Bircher v. Parker

delivered the opinion of the court.

The defendant held over after the time for which the premises were originally let, but the holding was with the consent of the landlord, and was therefore a tenancy from *120year to year, upon the same terms and conditions as those contained in the lease; and whatever erections he made while in possession of the premises, for the more beneficial enjoyment of the same, he had a right to remove before the expiration of the term, provided they could be severed without material injury to the freehold. As between landlord and tenant, the rule in regard to the removal of fixtures is most liberally construed in favor of the latter. As the landlord pays nothing for the improvements put up by the tenant, policy and justice demand that the tenant should be allowed to remove the additions or improvements unless the removal would operate to the prejudice of the inheritance, by leaving it in a worse condition than when he took possession. The evidence discloses the fact that the buildings could have been detached and severed without any serious injury to the realty, and that the damage to the wall of the permanent house in consequence of the severance could have been repaired at a trifling or nominal expense. And the right of the tenant to remove fixtures has been decided in many cases of the highest authority, where the facts were not stronger in his favor than in this case—Van Ness v. Packard, 2 Pet. 137; Wall v. Hinds, 4 Gray, 256; Holmes v. Tremper, 20 Johns, 29; Ombury v. Jones, 19 N. Y. 234; King v. Wilcomb, 7 Barb. 263; Dubois v. Kelly, 10 Barb. 496; Kelsey v. Durkee, 33 Barb. 410.

The tenant here loft the possession of the premises without removing the fixtures, but this cannot redound to the benefit of the landlord. Before the time expired to terminate the tenancy the landlord sued out an injunction, and the tenant was prevented by this interference from making the removal. Under such circumstances it would be wrong to allow the landlord to raise the objection, and thus deríve a direct benefit from his own tortious act — Mason v. Fenn, 13 Ills. 529.

Immediately upon the dissolution of the injunction the court proceeded to assess the damages, and awarded judgment in favor of the defendant for what the erections would be worth when taken down; that is, their value as old mate*121rials. The statute provides that upon a dissolution of an injunction, in whole or in part, damages shall be assessed; but those damages have never been considered any other than such as arise out of the injunction proceeding itself. Thus, destruction of the property by fire whilst the injunction is pending (as in Kennedy’s adm’r v. Hammond), expenses of the litigation, or any other loss or injury which the party has suffered by reason of the injunction, may be taken into the estimate in making the assessment of damages.

But the injunction does not change the title to the property, nor make the party suing it out liable as for a conversion. When the injunction was dissolved, the tenant still had a reasonable time within which to remove the property; and if he was obstructed by the landlord, a right of action would then accrue for the value of the materials. But in the first instance the landlord had the clear and undeniable right, after the determination of the character of the property, to elect to give up, instead of paying the money for it.

The court committed error in the assessment of damages, and its judgment is reversed and the cause remanded.

Motion for rehearing overruled.