ROSEVILLE ALTA MINING Co. ET AL.

V.

IOWA GULCH MINING Co.

(15 Colorado, 29. Supreme Court, 1890.)

A fixture may be parcel of the realty though placed on public land. Execution. Fixtures are not liable to sale on execution as personalty. An unpatented mining claim is real estate.

Engine house, boiler and engine placed on a mine for the permanent working of the same become fixtures and subject to the incidents of real estate. Determined by intent. In determining whether machinery is a legal fixture the intention of the owner in its attachment is to be considered, and if it appears from the nature of the articles affixed, the purpose in view and the manner of their attachment that they were designed to be permanent, they are thereafter to be treated as parcel of the realty.

Appeal from District Court of Lake County.

Messrs. J. W. EASTON and H. P. KRELL, for appellants.

Mr. J. A. EWING, for appellee.

RICHMOND, C.

This was an action of replevin brought to recover the possession and damages for the detention of one fifteen horsepower engine and boiler, including smoke stack, rope and hoists; also one pair bellows, one truck and three buckets. The defense was that the articles above enumerated were personal property, subject to execution, and were levied upon by virtue of an execution issued in a certain cause wherein the plaintiff herein, the Iowa Gulch Mining Company, was defendant, and one William H. Baker and N. N. Robertson were plaintiffs. The validity of the judgment and subsequent proceedings are not questioned. The only point in issue in this court is whether the engine and boiler mentioned were fixtures and a part of the realty, and therefore not liable to seizure and sale under an execu

tion as personalty. The cause was tried by the court, and it was found that the engine and the boiler were so attached to the land as to become chattels real, and not subject to levy under the execution as personal property; that appellee was entitled to their possession; that they were of the value of $1,000; and that plaintiff had sustained damage by the loss of their use in the sum of $475. Upon these findings judgment was rendered in the usual form.

The facts as they appear are that the appellee, the Iowa Gulch Mining Company, was in the occupation of a certain mining claim, known as the "Scooper Lode," in the California mining district, Lake County, Colorado. All of the articles levied upon were used by the company in and about the development and mining of the said claim. On the claim was constructed an engine house, shaft house or shed. Within the engine house was erected the engine, placed upon three sets of timbers laid crosswise and lengthwise, sunk in the ground, and earth tamped around them, and on these was placed a frame that the engine stood on, which was bolted down to the timbers. The boiler was set about three feet from the engine, on rock-work, and connected with the engine by the ordinary connections. The claim was upon public land. The question presented by this state of facts is whether the engine and boiler were fixtures. It is contended by appellants that there can be no such thing as a fixture upon public land. We can not agree with this position. Section 225, page 177, General Statutes, provides that "the terms 'land' and 'real estate,' as used in this chapter, shall be construed as co-extensive in meaning with the terms 'lands,' tenements,' and 'hereditaments,' and as embracing all mining claims, and other claims and chattels real." "Occupancy of public land possesses the legal character of real estate." This is the conclusion of this court in Gillett v. Gaffney, 3 Colo. 351. A title by occupation is, under our statute, an interest in real estate, and such an interest as is the subject of conveyance by deed: Sears v. Taylor, 4 Colo. 38. This doctrine is maintained in California: Merritt v. Judd, 14 Cal. 60; McKiernan v. Hesse, 51 Cal. 595. Our courts having recognized the interest acquired by occupancy of public land as a legal estate;

it necessarily follows that the title to or interest in the land, however defined, carries with it the title to the structure annexed to the soil. Was the property here sought to be recovered a part of the realty? In Merritt v. Judd, 14 Cal. 60, it was held that "an engine and pump became a part of the realty although located upon public land." The engine and pump referred to were attached to two timbers ten or twelve feet long, and from twenty to thirty inches in diameter; were placed side by side upon the ground. They were only bedded in the ground sufficiently to make them level. On these bed timbers was placed a frame of four timbers, each about eight inches in diameter, the side timbers about seven feet long and the end ones about three feet. These frame timbers were bolted or spiked together, and bolted or spiked to the bed logs. The boiler and the engine were spiked or bolted to this frame. The boiler, engine and pump were attached together by the usual connections, the pump itself extending into the shaft. Over the whole was a roof or shed, which was constructed merely for the protection or shelter of the machinery. The machinery was not attached to the building in any way except that the pump was stayed by rods reaching to the rafters of the roof. We give the full statement of facts in that case, because they seem to be analogous to the facts as they appear in the case at bar.

