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the advancements made from the general, Section 43 of the Conservancy Act, which aucounty fund of Franklin county, Ohio, which thorizes this levy, specifically designates the warrant was then and there refused and is purposes for which the proceeds of this levy now brought into this court and deposited shall be used. with the clerk hereof, subject to the accept It follows, therefore, if the general funds ance of the relators and the orders of this of the county are but loaned or advanced to court.

the preliminary fund of the conservancy disTo this answer, relators filed a general |trict, in anticipation of the levy, that the pro demurrer. Pending the hearing of this cause ceeds of this levy must be applied to the reupon the demurrer, by agreement of parties imbursement of the general funds of the and upon approval of the court, the warrant county. for $38,131.69 was delivered by the clerk of If there were any doubt upon this proposithis court to Fred M. Sayre as secretary and tion, the facts in this case would, neverthe. ex officio treasurer of the Franklin county less, require that the proceeds of this levy conservancy district, upon a stipulation in should be applied to the reimbursement of the writing that the acceptance of the same general funds of the county. The same secshould not prejudice the rights or claims of tion that authorizes the payment of these exany of the parties to the action.

penses out of the general funds of the county Webber, McCoy & Jones and 0. E. Davis, also provides that: all of Columbus, for relators. Robert P. “Upon receipt of funds by the district from Duncan, Pros. Atty., W. J. Ford, Asst. Pros. the funds so advanced by the counties shall be

the sale of bonds or by taxation or assessment Atty., A. Ward Clutch and Robert J. Beatty, repaid." all of Columbus, for defendant.

This plain provision of the statute is manDONAHUE, J. [1] Section 6828–43, Gen- tion of the authority of the board of direc

datory. It would be idle to discuss the queseral Code (section 43 of the Conservancy Act tors to order repayment to the county fund out of Ohio, 104 O. L. 13, 35), provides :

of other funds in its possession or control, "As soon as any district shall have been organized under this act, and a board of direc- when it has received no funds except this one tors shall have been appointed and qualified, arising from the tax levy of three-tenths of such board of directors shall have the power a mill upon the assessed valuation of the and authority to levy upon the property of the district not to exceed three-tenths of a mill on

property within the conservancy district. the assessed valuation thereof as a level rate to

[2] While the fund arising from this levy be used for the purpose of paying expenses of is undoubtedly the proper and primary fund organization, for surveys and plans, and for out of which repayment should be made to other incidental expenses which may be necessary up to the time money is received from the the county fund, nevertheless the General Assale of bonds or otherwise."

sembly of Ohio has safeguarded the general The expenses incurred by the board of di- funds of the county by this mandatory prorectors of the Franklin county conservancy vision requiring reimbursement upon the redistrict, and paid from time to time from the ceipt of funds from any source whatever. general fund of Franklin county, Ohio, were The board of directors of the conservancy for the purposes named in this section, for district has no discretion to delay the reimwhich this levy of three-tenths of a mill is bursement of the general fund of the county authorized.

after it receives funds from any source proThe fund arising from this levy, together vided by the statute, but must forthwith apwith advancements made from the general ply these funds to the repayment of the adcounty fund, as authorized by the same sec- vancements made from the general fund of tion, constitutes the preliminary fund named the county; and even if some other funds in section 6828–42, General Code. It is were so applied it would seem from this leg. clear that this preliminary fund is the pri- islation to be the clear duty of the board of mary fund from which these expenses for or- directors to immediately reimburse the fund ganization, surveys, and plans, and other in- so depleted from the proceeds of its levy for cidental expenses, should be paid. It is the preliminary fund, for it is expressly for equally clear that the money from the gener- the payment of these expenses that this levy al funds of the county used for the payment is authorized. of these expenses was not intended by the The demurrer to the answer is overruled, Legislature as a permanent addition to the and, the relators not desiring to plead furpreliminary fund, but merely an advance- ther, a peremptory writ is refused, and the ment or loan to it in anticipation of the col-petition dismissed at cost of relators. lection of this levy; so that the final and only

Writ refused. source of the preliminary fund defined in section 42 of the Conservancy Act is this levy NICHOLS, C. J., and JOHNSON, NEW. of three-tenths of a mill upon the assessed MAN, JONES, and MATTHIAS, JJ., concur. valuation of the property of the district. WANAMAKER, J., not participating.

