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 ■HD IMPORTERS 
 
 N FRANCISCO, ti 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 GIFT OF 
 
 oP. #d;it-vt^^
 
 14 "■ fV»\^ *4 \'' • .
 
 A TREATISE 
 
 ON THE 
 
 LAW OF FIXTURES. 
 
 EMBRACING THE LEADING DECISIONS 
 
 UPON THE SUBJECT, 
 
 EOTH AMERICAN AND ENGLISH 
 
 BRINGING THE LAW DOWN TO THE PRESENT TIME. 
 
 By ransom H. TYLER, 
 
 Author of "American Ecclesiastical Law," "Commentaries on the 
 Law of Infancy and Coverture," etc., etc., etc. 
 
 ALBANY, N. Y. : 
 
 WILLIAM GOULD & SON, 
 
 LAW BOOK-ELLERS AND PUBLISHERS. 
 
 1877.
 
 Entered according to Act of Congress in the year eighteen hundred and seventy-seven, 
 
 By WILLIAM GOULD & SON, 
 
 in the oflice of the Librarian of Congress, at Washington. 
 
 T
 
 PREFACE. 
 
 When I commenced tlie preparation of the following 
 work, I did so with a deep sense of the growing importance 
 of the complicated subject of which it treats, and with a 
 decided impression that an exhaustive treatise upon the 
 subject was needed, and would be appreciated by the legal 
 profession. After the text was principally in manuscript, 
 the publishers issued to the public a brief circular announc- 
 ing the forthcoming of the work, in which they said : 
 "Hitherto there has been no American work professing to 
 give any thing like an extended or general view of that im- 
 portant branch of the law which forms the subject of this 
 work. The little work of Mr. Hill, entitled ' A Manual of 
 the Law of Fixtures,' is very convenient in its way, but it 
 purports to be little else than an index to the authorities 
 upon the subject." This statement was strictly accurate at 
 the time it was issued, but several months after the circular 
 was promulgated, a Western publisher announced another 
 work with a similar title, and I understand that the work 
 has now actually made its appearance, although it has not, 
 as yet, come under my personal notice. How far that work 
 may have occupied the field, of course, I have no knowledge ; 
 but I flatter myself that the plan which I have adopted, and 
 the elaborate and exhaustive manner in which I have car- 
 ried the i3lan out, will commend my own efforts to the kind 
 consideration of my professional brethren. 
 
 nA-OO^O
 
 4 PREFACE. 
 
 In tlie preparation of this work, it lias been my endeavor 
 to arrange and methodize the subjects connected with that 
 species of property known as Fixtures, so as to present in a 
 single volume of convenient shape and size, all of the rules 
 and principles which have been settled by competent au- 
 thority, making uj) the system of jurisprudence, recognized 
 in this country and in England as the Law of Fixtures. To 
 this end, I have critically examined all the adjudicated 
 cases accessible upon the subject, both American and Eng- 
 lish, from the earliest period in the history of the law down 
 to, and including the year 1876. In this manner I have ex- 
 amined over one thousand cases, and more than half of the 
 same are referred to in my work, and many of them are re- 
 ferred to several times, under the different heads by which 
 the subject is- treated. In all these cases the doctrine has 
 been carefully extracted and plainly stated ; and not only is 
 the doctrine technically enunciated, but sufficient of the 
 opinion of the court, in all important cases is literally quoted, 
 so as to exhibit the real principles of the decision, free from 
 error or mistake. Indeed, so faithfully is this method car- 
 ried out, that in scarcely an instance, I am confident, will it 
 be found necessary to consult the case as originally re- 
 ported, in order to ascertain the principle settled by the 
 court. Although the execution of this plan has tended to 
 swell the number of pages, I am satisfied that it will add 
 greatly to the value of the work. Another feature which is 
 a specialty in this treatise is, the examination, discussion 
 and classification of the cases illustrating the different 
 branches of the subject considered; giving succinctly the 
 facts of each case, followed by the judgment of the court, 
 and in some instances, extracts from the opinion, in such a 
 manner that the practitioner can hardly fail to find an au- 
 thority in point in almost every conceivable case, with which
 
 PRE FACTS. O 
 
 he may meet in liis practice. This feature of the work, 
 though somewhat novel at present, is, nevertheless, similar 
 to the method which has recently been adopted by the best 
 legal writers in our own country and in England, and I 
 have no doubt but it will add greatly to the facilities for 
 determining the law of any given case. 
 
 The work is divided into fifty -five chapters, in which the 
 subject, in its relations to the various classes of persons 
 between whom controversies in respect to Fixtures more 
 generally arise, is separately treated. The first eight chap- 
 ters are devoted to an examination of the nature and char- 
 acteristics of fixtures, and the tests by which a fixture is 
 to be determined. The next twenty-six chapters are oc- 
 cupied in the discussion of the subject of fixtures as between 
 landlord and tenant, in all the multiplied phases of the 
 question as it is presented in controversies between this 
 class of individuals. The next two chapters treat of the 
 law of fixtures as between the personal representatives of 
 tenants for life- or in tail and the remainderman and rever- 
 sioner. Then one chapter is devoted to a brief discussion 
 of the law in respect to ecclesiasticc^l fixtures, and the rule 
 as applied in cases of ecclesiastical and lay dilapidations. 
 Then follow three chapters in which the law is examined 
 in respect to fixtures as between vendor and vendee, or 
 grantor and grantee. The next six chapters are devoted to 
 the discussion of the law of fixtures as between mortgagor 
 and mortgagee. The next two chapters treat of the law of 
 fixtures in cases of bankrupt vendors and mortgagors ; and 
 the next chapter is devoted to tlie examination of the cases 
 in which the law of fixtures may be modified by the agree- 
 ment of parties. The next two chapters treat of the law of 
 fixtures as between heir and executor or administrator, and 
 the rule in respect to emblements, heir looms and tlie like,.
 
 PREFACE. 
 
 and in respect to trees, fruits and grasses. In the next 
 chapter tlie law of fixtures is stated as between tenants in 
 common ; and in the next the rule in respect to the roll- 
 ing stock and other appendages of a railway. The next 
 chapter treats of the rule in respect to the transfer of fix- 
 tures as such^ and the effect of the statute of frauds upon 
 contracts relating to fixtures. And the last chapter is de- 
 voted to a brief examination of the remedies provided in 
 respect to fixtures, and the manner in which they are 
 applied. 
 
 Thus it will be observed that the 'extent to wliich each 
 branch of the subject is treated, is graduated by the fre- 
 quency with which controversies usually arise in connec- 
 tion with that particular branch. For example, more than 
 half the litigation in respect to fixtures occurs, on an aver- 
 age, between parties sustaining the relation of landlord and 
 tenant. And accordingly a corresponding proportion of 
 the work is devoted to the examination of the subject in 
 respect to this class of litigants. 
 
 Of the interest to the profession of such a work as this 
 professes to be, little need be said, for lawyers and judges 
 are sensible of the difficulties often encountered by reason 
 of the growing frequency of the cases, and the refined dis- 
 tinctions which are recognized between personal and real 
 property, as involved in the question of Fixtures. Isij ob- 
 ject has been to meet the want implied in this statement, 
 and to produce a book in itself thorough and complete, by 
 the aid of which the practitioner may be enabled to prepare 
 his brief without resort to any other work. If I have suc- 
 ceeded in this I shall feel conscious of liaving furnished the 
 facilities for great saving of time and expense. Certain 
 antiquated subjects treated at length in the early English 
 ;ivorks upon Fixtures, I have entirely omitted in this vol-
 
 PREFACE.. 
 
 lime regarding tliem of no practical importance, and pre- 
 ferring the space for that wliich is of interest at the present 
 time. On the other hand, every thing found in the English 
 books which tends to throw light on the principles out of 
 which the general law of fixtures has grown up, I have 
 given a place, though in many instances in a very few sen- 
 tences or brief paragraphs. I had expected to be able to 
 condense the entire matter of the work into a less number 
 of pages, but as the materials increased upon my hands, 
 I found it quite impracticable, and yet accomplish my 
 original design. I trust that the profession will approve 
 of my efforts. 
 
 jANUARr 1, ISVY.
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 Introduction of tlie subject — General division of property into tilings real 
 and things personal — Nature of each — Various definitions of the term 
 fixtures — Use of definitions in the examination of the subject 33 
 
 CHAPTER II. 
 
 Foundation of the law of fixtures — Origin of the general rule of law in 
 respect to annexations to the freehold — Innovations upon the ancient 
 law relating to fixtures — Rules of the common law on the subject not 
 always adopted in this country 43 
 
 CHAPTER III. 
 
 Manner of annexation to the freehold in order to constitute a fixture — 
 Constructive annexation sometimes considered — Cases illustrating the 
 annexation requisite to constitute a fixture — General rule npon the 
 subject 56 
 
 CHAPTER IV. 
 
 Eight to remove annexations to the freehold — Principal matters to be 
 referred to in such cases — A power coupled with an interest requisite — 
 Effect produced upon chattels by being annexed to the realty — Rule re- 
 specting voluntary annexations upon the land of another — Rule in case 
 of license for such annexations — The 'prima facie rule in all cases 73 
 
 CHAPTER V. 
 
 Rule respecting annexations by strangers to the freehold — Rule in respect 
 to line trees and the like — Rule respecting alluvian — Rule when fix- 
 tures are placed upon land by the assent of the owner — When fixtures 
 revert to the person who affixed them — Property in fixtures tortiously 
 severed from the freehold 83
 
 10 TABLE OF CONTENTS. 
 
 •CHAPTER VI. PAGE. 
 
 Tests by which fixtures may be determined — Adaptability of the article to 
 the use of the freehold, a test of more or less certainty — Examination 
 of the principle — Reference to authorities illustrating this test 100 
 
 CHAPTER Vn. 
 
 Tests by which fixtures may be determined — Intent of the parties making 
 the annexation — This test more controlling than others which have been 
 considered — The doctrine examined — Authorities illustrating the princi- 
 ple referred to and discussed 114: 
 
 CHAPTER VHI. 
 
 The general law of fixtures may be varied by agreement of parties — Ex- 
 tent to which the subject maybe controlled by agreement — The princi- 
 ple examined and discussed — Authorities illustrating the doctrine 
 referred to and considered — General rule stated 'and the exception to it 
 
 iOQ 
 
 pointed out ^'^^ 
 
 CHAPTER IX. 
 
 Law of fixtures as affected by the relations of the contending parties — 
 Number of classes of persons between whom controversies respecting 
 fixtures principally arise — The rule between landlord and tenant — His- 
 tory and reason of the rule — Examination of authorities upon the sub- 
 ject of the rule •, 
 
 147 
 
 159 
 
 CHAPTER X. 
 
 Law of fixtures as between landlord and tenant — Nature of the tenant's 
 rights or interest in fixtures erected by him — The interest of the tenant 
 regarded as of a peculiar nature — Examination of authorities upon the 
 subject 
 
 CHAPTER XI. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Founda- 
 tion of the rule in such cases — Examination of the early English 
 authorities upon the point 1^^ 
 
 CHAPTER XII. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Exam- 
 ination of further English authorities upon the point 181
 
 TABLE OF CONTENTS. 11 
 
 CHAPTER XIII. PAGE. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Exami- 
 nation of the English authorities upon the point continued — Examina- 
 tion brought down to the present day — Increased liberality in favor of 
 tenants I93 
 
 CHAPTER XIV. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant vfor purposes of trad*e and manufactures — Exam- 
 ination of the American authorities upon the point — Decisions of the 
 courts of New York 208 
 
 CHAPTER XV. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Exam- 
 ination of the American autliorities upon the point — Decisions of the 
 courts of Massachusetts — The rule in Maine and the other New Eng- 
 land States 224 
 
 CHAPTER XVI. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Exam- 
 ination of the American authorities upon the point — Decisions of the 
 courts of Pennsylvania and Michigan 240 
 
 CHAPTER XVII. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Exam- 
 ination of the American autliorities upon the point — Decisions of the 
 courts of Illinois and other Western and Southern States 249 
 
 CHAPTER XVIII. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for purposes of trade and manufactures — Exam- 
 ination of the American authorities upon the point — Decisions of the 
 federal courts — Principles extracted from the cases 259 
 
 CHAPTER XIX. 
 
 Law of fixtures as between landlord and tenant— Doctrine in respect to 
 erections by a tenant for strictly agricultural purposes — Examination of 
 the great case of Mwes v. Maw decided by the English Court of King's 
 Bench in 180:] — Other English authorities . 271
 
 X2 TABLE OF CONTENTS. 
 
 CHAPTER XX. PAGE. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for strictly agricultural purposes — Further exarai- 
 natiou of the case of Elwes v. Maw — English and Irish authorities 283 
 
 CHAPTER XXI. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant for strictly agricultural purposes — Examination of 
 American authorities upon the subject — Purport of the cases 299 
 
 «> 
 
 CHAPTER XXII. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections by a tenant of a mixed character, which are set up for the pur- 
 poses of trade combined with other objects — Principles settled by the 
 authorities in this regard 317 
 
 CHAPTER XXIII. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 annexations by tenants of a mixed character, attached to the land for 
 the purposes of trade combined with other objects — Rule as applied to 
 gardeners and nurserymen 327 
 
 CHAPTER XXIV. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 manure — Rule relating to fences 340 
 
 CHAPTER XXV. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections put up for ornament or convenience — Examination of authori- 
 ties upon the subject 357 
 
 CHAPTER XXVI. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 erections put up for ornament or convenience — Examination of further 
 authorities upon the subject 369 
 
 CHAPTER XXVII. 
 
 Law of lixtures as between landlord and tenant — Doctrine in respect to 
 erections put up for ornament or convenience — Examination of further 
 nulhorities upon the subject — Extent of the exceptions in favor of this 
 species of property 381
 
 TABLE OF CONTENTS. 
 
 CHAPTER XXVIII. 
 
 13 
 
 395 
 
 404 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to ap- 
 paratus for lighting buildings by gas — Rule in respect to water-pipes — 
 Examination of the authorities upon this class of fixtures 
 
 CHAPTER XXIX. 
 
 Law of fixtures as between landlord and tenant — Examination of some 
 cases not falling within the classes hereinbefore considered — Cases mis- 
 cellaneously stated 
 
 CHAPTER XXX. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to the 
 time for the removal of annexations made by the tenant- Kule where 
 the tenant knows when the tenancy expires — Hule when the lease is ter- 
 minated by forfeiture and the like — Examination of the English au- 
 thorities upon the subject ■ ^^' 
 
 CHAPTER XXXI. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 the time for the removal of annexations made by the tenant — Rule 
 where the termor knows when the tenancy expires — Rule when the 
 lease is terminated by forfeiture and the like — Examination of the Amer- 
 ican authorities upon the subject 
 
 CHAPTER XXXII. 
 
 433 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 the time for the removal of annexations made by the tenant — Rule 
 when the term is of uncertain duration — Examination^of the cases upon 
 the subject — General summary of the authorities relating to the time 
 for the removal of tenant's fixtures in the absence of any agreement on 
 the subject '**" 
 
 CHAPTER XXXIII. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to the 
 ■right of a tenant in his annexations on the demised premises as affected 
 by the terms of the demise — Examination of English authorities upon 
 the subject — Construction of some written documents. 455 
 
 CHAPTER XXXIV. 
 
 Law of fixtures as between landlord and tenant — Doctrine in respect to 
 the rights of a tenant in his annexations on the demised premises as 
 affected by the terms of the demise — Examination of American authori- 
 ties upon tlie subject — Construction of some written documents — Effect 
 of a custom upon the question of the tenant's fixtures 469
 
 483 
 
 14 TABLE OF CONTENTS. 
 
 CHAPTER XXXY. 
 
 Law of fixtures as between the personal representatives of tenants for life 
 or in tail and tlie remainderman and reversioner — Rule in respect to an- 
 nexations put up for trade, or for trade combined with other objects — 
 Examination of the authorities upon the subject — Doctrine of the 
 cases 
 
 CHAPTER XXYI. 
 
 Law of fixtures as between the personal representatives of tenants for life 
 or in tail and the remainderman and reversioner — Rule in respect to an- 
 nexations put up for ornament or convenience — Examination of the au- 
 thorities upon the subject — Doctrine of the cases — Rights of tenants 
 for life or in tail during their own lives in respect to fixtures — Rule in 
 such cases in respect to agricultural fixtures 494 
 
 CHAPTER XXXVH. 
 
 Law of fixtures in respect to annexations put up by ecclesiastical per- 
 sons — Doctrine relating to dilapidations in connection with such per- 
 sons — Rule in respect to lay dilapidations 505 
 
 CHAPTER XXXVIH. 
 
 Law of fixtures as between vendor and vendee or grantor and grantee — 
 Doctrine in such cases — Examination of cases upon the subject 519 
 
 CHAPTER XXXIX. 
 
 Law of fixtures as been vendor and vendee or grantor and grantee — Es- 
 amination of further authorities upon the subject — Propositions estab- 
 lished by the cases examined 533 
 
 A 
 CHAPTER XL. 
 
 Law of fixtures as between vendor and vendee or grantor and grantee — 
 Examination of some cases in which the conveyance has been construed 
 as affecting the question — General rule upon the subject 547 
 
 CHAPTER XLI. 
 
 Law of fixtures as between mortgagor and mortgagee — General doctrine 
 in such cases — Examination of authorities upon the subject 559 
 
 CHAPTER XLII. 
 
 Law of fixtures as between mortgagor and mortgagee — Examination of 
 further autliorities upon the subject 572
 
 TABLE OF CONTENTS. 15 
 
 ' CHAPTER XLIII. 
 
 Law fixtures as between mortgagor and mortgagee — Examination of still 
 further authorities upon the subject. 585 
 
 CHAPTER XLIV: 
 
 Law of fixtures as between mortgagor and mortgagee — Examination of 
 authorities upon the subject continued 597 
 
 CHAPTER XLV. 
 
 Law of fixtures as between mortgagor and mortgagee — Examination of 
 authorities upon the general subject concluded — The doctrine of the 
 cases and the utility of expressing clearly the intention of the parties in 
 a mortgage, 610 
 
 CHAPTER XL VI. 
 