The court in its opinion, after carefully reviewing a number of authorities, concluded as follows: "We think that the principle to be extracted from the modern cases covers the case at bar; that this apparatus was necessary to the working of the ledge; that it was attached for that purpose permanently to the soil, and its use accessory, if not essential, to the inheritance for its only valuable purpose-the extraction of the gold." Such seems to be the situation of the property here in controversy. It must be admitted that in order to enjoy the benefits of the mining claim, to develop the mine and bring to the surface the ore, the engine and boiler here sought to be recovered were absolutely essential. Many cases can be found in the books in which a similar connection with realty made by the owner thereof has been considered a sufficient annexation: Oves

v. Ogelsby, 7 Watts, 106; Merritt v. Judd, supra, and cases cited; Noble v. Bosworth, 19 Pick. 314. The intention of the owner in attaching the machinery must be considered, and if it appears that he attached the property with a view that it should remain there permanently, it must be treated as real estate. This intention is to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexing, and the purpose for which the annexation has been made 1 Freem. Ex'ns, § 114; Palmer v. Forbes, 23 Ill. 237; Hunt v. Bullock, Id. 258; Titus v. Mabee, 25 Ill. 232. The conclusions reached by the court below are clearly sustained by the law and the evidence. The judgment should be affirmed.

PER CURIAM. For the reasons stated in the foregoing. opinion the judgment is affirmed.

1. Removable property can not be a part of the realty when the owner does not also own the land. Scudder v. Anderson, 19 N. W. 775. 2. As between the landlord and tenant engine boilers and miners' cabins treated as removable trade fixtures. Conrad v. Saginaw M. Co., 20

N. W. 39; 54 Mich. 249; 52 Am. Rep. 817.

3. Sale of mining machinery on leasehold ground as real estate, upheld. Hyatt v. Vincennes Bank, 113 U. S. 408.

4. Tenant can not remove fixtures after expiration of lease and surrender of premises. Childs v. Hurd, 32 W. Va. 67.

THE SUNDAY LAKE MINING Co., Respondent, v. WAKEFIELD ET AL., Appellants.

(72 Wisconsin, 204; 39 N. W. Rep. 136. Supreme Court, 1888.)

Inequitable conduct preventing relief from forfeiture. Where an agreement is simply one for the payment of money, a forfeiture of land, chattels or money incurred by non-performance will be relieved against, unless the defaulting party by his inequitable conduct has debarred himself from such relief, or the special circumstances show that relief should not be granted.

Extension of inquiry beyond the particular covenant. Though the right of re-entry is reserved only for the breach of one covenant in a lease, branches of other covenants may be considered in determining whether relief against the forfeiture should be granted.

Above rule applied to the facts. In an action for relief against the forfeiture of a mining lease for non-payment of rent, the answer alleged that the lessees had failed to furnish monthly statements of the ore mined, as required by the lease; that they had committed waste; that they were insolvent; and that the property was in danger of being dismembered or destroyed by the creditors and unpaid workmen for the purpose of securing their debts. Held, on demurrer, that all these matters were proper to be considered in determining whether relief should be granted.

Jurisdiction over lease beyond the State. Courts of this State, having jurisdiction of the parties, can relieve against the forfeiture of a lease of mining property in another State for non-payment of rent, although they can not restore the property to the possession of the lessee.

Appeal from Circuit Court, Milwaukee County.

D. H. JOHNSON, J.

VAN DYKE & VAN DYKE, for appellants.

TURNER & TIMLIN, for respondents.

COLE, C. J.

The demurrer to the answer, though special in form, must be treated as a general demurrer. It is conceded that it reaches back to the complaint, and raises the question as to