(225 Mass. 580)

court on a bill to have buildings on land of NOYES V. GAGNON.

lessor's grantee decreed to be tenant's personal

property, to his refusal to make rulings request(Suprenie Judicial Court of Massachusetts. ed by defendant, and exceptions saved to the adEssex. Jan. 15, 1917.)

mission and exclusion of evidence were review

able by the Supreme Judicial Court. 1. FIXTURES 35(3)-BUILDINGS-QUESTION (Ed. Note.-For other cases, see Appeal and OF LAW OR FACT.

Error, Cent. Dig. 3367; Dec. Dig. Om 847(1).] Whether buildings are personal property or fixtures is a mixed question of fact and law 8. FIXTURES Om 35(2)—BUILDINGS-EVIDENCE. depending upon facts and circumstances and the On a bill to have buildings located on land reasonable inferences to be drawn therefrom, in- owned by lessor's grantee decreed to be tenant's cluding the manner in which they were attached personal property, testimony of a witness who to the land and the intention of the parties.

had been treasurer of the original lessor and its [Ed. Note.-For other cases, see Fixtures,

successor that no claim was made by either of Cent. Dig. § 76; Dec. Dig. Om35(3).]

them to the ownership of any buildings was ad

missible. 2. FIXTURES 35(2) BUILDINGS – SUFFI [Ed. Note.-For other cases, see Fixtures, CIENCY OF EVIDENCE.

Cent. Dig. 88 73, 74; Dec. Dig. Om35(2).] On a bill to restrain a lessor's grantee from enforcing any claim of ownership in two dwell-9. APPEAL AND ERBOR m1048(5)-HARMLESS ing houses alleged to be owned by the complain

ERROR-QUESTION TO WITNESS-INABILITY ant, or from disturbing her in the use and en TO ANSWER. joyment of the lot of land and the houses before A question to such witness whether houses the expiration of an existing lease, and for a on such lots were ordinarily transferred by bill decree that the houses were complainant's prop- of sale, and whether they had ever been insured erty, evidence held to sustain a finding that the by the owners of the land, did not harm defendhouses were removable personal property, as ant, where the witness stated that he did not distinguished from fixtures.

know. (Ed. Note.-For other cases, see Fixtures,

[Ed. Note.-For other cases, see Appeal and Cent. Dig. 88 73, 74; Dec. Dig. Ow35(2).]

Error, Cent. Dig. $$ 4143, 4151, 4158, 4159;

Dec. Dig. 1048(5).] 3. FIXTURES 14-ANNEXATION TO REALTY.

Fixtures annexed to real estate by a tenant 10. FIXTURES 35(2) BUILDINGS Evibecome a part of it.

DENCE-RECORDS. [Ed. Note.-For other cases, see Fixtures,

The admission of the records of the lessor Cent. Dig. 88 22, 25; Dec. Dig. Om 14.]

and of its directors, showing that the executive

committee had charge of the lots and was au4. FIXTURES 32-RIGHT OF REMOVAL. thorized to fix a rent therefor, was not error.

Fixtures annexed to realty by a tenant may [Ed. Note.-For other cases, be removed by him during the term, but if, Cent. Dig. $$ 73, 74; Dec. Dig.' m 35(2).]

see Fixtures, without having removed them, he voluntarily quits the premises at the expiration of his term 11. FIXTURES 35(2) BUILDINGS EVIwithout any agreement with the landlord, he DENCE. cannot afterwards claim them as against the Testimony of one who had been an officer of owner of the land.

the original lessor and its successor that the (Ed. Note.-For other cases, see Fixtures, successor never claimed to own the house on the Cent. Dig. $$ 63, 65; Dec. Dig. Ow32.] lots owned by it, that they were usually sold by

the owners by bill of sale, and that neither the 8. FIXTURES 35(2) — EVIDENCE — RECITALS original lessor nor its successor ever had any fire IN LEASE.