 Law of fixtures as between mortgagor and mortgagee — Instances in which 
 the mortgagee is not favored in respect to the fixtures upon the mort- 
 gaged premises — Effect of possession of the property by the mortgagor 
 after the execution of the mortgage 631 
 
 CHAPTER XLVH. 
 
 Law of fixtures as between a bankrupt and his assignees — Rule as be- 
 tween the mortgagee and the assignee or trustee in bankruptcy of his 
 mortgagor — Examination of the authorities upon the subject 633 
 
 CHAPTER XLYHI. 
 
 Law of fixtures as between a bankrupt and his assignees — Rule as between 
 the mortgagee and the assignee or trustee in bankruptcy of his mort- 
 gagor — Examinatiom of the cases upon the subject — Rule in cases of 
 equitable mortgages and liens — Rule upon the subject in the United 
 States 646 
 
 CHAPTER XLIX. 
 
 Law of fixtures as modified by special agreement of the parties — Doctrine 
 as between mortgagor and mortgagee and mortgagee and assignee in 
 bankruptcy of his mortgagor — Examination of the cases upon the 
 subject • 659 
 
 CHAPTER L. 
 
 Law of fixtures as between heir and executor or administrator — deneral 
 rule in such cases — Doctrine of the text writers — Examination of the 
 Engllsli authorities upon the subject , 675
 
 16 TABLE OF CONTENTS. 
 
 CHAPTER LI. 
 
 Law of fixtures as between lieir and executor or administrator — Examina- 
 tion of the American authorities upon the subject — Doctrine of the 
 cases — Rule in the State of New York — General rule in respect to em- 
 blements — Rule in respect to heir-looms and the like — Rule in respect 
 to trees, fruits and grasses — Rule as to devisees 690 
 
 CHAPTER LII. 
 
 Law of fixtures as between tenants in common — Examination of the au- 
 thorities upon the subject — Doctrine of the cases — Nature of the title 
 required in such cases 704 
 
 CHAPTER LHI. 
 
 Law of fixtures in respect to the rolling stock and other appendages of a 
 railway — Examination of the authorities upon the subject — Doctrine 
 of the cases 711 
 
 CHAPTER LIV. 
 
 The rule in respect to the transfer of fixtures as such — Exatnination of 
 the cases upon the subject — Effect of the statute of frauds upon con- 
 tracts for sale of fixtures — Rule in respect to the sale of fixtures upon 
 execution — Rule in respect to the distrainability of fixtures 728 
 
 CHAPTER LV. 
 
 Remedies provided in respect to fixtures — Actions in the nature of waste 
 and in trover — Actions inform ex contractu — Equitable relief by in- 
 junction — The criminal law in its application to fixtures — Conclusion. 740
 
 INDEX TO CASES CITED. 
 
 Adams v. Lee 
 
 Allen V. Kennedy, .... 
 
 Antoni v. Bellinap, 
 
 Anworth v. Johnson, 
 
 Astbury, Ex parte, 
 
 Aston V. Aston, . . .... 
 
 Austin, Ex parte, .... . . . 
 
 Austin V. Hudson* River R. R. 
 
 Austin V. Sawyer, 
 
 Avery v. Cheslyn, 
 
 Co. 
 
 PAGE. 
 .... 711 
 
 453 
 .... 229 
 
 517 
 .... 655 
 
 501 
 .... 641 
 
 222 
 531, 734 
 
 369 
 
 Bain way v. Cobb, 
 
 Baker v. Wheeler, .... 
 Banbury v. Hudson, . . .... 
 
 Bank v. Knapp, 
 
 Bank of Lansingburgh v . Crarey, 
 Barclay, Ex parte, .... 
 
 Bartlett v. Wood, 
 
 Bates v. Shroeder, .... 
 
 Beadow v. Pyke, .... .... 
 
 Beardsley v. Ontario Bank, 
 Beardsley v. Sherman , .... 
 
 Beatty v. Gibbons, .... 
 
 Beck V. Rebow, .... .... 
 
 Beers v. Beers, 
 
 Beers v. St. John, 
 
 Begbie v. Fenwick, .... 
 Belcher, Ex parte, .... .... 
 
 Belfour v. Weston, 
 
 Bement v. Plattsburgh and Montreal R 
 Bentley, Ex parte, .... 
 
 Betts V. Lee, .... .... 
 
 Bidder v. Trinidad Petroleum Co., 
 
 R. 
 
 Co., 
 
 265 
 
 .... 104 
 
 98 
 
 515, 516 
 
 594 
 .... 735 
 
 647 
 .... 607 
 
 215 
 .... 583 
 
 721 
 398, 436 
 
 457 
 360, 556 
 
 505 
 339, 441 
 
 578 
 .... 641 
 
 516 
 .... 721 
 
 656 
 .... 93 
 469, 748
 
 18 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Bingliolf V. Munzenmaier, .... .... .... .... .... .... 528 
 
 Birch V. Weston 371 
 
 Birclier v. Parker, .... .... .... .... .... .... .... 446 
 
 Birdv.Balph, 510,514 
 
 Bishop V. Bishop, 118, 538 
 
 Bishop V. Elliott, 374 
 
 Bishop of Carlisle, Case of, 508 
 
 Bishop of Salisbury, Case of, .... .... .... .... .... 514 
 
 Blanche v. Rogers, .... .... .... .... .... .... ... 616 
 
 Blevvett v. Tregourning, .... .... .... .... .... .... 87 
 
 Bliss V. Misner, 545 
 
 Bliss V. Whitney, 167, 225, 228, 440 
 
 Bond V. Coke, 620 
 
 Bostwick V. Leach, . .... .... .... .... .... .... 734 
 
 Bowles, Lewis, Case of, . .... .... .... .... .... . . 500 
 
 Boyd V. Sherrock, 207, 468, 618 
 
 Boydell v. McMichael, 196, 640, 742 
 
 Brackett v. Goddard, .... .... .... .... .... 539 
 
 Bradner v. Faulkner, .... .... .... .... .... .... 703 
 
 Bratton v. Clawson, 530, 531 
 
 Breasley v. Cox, 409 
 
 Breese v . Bangs, .... .... .... .... .... .«. . . .... 473 
 
 Brennan v. Whitaker, 594, 614, 674 
 
 Bristow, Ex parte, ... .... .... .... .... .... .... 646 
 
 Brooks V. Galster, 336 
 
 Brown v. Crump, .... .... .... .... .... .... .... 343 
 
 Brown v. Lillie, . . .... .... .... .... .... .... 537 
 
 Brown v. Sax, .... .... .... .... .... .... .... 97 
 
 Brown v. Wallis, 232 
 
 Buckland v. Butterfield, 279, 367 
 
 Buckley v. Buckley 216, 503, 697, 707 
 
 Buckman v. Outwater, .... .... .... .... .... .... 352 
 
 Buckworth v. Simpson, 428 
 
 Bullock V. Williams, 632 
 
 Bulwer v. Bulwer, .... .... .... .... .... .... 509 
 
 Burgess, Ex parte, 229, 324 
 
 Burnside v. Twitchell, 127, 545, 591 
 
 Burt V. Haslett, 203, 466 
 
 Butler V. Page, 144 
 
 c 
 
 Campbell v. O'Neill, 542 
 
 Capen v. Peckham, .... .... .... .... .... 124 
 
 Carlisle, Case of Bishop of, 508 
 
 C'arr v. Carr, 504 
 
 Cave V. Cave, 359 
 
 Childress v. Wright, 415 
 
 Cholnieley v. Paxton, 502
 
 PAGE. 
 
 106 
 . 735 
 
 INDEX TO CASES CITED. 19 
 
 Cliristian v. Dripps, 
 
 Claflin V. Carpenter, 
 
 Clark V. Calvert ^JJ 
 
 Clark V. Reyburn, ^^1 
 
 Clarke v. Crownsliaw, 
 
 Cleves V. Willoughby, ^|^ 
 
 Climie V.Wood, •• 567,568,574,618 
 
 Coburn v. Kyler, JJ^ 
 
 Cole V. Roache, • ^^^ 
 
 Colegrove v. Dias Santos, ^"^' ^^^ 
 
 Coleman v. Lewis, "'' 1 1 c 
 
 Conklin v. Parsons, 
 
 Conner v. Coffin, 
 
 Cook V. Champlain Transportation Co., 213, 306 
 
 Cook V. Oakley, * ^ "or, 
 
 „ , ^ J 173, 289, 388 
 
 Cooke, Case oi, ■" ' ' 
 
 Coombs V. Beaumont, . . . : 195, 196, 639 
 
 Cooper v.Woolit, • • ^0- 
 
 Corliss V. McLagin, ^^'^' ^^^ 
 
 Corning v. Troy Iron and Nail Factory, ' *' 
 
 Cornish V. Stubbs, ••• ^^ 
 
 Coster V.Peters, ^07. 408 
 
 Cotton, Ex parte, 564,565,566 
 
 Countess of Shrewsbury, Case of, ^1° 
 
 Cowden v. St. John, ^^^ 
 
 Crane v.Brigham. 136,592.615 
 
 71 
 Cresson v. Stout, 
 
 Crews v. Pendleton, 
 
 Cromie v. Hoover, 
 
 Crosby v. Wadsworth, "^ , 
 
 Cross V. Marston, ... .... • • • • • • • • • • • • • • • • • " " ' 
 
 Culling V. TufEnall, ^'^' ^Z. 
 
 Cullwick V. Swindell, ^^^' ^^^ 
 
 Curry V. Schmidt, -^f 
 
 Curtis V. Groat, -^'-^^ 
 
 Curtissv.Hoyt. ^^J 
 
 Curtiss V. Riddle, 1*^' '^^ 
 
 Dame v. Dame, 
 
 T. . , ^'^ 346, 348, 356 
 
 Daniels v. Pond, " ' ' 
 
 Darby v. Harris, ^^"'' J^' 
 
 Davenport V. Shants, ;"qo A77 
 
 Davis V. Buifum, ^^'^' ^/' 
 
 Davisv. Jones 65,190,197,199.426 
 
 Davis V. Moss, 242,443.449.478 
 
 TA T5 ......... 618 
 
 Dawson, Ke, 
 
 Day V. Austin, .... •••• •••• •••• — • "*'
 
 20 
 
 INDEX TO CASES CITED. 
 
 Day V. Perkins .... .... .... .... 
 
 Deal V. Palmer, .... .... .... 
 
 Dean v. Allalley, .... .... .... ... 
 
 Deeble v. McMullen, .... .... .... .... 
 
 Deerden v. Evans, ... .... .... .... 
 
 Despatcli Line of Packets v. Bellamy Man. Co., .... 
 
 Devin v, Dougherty, 
 
 D'Eyncourt v. Gregory, ... .... .... .... 
 
 Dingley v. BufEum, .... .... 
 
 Doak V. Wiswell, ... .... .... .... 
 
 Doty V. Gorliam, .... .... .... .... 
 
 Dubois V. Kelly, 
 
 Dudley v. Warde, 179, 189, 
 
 Dumergue v. Rumsey, .... .... .... .... 
 
 48, 180, 210, 260, 
 
 156, 
 
 278, 
 
 219, 
 293, 
 
 308, 
 318, 
 
 E 
 
 Eastman v. Foster, 
 Eaves v. Estes,. . . . 
 Ellis V. Page, 
 Elwes V. Maw, . . . . 
 
 Empson v. Saden, 
 Evans v. Roberts,. 
 
 PAGE. 
 
 ... 617 
 
 529 
 293, 333 
 
 451 
 ... 85 
 
 536 
 ... 439 
 380, 496 
 ... 441 
 
 699 
 ... 448 
 310, 470 
 360, 486 
 
 416 
 
 80 
 670 
 
 448 
 
 49, 63, 69, 70, 155, 162, 174, 189, 210, 262, 277, 298 
 
 299, 302, 305, 312, 313, 314, 318, 328, 331, 862, 364 
 
 448, 487, 549, 623, 675, 704, 708 
 
 279, 331 
 
 733 
 
 Fairburn v. Eastwood, .... .... .... 
 
 Farmers' Loan and Trust Co. v. Hendrickson, . . 
 Farrant v. Thompson, .... .... .... 
 
 Farrer v. Chaufette, .... .... 
 
 Farrer v. Stackpole, .... .... .... 
 
 Fay V. Muzzy, .... .... .... 
 
 Finney v. Watkins, 
 
 Fisher v. Dixon, .... .... .... 
 
 Fisher v. SafEer, .... .... .... 
 
 Fitzherbert v. Shaw, 
 
 Fletcher v. Herring, 
 
 Fobes V. Shattuck, .... .... .... 
 
 Foley V. Addenbroke, 
 
 Foot V. Calvin, .... .... .... 
 
 Foote, Case of, .... .... .... 
 
 Ford v. Cobb, '. 
 
 Fortman v. Goepper, .... .... .... 
 
 Frankland v. Moulton, .... .... . . . 
 
 Frederick v. Devol .... .... 
 
 Freeland v. Southworth, .... .... , . . 
 
 Fryatt v. Sullivan Company, .... .... 
 
 Fullam v. Stearns, .... .... ... 
 
 662 
 
 716, 718 
 
 83, 744 
 
 121, 523, 709 
 
 61, 168, 709 
 
 346, 353 
 
 254 
 
 294, 331, 567, 652 
 
 80 
 
 . . 47, 184, 260, 465, 553 
 
 355 
 
 ;.. 344 
 
 393, 463, 744 
 
 531 
 
 500 
 
 , . 131, 138, 613, 670, 673 
 
 613, 667 
 
 613, 666 
 
 663 
 
 398, 524 
 
 526, 587, 588, 613 
 
 591, 606
 
 INDEX TO CASES CITED. 21 
 
 PAGE. 
 
 Fuller V. Wasson, 504 
 
 Funk V. Brigaldi, 400 
 
 Gr 
 
 Gaffield v. Hapgood, 270, 313. 382, 440 
 
 Gale V. Ward, 535, 591, C29 
 
 Gallagher v. Shipley 353 
 
 Galliinore, Ex parte, .... .... .... .... .... .... 323 
 
 Gardner v. Finley, 598, 743 
 
 Gas Company v. Hunter, .... .... .... .... .... .... 402 
 
 Gentil v. Arnand, 747 
 
 George v. Fisk, 741 
 
 Gibson v. Smith, 747 
 
 Gifford V. Yarborough, .... .... .... .... .... .... 99 
 
 Goddard v. Chase, .... .... .... .... .... .... . . 524 
 
 Goddard v. Lamb, ... .... .... .... .... .... .... 13(} 
 
 Goodman v. Hannibal, &c., R. R. Co., 446 
 
 Goodrich v. Jones, . . 116, 343, 545 
 
 Governors, etc. , of Harrow School v. Alderton, 392 
 
 Green v. Armstrong, .... .... .... .... .... .... 735 
 
 Green V. Phillips, .... .... .... .... .... .... .. 609 
 
 Greene v. Cole, .... .... .... .... .... .... .... 163 
 
 Grymes v. Boweren, 157, 368, 886 
 
 Guthrie v. Jones, 231, 401 
 
 H 
 
 Haffner V. Lewis,. . . .... .... .... .... .... .... 413 
 
 Haflick V. Stober 477, 491 
 
 Haley v. Hammersley, .... .... .... .... .... .... 581 
 
 Hallen v. Runder, 36, 161, 196, 730 
 
 Hamilton v. Elliott, .... .... • . . . . .... .... .... 449 
 
 Hanrahan v. O'Reilly, 230 
 
 Hanson v . Gardner, 747 
 
 Hare v. Horton, 555, 745 
 
 Harkness v. Sears 3I3, 532 
 
 Harlackenden, Case of, 290, 358, 359 
 
 Harlan v. Harlan, 142, 144, 540, 742 
 
 Harris v. Haynes, .... .... .... .... .... .... . . 591 
 
 Harrison, Ex parte, .... .... .... .... .... 324 
 
 Harri,son v. Parker, .... .... .... .... .... .... . . 90 
 
 Harvey v. Harvey, 360, 504 
 
 Hautrey v. Butlin, .... .... .... . . .'. .... .... 572, 626 
 
 Haven v. Emery, .... 146, 663 
 
 Hay V. Bruner, .... .... .... .... .... .... 244 480 
 
 Hayes v. Doane, .... .... .... .... .... .... .... 401 
 
 Heane v. Rogers, .... .... .... .... .... .... . . 324 
 
 Heap V. Barton, .... .... .... .... .... .... . . 417 465 
 
 Hellawell v. Eastwood, 69, 127, 199, 205, 575, 650, 738
 
 22 
 
 INDEX TO CASES CITED. 
 
 Hermance v. Vernoy, .... .... ... 
 
 Hm V. Seweld, 
 
 Hill V. Wentworth, .... .... ... 
 
 Hitcliings, In re, .... .... .... 
 
 Hitchman v. Walton, .... .... ... 
 
 Holbrook v. Cliamberlin, .... .... 
 
 Holland v. Hodgson, .... . .... 
 
 Holmes v. Tremper, .... .... .... 
 
 Horn V. Baker .... .... . . . . 
 
 Hoskin v. Woodward, ... .... .... 
 
 House V. House, .... .... .... ... 
 
 Hovey v. Smith, .... .... .... 
 
 Howard v. Fessenden, .... .... ... 
 
 Hoyle V. Plattsburgh and Montreal R. R. Co. , 
 Hubbard v. Bagshaw, .... .... ... 
 
 Hunt V. Bay State Iron Co. , .... .... 
 
 Hunt V. Bullock, ... .... .... ... 
 
 Hunt V. MuUanphy, 
 
 Huntley v. Russell, .... .... ... 
 
 Hutchinson v. Kay, .... .... .... 
 
 PAGE. 
 
