dissenting.
The petition for rehearing emphatically stated:
What the opinion of this Court basically comes down to is that every irrigation system installed upon a farm becomes a “fixture.” In Idaho we no longer consider the relationship of the claiming parties, the relative difficulty of removal, or the nature of the article annexed .... Nor do we consider the previous rulings of this court. See, Duff v. Draper, 98 Idaho 379 [565 P.2d 572] (1977).
Yielding to the admonition of that paragraph, Duff has been revisited, but only after searching our majority opinion to *532ascertain what use we there made of it — a search in vain. The first noteworthy aspect of Duff is that it was a unanimous opinion, and a second prime attribute is that it was authored by the same justice whose persuasion or writing style in this case has produced an opinion for the Court that a farm sprinkling system automatically became part of the realty on which it was installed to sprinkle. When I read in Duff that we unanimously held otherwise, I blush in mortification. Compounding the error in our ways, it further appears that we applied Beebe v. Pioneer Bank & Trust Co., 34 Idaho 385, 201 P. 717 (1921) to go one way, but, a few years later, we now apply the same case to go another. This flagrant insult to the science of jurisprudence causes me to repeat an appropriate statement made by an attorney who shall go unnamed:
The most intolerable evil, however, under which we have lived for the past twenty-five years, has been the changing and shifting character of our judicial decisions, by which we have been deprived of the inestimable benefit of judicial precedents as a safeguard to our rights of person and property.
The trial court’s findings in Duff supra, excerpted directly from the Clerk’s Record, were succinct, not elaborate:
In the late spring of 1968 Goff contacted defendant Draper who was in the irrigation equipment business. The purpose was to obtain a sprinkler irrigation system for his lands which had been renovated from gravity irrigation to sprinkler irrigation.
The pump was attached to a fixture by bolts, and the outlet pipe was attached to the pump by bolts. The lateral lines and their component parts were portable. None of the equipment in question was sufficiently attached to the land, as to become a part of it and thereby lose its character as personalty. The equipment was not specifically designed for Goff's land but could be used on other land and could be obtained by sample or catalog number. R., pp. 111-12 (emphasis added).
Scanty as those findings were, they were the findings of the trier of fact, they were adequate, and were upheld in an equally scanty Supreme Court opinion:
The equipment in question consisted of an irrigation pump and “hand” or “lateral” irrigation lines. The pump sat on a concrete foundation embedded in the ground. It was attached to the foundation by bolts and could be removed from it by loosening the bolts and by removing its coupling with an irrigation line. The “hand” or “lateral” lines were above ground lines which could be removed from the property by uncoupling them from the sub-surface lines which supplied water to them. Given these facts, there was evidence from which the district court could conclude that these pieces of equipment were not fixtures attached to the realty and had retained their character as personalty and we uphold that finding. See Beebe v. Pioneer Bank & Trust Co., 34 Idaho 385, 201 P. 717 (1921); Boise-Payette Lumber Co. v. McCornick, 32 Idaho 462, 186 P. 252 (1919). Cf. I.C. § 55-101; I.C. § 28-9-313. Duff, supra, [98 Idaho] at 381-82, 565 P.2d at 574-75 (emphasis added).
In holding that the irrigation system was personalty, the Court ruled against a strong argument made by the brief of the land owner’s trustee in bankruptcy, the argument of which was largely predicated upon Beebe, and its three tests. The trial court judgment which the Court reverses today is- virtually indistinguishable from Duff supra. To say that is not to say that the Court’s opinions in the two cases are not readily distinguishable. In Duff the factual findings of the trial court were set forth for public view, and declared to substantiate the ultimate factual finding that the sprinkling system was and remained personalty.