insurance upon the houses, and that he had proOn the issue whether buildings on a lot tested against an assessment of the houses as owned by the lessor's grantee were property of the property of the lessor, and that when the the tenant and removable, the recital in the lease lease was signed neither he nor the lessor made that the lessee should deliver up the premises any claim of ownership in the houses, was adin good condition, reasonable use, etc., excepted, missible as tending to show that the houses were and should not suffer any waste thereof or personal property and so treated by the lessors. make any alteration thereon, was not conclusive as to the ownership of the building, but was eviCent. Dig. 88 73, 74; Dec. Dig. Om35(2).]

[Ed. Note.-For other cases, see Fixtures, dence bearing on that question, to be considered with other facts, including character of con- 12. APPEAL AND ERROR Ow1170(7) HARMstruction, and the intention of the parties.

LESS ERROR-EVIDENCE, [Ed. Note.-For other cases, see Fixtures, The admission of evidence of an Cent. Dig. $$ 73, 74; Dec. Dig. Om 35(2).] that the taxes on the houses were assessed to 6. RECORDS Cw9(13)--REGISTRATION OF TITLE the respective owners, and that land was not TO LAND-EFFECT AS TO FIXTURES.

assessed to the owners of the houses, if incompeOn such issue, the registration of the title tent, did not injuriously affect the substantial in the land court was not a bar to complainant's rights of the defendant, within St. 1913, c. 716, claim of ownership in the buildings found to be 2, 1, forbidding a new trial where error com. personal property, as the decree of registration plained of has not affected the rights of the included the land and the buildings annexed to parties. it, so as to become a part of the freehold, and

[Ed. Note.-For other cases, see Appeal and did not affect the title of the removable build- Error, Çent. Dig. $$ 4066, 4543; Dec. Dig. Om ings located on the land.

1170(7).] [Ed. Note.-For other cases, see Records, Dec. 13. FIXTURES 35(2) BUILDINGS EviDig. Ew9(13).]


Testimony of an associate with lessor that SCOPE-EQUITY.

he sold the lot to the defendant, and that he Under St. 1913, c. 716, & 4, providing that wrote a statement entitled "Meetings of such upon an appeal of suit in equity, questions rais- tenants," was immaterial to the issue. ed shall be subject to revision, exceptions taken [Ed. Note.--For other cases, see Fixtures, at the hearing before a judge of the superior Cent. Dig. 88 73, 74; Dec. Dig. Om 35(2).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


14. APPEAL AND ERROR 1050(2) HABM-, streets and roads, the title to which before LESS ERROR-EVIDENCE. On a bill to establish tenant's ownership to the Commoners of Salisbury. During that

1903 was vested in a corporation known as houses on land of the lessor's grantee, admission of evidence not material to the issue was not year the Salisbury Land & Improvement Comprejudicial to defendant, where a witness fully pany became the owner of the beach land explained his reason for his action.

including “lot 44," and continued to own the [Ed. Note.-For other cases, see Appeal and property until it was conveyed by the comError, Cent. Dig. § 4154; Dec. Dig. Om 1050(2).)

pany by deed dated April 25, 1911, to Walter

Coulson and others. On the same date, Coul15. APPEAL AND ERROR 1048(5) HARMLESS ERROR-EVIDENCE.

son and others made a deed of the property A question to such witness as to whether to themselves as trustees of the Salisbury he told defendant that the deed to him would Beach Associates, and thereafter the property cover the buildings, not directly answered, was

was held by the grantees under a declaration not harmful to the defendant.

of trust. (Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4143, 4151, 4158, 4159;

In the two last mentioned deeds there is Dec. Dig. Omw1048(5).]

a provision as follows: 16. APPEAL AND ERROR Om 219(1),CONDUCT “This conveyance is subject also to existing

OF JUDGE PRESERVATION_oF GROUND OF | leases on any part thereof and to the rights of
REVIEW ASSUMPTION OF FACTS OBJEC- said lessees, their heirs and assigns."
Defendant's contention that during the hear-