 70 
 
 126, 143, 242, 614 
 
 127, 606 
 
 638 
 
 655, 742, 745 
 
 233, 476 
 
 577, 619 
 
 211, 266, 303, 305, 319, 435 
 
 64, 636 
 
 593 
 
 693, 694, 695, 696 
 698 
 
 474 
 
 42, 600, 722, 723, 727 
 
 637 
 
 144 
 
 726 
 
 586 
 
 339, 509, 514, 515 
 573 
 
 Jackson v. Cater, . . . 
 Jenkins v. Gething, 
 Johnson v. Mehafley, 
 Jones V. Flint, 
 
 Kelly V. Austin, 
 Kelsey v. Durkee, 
 Keogh V. Daniell, . . . 
 Keppell V. Bailey, 
 Keve V. Paxton, 
 King, Ex parte, . . 
 King V. Etley, 
 King V. Otter, .... 
 King V. Wilcomb, . . . 
 Kirvan v. Latour, 
 Kittredge v. Woods, 
 Kittridge v. Rhodes, 
 Knight V. Mosley, .. 
 Knight V. The Bank, 
 Krouse v. Ross, 
 Kutler V. Smith, 
 
 K 
 
 155, 219, 
 
 .... 747 
 
 384, 748 
 
 .... 541 
 
 733 
 
 .... 608 
 
 222, 473 
 
 415, 744 
 
 583 
 
 . 616 
 
 655 
 
 . 66 
 
 63 
 
 336, 434 
 
 555 
 
 . 531 
 
 348 
 
 . 515 
 
 731 
 
 . 260 
 
 266, 481 
 
 Lafiin v. Griffiths, 
 Lancaster v. Eve, 
 
 596, 743 
 .... 128
 
 INDEX Td CASES CITED. 23 
 
 PAGE. 
 
 Landon V. Piatt, 477 
 
 Lassell v. Read, 346, 348, 355 
 
 Latham v. Blakeley, 530, 531, 619 
 
 Lathrop v. Blake, 589 
 
 Lauphere v. Lowe, .... .... .... • • • • ~'54, 415 
 
 Lawrence v. Kemp, 
 
 397 
 
 Lawton v. Lawton, 157, 178, 189, 193, 209, 211, 212, 256, 260, 265, 278 
 
 293, 302, 318, 361, 440, 484 
 
 Lawton v. Salmon, 50, 106, 182, 193, 194, 209, 293, 319, 321, 363, 391 
 
 400, 487 
 
 Leach v. Thomas, ^64, 518 
 
 Leader v. Homewood, .... .... .... • • - • • • • • • • • • ^"^^ 
 
 Lee V Gaskell . . .... .... . » . . .... .... .... 730 
 
 Lee v! Risden,' ............ .... 162,196,363,422,440,749 
 
 Leland v. Gassett, 94, 312, 537 
 
 Lemar v. Miles, ^*" 
 
 Lewis V, Jones, . . .... .... .... . • • • • • • • • • • • ^^^l 
 
 Liford, Case of, 498,544,703 
 
 Linahan V. Barr, 124,409 
 
 Lloyd, Ex parte, ^56 
 
 London and Westminster Loan and Discount Co. v. Drake, . . 161, 430, 584 
 
 Longbottom v. Berry, 568, 574, 618 
 
 Longstaff v. Mergoe, .... .... . . • ■ • • • • • • • • • • • • 561 
 
 Loughram v. Ross 438, 439, 442, 446 
 
 Loveridge v. Schultz, .... — . .... .... • • . • .... 405 
 
 Low V. Pew, 4<o 
 
 Lyde V. Russell, 167, 371, 418, 432, 567 
 
 M 
 
 Mackintosh v. Trotter, 197, 424 
 
 Mansfield v. Blackburne, 195, 462 
 
 Maples V. Millon, 338, 612 
 
 Martin v. Cope 553 
 
 Martinv.Roe, 340,491,507,509 
 
 Martyr v. Bradley, 392, 460 
 
 Mason v. Fenn, 445 
 
 Mather v. Fraser, 465, 576, 581, 618, 648 
 
 McCracken v. Hall, 414, 478 
 
 McGreery v. Osborn, 5^8 
 
 McKenzie v. City of Lexington, • 444 
 
 McKibbin, In re, 646 
 
 McKim V. Mason, 590 
 
 McLaughlin v. Johnson, 528 
 
 McLaughlin v. Nash, 226, 411, 543 
 
 McRea v. Central National Bank of Troy, 527 
 
 Merritt v. Judd 256, 315, 453 
 
 Middlebrook V. Convers • 348 
 
 Middlebrook v. Corwin, • 343
 
 24 • INDEX TO CA^ES CITED. 
 
 PAGE. 
 
 Miller v. Baker, 336, 337 
 
 Miller v. Plumb, 503 
 
 Milliken v. Armstrong, 592 
 
 Minnesota Co. v. St. Paul Co., 42, 727 
 
 Minsliall v. Loyd, 197, 424 
 
 Mitchell V. Freedly, 142 
 
 Montague v. Dent, .... .... .... .... .... .... 401 
 
 Montgomery, Ex parte, 646 
 
 Moore v. Smith, 250, 414 
 
 Moore v. Wood, 224 
 
 Mott V. Palmer, 78, 134, 356 
 
 Mumford v. Brown, . . .... .... .... .... .... .... 516 
 
 Murdock V. Gifford, 117, 601, 695, 720 
 
 Murdock v. Harris, 122, 601 
 
 N 
 
 Naylor v. Collinge, 191, .193, 457 
 
 Newcastle v. Vane, 502 
 
 Noble V. Bosworth, 525 
 
 Noble V. Sylvester, 536 
 
 Noyes v. Terry, 538 
 
 o 
 
 O'Brien v. Kusterer, .... .... .... .... .... .... . . 248 
 
 Ombony v. Jones, 121, 217, 220, 310, 447, 471, 472 
 
 Overton v. Williston, 478, 742 
 
 P 
 
 Palmer v. Forbes, . . 726 
 
 Park V.Baker, 104,111,731 
 
 Parker v. Redfield, 666 
 
 Parker v. Staniland, 732 
 
 Parsons v. Campbell, .... .... .... .... .... .... 348 
 
 Parsons v. Copeland, .... .... .... .... .... .... 603, 709 
 
 Parsons V. Hind 489,650,657 
 
 Paton V. Sheppard, .... .... .... .... .... .... . . 703 
 
 Patten v. Smith, .... .... .... .... .... .... .... 631 
 
 Peck v. Batchelder, 383, 543 
 
 Peirce v. Goddard, 93, 94, 144 
 
 Pemberton v. King, .... .... .... .... .... .... 165, 315 
 
 Penhallow v. Dwight, 700 
 
 Penry v. Brown, .... .... .... .... .... .... 370, 458 
 
 Penton v. Kobart,.. 47, 186, 260, 279, 328, 331, 332, 336, 337, 417, 419, 424 
 
 436, 440, 487 
 Perciviil v. Cooke, .... .... .... .... .... . . . . ' .... 516 
 
 Perkins v. Swank, .... .... .... .... .... .... 314 
 
 Perry v. Carr, .... .... .... .... .... .... .... 347 
 
 Petrie v. Dawson, .... .... .... .... .... .... 730
 
 INDEX TO CASES CITED. 25 
 
 PAGE. 
 
 „,.„.,„. 383, 404 
 
 Pliilbrick .V. Ewing, ' ^^ 
 
 Pierce v. George, 
 
 Pillow V. Love, .AC Of a 
 
 „. -K, ^- 142, 669 
 
 Piper V. Martin, 1 ri 
 
 Pitt V. Shaw, : V'J: 
 
 Place v.Fagg q47 S56 
 
 Plummer V. Plummer, ~Z 
 
 747 
 Pollitt V. Long, ^^ ^^ ^ 
 
 Poole Case of, 151, 160, 175, 176, 213, 265, 358, 363, 389, 418 
 
 Potte; V.Cromwell, 114,119,120,523 
 
 Powell V. McAslian, ao'i ao^ 
 
 Powell V. Monson & Brimfield Man. Co. , o-**- ''^^ 
 
 Powers v.Dennison, ...■•'• 436,' 'S', 588 
 
 Preston V. Briggs ooo fil9 
 
 Price V. Brayton, ' „i. 
 
 644 
 Price, Ex parte, 
 
 Providence Gas Co. v. Thurber, 
 
 Pugli V. Aston, ; ^^^ 
 
 Pyle V. Pennock, 106,558 
 
 Q 
 
 Quimby V. Manhattan Cloth and Paper Co., 595 
 
 Quincy, Ex parte, 260, 362, 435, 556, 560 
 
 R 
 
 Radden v. Arnold, 234 
 
 Randall v. Elwell, "^23 
 
 Raymond v. White, 249 
 
 Redlon v. Barker, ^28 
 
 Regina v. Lee, ^^JJ 
 
 Regnall, Ex parte, '• ^^O 
 
 Reid V. Kirk ^^^ 
 
 Rex V. Inhabitants of St.. Dustan in Kent, , 370 
 
 Rex V. Londonthorpe, 63, 549 
 
 Rexv.Otley, 296,306,549 
 
 Rex v. Topping, ^^^ 
 
 Reynolds v. Shuler, 213, 435, 739 
 
 Rice V. Adams, • • ^^^ 
 
 Rice V. HoUenbeck, 9" 
 
 Richardson v. Copeland, 144, 410, 613 
 
 Rising v. Stannard, 448 
 
 Ritchmyer v. Morse, "^8 
 
 Roberts v. Dauphin Deposit Bank, 609 
 
 Rodwell V. Phillips, ''34 
 
 Roffery v. Henderson, 163 
 
 Rogers v. Brokaw, ■ 595 
 
 Rogers v. Crow, ^^1 
 
 4
 
 26 
 
 Rogers v. Woodward, 
 Ross V. Adcock, . . . 
 Russell V. Richards, . . 
 Ryall V. Rolle, 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 ... 78 
 
 515 
 
 78, 169 
 
 638, 631 
 
 S 
 
 Saint V. Pilley, 
 
 Saintbury v. Mathews, . . .... . . . , 
 
 Salisbury, Bishop of. Case of, .... 
 
 Seeger v. Pettit, .... . . . . , 
 
 Shall V. Haywood, . . .... .... 
 
 Shaw V. Carbrey, .... .... ... 
 
 Shaw V. Lenke, . .... ... 
 
 Sheen v. Rickie, .... .... .... 
 
 Sheldon v. Edwards, .... .... 
 
 Shepard v. Spaulding, . . .... .... 
 
 Shuart v. Taylor, . . .... .... 
 
 Shumer v. Harman, .... .... 
 
 ShurtlefE v. Willard, 
 
 Skinner v. Hannan .... .... 
 
 Smith V. Benson, . . .... .... 
 
 Smith V. Follansbee, ... .... .... 
 
 Smith V. Johnson, .... .... 
 
 Smith V. Mapleback, ... .... .... 
 
 Smith V. Price, 
 
 Smitherick v. Ellison, . . .... .... 
 
 Snedeker v. Warring, .... .... 
 
 Spark V. Spicer, 
 
 Sparks v. State Bank, .... .... 
 
 Squire v. Mayer, .... .... .... 
 
 Stansfield v. Mayor of Portsmouth, . . 
 
 State V. Elliott, 
 
 State V. Northern Railway Co., .... 
 
 Stetson V. Day, .... .... . 
 
 Steuart v. Douglas, .... .... 
 
 Stevens v. Buffalo & N. Y. City R. R. Co., 
 Steward v. Lombe, .... .... 
 
 Stockwell V. Marks, .... .... . . . . 
 
 Storer v. Hunter, ... .... .... 
 
 Strong V. Doyle, .... .... ... 
 
 Sudbury v. Jones, ... .... .... 
 
 Sumner v. Brownlow, .... .... 
 
 Sunderland v. Newton, .... .... 
 
 Sweetzer v. Jones, .... .... 
 
 Swift V. Thompson, .... .... 
 
 Synie v. Harvey, • .... .... . . . 
 
 
 
 431, 
 
 454 
 732 
 514 
 247 
 
 
 
 141, 
 
 143 
 731 
 
 .... .... 
 
 399, 
 
 544 
 
 
 
 36, 
 
 549 
 140 
 443 
 665 
 69 
 633 
 298 
 
 77, 
 
 135, 
 
 664 
 503 
 531 
 517 
 539 
 352 
 
 59, 384, 
 
 544, 
 
 597 
 
 
 84 
 
 [, 85 
 588 
 359 
 
 428, 
 
 432, 
 
 467 
 
 
 
 384, 
 
 441 
 727 
 504 
 690 
 720 
 
 
 . 68, 
 
 629 
 
 
 383, 
 
 441 
 
 451, 
 
 GGO, 
 
 663 
 354 
 
 
 . 95, 
 
 228 
 432 
 
 
 392, 
 
 463 
 607 
 
 72, 
 
 123, 
 
 633 
 
 
 334, 
 
 748
 
 INDEX TO CASES CITED. 
 
 27 
 
 Tabb V. Hodge, 
 
 Tabor v. Robinson, .... .... 
 
 Tagart, Ex parte, .... .... 
 
 Talbot V. Whipple, 
 
 Tate V. Blackburne, .... .... 
 
 Taylor v. Townsend, .... .... 
 
 TeafE v. Hewitt, 
 
 Tliererer v. Nautre, .... .... 
 
 Thomas v. Croat, .... .... 
 
 Thorpe v. Milligan, . . .... .... 
 
 Thrall v. Hill, ' 
 
 Thresher v. London Water Works Co., 
 Thropp, Appeal of, .... .... 
 
 Tibbits V. Moore, 
 
 Tifft V. Horton, 
 
 Trappes v. Harter, 
 
 Treadway v. Sharon, 
 
 Trull V. Fuller, 
 
 Turner v. Cameron, 
 
 PAGE. 
 
 569 
 
 ... • .. 107, 521 
 
 644 
 
 : . . . 228 
 
 531 
 
 741 
 
 .... 41, 115 
 594 
 
 252 
 
 466 
 
 475 
 
 192, 320, 464, 553 
 
 .... 246, 444 
 668 
 
 .... 119, 139 
 561, 562, 564, 565 
 
 258 
 
 .... 238, 588, 671 
 575, 738 
 
 Udal V. Udal, 
 
 Union Bank v. Emerson, 
 
 u 
 
 743 
 266, 525, 587 
 
 Vanderpool v. Van Allen, 
 Van Ness v. Packard, . . 
 Vaughn v. Haldeman, 
 Voorhees v. McGinnis, . . 
 Voorhis v. Freeman, ... 
 
 599 
 
 240, 263, 265, 301, 305, 312, 314, 322, 697 
 
 397 
 
 113, 120, 137, 138, 598, 674 
 36, 105, 241, 558, 608 
 
 w 
 
 Wadleigh v. Janvrin, . 
 Walker v. Sherman, . . . 
 
 Wall V. Hinds, 
 
 Walmsley v. Milne, . . . 
 Walsh V. Plummer, 
 Wansbrough v. Maton, 
 Warden v. Usher, 
 
 Warren v. Leland 
 
 Washburne v. Sproat, . 
 Waterfall v. Penistone, 
 Waterman v. Soper, 
 
 Watkins, Ex parte, 
 
 Watson V. Walsh, 
 
 ■ 534 
 
 133, 213, 526, 597, 695, 706 
 
 156, 228, 237, 383, 402, 403 
 128, 205, 563, 564, 565, 568, 576, 651 
 342 
 
 .. 63, 66, 169, 279, 296, 306, 549 
 ■ 329 
 
 735 
 
 .... 76, 94 
 
 502, 564, 577, 649 
 
 85 
 
 656 
 
 341
 
 28 
 
 INDEX TO CASES CITED. 
 
 Webster v. Ziely, 
 Wells V. Banister, . 
 Welsh V. Nasb, . . 
 West V. Blakeway, 
 West V. Moore, . . . 
 Weston v.* Weston, . . . 
 Weston V. Woodcock, 
 Wetlierell v. Howell,. 
 Whipley v. Dewey, 
 WMte V. Andsit, 
 White's Appeal, . . 
 Whiting V. Brestow, . 
 Whitmarsh v. Walker, 
 Wiegall V. Waters, 
 Wilde V. Waters, 
 Williams v. Bailey, . . , 
 Williams v. Evans, 
 Wilson, Ex parte, . . . 
 Wiltshear v. Cottrell, 
 Wing V. Gray, 
 Winn V. lugleby, . . .... 
 
 Winslow V. Merchants' Ins. Co., 
 Wintermier v. Light, .... 
 
 Wise V. Metcalf, .... . . . . 
 
 Wood V. Griffin .... 
 
 Wood V. Hewett, .... . . . . 
 
 Wood V. Leadbitter, .... 
 
 Worrelly v. De Mattos, 
 
 Wyndham v. Way, .... 
 
 
 
 PAGE. 
 
 
 
 
 734 
 
 
 
 
 77 
 
 
 
 
 91 
 
 , , , , , , . 
 
 
 
 461 
 
 • . • . .... 
 
 
 
 703 
 
 • • . . • . 
 
 
 412, 
 
 539 
 
 
 198, 
 
 422 
 
 424 
 330 
 451 
 
 242, 
 
 442, 
 
 490, 
 
 491 
 241 
 
 
 .134 
 
 311, 
 
 490 
 735 
 
 517 
 
 
 
 164, 
 
 201 
 524 
 651 
 
 • • . . • . 
 
 
 641, 
 
 657 
 
 63, 66, 
 
 550, 
 
 576 
 
 
 312, 
 
 353, 
 
 405 
 371 
 
 73, 113, 144, 410, 
 
 602, 
 
 603, 
 
 619 
 532 
 
 
 
 339, 
 
 511 
 505 
 88 
 429 
 631 
 
 .... .... 
 
 331, 
 
 336, 
 
 337
 
 A TREATISE 
 
 LAW OF FIXTURES.
 
 INTRODUCTORY. 
 
 CHAPTER I. 
 
 INTRODUCTION OF THE SUBJECT GENERAL DIYISION OF PROPERTY INTO 
 
 THINGS REAL AND THINGS PERSONAL NATURE OF EACH VARIOUS 
 
 DEFINITIONS OF THE TERM FIXTURES USE OF DEFINITIONS IN THE 
 
 EXAMINATION OF THE SUBJECT. 
 
