INTERSTATE TRUST & BANKING CO. v. WARREN et al.

INTERSTATE TRUST & BANKING CO. v. WARREN et al. No. 7053. Circuit Court of Appeals, Fifth Circuit. Feb. 23 1934. . Claiboume M. Phipps, of Tampa, Fla., and W. F. Marcus, of New Orleans, La., for appellant. M. G. Gibbons, Melvdle Gunhy Gibbons, and Wm. H. Jackson, all of Tampa, Fla.,' for appellees. Before BRYAN, SIBLEY, and HUTCH-ESON, Circuit Judges, [MAJORITY — BRYAN, Circuit Judge,] BRYAN, Circuit Judge, Tbis ig a bill to foreelose a ebattel mort. gag0 Qn a sprinHer system stalled in a buildillg upon leased ground. It was brought agaánat tbe owners -of tbe realty and a subsequent mortgagee, alleged that “a large part of the pipes or supply lines for such sprinkler system is concealed within the ceilings or between the walls and the plastering in said budding but that all or the greater part of the said system can be removed without injuring the said building to such an extent that it cannot be replaced after the removal of said system in a condition as good as it would have been if the system had not been . , „ •, . X ., , ¿ installed”; and prayed for its removal and delivery to the purchaser in the event of a foreclosure sale, conditioned upon the restoration of the building to as good condition as ^ 'w’as ™ Pri°r to removal. The lease contained provisions to the effect that the lessee should not create a lien on the premises, and that all improvements placed thereon should become a part of the freehold. The bill was dismissed on motion of the defendants; and the complainant appeals, Holt Henley 232 U. S. 637, 34 S. Ct. 459, 58 L. Ed. 767, removal wag permit. ted of a sprinkler system which was attached by bolts and screws, but which it was held could be taken out substantial darn-aSe to the budding, the court sa3ung the rem0#vaJ ^ n0^ integrity of the budding. In Detroit Steel Cooperage Co. v. Sistersville Brewmg Co., 233 U. S. 712, 34 S. Ct. 753, 58 L. Ed. 1166, tanks installed in a brewery and placed in a recess which was bricked up were likewise permitted to be . ¿ ± removed, the court saying that only trifling , ’ J b,, , ? damage would be done to the building; but ., ° „ it was there recognized that the right of removal would not exist where the damage to the budding would be substantial. In this ease the sprinkler system, or at least a “large part” of it, is concealed and cannot be removed without causing really serious and substantial injury and damage to the plaster, walls, and cedings or floors of the budding. The bdl itself concedes that the removal of some parts of the system might result in dam- ' £ba£ could not be repaired. In our opinion sucb part or parts of it m were budt into the became a part of the freehold, and appellant has no right to have them taken out. There may be tanks or minor parts, such as nozzles, which can be removed with no appreciable or only trifling resulting damage; if so, appellant should be allowed the right to assert a lien upon them. The decree of the district court is modified so as to be without prejudice to that right. As so modified, the decree is affirmed.