As before stated, the defendant derived his ing the judge without evidence assumed certain title to "lot 44" from the Salisbury Beach facts, could not be reviewed, where the defend- Associates by deed dated December 3, 1914. ant took no objection thereto by exception or This deed contained the following recital: otherwise, [Ed. Note. For other cases, see Appeal and

“This conveyance is made subject to lease to Error, Cent. Dig. § 1315; Dec. Dig. em 219(1).) Frank White dated August 4, 1906, expiring


There was evidence to show that Frank Where it has been adjudged that a tenant, white, who was the husband of Sarah A. whose term has expired, is the owner of build, white, built one of the houses on “lot 44" at ings, the decree, on affirmance, will be modified so as to require her to remove the buildings least as early as 1871, that the other house on within a reasonable time from the filing of the the rear of the lot was constructed out of an rescript in the case.

old barn three or four years before this case (Ed. Note. For other cases, see Appeal and was heard in the superior court, and that the Error, Cent. Dig. 88 4483-4496; Dec. Dig.

barn had been on the lot for twenty years. 1152.]

There is nothing in the record to show under Appeal fron Superior Court, Essex County: what authority White occupied the lot before Robert F. Raymond, Judge.

May 1, 1886, when it was leased to him by Bill for injunction by Ray N. Noyes, as the Commoners for ten years from that date conservator of the goods and estate of Sarah with a right of renewal. A. White, against Arthur J. Gagnon. Decree

On August 4, 1896, another lease was exfor complainant, and defendant appeals. Secuted and delivered by the Commoners to Modified and affirmed.

White, of “lot 44," "for the term of ten years A. N. Frost, of Lawrence, for appellant. with the right of renewal from the first day Horace I. Bartlett, of Newburyport, for ap- of May, 1896.". pellee.

On August 4, 1906, the Salisbury Land &

Improvement Company, which had succeeded CROSBY, J. The plaintiff, as conservator to the title to the beach, made a lease to of the goods and estate of Sarah A. White, White of “lot 44" for the term of ten years brings this bill to restrain the defendant from beginning with the first day of May, 1906. enforcing any claim of ownership in two Since the execution of this lease White has dwelling houses alleged to be owned by Mrs. deceased. It is not disputed that the rights White, or from disturbing her or those claim- which he had under the lease and to the ing under her, in the use and enjoyment of buildings on the lot, were vested in his the lot of land and the houses thereon before widow at the date of the bringing of this the first day of May, 1916; and for a decree suit. that said houses be the property of Mrs. The case has been heard by a judge of the White. The defendant is the owner of the lot superior court who made certain findings of of land upon which the houses are situated, fact including a finding that the houses "are having acquired the same by deed from the the property of Mrs. White and she or her Salisbury Beach Associates, dated December conservator are entitled to control the same." 3, 1914. The lot of land so owned by the de- All the material evidence is reported. The fendant is numbered "44" on a certain plan case is before this court upon the appeal of of lots, and is situated at Salisbury Beach in the defendant from a final decree in favor Salisbury, in the county of Essex.

of the plaintiff. Salisbury Beach consists of a large tract An agreement has been entered into by the of land laid out and divided into lots, with parties, by which it is stipulated in part that:

“The sole question to be tried under the bill is , ed upon the lot by White, but have considerthe title to the buildings referred to in the billed it carefully and are of opinion that it of complaint."

could not be ruled as matter of law that the [1, 2] At the outset the question arises title to the houses was in the defendant, whether these two buildings are personal nor can it be found that the findings of the property or fixtures. This is a mixed ques-judge, including the finding that the houses tion of fact and law, depending upon other were personal property, were plainly wrong. facts and circumstances and the reasonable in