 The subject of the following pages is one of growing 
 importance in tliis and every other civilized country. The 
 law of Fixtures has been incidentally and briefly discussed 
 in works upon Real Estate, but it has seldom been the topic 
 of separate consideration. The general division of prop- 
 erty, by law, is into things real and things personal ; and 
 then again, this general division is subdivided into divers 
 classes, one of which is called "fixtures," the law of which 
 is the subject of this work. Things real are such as are 
 permanent, fixed and immovable, which cannot be carried 
 out of their place, except by violence or force ; as lands and 
 tenements. Things personal are goods, money and other 
 movables, which may attend the person of the owner 
 wherever he sees proper to go. These are substantially the 
 definitions given by Blackstone, the British commentator, 
 and although they have been objected to, they are doubtless 
 correct when real and personal things are considered, and 
 not an estaite in those things. Land is a word of extensive 
 signification and comprehends every thing of a permanent 
 and substantial nature. It comprehends any ground, soil 
 or earth, as meadows, woods, moors, waters, marshes, furzes, 
 and heath. And the word also includes all castles, houses 
 and other buildings constructed upon the land ; and it in- 
 cludes not only the face of the earth, but every thing under 
 it and over it. So if an individual grants all his lands 
 without exception, he grants thereby all his mines of metal 
 and other fossils, his woods, his waters and his houses, as 
 well as his fields and meadows. 
 
 Fixtures belong to that class of property which stands 
 
 5
 
 34 LAW OF FIXTURES. 
 
 upon tlie boundary line between the two grand divisions of 
 tilings real and things personal, into wliich the law has 
 classified property : a distinction not merely artificial, but 
 founded on reason and the nature of things — regarding not 
 only the natnral qualities of immobility on the one hand, 
 and mobility on the other, but also the legal constitution 
 and incidents to which each class respectively is subject. 
 In the great order of nature, when v^e compare a thing at 
 the extremity of one class with a thing at the extremity of 
 another, the dilference is glaring ; but when we approach 
 the connecting link between the two great divisions, it is 
 often difficult to discover the precise point where the dividing 
 line is drawn. 
 
 There are some matters having their foundation in things 
 real, vi^hich are, nevertheless, by the principles of the com- 
 mon law, attended witlj some of the qualities of things per-, 
 sonal, and, therefore, termed chattels real. These, however, 
 are easily identified, and have no connection with fixtures. 
 And, again, there are others which, though movable in their 
 nature and apparently falling within the definition of things 
 personal, are, in respect of their legal qualities, of the nature 
 of things real. But none of these articles acquire their 
 legal qualities upon the principle of a fixture. 
 
 The rules relating to real and personal property in their 
 general aspects are usually understood by the legal profes- 
 sion, because numerous works have existed from a very 
 early period in which the subjects have been expressly 
 treated. Not so, however, in respect to the species of prop- 
 erty known in the law as "fixtures." It has been perti- 
 nently remarked, that the law of "fixtures" is confessedly 
 the most uncertain title in the entire body of American juris- 
 prudence ; and that a judge might, in any given case, decide 
 either way witliout much danger of having his judgment 
 impeached, or of failing to find some authority to support 
 it. Indeed, there is a want of" harmony in the authorities 
 upon the subject; especially in the different American 
 states. In fact, the cases are not a little confiicting, and it 
 is sometimes difficult to discriminate, from the authorities, 
 between personal property and fixtures. The line of de-
 
 FIXTURES DEFINED. 00 
 
 markation is so close and often so nicely drawn tliat no pre- 
 cise and fixed rule can be laid down to govern and control 
 all cases. In a word, the decisions of the courts upon this 
 subject illustrate the great difficulty in fixing on any certain 
 criterion which shall govern the various cases that arise; 
 each case must be more or less dependent upon the peculiar 
 facts and circumstances by which it is surrounded. And 
 yet, the law in respect to fixtures has been the occasion of 
 so much discussion in the courts, and the cases which have 
 been adjudicated are so numerous and various, that the 
 general principles relating to the subject are tolerably well 
 settled, and a precedent may be found for almost every con- 
 ceivable case. 
 
 It is not easy to give a legal definition to the term "fix- 
 tures," which may be regarded general in its application. 
 Indeed, the word is of an ambiguous meaning, and writers 
 and courts have used it with various significations, but the 
 word is always applied to chattels of -a personal nature which 
 have been afiixed to, or permanently used in connection with 
 land. The word is derived from the thing signified by its 
 being fastened or fixed. It is a maxim of great antiquity, 
 that whatever is fixed to the realty is thereby made a part 
 of the realty, to which it adheres, and partakes of all its in- 
 cidents and properties. In accordance with this maxim, 
 the term "fixtures" has been properly defined to be "chat- 
 tels or articles of a personal nature w^hich have been affixed 
 to the land" {Tomlins' Law Dictionary, Fixtures). And 
 in its broadest signification, the word is sometimes used to 
 designate anything which is by artificial means attached 
 permanently or substantially to the soil or freehold. 
 
 The name of "fixtures" is also sometimes applied to 
 things expressly to denote that they cannot legally be re- 
 moved ; as where they have been annexed to a house or 
 other structure upon land, and the party who has affixed 
 them is not at liberty afterward to remove them. But there 
 is another and more technical meaning sometimes given to 
 the word. That is to say : the term is frequently used to 
 denote those personal chattels which have been annexed to 
 land, and which may be afterward severed and removed by
 
 36 LAW OF FIXTURES. 
 
 the party who has annexed them, or by his personal repre- 
 sentatives, against the will of the owner of the freehold, or, 
 in the language of authority: "It is used m(5re generally 
 with reference to such inanimate things of a personal nature 
 as have become affixed or annexed to the realty, but which 
 may be severed, disunited or removed by the party or his 
 personal representatives, who has so affixed them without 
 the consent of the owner of the freehold" {Hallen v. Rim- 
 der, 1 Orompton, Meeson & Itoscoe's Exc. ^., 266, 276, per 
 Mr. Baron P arize). And although the idea of a "movable 
 fixture" may be regarded as incongruous and" contradic- 
 tory, perhaps it is in this sense that the term "fixture" is 
 more generally used than in any other. Of course, the 
 literal meaning of the word signifies that which is fixed ; 
 something fixed or immovable : but by usage, the term is 
 applied to many things of a movable nature; thus making 
 the term denote thfe very reverse of the original name. The 
 term seems now to have acquired the peculiar meaning of 
 personal chattels which have been annexed to the freehold, 
 but which are movable at the will of the person who has 
 annexed them. Said Mr. Baron Parke: "The word 'fix- 
 tures-' need not import things affixed to the freehold, nor 
 has the word necessarily acquired that legal sense. It is a 
 modern word, and is generally understood to comprehend 
 any article which a tenant has a power of moving, but 
 even this is not its necessary meaning ; it only means some- 
 thing fixed to another" {Sheen v. Ilickie, 5 Meeson& Wels- 
 IjiJ s Exc. R., 175, 182). And it has been declared by the 
 Su]3reme Court of Pennsylvania, that the simple criterion 
 of physical attachment is so limited in its range, and so 
 productive of contradiction even in regard to fixtures in 
 dwellings to which it was adapted before England had 
 become a manufacturing country, that it will answer for 
 nothing else {Voorhees v. .Freeman., 2 Watts & Sergeanf s 
 R., 116, 118). 
 
 It may not be amiss to insert a few of the many defini- 
 tions which have been attempted to be given to the term 
 "fixtures." Mr. Hill, in his little "Manual of the Law of 
 Fixtures," says: "The common and general meaning of
 
 FIXTURES DEFINED. 37 
 
 the word is, a thing so fixed to the realty that it cannot be 
 taken away, and that the owner of the land necessarily 
 owns the tiling, so that it cannot be removed without his 
 permission. Bnt some writers, and numerous reported de- 
 cisions in England and America, have used the tevm. fixtures, 
 as denoting personal chattels annexed to land which may 
 be severed and removed against the will of the owner of the 
 freehold, by the party, or his personal representatives, who 
 has annexed them" {Hill on Fixtures, % 1). He declares, 
 however, that the definition does not express the accurate 
 meaning of the term in its usual application, and adds : 
 "An article attached to the realty, but which is removable 
 against the will of the owner of the land, cannot be said to 
 have lost' the nature and incidents of personal property ; 
 hence there seems to be no good reason for changing its name 
 from that of a chattel to a fixture" {Hill on Fixtures, § 1). 
 
 Mr. Ferard in his work upon the "Law of Fixtures," ob- 
 serves: "The term fixtures is used by writers with various 
 significations ; but it is always applied to articles of a per- 
 sonal nature, which have been affixed to land. On some 
 occasions, no further idea is intended to be conveyed by the 
 -term, than the simple fact of annexation to the freehold ; 
 %nd hence have arisen the popular expressions of landlord' s 
 fixtures. 
 
 The name of fixtures is also sometimes appplied to things 
 expressly to denote that they cannot legally be removed ; 
 as when they have been annexed to a house, etc., and the 
 party who has affixed them is at liberty afterward to sever 
 and take them away. Thus it has been said, that an article 
 shall fall in with the lease to the landlord, or descend to the 
 heir with the inheritance, because it is a fixture. 
 
 There is, however, another sense in which the term fix- 
 tures is very frequently used, and which it is thought expe- 
 dient to adopt in the following treatise, viz.: as denoting 
 those personal chattels which have been annexed to land, and 
 which may be afterward severed and removed by the party 
 who has annexed them, or his j)ersonal representatives, 
 against the will of the owner of the freehold" {Ferard^ s 
 Laio of Fixtures, 1, 2).
 
 38 LAW OF FIXTURES. 
 
 Mr. Bingham, in his work on Real Estate, says: "Chat- 
 tels so annexed to the land that the owner of the chattels 
 lias no right to remove them, as a general rule, except when 
 he is the owner of the land, are known, in the law, as fix- 
 tures" {Blngliam on Real Estate^ 453). Mr. Gibbon, in 
 his " Law of Fixtures," gives the following definition of the 
 word : "A Fixture is a thing fixed to land, or as it is usu- 
 ally expressed, to the freehold. ''^ * * Domestic fixtures 
 are those articles which a tenant fixes in his dwelling house, 
 in order to render his occupation more comfortable or more 
 convenient" {Gibhon^ s Law of Fixtures, 15, 32). 
 
 Mr. Burrill, in his "Law Dictionary," gives a number of 
 definitions to the word "fixture," with the authorities upon 
 which they are given, among which are the f ollovi^ing : "A 
 thing fixed to the freehold." Any thing annexed to (that is, 
 fastened to, or connected with) the freehold," "An article 
 of a personal nature affixed to the freehold," " A thing of 
 an accessory character, annexed to houses or lands," "A 
 movable thing which, either by the operation of nature, or 
 by human act, is connected with an immovable thing in 
 such a manner as to constitute a part of it," "An article 
 which was a chattel, but which, by being physically an- 
 nexed or affixed to the realty, became accessory to it, and 
 part and parcel of it," "An article which, by being attached 
 to the freehold, has been changed from a chattel to a part 
 of the realty," " A chattel which has been substantially an- 
 nexed to the freehold in such a manner as not to permit it 
 to be separated from it, without material injury to itself or 
 to the. freehold." The author adds: "To be 2i. fixture, a 
 thing must, on the one hand, be of an accessory character, 
 and, on the other, it must be in some actual union or con- 
 nection with the principal subject, and not merely brought 
 into contact with it." And again, he says: "Mr. Stephen 
 considers the term fixtures as of popular origin. * '* * It 
 may be doubted, however, whether it is not derived, with 
 the law of fixtures itself, from the civil law, in which terms 
 aclfixa, or afiixa (things fixed or fastened), was used to de- 
 note these accessories. * * ''' It is not used in the common 
 law. as the same author justly observes, witii much uni-
 
 FIXTURES DEFINED. 39 
 
 formity of meaning. Probably, it denotes sometliing fixed 
 and permanent, as distinguished from that whicli is remov- 
 able (the It^tiw fixum, having the sense not only of attach- 
 ment or connection, but of staMlity)., and in this respect the 
 popular coincides entirely with the primary legal meaning ; 
 the general rule being, that a fixture once annexed to the 
 realty cannot be removed, or separated from it, as against 
 the owner of the freehold or inlieritance, to whom it be- 
 longs. * * * From the various exceioUons to this rule, 
 however, which have been gradually established, a distinc- 
 tion has not only arisen between fixtures removable, and 
 immovable, but the word fixtures itself has been said to 
 have acquired the peculiar meaning of chattels, which have 
 been annexed to the freehold, but wMcli are remoDahle at 
 the will of the person who annexed them. * * * More than 
 this, — it has been said that the t^vm fixtures does not neces- 
 sarily mean things afiixed to the freehold. * * * This goes 
 to justify Mr. Chitty' s remarks, that fixtures is a term in 
 general denoting the very reverse of the name. * * * And 
 this idea has been carried ^o far in Pennsylvania, as to have 
 led to the establishment of an entirely new definition of a 
 fixture, viz., something essential to the use of the freehold, 
 whether ^ci\x2i\\j fastened to it or noV^ {BurrilV s Laio Dic- 
 tionary, title '"'Fixtures''''). 
 
 Judge Bouvier, in his approved Law Dictionary, thus de- 
 fines the word fixtures: "Personal chattels annexed to 
 land, and which may be afterward recovered and removed 
 by the party who has annexed them, or his personal repre- 
 sentative, against the will of the owner of the freehold." 
 And the author remarks : "Questions frequently arise as to 
 whether fixtures are to be considered real estate, or a part 
 of the freehold ; or whether they are to be treated as per- 
 sonal property. To decide that, it is proper to consider the 
 mode of annexation, the object and customary use of the 
 thing, and the character of the contending jiarties" {Bou- 
 rne f s Laio Dictionary, title '•'Fixtures'^). 
 
 These definitions are extracted from cases decided by the 
 courts, and are hence based upon judicial authority. The 
 Messrs. Abbott, in their " Digest of New York Statutes and
 
 40 LAW OF FIXTURES. 
 
 Reports," give tlie following as the meaning of "fixtures : " 
 "Chattels, or articles of a personal nature, which have been 
 afiixed to the land. .They must be permanently, habitually 
 attached to it, or must be component parts of some erection, 
 structure, or machine attached to the freehold, without 
 which the erection, structure, or machine would be imper- 
 fect and incomplete. * * * If articles are essential to the 
 use of the realty, have been affixed exclusively to use in 
 connection with it, are necessary for that purpose, and with- 
 out such or similar articles the realty would cease to be of 
 value, then they may properly be considered as fixtures, 
 and should pass with it" (2 Abbotfs New York Digest, 
 second edition, 620, 621). And again, they say: "There 
 is a confusion in the employment of the word 'fixtures,' 
 in the cases. Sometimes it is used to denote that which must 
 not be removed from the freehold, sometimes that which may 
 be. To avoid this confusion we employ the term, wherever 
 introduced in the above title, as meaning a thing which 
 has been so affixed to the realty that it is deemed a part of 
 it, and is no longer remo'Gahle Ijy the original owner ' ' (3 
 Abb. N. Y. Digest, 2d ed., 412, note). They then append 
 extracts from lexicons showing the different senses attached 
 to the word, among which are the following : 
 
 Appleton^ s Cyclopcedia. — Things so fastened to the land 
 that they cannot be removed against the will of the owner. 
 
 Webster. — That which is fixed or attached to something 
 permanently as au appendage, and not removable. 
 
 Wharton.^ — Things of an accessory character annexed to 
 houses or lands, which become immediately on annexation 
 part of the realty itself, — i. e., governed by the same law 
 which applies to the land. 
 
 Worcester. — That which is fixed; apiece of furniture 
 fixed to a house, as distinguished from movable ; something 
 fixed or immovable. 
 
 In a case decided by the Supreme Court of Ohio, tlie con- 
 clusion was reached that "the term fixture, in its ordinary 
 signification, is expressive of the act of annexation, and de- 
 notes the change which has occurred in the nature and the 
 legal incidents of tlie properly; and it appears to be not
 
 FIXTURES DEFINED. 41 
 
 only appropriate, but necessary, to distinguish this class of 
 property from movable property possessing the nature and 
 incidents of cliattels. It is in this sense that the term is 
 used in far the greater part of the adjudicated cases." And 
 the court gives the following definition of the term : "A fix- 
 ture is an article which was a chattel, but which, by being 
 physically annexed or affixed to the realty, became acces- 
 sory to it and part and parcel of it. But the precise point 
 in the connection with the realty, where the article loses the 
 legal qualities of a chattel and acquires those of the realty, 
 often presents a question of great nicety and sometimes 
 difficult determination" {Teaff v. Heioitt, 1 Ohio State R., 
 524, 525). And the Supreme Court of Rhode Island observed : 
 " We think the true rule is, that a personal chattel does not 
 become a fixture, so as to be a part of the real estate, unless 
 it be so affixed to the freehold as to be incapable of sever- 
 ance from it without violence and injury to the freehold ; 
 and if it be so annexed, it is a fixture, whether the annexation 
 be for use, for ornament, or from mere caprice" {Providence 
 Gas Company v. Thurher, 2 It. I. Jt., 22). 
 
 Mr. John William Wallace, late reporter of the Supreme 
 Court of the United States, in a note to a case decided by 
 that distinguished court, gives an extract from the brief of 
 one of the counsel, as follows : ' ' The term jixture was early 
 seized upon by legal writers to supply a deficiency in their 
 technical terminology ; but was not entirely reclaimed from 
 its popular use and fixed in that strictness and uniformity 
 of meaning requisite to scientific certainty ; and as used by 
 legal writers, it has continually fluctuated between a techni- 
 cal and a popular use. We have, therefore, many kinds of 
 fixtures ; and many exceptions and qualifications to each 
 kind. A fixture is one thing between landlord and tenant ; 
 a different thing between vendor and vendee ; is one thing 
 in the economy of trade ; another for the purposes of agri- 
 culture. Originally, the term denoted those movable things 
 which had become immovable by connection with the free- 
 hold. But presently it came to mean those things, which 
 although attached to the freehold, could, under certain cir- 
 cumstaiices, be removed. In its popular use it meant affixed 
 
 6
 
 42 LAW OF FIXTURES. 
 
 or fastened to the freehold ; and in the early cases, and 
 many of the later ones, we find the popular definition of the 
 term sweeping every thing before it. An article was held 
 to be a fixture or not from the presence or absence of a screw 
 fastening it to the floor" {Minnesota Company v. -S'^^, Paul 
 Company, 2 Wallace R., 609, 645, 646, note). 
 
 Judge Ingraham, in a late case in the Supreme Court of 
 New York, says: "It is difficult at the present day to de- 
 fine with any precision what is necessary to make personal 
 property, fixtures. The old rule which required annexation 
 to the freehold, has been so often departed from as to fur- 
 nish no rule at the present day. For the purposes of trade 
 and as between landlord and tenant, that rule has been so 
 modified as to authorize the removal of many articled which 
 otherwise by being afiixed, would have been included under 
 the definition of fixtures. 
 
