MILKING MACHINES.

Hawera Star, Volume XLVIII, 12 November 1924, Page 9

MILKING MACHINES.

HELD TO BE CH ATTELS

An important question as t-o whether milking machines were fixtures affixed to the freehold, or chattels removable by the owner was decided in the important case of Johnston y. The International Harvester Co. A similar ease, the D.O'.A. of Bridge Estate, was on the same lines, hut in view of the fact- that .Johnston’s case was also to be heard, the D.O'.A. did not proceed- with his case. ■ Johnston's case was an action for damages against The International Harvester Co. for removiilg a milking machine and plant after the mortgagor had walked off the farm. The mortgagee claimed damages against the company for the removal and the jury awarded £2OO damages. The Court of Appeal; however, at its recent sittings, consisting of Stout J.. Sim J., Adams J., and McGregor J., held that the verdict could not stand and that milking machines were not fixtures hut chattels. There had been 'two conflicting judgments of the court, one by Stringer J., holding that milking machines were chattels, and one by S.almonel J., holding they were fixtures. This recent case of Johnston’s, however, definitely establishes the law that milking 'machines are chattels. In the course of the judgment of the Court of Appeal McGregor, J., said :

Tlie law in New Zealand on the subject was discussed and determined by tlie Court of Appeal in the case of Pukuweka Sawmills, Ltd. v. Winger and Anor (1917), N.Z.L.R. 81. That case related to a- hush tramway that had been laid down on certain timber lands in the North Island. Tjhe plaintiff was an assignee of the licensee of the bush tramway in questionl, which lie claimed the right to remove .as against the defendant's — the owners of tlie freehold of the lands on which the tramway had been constructed. In the result the Court of Appeal held that tlie plaintiff was entitled to remove the rtamway: Per Stout, C.J., and Stringer, J., as a chattel and not a fixture : Per Edward, J., as a trade fixture. The case was elaborately argued, and in the judgments the relevant authorities hi England, New Zealand and America are exhaustively reviewed.. The mode of construction "of the tramway w.as such that part of .the tramway rested on the soil by its own weight and part was to some extent embedded in the soil. It was'; said by the defendants ,to be, in fact, similar to that adopted for permanent .railways and tramways. It was admitted, that in 50 cases out of 100 the sleepers required to bp prized up by a crowbar to facilitate their removal. Notwithstanding these facts the Cpur.t of Appeal unanimously, decided that the tramway could be removed without the consent of the freeholder. That decision appeal's to me to he in principle decisive .of the present case. The annexation to the soil .in that case was much more complete, and it is clear that the tramway could not ;be removed without ;in effect destroying the .tramway as such and to some extent injuring the freehold. I think, therefore, that i this court should follow in its integrity the decision of the -majority pf the .Court of Appeal in. this case, and hold that the' milking machinery and plant were here removable by .the .defendant company as chattels, and not as removable fixtures. The decision is certainly of importance to all farmers’ loan companies and implement companies because, were it held that milking machines were a fixture, it would .certainly mean that no company would take the risk of letting out milking machines on hire, and the evidence was that, over 90 per cent were let out on hire.