
    (69 South. 745)
    No. 20324.
    SCOVEL et al. v. SHADYSIDE CO., Limited.
    (Oct. 19, 1914.
    On Rehearing, Oct. 18, 1915.)
    
      (Syllabus by the Oowrt.)
    1. Fixtures <&wkey;18 — What Constitute.
    Combination gas and electric light chandeliers and brackets, mantels, stationary washstands, bathtubs, etc., attached to a building by the owner thereof for the service and exploitation of said building, are immovable by destination, and pass with the house when it is mortgaged or sold, if not reserved by the owner.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 32-46; Dec. Dig. &wkey;18.]
    
      2. FIXTURES <&wkey;l — Immovables by Destination.
    The instances given in article 468, Civil Code, of immovables by destination are merely illustrative, and are not restrictive.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 1, 6; Dec. Dig. <&wkey;l.]
    3. Fixtures <&wkey;4^-lMM0VABLEs by Destination — Deimmobilization.
    After movables have become immobilized by destination the mere change of mind on the part of the former owner cannot, of itself, deimmobilize them as against a purchaser without notice. It is the same with reference to a mortgage. (
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 3, 6; Dec. Dig. &wkey;>4.]
    On Rehearing.
    4. Fixtures <&wkey;l — Matters Determinative— Method of Attachment.
    Whilst the purpose for which things are placed, by the owner,,on “a tract of land,” ordinarily determines whether or not they acquire the immobility of the land, the immobility vei non of things placed in a tenement or building (other, perhaps, than a manufacturing establishment which, legally speaking, has become part of the tract of land upon which it is erected) depends, finally, upon the manner in which they are attached thereto.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 1, 6; Dec. Dig. <&wkey;l.]
    5. Fixtures <&wkey;21 — What Constitute — Reclamation by Vendor.
    Combination gas and electric light chandeliers and brackets which form parts or accessories of gas and electric light plants established, the one, in the cellar of the residence on a plantation, and the other, in the sugar house, and without which those plants would be unable to render the service for which they were established, partake of the immobility of the plants, and cannot be reclaimed by the vendor of the plantation, on the ground that they are not permanently attached to the house, but may be unscrewed without injury to it or themselves.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 47-B6; Dec. Dig. &wkey;21.]
    O’Niell, J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Action by Mrs. Isabel Scoveb widow of J. W. Barnett, and others, against the Shady-side Company, Limited. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    Borah & Himel, of Franklin, and H. G„ Bloch, of New Orleans, for appellants. Foster, Milling, Brian & Saal, of New Orleans,, for appellee.
   SOMMERVILLE, J.

Mrs. Barnett was-one of the original plaintiffs in this cause; but, having died, her three sons and sole heirs, who were coplaintiffs with her, have-been made parties in her place.

J. W. Barnett, the husband and father of plaintiffs, erected a building upon Shadysideplantation, in the year 1808, in which he and his family lived. The house was very complete in all of its parts, and was elegantly furnished. 1-Ie mortgaged all of the property and its appurtenances; and subsequently he-sold the plantation, together with the residence, in 1903, to the Shadyside Sugar Company, of which he and his family were the principal stockholders. That company also-mortgaged the property and its appurtenances. It became involved, and was placed in the hands of a receiver, a sale took place under an order from the federal court, and the whole property was adjudicated to C. A. Farwell, who subsequently sold it to theShadyside Company, Limited, defendant in this cause, April 7, 1904. Mr. Barnett died August 7, 1904.

The mortgages and sales referred to were made by Mr. Barnett without reserving to-himself the household fixtures sued for by his heirs in this case.

Mrs. Barnett and some of her sons continued to live in the house until September, 1910. Subsequently they made demands upon the defendant company to turn over to them combination gas and electric light chandeliers and brackets which were in the house,, together with bathtubs, toilets, stationary washstands, a complete double outfit for heating purposes, a complete gas outfit, mantel pieces, and certain grillwork. This suit was-instituted therefor November 2, 1911.