 JS'or is the rule that any thing is a fixture which cannot 
 be removed without injury to the freehold sufficiently exten- 
 sive to give any correct definition of the articles coming 
 within it. * * * The more sensible rule seems to be one 
 which of late years has been suggested by judges, viz. : If 
 the articles are essential to the use of the realty, have been 
 applied exclusively to use in connection with it, are neces- 
 sary for that purpose and without such, or similar articles, 
 the realty would cease to be of value, then they may prop- 
 erly be considered fixtures, and should pass with it " {Hoyle 
 Y. Plattshurgh and Montreal Railroad Company .^ 51 Barh. 
 R., 45, 62). 
 
 As has been before suggested, the authorities upon this 
 subject are very numerous, and judges have often attempted 
 to give a definition to the word "fixtures" which maybe 
 regarded of general application ; but the fact that so many 
 circumstances may be taken into the account to determine 
 this question, it has been found difficult, if not impossible, 
 to fix upon any invariable or unerring meaning of the word. 
 Perha])s the definition of the term as extensiveh^ approved 
 as any is, that fixtures are "chattels or articles of a personal 
 nature which have been affixed to the land." And the gen- 
 eral rule is that any thing of a personal nature not fixed to
 
 ORIGIN OF THE LAW. 43 
 
 the freehold cannot be considered as an incident to the land, 
 and hence not a "fixture;" the thmg must he fixed in a 
 greater or less degree to the realty, in order to be classed as 
 a "fixture." These definitions of the term "fixtures," 
 though by no means infallible, are quite in accordance with 
 the ordinary meaning attached to the word, and may prop- 
 erly be referred to in the general examination of the subject. 
 They will often be of service in determining whether the 
 article involved in inquiry does or does not belong to that 
 particular species of property. 
 
 CHAPTEE 11. 
 
 FOUNDATION OF THE LAW OF FIXTURES ORIGIN OF THE GENERAL RULE 
 
 OF LAW IN RESPECT TO ANNEXATIONS TO THE FREEHOLD INNOVA- 
 TIONS UPON THE ANCIENT LAW RELATING TO FIXTURES RULES OF THE 
 
 COMMON LAW ON THE SUBJECT NOT ALWAYS ADOPTED IN THIS COUNTRY. 
 
 No STUDENT of liistory can fail to observe in the jurispru- 
 dence of every civilized country, a strong tendency to adapt 
 itself to the varying manners and necessities of society, and 
 the law of fixtures afl'ords a remarkable illustration of this 
 fact. The name "fixture," in the ambiguity of its mean- 
 ing, as given in the preceding chapter, affords in itself a per- 
 petual memorial of tlie extent of the variations in law within 
 the different periods of its history. The rules recognized in 
 respect to this species of property called "fixtures," are in 
 derogation of the principles* of the common law, and have 
 been gradually introduced and established by the judges, 
 who in this instance, have exercised a sort of legislative 
 authority. Or in tlie language of the learned Chancellor 
 Kent: "Tlie law of fixtures is in derogation of the original 
 rule of the common law, which subjected every thing affixed 
 to the freehold to the law governing the freehokl ; and it lias 
 grown up into a system of judicial legislation, so as almost
 
 44 LAW OF FIXTURES. 
 
 to render tile right of removal of fixtures a general rule, in- 
 stead of being an exception" (2 Kent's Com., 343). 
 
 There were certain rules of law relating to real estate 
 having their origin in feudal times, which were found to be 
 incompatible with the notions of property entertained in a 
 more civilized age ; and as the legislature did not interfere 
 to abolish those rules, it became indispensably necessary 
 that their practical operation should be modified and con- 
 trolled. The courts of England, therefore, while they did 
 not venture to abandon altogether the principles of the 
 ancient law, early endeavored to mitigate its rigor, and by 
 a series of decisions, engrafted upon it the various excep- 
 tions and qualifications, which culminated in the system 
 known as the law of "fixtures." 
 
 It will be well to examine the nature of the several inno- 
 vations which have thus been made upon the maxims of 
 feudal policy, in order that a distinct view may be taken of 
 the steps by which the courts have proceeded toward per- 
 fecting this branch of the law. This cannot be better or 
 more accurately done than by making use of the labors of 
 Mr. Ferard as exhibited in the introductory chapter to his 
 work on the Law of Fixtures. And the first step in the 
 examination is to consider the origin of the general rule of 
 law in respect of annexations to the freehold. 
 
 It may be laid down as a general proposition, that every 
 thing fixed to land, either immediately, as a house, or me- 
 diately, as a window in a house, belongs to the proprietor 
 of the land ; or that whatever is affixed to' the freehold be- 
 comes essentially a part of it, and is subjected to the same 
 rights of property as the land itself. This rule had its origin 
 in a state of manners very different from that which pre- 
 vails at the present day. The fee simple was not in ancient 
 times divided into a multiplicity of particular estates ; per- 
 sonal property was scarcely regarded as an object of concern 
 to the legislature ; and the proprietors of the freehold were 
 the authors of those very laws which settled the confiicting 
 claims of themselves and their tenants. Notwithstanding the 
 great change which has taken place in the habits and 
 opinions of society, this iiile in ravor (»!' Ili«' rifrholdcr slill
 
 HISTORY OF THE LAW. 45 
 
 remains unaltered ; and it must be regarded as tlie general 
 rule of law at the present day. 
 
 It seems that the courts proceeded with much hesitation 
 in their first attempts to afford relief from the strictness of 
 the ancient law. In the early decisions as reported in the 
 Year Books and other authorities, the judges relied upon 
 many subtle distinctions as grounds for their judgment, 
 which have since been properly discarded. It is recorded 
 that so early as in the reign of Henry VII, of England, an 
 exception from the law resj)ecting annexations to the free- 
 hold was recognized in the particular case of tenants ; and 
 these were said to be at liberty to remove some species of 
 articles, if erected at their own expense on the demised 
 premises. And it is represented that the courts at that 
 period, allowed this privilege to tenants from a politic con- 
 cern for the interests of trade and manufacture ; but Mr. 
 Ferard expresses a doubt as to whether any principle of so 
 liberal a character is to be traced in their judgment. He 
 concedes, however, that an important step was made, when 
 the courts thus assumed the power of restraining the rights 
 of the freeholder without the express sanction of the legis- 
 lature. 
 
 The modern authorities, it is declared, proceeded on more 
 unequivocal principles ; and from time to time they intro- 
 duced exceptions of so extensive a nature as almost to have 
 subverted the rule. And it is averred that ever since the 
 time of Queen Anne, it has been the recognized doctrine of 
 the courts of England, that a relaxation should be allowed 
 in favor of erections and utensils put up for trading and 
 manv/acturing purposes. A very important description of 
 property was tlius exemjjted from the operation of the 
 ancient rule. And this innovation seems to have been sanc- 
 tioned by the judges, not because it was warranted by any 
 particular law, but altogether upon an enlarged principle 
 of public policy. In progress of time other exceptions 
 appear to have been admitted ; for it was found that the 
 state of refinement to which the country had arrived, in 
 matters of domestic furniture and decorations^ rendered 
 the rules of the feudal law incompatible with the general
 
 46 i^^ OF FIXTURES. 
 
 convenience of society. Accordingly, in this instance also, 
 the judges found it expedient to modify the ancient law, 
 with the view of adapting it to the manners of the times ; 
 and by a series of determinations a further exception in 
 favor of articles for ornament and domestic use was gradu- 
 ally introduced. 
 
 After the relaxation in favor of trade had been long and 
 clearly established, an attempt, it seems, was made to apply 
 the principle of that exception to the case of agricultural 
 erections ; and the attempt was warranted by judicial opin- 
 ions of high authority, and was thought to derive great 
 support from analogy and general reasoning. But in this 
 instance, as no direct precedent could be found in which 
 erections or buildings for the purpose of agriculture had 
 been considered as privileged, the English Court of King's 
 Bench refused to countenance this further innovation upon 
 the general rule. It seems, however, that the exigencies of 
 society had, previously to this last determination of the 
 court, rendered it necessary that the ancient law should 
 receive some qualification in the case of erections made with 
 a view to the enjoyment of the profits of land. Accord- 
 ingly, in the time of Mr. Ferard, there had been some 
 decisions, as there have been many since, in which an ex- 
 ception, similar to that in favor of trade, has been allowed 
 in respect of steam engines and other machinery for the 
 purpose of v/orking mines, collieries and the like. Erections 
 of this description have usually been considered as a species 
 of trade fixtures, and removable on the same grounds. This 
 was the understanding of Lord EUenborough, as late as 
 1803. In discussing the question of what shall be considered 
 a fixture as between heir and executor, he declares the rule, 
 as laid down in several cases, to be, that when a lessee, 
 having annexed any thing to the freehold during his term, 
 afterward takes it awaj^, it is waste. "But this rule," he 
 observes, "at a very early period, had several exceptions 
 attempted to be engrafted upon it, and which were at last 
 effectually engrafted upon it, in favor of trade and of those 
 vessels and utensils which are immediately subservient to 
 the purposes of trade. In the Year Book, 42 E. 3, 6, the
 
 HISTORY OF THE LAW. 47 
 
 right of the tenant to remove a furnace erected by him 
 during his term is doubted and adjourned. In the Year 
 Book of the 20 H. 7, 13, a, and b, which was the case of 
 trespass against executors for removing a furnace fixed witli 
 mortar by their testator and annexed to the freehold, and 
 which was holden to be wrongfully done, it is laid down, 
 that ' if a lessee for j^ears make a furnace for his advantage, 
 or a dyer make his vats or vessels to occupy Jiis occupation 
 during 7iis term, he may remove them ; but if he suffer them 
 to he fixed to the earth after the term, then they belong to 
 the lessor. And so of a baker. And it is not waste to 
 j-emove such things within the term by some ; and this shall 
 be against the opinions aforesaid,' But the rule in this 
 extent in favor of tenants is doubted afterward in 21 H, 7, 
 27, and narrowed there by allowing that the lessee for years 
 could only remove, within the time, things fixed to the 
 ground, and not to ths walls of the principal building. 
 However, in process of time, the rule in favor of the right in 
 the tenant to remove utensils set up in relation to trade, be- 
 came fully established. * * * But no adjudged case has yet 
 gone the length of establishing that buildings subservient to 
 the purposes of agriculture, as distinguished from those of 
 trade, have been removable by an executor of tenant for 
 life nor by the tenant himself who built them during his 
 term * * * In the case of Fltzherhert v, Shaio (1 H. Black, y 
 258), we have only the opinion of a very learned judge, 
 indeed, Mr, Justice Gould, of what iGoidd ham been the 
 right of the tenant, as to the taking away a shed hullt in 
 brick loork, and 's.omo. posts and rails which he had erected, 
 if the tenant had done so during the term ; but as the term 
 was put an end to by a new contract, the question what the 
 tenant could have done in virtue of his right under the old 
 term, if it had continued, could never have come judicially 
 before him at Nisi Prius; and when tliat question was 
 offered to be argued in the court above, the counsel were 
 stopped, as the question was excluded by the new agreement. 
 As to the case of Peiiton v. Robart (2 East., 88), it was the 
 case of a Darnlsh house, with a brick foundation let into the 
 ground, of which tlie woodwork had been removed from
 
 48 LAW OF FIXTURES. 
 
 another place, where the defendant had carried on his trade 
 with it. It was a hulMing for the purpose of trade: and 
 the tenant was entitled to the same indulgence in that case, 
 which in the cases already considered, had been allowed to 
 other buildings for the purposes of trade ; as furnaces, vats, 
 coppers, engines, and the like. And although Lord Kenyon, 
 after putting the case on the ground of the leaning which 
 obtains in modern times in favor of the interests of trade; 
 upon which ground it might be properly supported ; goes 
 further, and extends the indulgence of the law to the erection 
 of green-houses and hot- houses by nurserymen, and indeed 
 by implication to buildings by all other tenants of land ; 
 there certainly exists no decided case, and, I believe, no re- 
 cognized opinions or practice on either side of Westminster 
 Hall, to warrant such an extension. The Nisi Prius case 
 of Dean v. Allalley (reported in Mr. WoodfalV s\)odk, p. 207, 
 and Mr. Espinasse' s, 3 vol., 11.), is a case of the erection 
 and removal by the tenant of two sheds, called Dutch barns, 
 which were, I will assume, unquestionably fixtures. Lord 
 Kenyon says, 'the law will make the most favorable con- 
 struction for the tenant, when he has made necessary and 
 useful erections for the benefit of his trade or manufacture, 
 and which enabled him to carry it on with more advantage. 
 It has been so holden in the case of cider mills, and other 
 cases ; and I shall not narrow the law, but hdld everything 
 of this sort inadefor the benefit of trade, or constructed as the 
 present, to be removable at the end of the term.' Lord 
 Kenyon here uniformly mentions the benefit of trade, as if it 
 were a building subservient to some purpose of trade ; and 
 never mentions agriculture, for the purposes of which it was 
 erected. He certainly seems, however, to have thought 
 buildings erected by tenants for the purposes of farming, 
 were, or rather ought to be, governed by the same rules 
 which had been so long judicially holden to apply in the 
 case of buildings for the purposes of trade. But the case of 
 buildings for trade has been always ^z^^ and recognized as a 
 loiown, allowed, exception from the general rule, which ob- 
 tains as to other buildings ; and the circumstance of its be- 
 ing so treated and considered establishes the existence of the
 
 HISTORY OF THE LAW. 49 
 
 general rule to which it is considered an exception" {Elwes 
 V. Maw, 3 East's R., 38). This opinion of Lord Ellen- 
 borough was pronounced only a little over seventy years 
 ago, and it goes to show that at that late day, the courts 
 were reluctant to extend the relaxation in favor of trade in 
 the respects referred to, in the case of agricultural erections, 
 and Lord Ellenborough considered salt-pans to be too much 
 connected with the realty to be entitled to the same privilege. 
 On the contrary, however, Lord Mansfield, fifty years be- 
 fore, had expressed the opinion, and so held, that such arti- 
 cles might be removed as between landlord and tenant, but 
 not by the executor of an owner in fee. Lord Mansfield, 
 after stating the case, said: "All the old cases, some of 
 which are in the Year Books, and Brooke's Abridgement, 
 agree that whatever is connected with the freehold, as wain- 
 scot, furnaces, pictures fixed to the wainscot, even though 
 put up by the tenant, belong to the heir. But there has 
 been a relaxation of the strict rule in that speci'es of cases, 
 for the benefit of trade, between landlord and tenant, that 
 many things may now be taken away which could not be 
 formerly, such as erections for carrying on any trade, mar- 
 ble chimney pieces and the like, when put up by the tenant. 
 This is no injury to the landlord, for the tenant leaves the 
 premises in the same state in which he found them, and the 
 tenant is benefited. There has been also a relaxation in an- 
 other species of cases between tenant for life and remainder- 
 man, if the former has been at any expense for the benefit 
 of .the estate, as by erecting a fire-engine, or any thing else 
 by which it may be improved ; in such a case it has been de- 
 termined that the fire-engine should go to the executor on a 
 principle of public convenience being an encouragement to 
 lay out money in improving the estate, which the tenant 
 would not otherwise be disposed to do. The same argu- 
 ment may be applied to the case of tenant for life and re- 
 mainderman as that of landlord and tenant, namely, that 
 the remainderman is not injured, but takes the estate in the 
 same condition as if the thing in question had never been 
 raised. 
 But i cannot find that between heir and executor there has 
 
 7
 
 50 LAW OF FIXTURES. 
 
 been any relaxation of this sort, except in the case of the 
 cider-mills, which is not printed at large. The present case 
 is very strong. The salt spring is a valuable inheritance, 
 but no proiit arises from it, unless there is a salt-work ; 
 which consists of a building, etc., for the purpose of contain- 
 ing the pans, etc., which are fixed to the ground. The 
 inheritance cannot be enjoyed without them. They are 
 accessories necessary to the enjoyment and use of the princi- 
 pal. The owner erected them for the benefit of the inheri- 
 tance ; he could never mean to give them to the executor, 
 and put him to the expense of taking them away, without 
 any advantage to him, who could only have the old materi- 
 als, or a contribution from the heir in lieu of them. But the 
 heir gains Si. per week by them. On the reason of the thing, 
 therefore and the intention of the testator, they must go to 
 the heir. It would have been a different question, if the 
 springs had been let, and the tenant had been at the ex- 
 pense of erecting those salt-works ; he might very well have 
 said, ' I leave the estate no worse than I found it.' That, as 
 I stated before, would be for the encouragement and con- 
 venience of trade, and the benefit of the estate. Mr. Wilhra- 
 liam in his opinion takes the distinction between executor 
 and tenant. For that reason we are all of opinion that the 
 salt-pans must go to the heir" {Lawton v. Salman, 1 H. 
 Black. B., 259, 260, note). 
 
 It is obvious from these authorities, that the privilege of 
 trade at that early day, as it is at the present, was construed 
 with great lititude, and the doctrine enunciated has the effect 
 of restraining, within a very narrow compass, the rule which 
 prevails with respect to agricultural erections. It will be 
 observed that the judges, in admitting the innovations in 
 question, have evinced a great anxiety to remove from them- 
 selves the charge of infringing upon ancient principles, or 
 of affording a ground for future encroachment. They have 
 accordingly taken great pains to support their decisions by 
 a variety of reasons derived from the facts of each particu- 
 lar case ; and the same care is observed on the part of judges 
 at the present day in their disposition of similar cases. For 
 this reason it liappens, that in questions respecting the right
 
 HISTORY OF THE LAW. 51 
 
 to fixtures, it is in general necessary not only to inquire 
 whether an article, its object and purpose considered, falls 
 within any of the admitted exceptions, but to advert also to 
 many other incidental circumstances, which have occasion- 
 ally been relied upon in the Judgments of the courts. And, 
 indeed, it has been well said, where there is a direct prece- 
 dent in favor of the removal of a particular fixture, the right 
 of the claimant may still be subject to great uncertainty, if 
 he does not stand precisely in the same situation as the 
 party who has been held entitled to remove it. The courts 
 have repeatedly afiSrmed, that the exceptions from the ancient 
 rule of law have been carried to a different extent in the 
 several cases of landlord and tenant, executor of tenant for 
 life or in tail and remainderman or reversioner, and execu- 
 tor of tenant in fee and the heir. And yet it will be difficult 
 to find where the courts have pointed out the limits within 
 which the privileges of these parties are respectively con- 
 fined, or the reasons assigned by them for the distinctions 
 thus laid down, from a consideration of which the rights of 
 those several classes of individuals might be inferred {Vide 
 Gerard's Lcm of Fixtures, XXIII— XXVI). 
 
