Kinnear v. Scenic Railways Co.

Citations

• 223 Pa. 390
• 72 A. 808
• 1909 Pa. LEXIS 547

Syllabus

<p>Trade fixtures — Landlord and tenant — Mortgage—Conflicting claims of lessee and mortgagee. *</p> <p>1. The intention which controls and determines whether or not a chattel is annexed and becomes a part of the realty is the intention the parties had at the time it was placed on the property.</p> <p>2. A corporation organized for the purpose of maintaining a park for the amusement of the public purchased land for the purpose of its organization, and gave a mortgage for the balance of the unpaid purchase money. Subsequent to the date of the mortgage the park company leased a small portion of the land, including a theater building, then in existence, to a lessee for the purpose of constructing thereon and operating a scenic railway. The consideration was a percentage of the gross receipts derived from the railway. The lease provided that the park company at its option might appoint a cashier to receive all moneys from the sale of tickets; that the plant was at all times to be subject to the inspection and approval of the park company, that the buildings and appliances were to revert to the park company upon the termination of the lease; and that the park company should have the right to buy the leasehold with all buildings and appliances erected and maintained thereon at the end of any park season during the term of the lease. The railway was duly constructed with uprights and supports imbedded in the earth to a distance below the frost line, and with platforms attached to the theater, which was used as a ticket office and a station. While the railway could be taken down and removed without serious injury to the materials, it appeared that the removal of such structures was of infrequent occurrence. After the railway had been operated for two seasons the holder of the mortgage foreclosed, and bought in the park company’s land. Held, that as between the purchaser at the foreclosure sale and the lessee, the railway was the property of the former, inasmuch as it was th