Defendant answered, denying that the articles referred to were the personal effects of plaintiffs, and alleged that they, the articles, had been permanently attached to the house, for the service and improvement thereof, by the owner, and that they were parts of the building, and that the building, as a residence, would be incomplete without them.

Since the filing of this suit the Legislature has declared that the things here sued for are immovable by their nature. Act No. 51 1912, p. 60.

The evidence shows that the articles mentioned were placed in the house at the time it was erected by Mr. J. W. Barnett; and it is clear that his intention was that they should be permanently attached thereto for the service and convenience of the house and its occupants.

Article 468, G. C., is as follows:

“Things which the owner of a tract of land has placed upon it for its service and improvement, are immovable by destination. * * * All such movables as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.”

And article 469 provides:

“The owner is supposed to have attached to his tenement or building forever such movables as are affixed to the same with plaster, or mortar, or such as cannot be taken off without being broken or injured, or without breaking or injuring the part * * * to which they are attached.”

In considering the two articles just quoted, in the case of Mackie v. Smith, 5 La. Ann. 717, 52 Am. Dec. 615, we hold that two valuable mirrors found in one of the rooms of a dwelling house, which had been sold in that case, were immovable by destination.

We there say that the only matter before the court to decide is whether or not the mirrors had been attached permanently to the building by the deceased. If they had been, the purchaser of the house had acquired them. It was shown that they were not affixed to the building with plaster or mortar, and that they could be moved without being broken or injured. ' It was contended by the appellee that the mirrors might have been removed without breaking or injuring the parts of the building to which they were attached, and that, as the case would come under none of the provisions of the Code, the judgment in her favor should be affirmed. We there hold that the cases specified in article 469 do not limit the general disposition contained in article 468. Article 468 provides that all such movables as the owner has placed for the service and improvement of the land and those which are attached permanently to the building are immovable by destination: it embraces all cases in which the movable has been placed by the owner ad integrandum domum; and, when none of the presumptions established by article 468 exist, the fact may be shown by any competent evidence. 2 Toullier, No. 16: 4 Duranton, p. 63, No. 68.

In the Mackie Case it was shown that after the owner of the property purchased the mirrors recesses 4y2 inches deep were cut in the walls of the room to receive them; that they were placed in those recesses and secured in their places by means of architraves or large wooden frames, which were nailed to plugs of hardwood fastened to the wall. The frames of the mirrors had grooves in them corresponding to a tongue in the architrave, and nails were driven from one to the other to make the glasses more secure. The recesses were left rough and unfinished; the glasses and architraves being clearly intended as a permanent finishing of the walls. It is difficult to conceive a case more strictly within the letter and spirit of article 468 of the Code.

And it is shown in this case that Mr. Barnett, in having bathtubs, toilets, stationary washstands, radiators, mantelpieces, and grillwork placed in the house which he was then erecting, caused holes to be made in the ceilings, walls, and floors for the intro-Auction of gas, water, and waste pipes with the view and intention of attaching all the fixtures permanently to the building, thereby, in the language of the Code, making them immovable by destination. The evidence further shows that the moldings in the rooms were cut for the placing of the stationary washstands; that the mantel pieces were made of wood and tiles; that the removal of these things would not only leave holes in the walls, ceilings, and floors, but that the rooms would be left rough, unfinished and in an injured condition; and that repairs would have to be made to the house. The same is true of the grillwork, claimed by the plaintiffs, and which was put in the openings or doorways leading from one room into another throughout the house, for the purposes of ornamenting and beautifying the same.

The complete double outfit for heating purposes and the complete gas generating outfit are established under the building, several feet below the surface of the earth. They were clearly placed there for the service of the house, and were connected with the fixtures in the house, and were to be used therewith permanently or so long as they might last. They were attached permanently to the building, and they are declared to be immovable by destination.