 In this connection extracts may profitably be inserted here 
 from a well-considered article, taken from the Law Maga- 
 zine and Remeio, an English periodical, and republished in 
 the Albany Law Journal, in which the writer examines at 
 great length, the historical development and present state 
 of the Law of Fixtures. The writer says: "It has been 
 said of history that it finds its entablature in law ; it may 
 conversely be said of law that it finds its explanation in 
 history. Here arises the necessity for lawyers in inter- 
 preting the laws of any period to regard them in the light 
 of the contemporary history ; for so only are we able to in- 
 telligently judge of their consistency or inconsistency with 
 the laws of the preceding and succeeding periods. The law 
 of fixtures, the subject of this articlfe, is more especially 
 obnoxious to this necessity or rule, inasmuch as, from its 
 having relation to the purchase of land, it has had to 
 undergo, and has undergone, corresponding variations with 
 each successive variation of its principal or relative. And
 
 52 LAW OF FIXTURES. 
 
 just as those latter variations have been mainlj^ occasioned 
 by considerations of modern equity breaking in upon the 
 rigor of the olden law, so also have the former variations 
 been for the most part occasioned by like equitable reasons. 
 The very name 'fixtures' affords in itself in the ambiguity, 
 or rather the inversion, of its meaning, a perpetual memo- 
 rial of the extent of this equitable interference. * * * 
 Moreover, the infrequency in early times, and the frequency 
 in those and more recent days, of disputes regarding fix- 
 tures, afford a further evidence or proof of the extent of 
 that modern modification of the law ; as does also the 
 scouting, or rather the almost total want of allusion to fix- 
 tures in the early records and memorials of our law. 
 
 This scantiness of allusion is, indeed, at first sight re- 
 markable. Thus, the word fixtures does not so much as 
 once occur either in the abridgement of Bacon or in that of 
 Yiner as a substantive head of law ; nor is it mentioned 
 among the 'Termes de la Ley.' It occurs, indeed, in Co- 
 myn's Digest, but in the addenda only, and not in the 
 principal body of tltat work. In the Year Books it is as 
 infrequent, nor do the smaller compendiums, digests and 
 abridgments of our early law present the name in greater 
 prominence or frequency. It is true, indeed, that the sub- 
 stance of the law of fixtures is found in all those early 
 records, but then the materials of it there given are not only 
 scanty in their amount, but are also stowed away among 
 the subordinate divisions of other and seemingly unconnected 
 heads of the law. * * ^' The comparatively late origin of 
 the law of fixtures in the modern conception of it seems, 
 however, to admit of explanation. If we call to mind the 
 peculiarity of the relation subsisting in old times between 
 the lessor and his lessee — a relation in which statics was 
 every thing, and in which contract had neither place nor 
 part ; when the tenant had no civil existence independently 
 of or as against his lord, but was (so far as regarded his ten- 
 ancy at least) the mere bailiff or agent of his lord ; we shall 
 readily understand, I think, that in such a relation the 
 maxim of accessio cedit principali found unobstructed 
 operation. From this maxim, '■* '" * it followed in virtue
 
 HISTORY OF THE LAW. 53 
 
 ■ of the relation aforesaid subsisting between landlord and 
 tenant, that every thing of whatever sort put upon or put 
 into the soil by the tenant straightway became part and 
 parcel of the soil, and the tenant had no rights, even during 
 his term, to remove or to unfix it again. It was, in fact, the 
 landlord's fixture from the first, and the tenant had neither 
 any property in it, nor any right to, or power over it, in this 
 the earliest phasis of the agricultural relation. So long, 
 therefore, as this phasis of that relation continued, there 
 was neither occasion nor opportunity for the question of 
 fixtures to spring up as between landlord and tenant. * ^ -^ 
 Now it is matter of history that this primitive relation sub- 
 sisted in all its unmitigated rudeness for a period that was 
 sufficient to allow the full development and solidification of 
 the law of agricultural fixtures, purely and simply so 
 called, that is to say, of erections and other things which 
 were indispensable to the lelase or necessary enjoyment or cul- 
 ture of the land as such. The primitive rigor of this branch of 
 tlie law of fixtures admits, therefore, of the simplest ex- 
 planation ; and the continuance of that rigor down to the 
 present time admits of as ready a one. Its continuance is, 
 in fact, a result of the operations of that maxim of our 
 law which is expressed by the phrase ' ^quitas sequitur 
 legem.,'' whereby equity is rendered powerless to check the 
 operation or remedy the effects of a law which has been 
 once definitely and clearly formed, and declared. * * * 
 Such having been the rigor of the early law, and that rigor 
 having survived, as we have seen, to the present day, in 
 respect of all those strictly agricultural erections, and the 
 necessary completions thereof, which would have fallen in 
 old times, and which do, therefore, now also fall within the 
 scope of the old law, the tenant' s only safety in putting up 
 strictly agricultural buildings that are to be actually let 
 into the soil, or any of the necessary completions thereof, 
 is one or other of the two following courses, namely : either 
 (1.) To enter into such stipulations or into such an agree- 
 ment with his landlord at the commencement of his tenancy 
 regarding the cost of the erections, or regarding the subse- 
 quent continuance of his tenancy or otherwise, as his own
 
 54 LAW OF FIXTURES. 
 
 practical wisdom may suggest; and failing sucli stipula- 
 tions or sucli an agreement, then (2.) To obtain from tlie land- 
 lord some indication or expression of Ms consent to the 
 buildings being erected" (3 Alb: Law /., 407-409). 
 
 The writer in the Magazine proceeds at considerable length 
 in the discussion of the subject, and in the examination of 
 the English authorities, both ancient and modern, and espe- 
 cially noting two cases decided within the last thirty-five 
 years, from which he affirms that, "it clearly appears that 
 at the date of those cases the law of :^xtures, considered in 
 the abstract, had become as definitely and fully stated and 
 known as it is at present, and accordingly the point in dis- 
 pute thenceforth has been, and now is (as it then partly 
 was). Some fact or thing external to the law itself, being 
 some peculiarity of circumstances — either (1.) In the method 
 and measure of the alleged annexation to the freehold ; or 
 (2.) In the construction of some written document, which 
 by the act of the contending parties themselves or otherwise 
 has been made to govern or regulate their rights ; or (3.) In 
 the effect which is to be given to certain derivative rights, 
 the consequences of certain derivative relations, which have 
 come (in whatever way) to be vested in and established be- 
 tween the contending parties" (3 Alb. Laio Jour., 428, 
 429). This writer has examined the subject in the light of 
 English authorities exclusively, and yet his investigations 
 are of service in this country. The English cases, however, 
 are not always safe, in all of their phases as guides in the 
 examination of the subject in the American States. 
 
 The general rule of the common law certainly is, that 
 whatever is once annexed to the freehold becomes a ])art of 
 it, and cannot afterward be removed, except by him who is 
 entitled to the inheritance. The rule, however, never was, 
 at least as far back as it can be traced in the books, inflexi- 
 ble, and without exceptions. It was construed most strictly 
 between executor and heir in favor of the latter : more libe- 
 rally ]ietw(n^n tenant for life or in tail, and rt^naindt'i'man or 
 reversioner, in favor of the former; and witli mucli greater 
 latitude between landlord and tenant, in favor of the tenant. 
 But even exceptions of a much l)roader cast, and whose origin
 
 HISTORY OF THE LAW. ob 
 
 may be traced almost as high as the rule itself, is of iixtmes 
 erected for the purposes of trade, upon principles of public 
 policy. And to encourage trade and manufactures, fixtures 
 which were erected to carry on such business were allowed 
 to be removed by the tenant during his term, and were 
 deemed personalty for many other purposes. The prin- 
 cipal cases upon this subject are collated and reviewed 
 by Lord EUenborough in delivering the opinion _ot the 
 court in the case of Mwes v. 3faio, quite fully given m 
 
 this chapter. , 
 
 But it may properly be suggested that the common law 
 of Eno-land is not to be taken in all respects to be that m 
 America This has been often declared, both by state and 
 federal courts. Our ancestors brought with them its gen- 
 eral principles, and claimed it as their birthright; "but they 
 brought with them and adopted only that portion which 
 was applicable to their situation. There could be little or 
 no reason for doubting, that the general doctrine as to 
 things annexed to the freehold, so far as it respects heirs 
 and executors, was adopted by them. The question could 
 arise only between different claimants under the same ances- 
 tor and no general policy could be subserved, by with- 
 drawing from the heir those things, which his ancestor had 
 chosen to have annexed to the inheritance. But, between 
 landlord and tenant, as has been well said, it is not so clear 
 that this rigid rule of the common law, as expounded by 
 Lord EUenborough, was so applicable to their situation, as 
 to give rise to the presumption in its favor. The country 
 was a wilderness, and the universal policy was to procure 
 its cultivation and improvement. The owner of the soil, 
 as well as the public, had every motive to encourage the 
 tenant to devote himself to agriculture, and to favor agen- 
 cies which should aid this result. Yet in the comparative 
 poverty of the country, no tenant could afford to erect fix- 
 tures of much expense or value, if he was to lose his whole 
 interest therein by the very act of erection. So that it 
 never has been assumed by the courts of this country, that 
 this rigid rule in respect to fixtures, is a part of the juris- 
 prudence of any of the American states, upon the mere foot-
 
 56 • LAW OF FIXTURES. , 
 
 ing of its existence in tlie common law. These are tlioiiglits 
 whicli may be regarded as familiar, because often repeated 
 by judges of our courts, but they are, nevertheless, perti- 
 nent to their examination, although the subject need not be 
 further extended in this place. 
 
 CHAPTER III. 
 
 MANNER OF ANNEXATION TO THE FREEHOLD IN ORDER TO CONSTITUTE 
 
 A FIXTURE CONSTRUCTIYE ANNEXATION SOMETIMES CONSIDERED 
 
 CASES ILLUSTRATING THE ANNEXATION REQUISITE TO CONSTITUTE A 
 FIXTURE GENERAL RULE UPON THE SUBJECT. 
 
 It has been shown, in a previous chapter, that the term 
 fixture, in its popular use, means something affixed or fast- 
 ened to the freehold, or, as it is now more generally used, 
 it means a thing, which although attached to the freehold, 
 may, under certain circumstances, be removed, by the party 
 who annexed it, against the will of the owner of the free- 
 hold. In the light of this definition, the question arises, as 
 to what is meant by annexation to the freehold. With re- 
 spect to this, it may be affirmed, that it is necessary, in 
 order to constitute a fixture, that the article in question 
 should be let into or united to tlie land, or to some sub- 
 stance previously connected with the land. This is the doc- 
 trine of the great majority of the cases, both ancient and 
 modern. A fastening was originally regarded as essential 
 to constitute the thing in question a part of the freehold. 
 Under the definition, it is not enough that the thing has 
 been laid upon the land, and brought into contact with it. 
 Nothing kept in place by mere gravitation was formerly 
 held to be a fixture, and this definition requires something 
 more than mere juxtaposition ; as that the soil shall have 
 been displaced for the purpose of receiving the article, or 
 that the chattel should be cemented, or otherwise fastened 
 to some fabric previously attached to the ground.
 
 METHOD OF ANNEXATION. 57 
 
 There is a nnmerous class of decisions that may be con- 
 sidered as part of tlie law of fixtures, the object of which is 
 "^io determine, whether a thing that has been placed upon the 
 land is actually affixed to it or not. If it is found, that in 
 point of fact, the connection witli the soil does not amount 
 to complete annexation, and that the thing is not strictly 
 aflSxed, it remains, in that case, to all intents and purposes, 
 a mere personal chattel, and is in the same situation as any 
 other chattel which has never been brought upon the 
 premises. Certainly, connection or disconnection, union or 
 separation, was the essence of the ancient rule. It is not 
 the less true, however, that from the first we have the doc- 
 trine of constructive annexation equally well established 
 with that which required the thing to be actually fastened 
 to the land in order to constitute it a fixture. In one case 
 as far back as Coke' s Reports, it is said to have been decided 
 in the fourteenth year of Henry YIII, that a millstone, re- 
 moved from a mill to be picked, was nevertheless construc- 
 tively a part of the freehold, and passed by deed conveying 
 the mill {Liforcfs case, 11 Coke's B., 50, h). On this prin- 
 ciple, in England, title deeds have been held to be fixtures ; 
 and deer in a park, and fish in a pond, to pass with the 
 estate. But an article of a personal nature to be brought 
 within the denomination of a fixture, must be in some way, 
 permanently, at least habitually, attached to the land or 
 some building upon it. It need not be constantly fastened. 
 It need not be so fixed tliat detaching will disturb the earth 
 or rend any part of the building. It is not material how 
 the thing is fixed at the base, whether by screws, nails, ce- 
 ment or otherwise. An ornamental monument in a ceme- 
 tery is none the less a fixture, and should be classed with 
 real property, because it is attached by its own weight alone 
 to the foundation designed to give it perpetual support. 
 This doctrine is illustrated by the statues and sphinxes of 
 collossal size, which adorn the avenue leading to the temple 
 of Karnak at Thebes in Egypt, and are secured on their 
 solid foundations only by their own weight, and that has 
 been found sufficient to preserve many of them undisturbed 
 for five thousand years. And in further illustration of the
 
 58 LAW OF FIXTURES. 
 
 same doctrine, it has been facetiously said that the question, 
 whether the j^yramids of Egypt or Cleopatra's Keedle are 
 real or personal property, does not depend on the result of 
 an inquiry by the antiquarian whether they were originally 
 made to adhere to their foundations with wafers, or sealing 
 wax or a handful of cement. Of course, it seems peurile to 
 make the title to depend upon the use of^ such or any other 
 adhesive substances, when the great weight of the erection 
 is a much stronger guaranty of permanence. 
 
 These illustrations prove how difficult it is to find a gen- 
 eral rule to which there are no exceptions ; for the general 
 rule certainly requires physical annexa.tion to the freehold, 
 in order to constitute the thing a fixture. But, as has been 
 before intimated, to this rule there are some exceptions un- 
 der the head of constructive annexation, as the deeds of an 
 estate, the chest containing them, deer in a park, fish in a 
 pond, doors in a dovecot. So also the keys of doors, looks, 
 windows and articles of the like nature, whidi form as much 
 a part of the structure of a house as the walls, although 
 not annexed to it at all, or not in such a manner as to be in- 
 capable of removal without injury to the house. These are 
 incidents to the house, and from the nature of their use 
 can be no otherwise annexed to it without the entire subver- 
 sion of the purpose for which they are intended. "But 
 this class of exceptions," says Johnson, J., in a dissenting 
 opinion in the New York Court of Appeals, "does not, in 
 the nature of the rule, nor according to the decided cases, 
 extend to articles merely of ornament not piiysically an- 
 nexed to the soil. I have been unable to find .any case at 
 common law, or any statement in any text book, upon the 
 precise case of a statue ; though it would seem that the 
 question must, in England, frequently have arisen in prac- 
 tice, and if it forms an exception to the general ruk', it is 
 not a little singular that no mention is anywhere made of 
 the fact. 
 
 "It seems clear that a statue of ordinary size, standing 
 upon a movable pedestal in a house, would not pass by the 
 conveyance of the house, any more than a porcelain vase or 
 any other ornamental article oC I'ui-niture. Nor do I think
 
 METHOD OF ANNEXATION. ^ 59 
 
 if the same statue were set out of doors it would thereby 
 lose its character of personalty. The mere difference in 
 weight between such a statue and that in question does not 
 seem to me a sufficient ground on which to establish a dif- 
 ferent rule. It stands for ornament alone, and is not fast- 
 ened to the freehold, and its character must depend upon 
 the general rule" {S/iede^er v. Warring, 12 iV". Y. R., 170, 
 180, 181). This reasoning of Judge Johnson is plausible, 
 and in the main sound ; but it failed to prevent the conclu- 
 sion of his learned associates, that a statue erected as an 
 ornament to grounds may be a part of the realtj^, although 
 it is not fastened to the base on which it rests and can be 
 removed without fracture. The case was this : A sculptor 
 placed a statue of Washington, made by himself, and weigh- 
 ing with its pedestal, cut from the same block of stone, 
 about three tons, in the grounds in front of his house, on a 
 base three feet high ; the base rested upon a permanent arti- 
 ficial mound, raised for that purpose, and was constructed 
 of cut stone laid up without mortar or cement, although the 
 seams were pointed with the latter ; the statue, the base 
 and the house were of similar stone, and the top of the base 
 was made to match in appearance the pedestal ; the statue 
 was not fastened to the base, nor was the latter affixed to 
 the foundation upon which it rested. The court held, that 
 tlie statue was a part of the realty, as a fixture, and it was 
 also held, that a sun dial, constructed on a clock of similar 
 stone weighing two hundred pounds, appropriately located 
 in the same grounds and erected on a permanent founda- 
 tion of stone, was also a fixture, and belonged to the free- 
 hold {Snedeker v. Warring, 12 N.Y. R., 170). This, though 
 a comparatively late case, has been several times referred 
 to by the difi'erent courts of New York, and while it has 
 been universally approved,, the exception to the general rule 
 in regard to physical annexation has not been extended 
 beyond the doctrine of that case. 
 