In this case the Court’s opinion states at one place that the trial court found “that the irrigation systyem was not a fixture”— and nothing more at that point — implying *533or at least leaving the impression that the trial judge was totally unaware of the Duff case — which less than six years earlier had been decided by another district judge in the same district.1
The findings of the trial court here are found to go beyond the extent implied by the majority. There were some additional findings which, in addition to knowing the law as previously announced by this Court, obviously influenced the trial court’s ultimate findings. Perhaps, in this extremely complicated case, it would be well to isolate the findings pertinent to the irrigation sprinkling system:
1. Shull Enterprises, Inc., is a closely-held family corporation owned by the children, grandchildren and great-grandchild of Nora Rayl, Bill Rayl is a grandchild of Nora Rayl and the son of Laura Lee Rayl Smith. Both Bill Rayl and Jack R. Smith are stockholders of Shull Enterprises, Inc.
2. On February 9, 1970, Rayle entered into a written farm lease on the property involved in this lawsuit, which will be referred to as the “Hollister Farm”, with the said written lease to run from the 9th day of February, 1970, until the 31st day of December, 1974____
5. Rayl admitted that he was served with a written notice terminating his lease on January 6, 1981, and that he was served on January 12, 1981, with a second written notice to vacate the premises on February 15, 1981 (Exhibit 26).
16. The parties bought the first pivot sprinkling system in 1974. It was agreed that the parties would pay in the same proportion as they received the income, Rayl two-thirds, Shull one-third. The same division was used on the 1976 pivot.
17. Although the parties had always recognized the interest of each in the two pivot systems, they never set up a system for reimbursement or for depreciation.
20. After Shull determined in November, 1980, not to renew Rayl’s lease, the directors agreed that Shull should buy out Rayl’s two-thirds interest in the pivot systems. However, as referred to in Finding 19, they didn’t know what the values were. The net result was that when Rayl was ordered with his property to vacate the premises he still owned two-thirds of the two pivot systems. R., pp. 58-62.
Where the two purchasers of the systems, Bill Rayl and Shull Enterprises, are in absolute agreement that after installation they own the systems together — which systems are located on corporate realty — this in and of itself would seem to conclusively establish a lack of any intent on the part of the two participants that the installation was intended as a permanent annexation. I had always thought that on an annexation of personalty to realty, the owner of the fee in the realty became eo instante the owner of that which was annexed — all one property. The ultimate finding of fact, which, as I mention from time to time, is often called a conclusion of law, was so here called by the trial court, and was:
1. The pivot irrigation systems complete were not fixtures legally attached to the realty and instead had retained their character of personalty.
Predicated on that ultimate fact, the trial court proceeded in Conclusion of Law No. 2 to add that, “The removal of the sprinkler systems by Rayl was justified and lawful and did not constitute either conversion or waste.”
In Shull’s post-judgment motion to amend the findings and conclusions, Shull sought the removal of Conclusions 1 and 2 above, and requested a substitution as follows:
*5341. The pivot irrigation system complete was a fixture legally attached to the realty.
2. The removal of the sprinkler system was not justified and did constitute waste.
The motion set forth no grounds or reasons for so altering Conclusion No. 1, which rather strongly suggests that all counsel were of a view that this Conclusion No. 1, more aptly a finding of ultimate fact, was, as in a trial to a jury, simply a factual determination.
In arguing the motion, counsel for Shull realized that the factual determination had been made, mildly expressed dissatisfaction with it, but did not suggest that evidence did not support it:
The second issue, of course, is the sprinkler; and that is a little more complex. And we are simply asking the court to consider a matter that we felt deserved consideration and a matter that proof really was offered on, although we, if the court remembers — I don’t want to mislead the court. We in our trial and in our brief that was submitted after the trial took the position that there was a ■conversion of this property and that the sprinkler system was a fixture and part of the land. And the court, of course, found that that was not the case and found that it was personal property and, I think, relied on a particular Idaho case that I am familiar with in that finding. And while I really respectfully disagree with the findings at least with respect to the buried pipeline and those things that were set in cement and firmly fixed, I am not arguing that point for now.
What I am suggesting, however, is this, Your Honor, and that is that the court found that the value of that sprinkler system in place while owned by Bill Rayl two-thirds and my client one-third had a value of 36,100; that after its removal the value was 18,600. Well, that left the value lost in destroying that installation at 17,500. Now, the court knows that the proof was undisputed that the new systems cost $75,128; and the installation value of that was $28,-830. And our point is simply this, Your Honor: I think that it is — it was well demonstrated during the trial that, and not disputed, that when Mr. Rayl put on the sprinkler systems during the time he was in tenancy and when he paid two-thirds and the defendant — or our client one-third that he took out and literally destroyed all checks and all ditches and all means of irrigating that by gravity flow. And it was obvious that there was no intention then or at any time that that system would be removed.