[3, 4] The rule is well settled that ixtures ferences to be drawn therefrom, including the annexed to real estate by a tenant become manner in which the buildings were attached a part of it. They may be removed by the to the land and the intention of the parties. tenant during the term, but if, without have Rowse, Pet'r, 195 Mass. 216, 80 N. E. 822. ing done so, he voluntarily quits the premNatural Autoforce Ventilator Co. v. Wins- ises at the expiration of his term without low, 215 Mass. 462, 102 N. E. 705. There was any agreement with his landlord, he cannot evidence to show that "the houses are built afterward claim them as against the owner on the sand, and rest on posts with no cel- of the land. Wall v. Hinds, 4 Gray, 256, 64 lars”; that the front house “has a brick Am. Dec. 64; Bliss v. Whitney, 9 Allen, 114, chimney built about three years ago which 85 Am. Dec. 745; Watriss v. National Bank runs through the ell of the building to the of Cambridge, 124 Mass. 571, 26 Am. Rep. ground; the chimney in the rear house is on 694. We have no reason to question the brackets and does not go through the floor.” soundness of the rule of law as stated in

There was evidence that when the beach Watriss v. National Bank of Cambridge, ubi land was owned by the Commoners, the build- supra, but are of opinion that it is not apings on lots leased were the property of the plicable to the facts as found in the case at lessees, that the rent paid was for the rent bar. This case is not governed by the rule of the land and did not include the structure relating to the removal of fixtures, because upon it, and that the Commoners, as the own- of the finding of the judge that the houses ers and lessors of the lots, treated the houses are personal property and were so consideras personal property, and never made any ed by all the parties. The court found that claim of ownership in the houses which had the houses are removable chattels as distinbeen built thereon by tenants.

guished from fixtures. We are of opinion There was also evidence to show that while that such finding upon the evidence was the ownership of the lots was in the Salis- warranted. First Parish in Sudbury v. bury Land & Improvement Company, the Jones, 8 Cush. 184; Hinckley v. Baxter, 13 company made no claim of title to the build- Allen, 139; O'Donnell v. Hitchcock, 118 Mass. ings erected on the lots, but that it was un- 401; Rowse, Pet'r, ubi supra. There was derstood by both the company and the tenants ample evidence to show that the different lesthat the houses were owned by the latter; sors and the lessees treated the buildings on that the amount of the rentals was fixed with all the lots as personal property. Swift v. out reference to the character of the buildings Boyd, 202 Mass. 26, 88 N. E. 439. In view upon the lots leased, and was so fixed with of the finding that the houses are personal out reference to whether there was any house property, the question whether, if fixtures, on the lot or not.

the right to remove them has been lost, beOne Shaw, who was formerly president of comes immaterial. the company, testified that he never knew of [5] The recital in the leases that the lessee the company or of its officers ever making any “shall deliver up the premises in as good claim of ownership to any of the houses on condition, reasonable use and wearing there. the lots.

of, fire and other unavoidable casualties There was also evidence to show that the alone excepted, as the same now are Salisbury Beach Associates treated the les or that the lessee "shall not suffer any waste sees who had built houses on the lots as the thereof or make any alteration therein" is owners thereof, and that the lessees were al. not conclusive upon the question of the ownlowed to remain there with the consent of ership of the buildings. It is evidence bear. the Associates; that when sales of lots ing upon that question to be considered in were made, tenants who had built houses connection with all the other facts and cir. were given the option of buying the lots cumstances, including the character of the upon which the buildings stood or of buying construction, and the intention of the parless expensive back lots and removing the ties. Manufacturers' Ins. Co. v. Western buildings thereto, and that when a lot was so Assur. Co., 145 Mass. 424, 14 N. E. 632; sold to a tenant, it was sold without refer- | Phinney v. Foster, 189 Mass. 182, 75 N. E. ence to any building which might be upon it. 103.

The defendant testified that before he pur [6] The registration of the title in the land chased “lot 44" he knew of the lease to court is not a bar to the plaintiff's claim of White and that the latter claimed to own ownership in the buildings. The buildings are the houses on the lot.

found to be personal property. The decree of We do not attempt to recite all the evi- registration obviously included the land there. dence before the court bearing upon the in described and buildings thereon which question of the ownership of the houses plac were annexed to it in such manner as to have

become a part of the freehold, but it did not, was admissible. It was evidence of an acInclude or affect the title to removable chat- knowledgment on the part of the lessor that tels located on the land.