The combination gas and electric light chandeliers and brackets fall within the same category as do the other things mentioned above. It is argued on behalf of plaintiffs that gas chandeliers have been held by the court to be movables, and that they do not usually form part of the premises in which they have been hung. Reference is made to the decision of the court in L’Hote v. Fulham, 51 La. Ann. 780, 25 South. 655. The evidence in that case showed that the chandeliers were only used for lighting by gas, and that they were screwed on the gas pipes, as was usual and customary in the city of New Orleans, and that they were capable of being detached by being unscrewed and taken away without breaking or taking away the pipe or injuring the ceiling of the house. And we there hold that gas chandeliers, so far from being attached to-pipes and to the walls of buildings, with reference to their remaining there permanently, are placed with direct reference to the facility of detaching and removing; that the chandeliers themselves, the pipes with which they are connected, and the walls through which the pipes are passed are not in the slightest degree injured by their removal-But in the instant case the evidence shows that the chandeliers and brackets are combination gas and electric light chandeliers, and brackets, and that they were not prepared with direct reference to facility of detachment and removal. On the contrary, it is testified on the trial of this case that the electric wires which connect these chandeliers and brackets to the motor for generating electricity located in or near the sugar house on the plantation would have to be cut or broken to remove said articles; and this would leave exposed electric wires and holes in the ceiling and walls which would have to be repaired and the places be re-papered to make the house safe, complete, and comfortable. It is quite evident to our minds that the owner in this case had these fixtures permanently attached to the building in which he and his family were to live, and did live, and that he designed them for the service and improvement of the building.

The views which we have here expressed are in line with the French authorities, and were adopted in the case of Morton Trust Co. v. American Salt Co. (C. C.) 149 Fed. 540. We quote from this last decision, in part, as follows:

“There are two, and only two, ways in which an immovable by destination may be created:
“ ‘ (1) Without any physical attachment to the fundus, but merely by the dedication of the movable to the service of the fundus. See Civil Code Louisiana, art. 468.
“ ‘(2) By means of a physical attachment affixing the movable permanently — a perpetuelle demeure. See Civil Code La., last paragraph of article 468.’
“The above is an extract from Plainol, Droit Civil (Paris Ed. 1904) vol. 1, p. 703.
“These two kinds of immovables by destination are plainly shown'by Civil Code Louisiana, art. 468 (459), in which instances of both kinds are given. See that article cited in full supra. It may be well to say here that the instances given in that article are clearly not restrictive.”

The court then proceeds to quote from Baudry-Lacantinerie, Droit Civil, Des Biens (Paris Ed. 1890), vol. 5, p. 59, as follows:

“ ‘All the objects attached to a fundus by the owner for its service and exploitation are by that fact alone immovables by destination, whether they are placed there forever or not. * * * au movable objects so become immovables by destination, which an owner has attached to his fundus forever in another interest [the author meaning an interest other than the service and exploitation of the fundus]; such, for instance, as a purpose of utility to or of ornamentation of the fundus. Therefore perpetuity does not seem necessary except when the immobilization takes place in an interest other than the agricultural -or industrial benefit of the fundus.’
“The same author, same work, and volume (page 56) states the essentials of immobilization to be: ‘(1) That the immovable was placed on a fundus, that is to say, an immovable by nature [either land or a building]; for the movable can only become an immovable by destination as being an accessory to the fundus. (2) That the movable was placed there in the interest of the fundus, that is to say, for its service, its exploitation, its utility or its ornament. (3) That it was placed there by the owner of the fundus. Immobilization by destination necessarily supposes the act of the owner. It could not result from the act of a lessee, a renter, or even a usufructuary. The reason is that immobilization by destination takes place in the interest of the fundus; and the owner is the sole representative of that interest.’ ”

We agree with the judge of the district court that the things sued for in this case were permanently attached to the house by the owner thereof for its service and improvement, and that they are therefore immováble by destination.

Judgment affirmed.

O’NIELL, J., dissents, and files reasons. See 69 South. 748.

On Rehearing.

MONROE, C. J.

