concurring in part and dissenting in part.
I concur in parts II and III of the Court’s opinion, but dissent as to part I.
I believe the majority opinion errs in part I wherein it fails to distinguish between the various portions of the irrigation system, but rather reasons as a matter of law that the entire system was a fixture and therefore Rayl was not entitled to remove any part thereof when he was ordered to vacate the property. As acknowledged by the majority, Rayl owned a two-thirds interest in the irrigation system. The trial court ruled that the “pivot irrigation systems complete” were not fixtures. In my view, that ruling is ambiguous, to the extent that it cannot be determined whether the ruling encompasses only the pivots which, by their nature and design, were mobile and moved across the land in a circular manner being attached at one end or whether the ruling intended to encompass also the underground piping and electrical systems which delivered the water and power to the pivots. If the ruling of the trial court was meant to encompass not only the pivots but the underground portion of the system, then I believe the trial court erred.
In my view, the irrigation pivots were, by their nature and design, personalty rather than fixtures. They were designed to be and were in fact mobile. Utilizing the approach of the majority, one could as well argue that a portable carousel or ferris wheel is a fixture, which would engender considerable surprise to operators of portable carnivals.
I agree that the cause must be remanded in accordance with the majority’s disposition of parts II and III. As to part I, I would remand that portion of the cause to the trial court for a determination of that portion of the irrigation system which actually constituted-a fixture, excluding therefrom the actual irrigation pivots. In my view, Rayl had the right to remove the actual irrigation pivots, and the trial court was correct in attempting to determine the value of Shull’s interest (one-third) in those pivots. The trial court utilized the systems value of $36,100 before its removal from the property and the value at $18,600 following the removal. Thereafter, the trial court awarded Shull one-third of the $36,-100, or $12,033. In my view, the trial court erred and Shull was entitled to an award of only one-third of the $18,600, or $6,200. Obviously, Shull should therefore be awarded the value of that portion of the irrigation system which constituted a fixture to the property.
ON PETITION- FOR REHEARING
A petition for rehearing in the above entitled action having been granted' and the cause reargued, the Court has reviewed the record and considered the arguments presented by counsel. Chief Justice Donaldson and Justices Bakes and Huntley continue to adhere to the views expressed and the conclusion heretofore reached in its 1984 Opinion No. 95; issued July 25, 1984. Justice Shepard continues to adhere to the views formerly expressed in his separate opinion.
Justice Bistline no longer joins the opinion of the Court, but separately dissents.