And I might also call the court’s attention to the notice that was sent to him notifying him of the termination of his tenancy which contained a statement to him that our client, Shull Enterprises, was prepared to pay for his interest in that sprinkler system. And frankly, and I think there was testimony to the effect that they were prepared to pay $40,000, which was substantially more than the system was worth. But we recognized too that by his taking it off we had to replace it, and it was going to be even more expensive than that. But in disregard with that and with no opportunity to even discuss that, he just ripped it out.
And what we are suggesting that the court — if the court finds that it is personal property, which you have, that the proper way to value the damage to Shull would be to look at the cost of installation as well that they had to incur as a result of what we think is an improper and an unjustified act in digging up that main line and tearing out those installations. And what the arithmetic we went through is that the cost of that installation was $28,230; that Rayl owned two-thirds of the 17,500, which was the installation value of the system he removed, just using the arithmetic, the value after — or before removed less the value after removed gives you what the installation costs would be. And then giving him credit for that, which would be $11,-666.67, and that the net cost of replacement, then, of that installation would be *535$17,163.33. And then suggest, then, taking the value of the pivots after removed and considering that Rayl — or that Shull Enterprises had a one-third interest in that, which would be $6200, using the 18,600 value after removal, and you add the two together and you come, for a total damage on that of $23,366.33.
And I simply respectfully submit, Your Honor, that this would put our client more nearly in the position he should have occupied; but to give him less than that and apply — and totally disregard the cost of installation and the fact that it was not intended that those be removed leaves our client through no fault of its own in a position of suffering damage that he is not — or it is not being compensated for.
Now, again, I have set this forth in our motion, Your Honor, and also in our brief; and we have also done the calculations in those. And I would respectfully request, Your Honor, that the court give consideration to that approach, which doesn’t do damage and it doesn’t question the decision the court made as treating it as personal property.
There is in my mind a large question as to whether counsel can move the court to substitute one conclusion for another (one ultimate fact for another), and then, after abandoning the proposition in argument before the trial court, then raise and argue it for the first time on appeal. That is precisely what has happened. But it would also seem to be unneedful of determination where, as here, the evidence, albeit it may have been capable of one or more interpretations, does support the findings of the true finder of facts — a truism often declared and applied by Justice Bakes, and by him applied in Duff v. Draper, with four justices joining his opinion.
Returning to my distinctions between the facts of this case and Duff v. Draper, in the latter the owner of the land had no investment in the sprinkling system. Here, if I have it correctly, from the majority opinion, Shull Enterprises owned % of the sprinkling system, and Bill Rayl was one of the corporate stockholders — all of whom were related. Bill Rayl owned % of the sprinkling system — outright. That division of purchase price flowed from the */*-% share cropping lease.
The ownership is conceded, and equally conceded is the fact that Shull Enterprises full well recognized that they were obligated to pay for Bill Rayl’s two-thirds ownership if they wanted to keep the system. But Shull did not do it, and as one of two parties owning personally as tenants-in-common, and having the larger interest, Bill Rayl took the system with him when his lease was up after the family corporation obtained an eviction order against him. Most, if not all, share-cropping tenants take their equipment with them when they leave. Nothing in the record supports any contention that the two systems would not work on two other parcels of land capable of being sprinkler irrigated.
Moreover, counsel for Shull, with commendable candor, in telling us at oral argument on rehearing that our first opinion was a proper application of the Beebe test, third criterion, i.e. purpose, added, “That’s not to say that they couldn’t be removed and installed somewhere else for the same purpose.” That counsel went on to add, “But the fact of the matter is they were purchased for use on this particular property,” adds or subtracts nothing.
