McNally v. Connolly

SEARLS, C. This is an action to recover possession of certain personal property, if possession can be had, and, if not, [622]the value thereof. Defendant had judgment, from which, and from an order denying a new trial, plaintiffs appeal. In 1876, Owen Connolly, the defendant, took a lease of a lot of land on Fourth street, near Berry, in the city of San Francisco, for a term which was to expire January 1, 1881. There was a brick building upon the lot, but which did not cover the whole of it. Connolly paid his rent in full for the term, formed a copartnership with Charles D. Wheat, and, as such copartners, under the firm name of Connolly & Wheat, they proceeded to place upon said lot of land an engine, boiler and machinery for a flouring-mill, which machinery is the subject matter of the controversy in this 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 for 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 of the building. The principal difference in securing the machinery from that ordinarily pursued consisted in using bolts with screws instead of nails. The machinery was by this means securely fastened to the building, and was solid. The machinery was placed in the buildings with the understanding that the tenant should be at liberty to remove it; and, with that end in view, it was substantially attached to the realty, but with bolts and screws, in order that it might be severed with the least possible injury to the realty. In 1877 plaintiffs herein brought an action against Connolly & "Wheat to recover two thousand nine hundred and sixty-six dollars and sixteen cents, and caused a writ of attachment to issue, which was levied upon the right, [623]