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12/08/88 Julie Lindstrom, v. Andrew Houzenga Et Al.

December 8, 1988

JULIE LINDSTROM, PLAINTIFF-APPELLANT

v.

ANDREW HOUZENGA ET AL., DEFENDANTS-APPELLEES (ELMER HANS ET AL., PLAINTIFFS



Before addressing this issue, we note that the accepted test for determining whether an article or structure attached to the land is to be regarded as a fixture is: (1) the real or constructed annexation of the article or structure to the realty or something appurtenant thereto; (2) the appropriation or adaptation of the article or structure to the use of purpose to which that part of the realty with which the article or structure is connected is appropriated; and (3) the intention of the person making the annexation to make the article or structure a permanent accession to the freehold. (Hacker v. B. Munroe & Son (1898), 176 Ill. 384.) Over the years, the courts have recognized that the question of intent is the preeminent element of this test. In the cases of doubt, great weight must be given to the actual or presumed intention of the parties in placing the articles claimed as fixtures. Thuma v. Granada Hotel Corp. (1933), 269 Ill. App. 484.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 1096, 177 Ill. App. 3d 1, 126 Ill. Dec. 469 1988.IL.1777

Appeal from the Circuit Court of Carroll County; the Hon. John W. Rapp, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiff, Julie Lindstrom (Lindstrom), appeals from an order of the circuit court of Carroll County granting defendants' motion for summary judgment. Plaintiffs Lindstrom, Elmer Hans (Lindstrom's father), and Terry and Ronald Hans (Lindstrom's brothers), sought a declaratory judgment as to whether certain grain bins and related equipment were fixtures or personalty. Only Lindstrom is pursuing this appeal.

On or about August 15, 1977, Elmer Hans (Elmer) and his wife, Arletta, executed a mortgage on their farm to the Federal Land Bank of St. Louis (Bank). In or about 1986, the Bank foreclosed on this real property, upon which the subject grain bins are located. Subsequent to this foreclosure, Lindstrom agreed to lease the farmland from August 15, 1986, to December 31, 1986, for $4,000. In or about early 1987, the Bank sold said property to defendant Andrew Houzenga.

On April 21, 1987, Elmer executed a contract with Lindstrom to sell her four grain bins and four augers (mechanical devices by which grain is moved from one bin to another). Defendants claimed title to the grain bins by virtue of the aforesaid mortgage and foreclosure. Plaintiffs claimed title to the grain bins, alleging these were personal property. Defendants moved for summary judgment. Plaintiffs Elmer, Ronald, and Terry Hans also moved for summary judgment. Plaintiff Lindstrom did not move for summary judgment, believing that there were material factual issues to be tried.

The question before us is whether the trial court erred in granting defendant's motion for summary judgment.

It is axiomatic that the function of this court is reviewing a grant of summary judgment is limited to the determination of whether the trial court correctly ruled that no genuine issue of material fact has been raised, and if none was raised, whether the judgment, as a matter of law, was correctly entered. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137.) Thus, our initial task is to determine from the pleadings, affidavits, and other relevant documents if there is any dispute as to material fact.

Plaintiff initially asserts that Elmer regarded the grain bins as personal property. In 1977 and again in 1983, Elmer had granted a security interest in the grain bins to Commodity Credit Corporation (Commodity). Plaintiff contends that pursuant to these agreements with Commodity, the grain bins were intended to be personal property and that said agreements whereby they were secured are properly referred to as chattel mortgages. Plaintiff cites Landfield Finance Co. v. Feinerman (1972), 3 Ill. App. 3d 487, wherein it was found that a chattel mortgage and acceptance thereof in property has been found to express very strong evidence of intent that such items are to remain personalty rather than to be considered as part of the real estate. Plaintiff contends there is an issue of fact regarding Elmer's intention vis-a-vis the subject grain bins. We agree. Under Landfield, Elmer's user of the bins to secure chattel mortgages indicates an intention to treat them as personal property, an intention which a trier of fact should determine.

Further, noting there are no Illinois State cases specifically dealing with grain bins as personalty or fixtures, plaintiff cites cases from other jurisdictions. In these cases, the manner in which the bins have been attached to the real estate has played a major role in determining if they are personalty or fixtures.

In Metropolitan Life Insurance Co. v. Reeves (1986), 223 Neb. 299, 389 N.W.2d 295, the supreme court of Nebraska applied the three-prong test espoused in Hacker v. Munroe (1898), 176 Ill. 384. The grain bins in Metropolitan Life were corrugated steel structures bolted into concrete slabs, which were partially imbedded into the ground. In addition, 50 to 60 feet of tubing connecting the grain bins was laid underground, through which the grain was transferred from bin to bin. The grain bins were transported to the farm disassembled, were assembled with bolts on the site, and placed on the slabs and bolted thereto. The court found that if the grain bins could be assembled on site, they could just as easily be disassembled on site. Thus, it held that the bins were personal property. The court further held that a grain-bin structure, which is capable of being easily disassembled, does not become a fixture merely by virtue of the fact it is bolted to a concrete slab which is poured onto the ground. Plaintiff ...


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