By the term's of the order granting the rehearing, the present inquiry is restricted to the question of the status of the combination gas and electric light fixtures. Counsel for defendant call attention to the following admission, made on behalf of plaintiffs, which appears of record, to wit:

“It is admitted that these fixtures, all of which are being sued for in this action, were installed in the house, by the owner thereof, for the service of the house and the use of the occupants.”

And it is argued that,. the meaning of the admission being that the fixtures were installed by the owner, for the service of the house and the use of the occupants, whether owner, vendee, or tenants, the effect is to give to the fixtures the status of immovables by destination, no matter whether they are attached to the house, permanently or otherwise. Considering the fixtures by themselves, however, it is not altogether clear that the argument is well founded. Reproducing article 468 of the Civil Code, for the purposes of the present inquiry, it will be seen that it reads as follows:

“Art. 468. Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.
“Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a traot of land, to wit: Cattle intended for cultivation. Implements of husbandry. Seeds, plants, fodder, and manure. Pigeons in a pigeon house. Beehives. Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation and works. The utensils necessary for working cotton and saw mills, tafiia distilleries, sugar refineries and other manufactories.”
“All such movables as the owner has attached permanently to the tenement or to the building are likewise immovable by destination.”

(Italics by the court.)

It will be observed that the article begins with the declaration that, “Things which the owner of a tract of land has placed upon it for its service and improvement are immov•able by destination;” that the word “things” is used without qualification as to the character of the things, and the word “placed” with no other qualification than that the “things” are to be placed upon “a tract of land,” by the owner of the land, for its service and improvement. And the idea thus conveyed is emphasized in the second paragraph of the article, which purports, not to limit, but merely to illustrate, the character of the things contemplated by the first paragraph, and repeats the declaration that they “are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land.”

The next paragraph seems, however, to provide an exception to the comprehensive rule established by those which precede, for, notwithstanding that it follows the words “Thus,” and “to wit,” which are contained in the second paragraph, and would otherwise be governed by the rule applied to the “things” which are therein mentioned, it contains the specific declaration, '“All such movables as the owner has attached, permanently, to the tenement or to the building are likewise immovable by destination,” which is equivalent to saying that the preceding declarations, though apparently broad enough to include anything placed on a tract of land, in any imanner, by the owner of the 'land, for its service and improvement, and certainly broad enough to include any “machinery made use of in carrying on the plantation and works,” and any “utensils necessary for working cotton mills * * • and other manufactories” so placed by the owner, was not intended to include movables which the owner has attached “to the tene■ment or to the building,” and which become immovable by destination only when attached “permanently”’ to such “tenement” or “building.” The word “tenement,” as thus used, is readily understood. The meaning of the word “building” is not so clear, and may have been used either as a synonym for “residence,” or as applicable to any building other than the mills, distilleries, refineries, and other manufactories mentioned in the preceding paragraph.

The lawmaker then specifies the circumstances under which the owner shall be considered to have attached, permanently or “forever,” movables to his tenement or building so as to make them immovable by destination, viz.:

“Art. 469. The owner is supposed to have attached to his tenement or building forever such movables as are affixed to the same with plaster, or mortal-, or such as cannot be taken off without being broken or injured, or without breaking or injuring the part of the building to which they are attached.”

Another exception to the general rule enunciated in article 468 is declared in article 476, as follows:

“Art. 476. Materials arising from the demolition of a building, those which are collected for the purpose of raising a new building, are movables, until they have been made use of in raising a new building. But if the materials have been separated from the house or * * * edifice, only for the purpose of having it repaired or added to, and with the intention of replacing them, they preserve the nature of immovables, and are considered as such.”

From which it follows that, whilst old material intended for the service and improvement of the land in the reconstruction of an old building is immovable by destination, new material intended for the service and improvement of the land in the erection of a new building does not acquire that status until actually used in the building.

