
    Martin Rahm v. F. J. Domayer, Appellant.
    Fixtures: material for completion of building. The question of whether an article is a fixture does not depend so much upon its .physical annexation to the realty as upon the intention of the party in making, or to make, the annexation; and material fitted and bought with the intention of using the same in the completion of a building and placed therein for that purpose passes with a sale of the realty, although attached thereto only by its location and its own weight.
    
      
      Appeal from Kossuth District Court.— Hon. W. B. Quarton, Judge.
    Wednesday, January 15, 1908.
    Suit in replevin to recover building material. A demurrer to- tbe petition was overruled, and, tbe defendant electing to stand on his demurrer, judgment was entered on tbe petition. Tbe defendant appeals.
    
      Affirmed.
    
    
      Frederick M. Curtiss, for appellant.
    
      Sullivan & McMahon, for appellee.
   Sherwin, J.

Tbe plaintiff alleged in bis petition that be was tbe owner of certain finishing lumber, doors, and transoms which bad been placed by tbe defendant in an unfinished building for the purpose of completing and finishing tbe same; that suitable and proper openings for tbe doors and transoms in question bad been left in the building; and that said material, including tbe finishing lumber, was necessary for tbe completion of tbe same, and that be became tbe owner of such material by purchase of tbe real estate on which tbe building was located.

Tbe demurrer made the point that no cause of action was stated in tbe petition, because it showed on its face that tbe lumber and material was in no manner fastened to tbe building, and was therefore no part thereof, and did not pass with tbe realty. Tbe petition does state that tbe material described was in no manner fastened to tbe building, and tbe sole question for determination is whether it passed with tbe general conveyance of the land. Tbe question is an interesting one, and tbe decisions thereon in tbe several jurisdictions are far from harmonious. Our own cases fairly support tbe judgment below, and we think tbe trend of maclern authority is in the same direction. A leading case on tbe subject of fixtures is Teaff v. Hewett, 1 Ohio St. 511 (59 Am. Dec. 634), where it is said: “ The true criterion of a fixture is the united application of the following requisites : Actual annexation to the realty, or something appurtenant thereto. (2) Application to the use or purpose to which that part of the realty with which it is connected is appropriated. (3) The intention of the party making the annexation to make a permanent accession to the freehold.” The united application of the three requisites named was considered by this court in the ease of The Ottumwa Woolen Mills Co. v. Hawley, 44 Iowa, 57, and it is there said, speaking of such requisites: The first, being physical attachment, all the cases hold is a very uncertain and unsatisfactory criterion, and in our opinion the only value to be attached to it is in determining the intention of the owner of the freehold in making the annexation.” The conclusion reached in that case was that “ the intention of the party making the annexation to make a permanent accession to the freehold ” was the controlling consideration in determining the whole question, and that “the character of the physical attachment, whether slight or otherwise, and the use, are merely important in determining the intention of the party making the annexation.” In Fletcher v. Kelly, 88 Iowa, 475, Judge Kinney, speaking for the court, said: “ The trend of modern decisions is that, subject to the manner of annexation to the realty, and to the use and purpose of the realty with which the thing in controversy is connected, its character as a fixture or not is to be determined by the intention of the party making the annexation.” The subject was again discussed in Thomson v. Smith, 111 Iowa, 718, and the same general rule adhered to. See, also, Congregational Society v. Fleming, 11 Iowa, 533.

It is the undoubted holding of these and others of our own decisions that the’ intention of the party making the annexation is the question of controlling importance in all cases of this kind, and that physical attachment need be of no particular kind or degree, and that any annexation which, however slight it may be, indicates the intent, is sufficient to meet the demands of the rule. In 19 Cyc. 1036, attention is called to the diversity of opinion on the question, and it is said: “ But as physical annexation of a chattel alone is not always necessary to its becoming part of the realty, and as physical annexation alone does not necessarily make a part of the realty, but in either case other circumstances may combine to prevent the one or the other, it is believed that the true rule is that articles not otherwise áttached to the realty than by their own weight are prima facie personalty, and articles affixed to the land in fact, although only slightly, are prima facie realty, and that the burden of proof is on the one contending that the former is realty or the latter is personalty.” It seems to us that such a rule would more nearly cover all cases than any other, and that under it the actual intent would always be the controlling question, regardless of where the burden of proof rested. This controlling intention is that which the law deduces from all the circumstances of the annexation, and not the secret intention with which it is annexed. In 'the instant case the defendant owned an incomplete and unfinished building. He bought and placed therein the material fitted and necessary for the completion thereof, and with the intent to so use it. He did not finish the building before he sold it with the land on which it stood, and, when he sold, the material was still in the building; and, while it was only annexed thereto by its location and its own weight, we think it passed with the conveyance. The following cases in other jurisdictions sustain this view: Byrne v. Werner, 138 Mich. 328 (101 N. W. 555, 69 L. R. A. 900, 110 Am. St. Rep: 315) ; McLaughlin v. Johnson, 46 Ill. 163; Hackett v. Amsden, 57 Vt. 432; 1 Kerr on Real Prop. 154. And see cases cited in 19 Cyc. 1036, 1045.

We think the demurrer rightly overruled, and the judgment is affirmed.  