 The best, although by no means a universal, rule still is, 
 that in order that articles originally personal should be 
 considered annexed to the freehold so as to become fixtures, 
 thfy must either be fastened to the realty or what is clearly
 
 60 LAW OF FIXTURES. 
 
 a part of it, or must be placed upon the land with the mani- 
 fest intent that they shall permanentl}^ remain there, and 
 should be in some way peculiarly fitted to something that is 
 actually fastened upon it, and essential, if not absolutely 
 necessary to its profitable enjoyment. Chancellor Kent 
 says : ' ' There are many chattels which though they be even 
 of a movable nature, yet, being necessarily attached to the 
 freehold, and contributing to its value and enjoyment, go 
 along with it, in the same path of descent or alienation. 
 This is" the case with the deeds and other papers which con- 
 stitute the muniments of title to the inheritance, and also 
 with shelves and other fixtures in a bank, and the posts 
 and rails of an inclosure" {2 Kent's Com., 342). On this 
 principle, it has been settled that manure upon the land, 
 sea-weed cast upon the shore, swinging gates and doors and 
 window shutters, which may be removed from the erections 
 to which they belong without doing violence to them, the 
 key to a lock which the owner may carry about in his 
 pocket, the top and unsecured rails of a Virginia fence, the 
 lock stones in an ordinaiy stone fence, bars which are fre- 
 quently taken out of the post holes, door stones which are 
 attached simply by their weight, Venetian blinds, and the 
 loose lid to an oven, are to be deemed fixtures, and pass by 
 a deed of the land. And in an unreported case in the Court 
 of Appeals of the state of New York, in 1847, it was decided 
 that a stone slab settled in, but not fastened to^ or inclosed 
 by, a frame, in a dairy house, was annexed to the realty, 
 and hence was a fixture. In giving the opinion of the court 
 in the case, the judgment went principally upon the ground 
 that the stone was properly fitted to a frame which was fast- 
 ened to the building, and was designed for permanent use 
 there. This fact brought tlie case strictly within the general 
 rule, and much more clearly so, than the case of SnedeJter v. 
 Warring, before referred to. 
 
 In an early case before the Supreme Court of Maine, the 
 controversy related, among other things, to a chain attached 
 by a hook to a piece of draft chain, fastened to the shaft by 
 a spike from wliich it could be hooked and unliooked at 
 pleasures The chain was coniinunly used in drawing logs
 
 METHOD OF ANNEXATION. 61 
 
 into a saw-mill. The court, therefore, thought that the 
 chain might pass as being essential to the mill, and there- 
 fore included in the terms of the conveyance, which con- 
 veyed the premises as a saw-mill eo nomine. But the court 
 added, "we are also of opinion, tliat it ought to be re- 
 garded as appertaining to and constituting a part of the 
 realty." And in the course of the opinion by Weston, J., 
 it was remarked, that "modern times have been fruitful of 
 inventions and improvements for the more secure and com- 
 fortable use of buildings, as well as of many other things, 
 which administer to the enjoyment of life. Venetian blinds, 
 which admit the air and exclude the sun, whenever it is de- 
 sirable so to do, are of modern use ; so are lightning rods, 
 which have now become common in this country and in 
 •Europe. Those might be removed from buildings without 
 damage, yet as suited and adapted to the buildings upon 
 which they are placed, and as incident thereto, they are 
 doubtless part of the inheritance, and would pass hj deed as 
 appertaining thereto. * * * The general principles of law 
 must be applied to new kinds of property as they spring 
 into existence in the progress of society, according to their 
 nature and incidents, and the common sense of the commu- 
 nity." {Farrar v. 8tacTcpole, 7 Greenleaf s R., 154, 157). 
 
 The cases, both English and American, are almost uni- 
 formly hostile to the idea of mere loose movable machinery, 
 even when it is tlie main agent or principal thing in pros- 
 ecuting the business to wiiich a freehold business is adapted, 
 being considered as a part of that freehold for any purpose. 
 To make it a fixture, it must not only be essential to the 
 business of the erection, but it must be attached to it in some 
 way ; at least, it must be mechanically fitted, so as, in ordi- 
 nary understanding, to make a part of the building itself. 
 It must be permanently attaclied, or the component part of 
 some erection, structure or machine which is attached to 
 the freehold, and without which the erection, structure or 
 machine would be imperfect and incomplete. Physical an- 
 nexation is not indispensable. As has been before shown, 
 ponderous articles may be annexed by force of their own 
 weight, and many others might be enumerated which are
 
 62 LAW OF FIXTURES. 
 
 really portable and removable, and are moved about from 
 time to time, and which are nevertheless a part of the free- 
 hold. Examples have been given of keys and padlocks upon 
 buildings, rail fences upon a farm, parts of the machinery 
 of mills of various kinds, and the like. These are carried 
 about from place to place, but they are essential and in- 
 dispensable parts of the machinery or structure, or of the 
 farm, and necessary to its use and enjoyment. 
 
 The principles of the common law and the cases respect- 
 ing fixtures were not long since considered in the English 
 Court of Queen's Bench. The action was trover by the 
 purchaser against the vendor of certain lands, to whom they 
 had come by devise, for certain staddles, a thrashing ma- 
 chine and a granery, all which had been put upon the land 
 in the time of the devisor. The staddles were erections for 
 the purpose of supporting ricks, and were stone pillars, 
 mortared to a foundation of brick and mortar let into the 
 earth, with stone caps mortared on the pillars. As to these 
 the court said: "It is clear that such erections would pass 
 under the conveyance." The thrashing machine was fixed 
 by bolts and screws to posts which were let into the ground, 
 and the machine could not be got out without disturbing 
 some of the soil. Of this the court said: "Being so at- 
 tached to the land it would clearly pass under the convey- 
 ance." The granary was laid on a wooden foundation, 
 supported by staddles, and it lay upon them in the same 
 manner that the ricks lay upon the rick staddles. The part 
 above the stone caps was wood with a tile roof. In remov- 
 ing tills granary, the caps of the staddles and the upright 
 stones were taken away ; but it appeared thaj; it was not at- 
 tached, except by its weight, to the staddles, and it was 
 proved that by sufficient power it might have been lifted 
 from the staddles without disturbing them. The court said : 
 " We think we are bound by the authorities to consider such 
 an erection as a mere chattel, and neither as a part of the 
 land nor affixed to the freehold. In Culling v. Taffnall 
 {Bidl. iY. P., 34), a barn erected in pattens or blocks of 
 wood, but not itself affixed in or near the ground, was held 
 to be removable. The custom of the country was relied on
 
 METHOD OF ANNEXATION. 63 
 
 in that case, as making such erections removable by the out- 
 going tenant ; but Lord EUenborough in the great case of 
 Elioes V. 3Iaw, in referring to Culling v. Taffnall, treats 
 the barn as having been clearly removable without any cus- 
 tom, because it was not a fixture at all, as not being in or 
 to the ground. In Wanshrougli v. Maten (4 Ad. & El., 884), 
 it was decided that a barn resting by its own weight on a 
 brick foundation was not a fixture, but was a mere chattel 
 for which trover might be brought. Patterson, J., referred 
 in that case to the King v. Otley {B. & Ad., 161), where it 
 was held that a wind-mill resting by mere weight on a foun- 
 dation of brick was not a part of the freehold so as to con- 
 tribute to the value of the tenement. In the King v. InJi. 
 of Londonthorp (6 T. JR,., 377), it was held that a wind-mill 
 not attached to the ground, but constructed on cross-trees 
 laid upon brick pillars, but not attached thereto, was a 
 mere chattel. On these authorities we think that the gran- 
 ary in question must be treated as a mere chattel and not as 
 a part of the land" {Wlltsliear v. Cottrell, 1 Ellis & Bl. 
 B., 674; S. C, 72 Eng. C. L. B., 674. 
 
 It is not a little remarkable that it was not till later ttmes, 
 when the doctrine of fixtures came to be better understood, 
 that the decision of the case from Buller's Nisi Prius was 
 treated as resting upon the circumstances of imperfect an- 
 nexation to the freehold, the determination having originally 
 proceeded on a different ground. The explanation which 
 was given of the case by Lord EUenborough is, that the 
 party who erected the barn in question might clearly treat 
 it as a mere movable chattel, because, "the terms of the. 
 statute excludes it from being considered as a fixture; 
 it was not fixed in or to the groiuuV {Elwes v. Maw, 
 3 East's R., 55). 
 
 Another early instance, where chattels were held to have 
 been to a certain degree connected with the soil, but not to 
 an extent amounting to legal annexation, and therefore did 
 not fall within the denomination of fixtures, arose out of the 
 English bankruptcy laws, and respected the rights of the as- 
 signees of goods and chattels in the disposition of tlie bank- 
 rupt, under the statute (21 Jac, 1, ch. 19). The property
 
 64 LAW OF FIXTURES. 
 
 in dispute was the stock of a distiller, wliicli consisted of 
 certain stills set in brick- work, and let into the ground ; cer- 
 tain vats supported by and resting on biick-work and tim- 
 bers, but which was not fixed in the ground ; and some other 
 vats standing on horses or frames of wood, which also were 
 not let into the ground, but stood upon the floor. In this 
 case, the court thought that there was a material distinction 
 between the vats, etc., that were actually affixed to the 
 ground, and those that were placed upon brick-work or 
 frames ; these latter they considered to be mere goods and 
 chattels, from the modes in which they were stated to be con- 
 nected with the premises. And, accordingly, the deter- 
 mination of the case proceeded upon this distinction {Horn v. 
 Baker, 9 £Jasfs B., 215). 
 
 Another instance occurs in a subsequent decision. The 
 property in dispute, consisted of certain pieces of machinery 
 called jibs, the description of which was as follows : certain 
 caps and steps of timber were fixed into a building, and the 
 jibs were placed in those caps or steps, and were the up- 
 rights that turned round the work in the caps and steps ; 
 they were fastened by pins above and below, and might be 
 taken in and out of the caps or steps without injuring them 
 or the buildings, but could not be removed without being a 
 little injured themselves. The Court of King's Bench, on 
 this occasion, thought that the question before them de- 
 pended upon a conclusion of fact, to be drawn from the 
 matters stated in the case, and not upon any point of law ; 
 and they were of opinion, that these jibs, from their mode of 
 construction, were not properly fixtures at all, but were per- 
 sonal chattels. Abbott, C* J., who delivered the judgment 
 of the court, said : " Upon the matters stated, we think the 
 proper conclusion of fact is, that these things were (at least as 
 between landlord and tenant, and persons claiming under 
 either of them) personal chattels. The mode by which they 
 might be removed is not very clearly explained, but it is ex- 
 pressly found that they miglit be removed without injuring 
 the caps or steps in which they are placed, or the building ; 
 and it is further found, that they are usually valued be- 
 tween out-going and in-coming tenants. Such a practice
 
 METHOD OF ANNEXATION. 65 
 
 could not rationally have prevailed, if the things had not 
 been generally understood to be in their nature capable of 
 removal, and not fixtures properly so called ; and therefore 
 taking the practice as an explanation of their nature and 
 character, in which they are to be considered as personal 
 . chattels, and consequently that this action of trover may be 
 maintained" (Davis v. Jones, 2 BarniDell & Alder son'' s R., 
 165, 167, 168). 
 
 And in a still more modern English case, a barn built of 
 wood rested on, but was not fastened by mortar or otherwise, 
 to the caps of certain blocks of stone called staddles, which 
 were fixed into tlie ground or let into brick- work ; the 
 brick-work being in part built in and let into the ground. 
 The barn rested on the foundation by its own weight alone. 
 The Court of King's Bench held that such an erection was 
 not united to the freehold, and that it formed no part of it. 
 Lord Denman, C. J., observed: "Questions as to fixtures 
 generally arise between the prima facie right of the land- 
 lord on the one hand, and exceptions in favor of trade or of 
 tenants on the other. Any general rule is liable to excep- 
 tions. But the first question must be, whether the erection 
 be a part of the freehold. If it be hot united to the free- 
 hold, we cannot say that it is a part of it ; and here it is 
 not so united, and therefore not a fixture." 
 
 Littledale, J., said: "The barn consists of nothing but 
 the timbers, and is not attached to the stone or brick-work. 
 Perhaps the tenant might not have been entitled to dig into 
 the ground for the purpose of making those foundations, 
 and might be liable in damages for so doing. But, having 
 so done, he places the barn on the stone caps, not fixing any 
 thing to the freehold. Therefore, in removing the barn, he 
 does not disturb the freehold. A tenant may require bai'ns 
 of different kinds ; he might take away this building, and 
 substitute, for instance, a fowl-house, keeping always the 
 same foundation in order to insure a level surface. Sup- 
 pose holes were made in the wooden part, or grooves con- 
 structed, so as to fix the barn on the foundation, I do not 
 know that the barn, if so fixed, might not be removed, since 
 it could be done without injuring the freehold. But that it 
 
 9
 
 QQ LAW OF FIXTURES. 
 
 is not necessary to decide ; for here there is notliing of the 
 kind, the barn being kept in its place merely by weight. 
 The foundation must remain ; if that be injured, the land- 
 lord may maintain an action" {Wanshrough v. Maton^ 4 
 AdolrpTiUS & Ellis' R., 884, 888, 889 ; 'S. C, 31 Eng. C. L. R., 
 386-389). This case was decided in 1836, and nearly, 
 twenty years prior to the case of Wlltshear v. Cottrell^ (1 El. 
 & Bl. R., 674), but it was referred to, and approved in the 
 decision of the latter case. 
 
 Six years before the case of Wanshrough v. Maton was 
 decided, the same Court of King's Bench decided that a 
 wooden mill, resting by its weight on a brick foundation, 
 was not annexed to the freehold. The case was this: A 
 pauper rented a wind-mill and a brick built cottage and 
 garden at the rent of £30 per annum for six years, and 
 during that time held and occupied the house, and actually 
 paid that rent, and was rated to and paid the rates for the 
 rating of the poor. The cottage and garden, with the mill, 
 "were together more than the annual value of £10, but ex- 
 clusive of the mill they were not of that annual value. 
 The mill was of wood, and had a foundation of brick ; but 
 the wood-work was nofinserted in the brick foundation, but 
 rested upon it by its own weight, alone. No part of the 
 machinery of the mill touclied the ground or any part of 
 the foundation. The court held, that the wind- mill not 
 being affixed to the freehold, nor to any thing connected 
 with it, was not parcel of a tenement, and, consequently, 
 that the pauper gained no settlement {The King v. Inh. of 
 Otley, 1 Barnwell & Adolplius' R., 161 ; S. C, 20 Eng. C. 
 L. R., 368). This was a strong case ; for the mill and 
 ground had been demised together by the same person to 
 the pauper. Yet it was held that the mill did not constitute 
 a part of * the tenement so as to make up the annual value 
 of £10. In other wol'ds, the building was held to be re- 
 movable, and no part of the tenement. The true principle 
 settled b}^ these cases seems to be that, if the whole build- 
 ing be erected, one part with a view to theotlier, it is an en- 
 tire inseparable structure ; and that, it" one part be placed on 
 a lower part, previously existing and belonging to tlie land-
 
 METHOD OF ANNEXATION. 67 
 
 lord, the two may be separated. The degree in which the 
 realty is interfered with cannot determine the question. If, 
 by the nature of the building, the several parts have always 
 constituted a whole, they cannot be separated. 
 
 In 1820, the Court of Common Pleas of England decided 
 a case which is often referred to, and which involved the 
 question under discussion. A person mortgaged a parcel 
 of land with a wind-mill on it. The mill was constructed 
 in the usual manner of building such mills, being an oc- 
 tagonal wooden edifice raised on a casement of brick- work, 
 and anchored into the ground by spars and land-ties, part 
 of the spars and the whole of the land- ties being one foot 
 under the surface of the earth, the whole, except the brick- 
 work, spars, and land-ties, was taken in execution by the 
 sheriff's officers, under a fieri facias issued against the 
 mortgagor. One of the questions made at the trial, of 
 course, was, whether the wind-mill was affixed to the free- 
 hold, or a mere chattel, and the jury found that it was not a 
 fixture, and the verdict was sustained by the court in ba7ic. 
 Dallas, C. J., observed : "The first question is, whether the 
 property in dispute be a fixture or no ? The jury found 
 that it was not ; and whether a barn or mill, or any other 
 thing of the same kind be a fixture or no, is a question 
 partly of fact, partly of law. When the fact is clear, the 
 court will apply the principles of law as they are to be ab- 
 stracted from decided cases, but every case of this sort 
 must depend mainly on its own circumstances, whether 
 arising between landlord and tenant, heir and executor, or 
 creditors of mortgagor and mortgagee. However, it is not 
 necessary to inquire whether this mill is to be deemed a fixture 
 or not ; that question, therefore, w^hich is frequently a ques- 
 tion of considerable nicety, I shall pass over ; and am will- 
 ing to take it as the jury found, that the mill was not a fix- 
 ture." 
 
 Richardson, J., said: "Though in the estimation of the 
 jury, this was considered a chattel, yet it is quod ammodo 
 annexed to the land, and very distinguishable from that 
 species of goods, of w^hich the property usually accompanies 
 the possession ; and no false credit is promoted by the occu-
 
 63 LAW OF FIXTURES. 
 
 piers not being actually the owner" {Steward v. Lomhe, 
 1 Broderip & Bingham's R., 506; 8. C, 6 Bng. C. L. R., 
 167, 168, 170). The wind-mill in this case was shown to be 
 removable at pleasure, and was therefore, found by the jury 
 not to be a fixture; nevertheless, its connection with the 
 land was of such a nature, it will be observed, that it was 
 considered that by a conveyance of the land, the purchaser 
 would have been entitled to the mill without any mention 
 of it in the deed. This was expressly stated by Richard- 
 son, J., in the course of his remarks, and he further ob- 
 served: "By abundant caution, this mill is mentioned in 
 the deed, but without that, the mortgagor would have had 
 it as part of his security." If this is the doctrine of the 
 case, it is difScult to find a reason for declaring the mill, 
 under the circumstances, any thing but a fixture. But the 
 jury found it a chattel, and the court allowed the verdict to 
 stand. 
 
 In 1851, a case in point upon the principle under consid- 
 eration, was decided by the English Court of Exchequer. 
 The question involved was, whether certain cotton-spinning 
 machines, some fixed by screws into the wooden floor, and 
 others fixed by screws which liad been sunk into holes in 
 the stone flooring, and secured hy molten lead poured upon 
 them, were distrainable by the landlord as movable chattels 
 belonging to the tenant 1 And it was determined that they 
 were so. It had been insisted in argument that these erec- 
 tions were fixtures ; and, in reference to this, Parke, Baron, 
 in delivering the judgment of the court, observed: "Before 
 they had been attached to the floor in the manner above de- 
 scribed they had been mere chattels, and the question is — 
 did they lose that character by being attached to the floor ? 
 Did they become,* by being thus attached, parcel of the free- 
 hold V ' There are two principal considerations to be attended 
 to in reference to this question. First. "The mode of an- 
 nexation to the soil or fabric of the house, and the extent to 
 which the machines became united to it — whether they 
 could be easily removed integre, saUe et commode, without 
 injury to themselves or to the fabric of the building? 
 
