Randolph v. Gwynne

In 1839, Hugh F. Randolph conveyed to William Gwynne a mill seat on Second River, in Essex county, and eight acres of land including the same, with two saw mills and other buildings thereon, for $15,000; of which G. paid $1500, and for the residue thereof gave R. a mortgage on the -premises, payable in instalments; about $6,000 of whichis now payable.

G. converted the buildings, by alterations and additions, into a paper mill; putting in the machinery proper for that purpose, and a new water wheel; the mill being made complete as a mill to be driven by the water power on the premises.

Several seasons previous to that of 1845 were so unusually dry that the water was not sufficient to drive the mills all the time. G. therefore placed a steam engine in the basement or *89cellar of one of the buildings, digging a hole in the ground, and laying a foundation of stone, brick and cement in the hole, large enough for the engine to rest upon; bolts or rods of iron being fastened in this foundation, in proper positions, and projecting above the upper surface of it far enough to pass through holes in the bed plate of the engine, when placed upon it, and receive nuts to screw the engine down. The power of the engine was applied directly to the driving wheel, so that the machinery of the mill moved precisely as if the wheel was turned by the water ; and the engine was used only to supply power when the water was deficient. In 1848, and perhaps in 1847, there was no deficiency of water ; and G., in the winter of 1848, made a contract to sell the engine, and was about removing it.

R. filed a bill for the foreclosure of his mortgage, a part of the money secured by it being payable and unpaid; and therein prayed an injunction restraining G. from removing the steam engine.

The injunction was granted by a Master, ex parte, and it is moved to dissolve it.

It is claimed on the part of the mortgagee that the engine, so placed, and for such purpose, became subject to the lien of his mortgage, and that G. has no right to remove it. I cannot think so. The mill is complete without it ; and except in dry-seasons, it is useless. It has no such connection with any of the machinery of the mill proper, or with the building, but that it may be removed without injury to either ; and it is easily re-moveable. I see no reason why such a machine or engine might not be hired by a mill owner for the exigency of a dry season, and placed upon the premises in any proper position, inside or outside of the mill, so as to apply its power to drive the machinery, until the rains should supply the water power in reference to which the nfill was built; and when the engine should be no longer wanted, it might be returned to the owner.

The injunction will be dissolved.

Order accordingly.