I dissent. It seems to me that the dredge in question here is personal property as a matter of law, and that there is no room for a finding that it is real estate.
I agree with my associates that there is but one question involved in the case, and that is, Is the dredge real or personal property? That issue should have been met squarely by this court on the prior appeal of the case between the same parties, reported in 99 Mont. 347, 42 P.2d 1003. If it was and is personal property, then plaintiff had the right to remove it at the time of the prior action, and has that right now. If it were and be real estate, it had not the right to remove it then, and has not that right now.
I agree with the law announced by my associates to the effect that section 6670, Revised Codes, creates a rebuttable presumption that mining machinery, used in working mining property, becomes affixed to the realty and becomes a part thereof. I think, however, that the presumption that the machinery here was a part of the real estate is conclusively overcome by the evidence when the relationship of the parties is considered. Section 6670 simply makes the dredging boat a fixture, though not in fact attached to the realty. Section 6825 then provides, in effect, that the tenant may remove the fixture when it is affixed for the purpose of trade, manufacture, or domestic use, and where the removal can be effected without injury to the premises.
"As between landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession." (Wiggins Ferry Co. v. Ohio M.R. Co.,142 U.S. 396, 12 Sup. Ct. 188, 194, 35 L. Ed. 1055, quoted approvingly in Helena etc. Co. v. Northern Pacific Ry. Co.,62 Mont. 281, 205 P. 224, 228, 21 A.L.R. 1080; to the same effect see 26 C.J. 695.)
The effect of section 6670 is by legislative fiat to constitute all mining machinery, used in working a mine, fixtures. It is to be treated as if actually affixed to the realty. But, as between *Page 179 landlord and tenant, many fixtures are removable. (CompareMerritt Bourne v. Judd Byrne, 14 Cal. 59, 60; Alberson v. Elk Creek Min. Co., 39 Or. 552, 65 P. 978; Gasaway v.Thomas, 56 Wash. 77, 105 P. 168, 20 Ann. Cas. 1337.) I think the dredge boat retained its character as personalty, and that the tenant has the right of removal under section 6825.
My associates seem to relegate section 6825 into the discard. The reasoning by which they accomplish this result is fallacious, and so much so that able counsel for the landlord did not even suggest it. They say that section 6825 is a general statute and section 6670 a special one, and that the latter and not the former is controlling. True, section 6825 relates to all tenancies, while section 6670 relates only to mining property. But section 6670, instead of being special, is general in the sense that it covers all machinery used in developing mining property, regardless of the relationship between the person using the machinery and the owner of the real estate. It covers all mining property, regardless of the relationship of the parties. Section 6825, though general as to all tenancies, is yet special in the sense that it deals only with the relationship of landlord and tenant, and covers no other relationships.
Section 6670 is not special in the sense that it establishes a different rule from that declared in section 6825, when the relationship between the party using machinery in working a mine and the owner of the real estate is that of tenant and landlord. There is no repugnancy between the two sections so as to make applicable the rule announced in State ex rel. Daly v.Dryburgh, 62 Mont. 36, 203 P. 508, and other cases of like import, which commands that a special law will prevail over a general one; but if so, then section 6825 should be held the special law dealing specially with the relation of landlord and tenant. I think, however, the two sections should be read together and, when this is done, both can be given effect. There is no conflict between them.
To hold, as do the majority, that section 6825 has no controlling force under the facts here, is to overrule the holding in Helena etc. Co. v. Northern Pacific Ry. Co., supra. In the *Page 180 last-cited case reference was made to what is now section 6825, and the court was careful in holding that the relationship of landlord and tenant did not exist between the parties involved. It said: "The facts alleged preclude the notion that they bore toward each other the relation of landlord and tenant. Even so, it does not follow as a matter of law, that the tracks were trade fixtures, and subject to removal by the defendants as such. Whether they were or not depends upon the relation existing between the parties, at the time the tracks were laid and their intention with respect to them." If section 6825 has no force, when applied to a mining tenant, then there was no occasion in the case just cited to discuss the question as to whether that relationship existed between the parties at the time the tracks were laid. As I read the majority opinion, the fact that the relationship of the parties was that of landlord and tenant is not a circumstance longer to be considered in determining the intention of the parties with respect to fixtures placed upon mining property. In this, I think my associates are in error. I think section 6825 is applicable here, and that under it plaintiff has the right to remove the dredge.
Moreover, I think the contract of lease between the parties demonstrates on its face that it was never the intention of the parties that the dredge boat should become a part of the real estate so as to transfer ownership to the landlord. If it were intended to become real estate, then, instead of the tenant assuming the obligation to operate the dredge for a period of ten years, he would have reserved the right and privilege so to do.
If the landlord supposed that the dredge property was to belong to him, after being placed on the mining property, then is it not strikingly strange that the parties did not concern themselves, at the time of contracting, with the question as to whether the tenant was the owner of the machinery before placing it on the mining property? That this is a vital matter is plain. (See 26 C.J. 671, and Eisenhauer v. Quinn, 36 Mont. 368,93 P. 38, 14 L.R.A. (n.s.) 435, 122 Am. St. Rep. 370.) And if the landlord intended at the time of contracting that all *Page 181 machinery used by the lessee in working the property was to become a part of the real estate and belong to the landlord, is it likely that he would contract without specifying anything, as here, as to the size or value of the dredging machinery, or whether it was free from encumbrances? I think not.
The written contract indicates clearly that the only question concerning which the landlord was interested was in having his property worked by the dredging machine. He was contracting for the use, and not for the construction, of a dredging outfit. He was not interested in enhancing the value of his real estate to the extent of twelve or fifteen thousand dollars — which is shown here to be the present value of the dredge boat — and which would inure to the benefit of the Federal Land Bank of Spokane, the holder of a mortgage on the real estate, if in fact it became a part of the real estate. And clearly the tenant never intended that it should become real estate and its ownership therein forfeited the moment the machinery was placed on the mining property.
Defendant offered to show that when the contract was entered into between him and Nelson Story, plaintiff's predecessor in interest, Story informed him "that when he quit dredging the Homer Wilson property that he, Homer Wilson, could have the dredge for a chicken coop." This offered testimony, if admitted, would have tended to show that it was not the intention of the parties that the dredge should become the property of the landlord as soon as it was placed upon the mining property. The lessee under this offered testimony assumed to exercise ownership over it during the dredging operations. This negatives any intention that the dredge should belong to the landlord as soon as placed upon the property.
Defendant also offered to show that he relied upon the above statement and would not have entered into the contract except for the statement. This offered testimony, when considered as an additional consideration for the contract, was inadmissible as varying or adding to the terms of a written contract. (Sec. 10517, Rev. Codes; Webber v. Killorn, 66 Mont. 130,212 P. 852; Burnett v. Burnett, 68 Mont. 546, 219 P. 831.) So far *Page 182 as it was admissible to prove the intention of the parties as to whether the dredge retained its character as personalty, it was more beneficial to plaintiff than defendant. So that, even if the offered evidence should have been received as evidence of the intention of the parties, I am of the opinion that there is room for but one reasonable conclusion by reasonable men, and that is that the machinery retained its character as personalty and belongs to plaintiff.
Believing, as I do, that if the jury would find the dredge to be real property, with ownership in defendant, we could not sustain its finding on the undisputed facts, together with the evidence which was offered and refused, I think the court properly granted the motion for directed verdict, and that the judgment should be affirmed.