Story Case

Mr. Mark Hymen leased land from Mr. Robert Owens for twenty years. Upon a part of this lot he erected an oil refinery, and stipulated with Mr. R. Owens that the refinery should remain personal property, and upon the termination of his lease, he, the lessee, should have the right to remove it. When Mr. Hymen had been conducting his business upon this lot for five years, Mr. Owens died and Mr. Hymen, thereafter, paid rent to his son, Mr. Owens junior. At the end of his term, Mr. Hymen wanted an extension, but this was refused, whereupon, ten days prior to the end of the lease, he began to remove his refinery. Mr. Owens junior objected, and brought a suit of trespass against Mr. Hymen. Will he recover?

Ruling Court Case. Palmer Vs. Mott, Volume 1 New York Reports, Page 564

Mott agreed with Brown, his neighbor, that the latter should build a fence on his property for the purpose of inclosing a certain part of his land, of which Brown was to have the use, for a short period. It was agreed that Brown could recover the fence when he had finished with it. Later, Mott conveyed this land to Palmer, the deed containing no reference to the fence, but having in it a covenant by Mott that he had mer for his act of removing the fence. Palmer brought this action against Mott for damages ensuing from the breach of his covenant that he had good title to all of the land. If it is possible for Brown to have title to a chattel on the land, with the right to revenue, while the title to the land is in another, then Palmer may recover, as Mott's title was defective, since he did not own all he purported to own and convey.

Mr. Justice Buggies delivered the opinion of the court: "A fence built upon land, becomes a part and parcel of the land, and is included in a conveyance of land. There may be an agreement, however, that a fence shall remain personalty with right of removal, in which case it is the property of the one who has the right to remove. The deed to Palmer purported to convey 'all that certain lot or parcel of land, etc.' Since Mott did not own all of the land he purported to sell, because title to the fence was in Brown, there is a judgment against him."

Ruling Law. Story Case Answer

The great criterion in determining whether or not a chattel has become a fixture is the intention of the parties. Usually, this is not expressed, and resort must be had to the tests laid down in the previous cases regarding intention. In the case of a tenant, the presumption is that improvements he may make are not to be fixtures, and are, therefore, removable by him before the expiration of his term, unless such removal would cause substantial injury to either the chattel or the freehold. For this reason, trade chattels and agricultural chattels may, as a rule, be removed by the tenant.

In the saw-mill case, the machinery in the mill would have been considered as trade chattels, if the case involved a tenant's right to remove before the expiration of his lease. If the contract of the parties expressly covers this point, obviously the contract controls.

In the Story Case, the parties expressly stipulated with reference to the refinery, and the oil company will win in its contention.