In Mackie v. Smith, 5 La. Ann. 717, 52 Am. Dec. 615 (as appears from the opinion handed down), it was held that mirrors which had been set in recesses cut 4% inches deep in the walls, and the removal of which would have left the recesses rough, unfinished, and at variance with the obvious design of the architect, constituted the permanent finish of so much of the walls, and hence were parts of the house. The court said:

“The plaintiff alleges and has shown that at a previous sale of the movable effects of the succession the mirrors were adjudicated to her, hut, as the knowledge of that fact is not brought home to the defendant, we have only to inquire whether, under article 459 [now article 468] of the Code, they had been attached permanently to the building by the deceased. If they were, the defendant [who purchased the house] acquired them.”

In Folger v. Kenner, 24 La. Ann. 436, it was held that an iron safe that had been built as part of the house had become immovable by destination, and that plaintiff had no more right to remove it than to remove “a mantelpiece from the drawing room.”

In L’Hote & Co. v. Fulham, 51 La. Ann. 780, 25 South. 655 (also considered in the opinion handed down), the sole question decided was that gas chandeliers and brackets had not become immovables by destination. The court, after reviewing the facts and conclusions stated and reached in Mackie v. Smith, said:

“The facts of the cited case were much stronger for the purchaser than are those of the present one. The mirrors as placed in the rough recesses made in the wall were practically embodied in and formed part of the building itself, and the court not only reached that conclusion, but also the conclusion that such had been the intention of Mr. Story, that he had not contemplated a removal of the mirrors from their assigned place, but fixed them there as a permanency. We do not think there is a fair parallelism between that case and the one at bar, either as to the intentions of the owner in placing the movables in the building, in the mode [in] which they were attached thereto, or their situation after they were so attached. Chandeliers and brackets, so far from being attached to gas pipes and to the walls of building's, with reference to their remaining there permanently, are prepared with direct reference to facility of detachment and removal. It is true that, when there are gas pipes connected with a building, and the occupants * * * desire to make use of the same, some means have to be resorted to to make use thereof, but chandeliers are not the only means of doing so, and when they are used they are so arranged as to be susceptible of easy change or alteration. Neither the chandeliers themselves, the pipes with which they are connected, nor the walls through which the pipes are passed are in the slightest degree injured by their removal. The only object for their attachment to the pipes to which they are joined is to enable them to be utilized for the time being, just as fastenings of various kinds have to be resorted to to hold different movable objects temporarily in position for present use.”

In considering the conclusion thus reached, however, we must assume that the chandeliers and brackets to which the court refers were’independent articles, having no connection with anything else that the owner had put into the house save the pipes, from which they could be unscrewed; whereas in the instant case those things, in so far as they were intended for the illumination of the house by the use of gas, were component parts of a plant established in the cellar of the house for the manufacture of gas, and, in so far as they were for the use of electricity, were accessories of the electric light plant established by the same owner in the nearby sugar house, and with reference to which he had established them in the house. Those plants were indisputably immovables, and it does not appear to us that it would be reasonable to hold that they can be dismembered and their utility destroyed by the withdrawal, on the ground that they are movables, of those parts through which, alone, they can render the service for which th'ey were established. As well might it be said that the cocks can be removed from the water pipes, or the steam and water gauges from the engine which supplies the house with heat, or that any other essential part of a plant the whole of which is an immovable can be converted into a movable merely because it can be unscrewed.

“The obligation of delivering the thing,” says the Civil Code, “includes the accessories and dependencies, without which it would be of no value or service, and likewise everything that has been designed to its perpetual use.” C. C. art. 2490.

The doctrine of the case of Receivership of the Augusta Sugar Co., 134 La. 971, 64 South. 870, is without application' here. The question there was whether a vendor could enforce his lien upon particular pieces of machinery which he was able to identify, but which had become immovable by destination, and which could not be withdrawn without disabling the sugar factory of which they had become parts. The majority of the court conceded that the machinery had become immovable by destination, but were of opinion that the right of the vendor to enforce his privilege was not thereby affected. The question here is, whether the vendor of immovable property, or those claiming under him, can recover from his vendee an essential part or accessory of that property on the ground that it was not included in the sale. Our conclusion is that he cannot.

It is therefore ordered that the decree heretofore entered in this case be reinstated and made the final decree of the court.

O’NIELL, J., dissents.  