My reason for concurring in the decree, affirming the judgment of the civil district court, is that it would seem anomalous if we should maintain that the office fixtures, shelving, mezzanine floor, and other so-called betterments and improvements placed by the lessee in the leased premises became immovable by nature, and yet remained the property of the lessee. The valued policy law (Act No. 135 of 1900), according to its very terms, applies only to property "immovable by nature." The plaintiff, here, demanded payment of the full amount stated in the face of the policy, $2,000, not on the theory that the so-called betterments and improvements were worth $2,000, but upon the theory that the so-called betterments and improvements were "immovable by nature," and were therefore covered by the valued policy law.
Some of these betterments and improvements, probably, were so incorporated into the building as to be a component part of it — and hence a part of an immovable by nature. But such parts of the betterments and improvements as were so incorporated into the building as to form a part of it were a part of *Page 513 the immovable by nature, which belonged to the lessor, and therefore did not belong to the lessee. Other parts of the betterments and improvements that were insured as the property of the lessee were, probably, not incorporated into the building so as to be a component part of it; and such parts of the betterments and improvements would have continued to belong to the lessee, but for the stipulation to the contrary in the contract of lease. But such of the betterments and improvements as would have remained the property of the lessee but for the stipulation to the contrary in the contract of lease did not become immovable by nature, or a part of an immovable by nature, and therefore were not covered by the valued policy law.
The betterments and improvements which the lessee in this instance placed in the leased property, and which were insured by the defendant in this case, as the property of the lessee, did not become "immovable by destination," because it is only such betterments and improvements as the owner of the building has attached permanently to the building that become "immovable by destination," according to articles 468 and 469 of the Civil Code.
The test by which we should determine whether any particular article among the betterments and improvements became a part of the building, and thereby lost its identity as a movable, is the test by which we determine whether a seller of such property as machinery or material, to form a part of a building or manufacturing establishment, has lost the vendor's lien, by reason of his property's having lost its identity as a movable, and having become a part of the immovable by *Page 514 nature. If an article of machinery, or other betterment or improvement, which has been sold to the owner of the immovable by nature, and placed by him upon or in the immovable by nature, the article retains its character as a movable quo ad the seller, until the price is paid, and is subject to the seller's lien, if the article sold has not lost its identity by being incorporated into the immovable by nature, and if it can be removed so as to leave the immovable property in the same condition that it would have been if the movable article had never been placed upon or in it. But, if the movable article so sold has become so incorporated into the immovable by nature as to lose its identity as a movable, and as to become a component part of the immovable by nature, such as building material, it has ceased to be movable property, even as to the seller, and his lien is thereby lost. The same test — the same principle — is applicable to this case. Those parts of the betterments and improvements in question which did not become a part of the building continued to be movable property, and were not covered by the valued policy law; and those parts of the betterments and improvements that did become a part of the immovable by nature ceased to be the property of the insured.
As a matter of fact, according to the clause in the contract of lease, the lessee was not the owner of the betterments and improvements that were insured by the defendant, but had only the one element of ownership — the use of these betterments until the termination of the lease. The judgment appealed from, therefore, is correct, in that it gives the insured the full value of his interest in the property insured. *Page 515
It is true that the insurance company did not plead a violation of the clause in the policy requiring the insured to be the unconditional owner of the property; but that plea was not necessary. The issue arose, incidentally and necessarily, from the plaintiff's invoking the valued policy law, which is applicable only to property "immovable by nature." The property covered by the policy on which the plaintiff sued could not have been immovable property without being the property of the lessor; because the only theory on which the property covered by the policy of insurance on which this suit is brought could have been deemed "immovable by nature" was that it formed a component part of the leased building, which, of course, did not belong to the plaintiff.
These reasons, on which I base my concurrence in the decree rendered in this case, were developed by the argument on rehearing, and especially by the briefs of the amicus curiæ.