W. A. BROOKS, Appellant,
GEORGE B. McDEVITT, Appellee
APPEAL from a judgment of the Superior Court of the County of Mohave. D. A. Bridges, Judge. Judgment reversed and cause remanded for new trial.
Mr. Charles P. Elmer, for Appellant.
Mr. Louis L. Wallace and Mr. Carl D. Hammond, for Appellee.
[40 Ariz. 222] ROSS, J.
This is an action by George B. McDevitt against W. A. Brooks to recover damages for the [40 Ariz. 223] conversion of a dwelling-house, located on an unpatented mining claim situate in the village of Oatman, Mohave county. The defense to the action was that said dwelling was a fixture and belonged to the owner of the mining location. The case was tried to a jury, and resulted in a verdict in favor of plaintiff assessing his damages at $600. Judgment was entered for such sum. The defendant has appealed.
Omitting nonessential assignments and contentions, we will go directly to the heart of the case. If there is any dispute in the evidence on the issue of the character of the property as being personalty or realty, it is more apparent than real. It appears that in 1915 one George Skidmore had located the mining claim under the name of the Clara Bell Fraction. In November of 1915 he optioned this claim to one A. J. Moore, who agreed to organize a mining company to develop it and to give Skidmore 10,000 shares of the promotion stock in payment thereof, said stock to be delivered to Skidmore upon obtaining a permit to sell stock from the Arizona Corporation Commission. This sale was never consummated. Plaintiff, as the associate and representative of Moore, entered into the possession of the mine, and, in February thereafter, with the consent of Moore and subsequently of the Oatman Rand Mining Company, the company organized to develop the mine, proceeded to build a two-room house thereon (to which three or four additions were later made), with the understanding that it should remain the personal property of plaintiff.
On January 5, 1916, Skidmore gave written consent to plaintiff to construct a building on the claim, and authorized him to sell surface rights and to use what he realized from sales in purchasing lumber for such building, with the understanding that, if Moore, or his assigns, failed to complete the purchase of the mine, the agreement would have the [40 Ariz. 224] effect of a bill of sale of the building placed upon the mine. The evidence is that the dwelling in question was not constructed of lumber purchased with the proceeds
of sales of the surface grounds, but was wholly paid for by plaintiff. The building was a frame dwelling with a tin roof. The walls consisted of 1x12 boards nailed upon 2x4's. It was on a very steep hillside, and the flooring joists on the upper side rested on the ground. The lower side was built up with rocks and earth to keep the wind from blowing under the floor. The building was not attached to the soil by cement or otherwise than indicated. It was occupied from April of 1916 on by plaintiff and his family, most of the time, and, when not so occupied, was used by plaintiff's mine employees.
In January of 1919 defendant Brooks bought the building from Skidmore, the locator of the Clara Bell Fraction mining claim, for $50, and received from the latter as evidence of his title a bill of sale. And along about that time, and while plaintiff and family were absent, defendant entered the building and took possession. But later on plaintiff regained possession and held it until about March 1, 1930, when defendant repossessed it and has since occupied and claimed the building. The dwelling was assessed to plaintiff as personalty, and he paid the taxes thereon every year up to the time he was dispossessed by defendant.
The annual representation work for 1918 was not performed, and on January 1, 1919, defendant, Brooks, located the claim.
We think under this evidence it was proper for the court to submit to the jury the determination of the question as to whether the dwelling-house was personal property belonging to the plaintiff or a fixture belonging to the owner of the soil. Defendant does not question the submission of that issue to the [40 Ariz. 225] jury, but complains of one of the court's instructions on the point, reading as follows:
"You are instructed that if you find from the evidence that the building in question in this suit was built and constructed by plaintiff McDevitt at his own costs and expense upon the Clarabell Fraction with the understanding and intention that it should be and remain the personal ...