the county of Calaveras owned by the plaintiffs and took possession thereof, with their consent, for the purpose of prospecting for gold and mineral ores, under a written agreement, by the terms of which he had the option of purchasing the land for the sum of thirty-five thousand dollars, payable at a future designated day, and while so in possession placed thereon, and permanently affixed to the land, certain buildings, machinery, and fixtures. In September of the same year, and prior to the expiration of the time within which the purchase was to be completed, the defendants commenced to remove from the land the property that had thus been placed upon it. Plaintiffs thereupon commenced the present action to restrain them from so doing. The cause was tried by the court and judgment rendered in favor of the plaintiffs, in accordance with their complaint. The defendants have appealed therefrom, and also from an order denying their motion for a new trial.

The court finds that all of the property placed upon the land by the defendant Bell was permanently attached and affixed to the land, and. that it was so affixed by him without any agreement with the plaintiffs, or either of them, permitting him to remove any portion of the same. The property thus became a part of the land (Civ. Code, secs. 658-61), and under the provisions of section 1013 of the Civil Code belonged to the plaintiffs. It is, however, contended by the appellants that Bell was a tenant at will of the plaintiffs, and that the property affixed to the land was in the nature of trade fixtures, and that by virtue of section 1019 of the Civil Code, he was entitled to remove it. Section 1019 is as follows: “A tenant may remove from the demised premises any time during the continuance of his term anything affixed thereto for the purposes of trade, manufacture, or[637]nament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.”

One who enters into possession of land under an executory agreement for its purchase does not thereby become the tenant of the vendor, and is not liable for the use and occupation of the premises. “An executory contract for the sale of land, which gives the purchaser a right to enter and possess the premises until default in payment of the pinchase money, does not establish the relation of landlord and tenant where there is no reservation of rent fixed in the contract.” (12 Am. <& Eng. Ency. of Law, 662, and cases cited.) “Nor will the relation of landlord and tenant be inferred from occupation, if the relative position of the parties to each other can, under all the circumstances of the case, be referred to any other distinct cause. As, for instance, between a vendor and vendee of land, where the purchaser is to have possession until the agreement for purchase is completed or rescinded; for possession was evidently taken in such case with the understanding of both parties that the occupant should be owner, and mot tenant.” (Taylor on Landlord and Tenant, see. 25.)