it did not own the houses. [7] The exceptions taken at the hearing The testimony of Shaw, that when the before the judge of the superior court to his leases in question of "lot 44" to White were refusal to make the rulings requested by the signed, neither he (Shaw) nor the company defendant, as well as the exceptions saved nor the committee made any claim of ownto the admission and exclusion of evidence, ership in the houses thereon, was admissible are subject to revision by this court upon for the reasons above stated. appeal by virtue of the provisions of St. [12] One Pettingill, who was an assessor of 1913, c. 716, $ 4, in the same manner as if Salisbury for several years, was allowed to they were contained in a bill of exceptions. testify that at one time the taxes on the As to the rule before the enactment of St. houses at the beach were assessed to the re1913, c. 716, § 4, see Pigeon's Case, 216 Mass. spective owners of the houses, and that the 51, 55, 102 N. E. 932, Ann. Cas. 1915A, 737. land was not assessed to the owners of the

The defendant made twenty-three requests houses. If it be assumed that this evidence for rulings, all of which except the third was incompetent, we are of opinion that its were refused by the judge; some have be admission did not injuriously affect the subcome immaterial, and from what has been stantial rights of the defendant. St. 1913, c said, we are of opinion that none of them 716, § 1. See Enfield v. Woods, 212 Mass. could have been given. The exceptions taken 547, 99 N. E. 331. at the trial to the admission of evidence may

(13, 14] The witness Coulson, who was a be disposed of briefly.

member of the Salisbury Beach Associates, [8-10] We are of opinion that the witness testified that he sold "lot 44" to the defendMoulton, who was collector and treasurer for many years of both the Commoners and he wrote a certain statement entitled “Meet

ant. He was also permitted to testify that the Salisbury Land & Improvement Company, ings of such tenants." This evidence would could properly testify that no claim was ever made by either of those owners of the land, seem to have been immaterial to any issue inthat it owned any houses at Salisbury volved, but as the witness was allowed to er. Beach. The questions put to Moulton wheth- plain fully his reasons for his action, it does er houses at the beach were ordinarily trans- not appear that the rights of the defendant ferred by bill of sale, and whether they had were prejudiced by the evidence even if it

was incompetent. ever been insured by the owners of the land, did not harm the defendant as the witness

(15) This witness, also, was asked if he stated in answer to both questions that he told the defendant that the deed to the dedid not know.

The The reports of Moulton as

fendant would cover the buildings. collector and treasurer were admissible as question does not seem to have been answered tending to show that the rents collected were directly and so the defendant was not harm


ed by the answer. for the rent of the land and did not include

ot mean intibuildings thereon. The admission of the rec

mate that if a responsive answer had been ords of the land company, as well as the given it would have been inadmissible. records of its directors showing that the ex

We find no error of law on the part of the ecutive committee had charge of the lots and judge in his conduct of the hearing, either was authorized to fix the rent to be paid in his refusal to rule as requested, or with therefor, was not error.

respect to his rulings upon the admission or [11] The witness Shaw, who for many

exclusion of evidence. years was one of the Commoners, and after [16] The defendant contends that during wards was president of the land company, the hearing the judge, without evidence, astestified that to his knowledge the company sumed certain facts, but as it does not apnever claimed to own the houses on the lots pear that any objection thereto was taken owned by the company; that houses upon by the defendant, by exception or otherwise, the lots were usually sold by the owners by it is plain that upon this record we cannot bill of sale; that neither the Commoners nor revise such action of the court. the land company ever had any fire insur (17) As the plaintiff's term under the last ance upon any house on the beach, and nev- lease expired on April 30, 1916, the final de er had any insurance on the houses on “lot cree should be modified by adding at the 44." The whole of this evidence was ad- end of the second paragraph the following: missible as tending to show that all the "Except that the plaintiff shall remove the houses, including those on "lot 44,” were per- Sarah A. White within a reasonable time from

buildings standing upon lot 44 and owned by sonal property and were so treated and un- the date of the filing of the rescript in this case." derstood by the lessors.

The testimony of Shaw that as president The last paragraph of the decree is also and director of the land company, he pro- to be modified by including the costs of the tested to the tax commissioner against an appeal. As so modified, the final decree is assessment of the houses on the lots at the affirmed.

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