After all, Bill Rayl was a tenant. A decision was made just as it was in Duff v. Draper to move away from gravity irrigation to pump-powered sprinkling. In this case, moreover, the landlord, Shull, participated in this decision, a decision involving a large amount of money. Moreover, Shull recognized its obligation to purchase Rayl’s ownership interest if Shull wanted to keep it. Bear in mind that under the law of fixtures, if annexation be the sole or main concern, under the majority view Shull as owner of the real property, automatically became the owner of the sprinkling system. Yet Shull conceded otherwise, throwing a vast illumination on the question of intent.
It is true, as counsel for Shull argued, that the systems that were purchased and *536installed were designed and sufficient for the particular lands Rayl was farming as share-cropper. Of course they were. It is seriously doubted that Rayl or any one else in his right mind could involve himself and his landlord in acquiring a system for some other farm. Nor would the average farmer purchase a system too large, or one too small, for the particular job.
Basically what the trial bench and bar will see here is that an esteemed trial judge faithfully applied this Court’s views espoused in Duff v. Draper, only to find himself reversed by reason of having done so. That the trial court applied Duff v. Draper is apparent from the remarks of counsel for Shull at arguing the motion to alter the findings and conclusions. Moreover, after not deigning the opportunity to distinguish for the trial court the facts of this case from Duff v. Draper, counsel for Shull reserved that effort for this Court. The distinction drawn, while it may or may not have convinced the majority, at least engendered enough energy to ignore the trial court findings and fabricate a new set. At any rate, the effort at distinction was made, but it does not appear in the Court’s opinion, as equally glaring as no mention of Duff v. Draper. The distinction, beginning at page 48 of appellant’s brief, is this:
The irrigation system in Duff v. Draper, 98 Idaho 379, 565 P.2d 572 (1977), was somewhat different from the system in the case at bar. The system in the Duff case consisted of a pump bolted to a pad, a buried or sub-surface main line and hand lines or lateral lines which were merely coupled into the main line. The hand lines were not bolted onto the main line nor were they operated by a series of electrical switches and motors. The pivot system in the case at bar consisted of the pump, and electrical panel, buried main lines, buried electrical lines from the electrical panel which operated the switches and motors that activated the panels and connected to the electric switch panel by the buried electrical lines as well as the buried main lines. In the Duff case, the land was irrigated by uncoupling the hand lines and moving them by hand to a new location each set. In the case at bar, the pivot was not unbolted or uncoupled at all. The electric switches were activated and the electricity went through the buried electrical lines to activate the pivot system which then moved around in a circle to irrigate the land. In the Duff case, the hand lines, which were designed to be uncoupled by hand for easy movement, were removed and the pump was removed. The buried main line was left intact. There was no buried electrical lines connecting the hand lines to any electrical panel, nor were the hand lines bolted down. The system could not be treated as one unit, as it should be in this case.
It should be noted that this court did not hold that a pump which is bolted down could not be a fixture. It merely held that under the facts of that particular case, evidence introduced supported '' the district court’s finding that the pump had not become a fixture.
(Appellant’s Brief, pp. 49-50).
Where this Court designedly did not adopt Shull’s distinguishing of this case from Duff v. Draper, then at the least, as a matter of downward judicial courtesy, it should at least explain to the district court the manner in which Duff v. Draper was misapplied. Instead, so it would seem, it was easier to factually redecide the case. Even that endeavor was not well done. Whereas clearly stated findings of fact are required of lower courts, that rule apparently has no application where the findings are made at this level.
For the most part, the redetermination of facts was not done by “findings,” but rather by “indications.” Hence, “various officers of the corporation indicated that the corporation intended to pay Rayl for his contribution (not share of ownership) to the system____” “Other testimony indicated the possibility that the corporation had chosen not to conduct a cost reimbursement program ...” And, importantly, and an outrage to the district judge, “There is no *537indication that the trial court considered any of the three tests normally applied in situations such as these to determine whether a particular object had become a fixture.”
