Gomez v. Dykes
359 P.2d 760 (Ariz. 1961)
JENNINGS, Justice.
[Dykes sold a farm to Gomez. The sales agreement specifically described certain real estate and a trailer house located thereon. There was a separate agreement for the sale of certain goods that made no mention of the trailer house. Thereafter, a dispute arose as to whether the trailer house and manure in cattle feeding pens located on the farm passed to Gomez under the real estate agreement. Following the sale, Dykes removed some 1,645 tons of manure from 8 of the pens. The trial court ruled in favor of Dykes.
* * *
As relates to the trailer house the question arises, was the trailer house a fixture and therefore realty to pass under the realty agreement or, was it not a fixture so that it retained its character of personalty? The rule is set forth in Fish v. Valley Nat. Bank of Phoenix, 64 Ariz. 164, 170, 167 P.2d 107, 111:
'The mere affixing of personal property to real estate may or may not cause it to lose its personal characteristics. It may retain its identity as a chattel personal and not become a chattel real. The rule is that for a chattel to become a fixture and be considered as real estate, three requisites must unite: There must be an annexation to the realty or something appurtenant thereto; the chattel must have adaptability or application as affixed to the use for which the real estate is appropriated; and there must be an intention of the party to make the chattel a permanent accession to the freehold. 36 C.J.S., Fixtures, ยง 1, p. 892.
* * *
This rule applies in the absence of an agreement between the parties which would otherwise determine the character of the item.
As this Court stated in Voight v. Ott, 86 Ariz. 128, 134, 341 P.2d 923, 927:
'The modern tendency is to place less emphasis on the method or mode of annexation of the chattel and to give greater consideration to the intention of the parties as respects the use and adaptability thereof. * * *'
Based on this law we find that the evidence supports the trial court's findings and conclusions of law [that the] trailer house belonged not to [Dykes] but to an employee named Vale who brought it to [Dykes'] premises when he came to work there. It was parked near the permanent employee house, temporarily attached thereto merely by a piece of tin held in place by temporary placement of cement blocks. With no evidence of electrical, water or gas connections of any kind having been made to the trailer house, the evidence discloses that there was no permanent annexation to the realty.
The second requisite to the rule could have been met. However, there is no evidence of the third requisite, intent, which as above mentioned, is the most important element of proof. Defendant Dykes could have no such intent. The trailer house did not belong to him but to his employee. Further, the rule provides that all three elements must unite. Since this did not happen the trailer house retains its character of personalty. As such, it did not pass to plaintiffs under the personalty agreement because it was not listed therein.
This jurisdiction is faced with a dearth of law to resolve the question whether the manure on the premises at the time of the sale, and whether that which accumulated after the sale, is realty or personalty.
The great weight of authority in other jurisdictions holds that manure produced by animals fed upon the products of the farm is part of the realty, since such manure was used to supply the drain made upon the soil in the production of said crops. Whereas, considered to be personalty is that manure which was not made in the ordinary course of husbandry but which is manure from animals fed on products grown elsewhere than on the farm where the manure is dropped. [Citations omitted.]
Collier v. Jenks, [32 A. 208], states:
'Manure made in livery stables, or in barns not connected with farms, or otherwise than in the usual course of husbandry, forms no part of the realty on which it may be piled, but is regarded as personal estate. * * *' (Emphasis ours.)
This sentence carries with it the connotation that manure is personal estate when it is produced by transient owners' animals situated in temporary quarters or when the manure is made otherwise than in the usual course of husbandry. The reason for this rule is the strong public policy to keep that which has never become a true part and parcel of the land freely alienated from same. By the same token, if the animals have not been fed with the products of the land, the land has not been impoverished, and consequently, the animals' owner owes no duty to leave the manure to replenish the land.
Taylor v. Newcomb, 82 N.W. 519, which dealt with a landlord and tenant relationship, sustains this proposition, namely:
'The great weight of authority in this country sustains the rule that, as between landlord and tenant, * * * 'if the manure were not produced directly or indirectly from the land, and were in no sense the product of agricultural demised premises,--such as accumulates in livery stables and the like,--it is no part of the realty, and may be removed by the tenant at the close of his term.' * * *'
We adopt this rule.
Should the result be different, where animals owned by the fee simple owners of farmland are permanently located on land connected with the farm, and where manure from such animals accumulates over a period of time? We think not. The test still remains, were the animals fed from products of the land or were the animals fed from products grown elsewhere. The good husbandman has a duty to protect the quality of his land; to replace and replenish when the soil or products of the soil have been taken. But there is no corresponding duty to add to the quantity of the land.
For the above-mentioned reasons the trial court properly held that the manure dropped by the [Dykes'] cattle rightfully belonged to [Dykes].
The evidence is undisputed, both by witnesses for the [Gomez] and the admissions of defendant Dykes, that the manure deposited in the feeding corrals by both [Gomez'] and [Dykes'] cattle was mixed with and churned into the native soil of the corrals, which was sandy in character. It is also readily apparent that an added complication, difficult of extraction, entered this case when the manure of defendants' cattle mixed with the manure of the new fee simple owner. Therefore, calculating the proper quantity of manure belonging to each litigant and affixing the value thereof is not easy chore. Though difficult, this matter was purely within the discretion of the trial court and we do not find that the court abused its discretion wherein it awarded 660 tons of manure at the rate of $2.50 per ton to defendants.
* * *
Accordingly, the judgment of the trial court is affirmed.