Having established by indication, or lack thereof, the true facts of the matter, the majority opinion declares that: “This case is one of that type wherein the facts are so clear that only one result could be reached; thus we can determine as a matter of law that the irrigation system under consideration here was a fixture.” In getting to “that type of case” the majority necessarily is obliged to ignore the intentions of the parties in purchasing and installing the system. This is handled nicely by resorting to Beebe, and as it quoted from Boise-Payette Lumber Co. v. McCormick, by striking therefrom the word “strictly.” Beebe is thus made to read: “The inquiry is not as to the intention of the person himself who annexed the chattel to the freehold ....”
The striking of the word “strictly” is necessary to the majority’s rationale on its factual redetermination, but it is a disservice to the parties and does little to enhance any esteem for the Court. In this case the installation was made by the two identities who purchased the system, and by both, or by the major owner with the other’s full consent and knowledge. Only by striking the word “strictly” does the majority achieve the goal of substituting its own findings for those of the trial court. Intent of the installers of personal property is a large factor in making the factual determination as to whether or not an annexation took place.
The Court in Beebe stated that the third criterion was the “Intention of the party making the annexation to make the article a permanent accession to the freehold — this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.” Id., 34 Idaho at 391, 201 P. 717. The Court went on to add, continuing to quote from the early Ohio case, that “the intention with which an article was annexed the consideration of paramount importance, id. at 391, 201 P. 717, and then declared the first two tests as “mainly important as evidence of intention.” Id. at 391, 201 P. 717.
What the Boise-Payette Lumber Co. case actually said, at p. 392, 201 P. 717, was considerably different than as editorially excerpted and set out in the majority opinion. In that case, where the contest was between an attaching creditor and a mortgagee, on the left is what the Court’s opinion quoted, and opposite it the majority’s version:
“[T]he inquiry is not strictly as to the intention of the person himself who annexed the chattel to the freehold. . . . The inquiry is as to what intention must be imputed to him in the light of all the circumstances, when tested by the common understanding of those familiar with the subject.”
“Except in cases where, by contract or agreement, the intention of the party who made the annexation determines the character of the article or machine as to whether it is a chattel or a fixture, the inquiry is not strictly as to the intention of the person himself who annexed the chattel to the freehold. Thus, in the case at bar the contest is between an attaching creditor and a mortgagee. Neither party was bound by the intention existing in the mind of the owner. The inquiry is as to what intention must be imputed to him in the light of all the circumstances, when tested by the common understanding of those familiar with the subject ....’’
Majority Opinion, p. 572
Beebe, supra, at 392, 201 P. at 719.
*538The portion omitted by the majority is: “Neither party was bound by the intention existing in the mind of the owner.” The quote in the majority opinion, as editorialized, makes the inquiry to “what intention must be imputed to him in the light of ...” referenced back to the annexer, whereas the full text reads very clearly that: “The inquiry is as to what intention must be imputed to him (the owner) in light of all the circumstances, when tested by the common understanding of those familiar with the subject.” All of which had to do with a creditor and a mortgagee who had nothing to do with the annexation, and a far cry from this case where the systems were bought as commonly owned property, and the involved parties were not strangers dealing at arms-length, but on the contrary had very good opportunity each to know the mind of the other as they together spent a great deal of money which went into systems to be used by the tenant Rayl who was at the time in possession of the farm only by virtue of carry-over statutory provisions after his lease ran out.
If this Court is to make amends, far better to set this case down for a third reargument than to stand on the present majority opinion. Such would encompass one hour of this Court’s time, which though an inconvenience, would be far better than leaving this area of the law in a shambles. I close this effort as I opened it:
What the opinion of this Court basically comes down to is that every irrigation system installed upon a farm becomes a “fixture.” In Idaho we no longer consider the relationship of the claiming parties, the relative difficulty of removal, or the nature of the article annexed .... Nor do we consider the previous rulings of this Court. See, Duff v. Draper, 98 Idaho 379 [565 P.2d 572] (1977).
. The majority gratuitously impugns the district court in saying that: "There is no indication that the trial court considered any of the three tests normally applied____” Likewise, anyone reading Duff v. Draper can say there is no indication that the Supreme Court considered any of the three Beebe "tests,” which go wholly unmentioned in the Court’s opinion. Beebe is mentioned, however.