 Secondly. What was the object and purpose of their an-
 
 METHOD OF ANNEXATION. 69 
 
 nexation to the soil or building? — whether \yas it for the 
 permanent and substantial improvement of the dwelling, in 
 the language of the civil law, ^ perpetui usus causa,^ or in 
 that of the Year Book (20 Hen., 7, c, 13) 'pour un profit de 
 V inheritance f Or, on the other hand, was it for a mere 
 temporary purpose, or the more complete enjoyment and 
 use of the articles as chattels ? Now here \Ye cannot doubt 
 that the machines in question never became part of the 
 freehold ; they were attached slightly, so as to be capable 
 of removal without the least injury to the fabric of the 
 building or to themselves ; and the object or purpose of the 
 annexation was, not to improve the inheritance, but merely 
 to render the machines steadier, and more capable of con- 
 venient use as chattels. They were never a part of the free- 
 hold, any more than a carpet would be which is attached to 
 the floor by nails for the purpose of keeping it stretched 
 out — or curtains, pictures, looking-glasses, and other mat- 
 ters of an ornamental nature which are slightly attached to 
 the walls of a dwelling-house as furniture" {Hellaioell v. 
 Eastwood, 6 ExcJiequer li., 295). 
 
 So also in the year 1857, the Court of Queen's Bench of 
 Ireland, held, that a thrashing machine and steam-boiler, 
 set up by a tenant on leasehold premises for agricultural 
 purposes, were not fixtures, as between landlord and tenant. 
 The articles were firmly attached to the building by bolts, 
 but could be detached and moved without injury. to them- 
 selves or the freehold. The court decided that the articles 
 were removable chattels, on the authority of Hellaioell v. 
 Eastwood, decided by the Court of Exchequer {Shumer v. 
 Harman, 3 IrisJi Common Law H., 243). 
 
 The old Supreme Court of the State of New York, held, 
 at an early day, that a stone for grinding bark, affixed to a 
 mill, called a bark-mill, was not a part of the freehold, but 
 personal property. The stone was fixed and fastened to an 
 axis in the bark-mill, in the Visual manner, with iron bolts 
 and bands. The court remarked: "According to the doc- 
 trine, which is fully and learnedly discussed, in the case of 
 Elioes V. Maio (3 East, 38), it seems to be the better opinion, 
 that the mill was personal property ; for the millstone, with
 
 70 LAW OF FIXTURES. 
 
 the building covering it, was accessory to the tanning busi- 
 ness, a matter of a personal nature. But it is not requisite 
 to decide this point now. It is sufficient for the present case, 
 to observe, that the defendant below considered the barli- 
 millstone, with its iron fastenings, as personal property, by 
 purchasing the same, without writing, from a person who 
 had already sold the land, on which they were placed, to 
 another, and made a parol exception of them, at the time 
 of the sale^' {Hermance v. Vernoy, 6 Johns. R., 5, 7, 8). 
 Perhaps the manner in which the bark-mill and stone were 
 affixed to the realty in this case, had less to do in producing 
 the decision, than the object and use of the structure. 
 But, nevertheless, the court referred to the case of Elwes v. 
 Maio, for the doctrine upon the subject, and hence the 
 case may be regarded somewhat in point on the question of 
 annexations. 
 
 In a later case before the same court, it was declared, that 
 machinery for spinning flax and tow, and carding machines, 
 used in a manufactory, and which were attached to the 
 building, by an upright board resting on the frames, and 
 fastened at the ceiling, and by cleats nailed to the floor 
 round the feet of the frames, but the machines or frames, 
 themselves, not nailed to the building, were not fixtures, but 
 personal property. Piatt, J., who delivered the opinion of 
 the court, said: "If the articles of machinery in question 
 be regarded as real estate, then, undoubtedly, the plaintiffs, 
 as mortgagees in possession, before the sale, had a rightful 
 possession ; aM the defendant, as purchaser under a junior 
 judgment, had no right to take the machinery away. By 
 the severance, the machinery became the personal property 
 of the plaintiff, who owned the realty from which it was 
 severed ; it is, therefore, a proper subject of replemn^ though 
 it may have been part of the freehold, when it was sold by 
 the sheriff. 
 
 "Upon examination of the 'authorities, so fully collected 
 and so well summed up by Lord Ellenborough, in the case 
 of Elioes V. Mam (^6 EasV s R., 38), I am of opinion that 
 the spinning frames and carding machines, situated as they 
 wrrc, ar<' ]>(M-H:oiial |ii'')[)rrry ; it" so, then Ihe two frames for
 
 METHOD OF ANNEXATION. 71 
 
 Spinning flax, wliich were not included in the mortgage were 
 bound by the execution which was delivered to the sheriff, 
 four days before they were delivered and pledged to the 
 plaintiff, as security for their debt" {Cresson v. Stout, 17 
 Johns. R., 116, 121). 
 
 The common law criterion to determine whether an article 
 is so affixed to the freehold as to constitute it a fixture, viz.: 
 can it be removed without injury to the realty, has been 
 adopted in the state of Connecticut. A case came before 
 the Supreme Court of Errors of the state in 1831, in which 
 it appeared, that the machinery of a cotton manufactory 
 consisted, partl}^, of implements in no way attached or 
 secured to the building ; partly, of spinning frames, stand- 
 ing upon the floor, around the feet of which cleats were 
 I3laced and nailed to the floor, to prevent their moving, but 
 such frames were not otherwise attached to the building-; 
 and partly, of other machinery, to the posts of which plates 
 were attached, through which wood- screws passed, fastening 
 them to the floor, but by unscrewing such wood-screws, the 
 machinery could be removed without injurj^ to the building 
 or to the machinery itself. The court held, that the whole 
 of such machinery w^as personal property. Daggett, J., 
 delivered the opinion of the court, and said: "Was the 
 property described personal or real 1 The judge declared it 
 to be personal. If any part of it be real, it is very clear, 
 that no recovery can be had for such part. I think the 
 decision of the judge thus far correct. It consisted of vari- 
 ous articles of machinery belonging to a manufactory of 
 cotton cloth ; which, with their connection with the build- 
 ing, are particularly described in the motion. Beyond a 
 doubt these articles are in no respect real estate except as 
 tliey are attached to the freehold. It is material here to 
 observe, that an important part of the description is, that 
 they were thus attached to the building to render them 
 stable, but that they might be removed to any other part of 
 the building, or to any other place, without any injury to 
 the freehold. To operate successfully, they must be fixed, 
 like clocks, and many other articles, which are clearly per- 
 sonal and movable. We resort, then, to the criterion estab-
 
 72 LA W OF FIXTURES. 
 
 lished by the rules of the common law ; could this property 
 be removed without injury to the freehold? The case finds 
 this fact. This then should satisfy us" {Swift y. Thomp- 
 son^ 9 Conn. B., 63, 67). Here it will be perceived, that to 
 constitute a fixture the court hold that the article must be 
 so annexed to the freehold that it cannot be removed with- 
 out injury to the realty. This is clearly made the test. 
 
 On the contrary, the Supreme Judicial Court of Massa- 
 chusetts have ruled, that a steam-engine, boilers, etc., and 
 machinery adapted to be moved b}^ such engine, by means 
 of connecting bands and other gearing, which are placed in 
 a building designed for the manufacture of steam-engines 
 and other heavy iron work, are fixtures, or in the nature of 
 fixtures. Shaw, C. J., said: " As to what shall be deemed 
 fixtures and part of the realty, where the question does not 
 arise as between landlord and tenant, or tenant for life and 
 remainderman, in regard to improvements made by the 
 tenant, it is difficult to lay down any general rule, which 
 shall constitute a criterion. The rule that objects must be 
 actually and firmly aflBxed to the freehold, to become realty, 
 or otherwise to be considered personalty, is far from consti- 
 tuting such criterion. Doors, window blinds, and shutters, 
 capable of being removed without the slightest damage to 
 a house, and even though at the time of a conveyance, an 
 attachment or a mortgage, actually detached, would be 
 deemed, we suppose, a part of the house, and pass with it. 
 And so, we presume, mirrors, wardrobes, and other heavy 
 articles of furniture, though fastened to the walls by screws, 
 with considerable firmness, must be regarded as chattels. 
 The difficulty is somewhat increased, where the question 
 arises in respect to a mill or manufactory, when the parts 
 are often so arranged and adapted, so ingeniously combined, 
 as to be occasionally connected or disengaged, as the object 
 to be accomplished may require. In general terms, we 
 think it may be said, that when a building is erected as a 
 mill, and the water works, or steam works, which are relied 
 upon to move the mill, are erected at the same time, and 
 the works to be driven by it are essential parts of the mill, 
 adapted to be used in it and with it, though not at the time
 
 RIGHT TO REMOVE ANNEXATION. ' 73" 
 
 of the conveyance, attachment or mortgage, attached to the 
 mill, are yet parts of it, and pass with it by a conveyance, 
 mortgage or attachment" {Winslow v. Merchants' Ins. Co., 
 ^MetcalfsR., 306, 314). 
 
 Other cases might be referred to upon this branch of the 
 subject, but it can hardly be necessary in this place. Fur- 
 ther illustrations of the principle will be found in cases ex- 
 amined in subsequent chapters of this work. On the whole, 
 the general rule established by the authorities is, that to 
 constitute a fixture in its strict sense, there must be a sub- 
 stantial and permanent annexation to the freehold itself, or 
 to something connected with the realty or freehold. But 
 the general rule that requires actual annexation to the land 
 as the first requisite to the establishment of the proposition 
 that a particular chattel has become a part of the freehold, 
 has been greatly modified by exceptions, which have been 
 allowed under the name of constructive annexations, and 
 these exceptions have again been enlarged upon frequently, 
 by an actual or presumed intent in the owner, that a chattel 
 shall be a part of and go with the freehold. Nevertheless, 
 the general rule is still recognized by the courts, and a 
 familiarity with it is of great practical use, in the examina- 
 tion of the subject of fixtures. 
 
 CHAPTER IV. 
 
 RIGHT TO REMOVE ANNEXATIONS TO THE FREEHOLD PRINCIPAL MAT- 
 TERS TO BE REFERRED TO IN SUCH CASES A POWER COUPLED WITH 
 
 AN INTEREST REQUISITE EFFECT PRODUCED UPON CHATTELS BY BE- 
 ING ANNEXED TO THE REALTY RULE RESPECTING VOLUNTARY AN- 
 NEXATIONS UPON THE LAND OF ANOTHER RULE IN CASE OF LICENSE 
 
 FOR SUCH ANNEXATIONS THE PRIMA FACIE RULE IN ALL CASES. 
 
 Having considered the first branch of the definition of 
 fixtures ; that in respect to the character of the annexation 
 10 •
 
 74 LAW OF FIXTURES. 
 
 requisite in order to constitute a chattel a fixture, it now 
 remains to consider the second branch of the definition : that 
 in respect to the right of severing and removing the article 
 annexed to the realty, by the party who annexed it, or his 
 representative, without the consent, and against the will, of 
 the owner of the freehold. This question most frequently 
 arises between parties sustaining the relation of landlord 
 and tenant ; but it not unfrequently arises between parties 
 sustaining the relation of vendor and vendee, mortgagor and 
 mortgagee and the like ; at all events, it is a circumstance 
 of ordinary occurrence, that persons having the present in- 
 terest and possession of land, whether as tenants for years, 
 for life, or in fee, make annexations to the freehold, ex- 
 clusively for their own convenience or profit, either by 
 placing an erection on the soil itself, or by affixing some 
 personal cliattel to a house or other building that has been 
 already annexed to the soil. With respect to many of these 
 annexations, if the party who put them up, or his personal 
 representative, should detach and remove them from the 
 freehold, he would be subject, according to the general rule 
 of law, to an action for damage, at the suit of the reversioner, 
 or of the heir succeeding to the estate. But, as' it has been 
 before shown, there are certain species of annexations that 
 are excepted out of the general rule. In respect of these, 
 the right of property in them is not, as in other cases, aban- 
 doned to the land owner by their being affixed to the free- 
 hold ; but they may be again separated from the land, and 
 taken away, against the will of the person who might have 
 been entitled to them by reason of his ownership in the soil. 
 There are certain general considerations upon which ques- 
 tions respecting the right to remove fixtures are usually 
 governed which may be properly pointed out as a prelimi- 
 nary to a more detailed examination ; and these only will 
 be noted here ; leaving the bulk of the discussion for sub- 
 sequent chapters, where the subject of fixtures between 
 particular parties is considered. The principal matters to 
 be observed in the examination of the privilege referred to, 
 are the nature of the thing affixed, whether it was a chattel 
 in gross or in ])art, liefort- it was \m{ up ; the siluadon of
 
 RIGHT TO REMOVE ANNEXATIONS. 75 
 
 the part?/ claiming the right, as the executor of a tenant in 
 fee, of tenant for life, or the tenant of a chattel interest -,• 
 and, with resx)ect to him, the continuance of his right after 
 the expiration of his term, and redelivery of possession to 
 his landlord. The intention of the parties in making the 
 annexation is also frequently a legitimate subject of inquiry 
 in such investigation ; and arguments have also been shown 
 from the comparatlm value of the fixture, and the land in 
 a state of union and when disunited. And so the effect of 
 custom, and the mjury occasioned to the freehold by the 
 removal, have respectively been relied upon by the courts 
 in the decision of the question. But the great and lead- 
 ing principle which seems to have governed all the decisions 
 relating to the doctrine of removal of fixtures, is the pur- 
 pose and object for which the annexation was made ; that is 
 to say, whether it was for the purpose of trade, for agricul- 
 ture, for ornament merely, or for the general improvement 
 of the estate. It is upon these different grounds, or upon 
 some combination of them, that the courts both of law and 
 equity have generally ascertained and supported the right 
 of property in fixtures. The first inquiry, of course, is to 
 ascertain whether the article is so affixed to the freehold as 
 to constitute it 2i fixture ; if it is not so affixed, the right to 
 remove it is obvious ; but if it is so affixed, then the second 
 inquiry is requisite to determine whether the fixture, in the 
 light of the considerations stated, may be severed and re- 
 moved. 
 
 It has been well said, that the right of removing fixtures 
 is of a very different description from that by which the 
 proprietor of land severs and removes property of a per- 
 sonal nature, which has been annexed to his own freehold. 
 In this latter case, the proprietor exercises the same right 
 to all purposes, that he enjoys in respect of cutting down 
 trees, or doing any other act as owner of the land, and this 
 is a right arising altogether out of ownership of estate. Not 
 so, however, when an individual, under the privilege con- 
 ferred by the law of fixtures, separates and removes a per- 
 sonal chattel which lias been affixed to the soil by himself 
 or thos(; under whom he claims. In this instance, the iit!;ht
 
 76 LAW OF FIXTURES. 
 
 exercised by the claimant does not arise merely out of an in- 
 terest in the land, but is a special privilege allowed by the 
 law in certain cases only, and in favor of particular classes 
 of persons ; and it is, moreover, a privilege in derogation 
 of the rights of the individual to whom the property would 
 appertain as owner of the estate. It appears, however, 
 from an attention to the principles on which the power of 
 removal in those cases depend, that it is always connected 
 with some interest in the land, and is not simply collateral 
 to it. In the language of authority, " it is a power coupled 
 with an interest" {Poole's case, 1 Sallield'' s R., 568). But 
 in ascertaining whether the privilege of removal exists, re- 
 gard is always to be had to the nature, object and eifect of 
 the structure, as wellas the mode of annexation. 
 
 There is a j)rinciple involved in the definition of fixtures 
 as understood in this chapter, which may be considered as 
 the foundation of the law relating to this species of prop- 
 erty, and which may properly be examined at the threshold 
 of the discussion, and in this place. It is the effect which, in 
 a legal point of view, is produced upon a personal chattel, 
 by the act of annexing it to the freehold. It has been be- 
 fore remarked, that it is a maxim of law of great autiquit}^, 
 that whatever is fixed to the realty is thereby made a part 
 of the realty to which it adheres, and partakes of all of its 
 incidents and properties. By the mere act of annexation, 
 as a general rule, a personal chattel immediately becomes 
 part and parcel of the freehold. This proposition will be 
 found to be laid down as a general principle, in most of the 
 cases involving the subject of fixtures ; and many of the 
 decisions proceed exclusively upon it. This is the general 
 doctrine, and it extends to the case of the erection of a 
 building by a person upon the land of another voluntarily, 
 and without any understanding or contract, in which case 
 the erection becomes a fixture, and the one who placed it 
 there may not remove it ( Waslihurn v. Sproat, 16 Mass. Ji., 
 449). If the party had a license to make the erection from 
 the owner of the freehold, the rule would be different. 
 Thus, it has been ruled, that when a son built a house upon 
 the land of liis fatlier, for liis own use and accommodation,
 
 RIGHT TO REMOVE ANNEXATIONS. 77 
 
 the building was the personal property of the son. The 
 court observed: "The facts disclosed by the person sum- 
 moned as trustee in this case do not furnish a pretence for 
 charging him. He is the owner of a tract of land, on which 
 he had permitted the principal, his son, to build a dwelling- 
 house for the son' s convenience and accommodation, under 
 an expectation that the land on which the house was built 
 would by devise come to the son, at the death of the father. 
 There was no contract, express or implied, that the father 
 should own the house, or in any event be accountable to the 
 son fot the value of it. By the strict operation of the law, 
 it is true that the father, having the property of the land, 
 might disturb the son in the possession of the house, and 
 indeed, remove him from it. But it is not to be presumed 
 that he would have taken this advantage of his son ; and he 
 ought not to be made the owner of the house against his con- 
 sent, by compelling him to pay the expense of building it. 
 
 The property of the house is personal property of the son, 
 he having no estate in the land ; and the most that can be 
 made of the consent of the father to build upon his land, is 
 to occupy the land without rent ; and perhaps a right in the 
 son, or persons claiming under him by purchase or execu- 
 tion, to enter and remove the buildings, without being sub- 
 ject to any other than nominal damages in an action of 
 trespass" ( Wells v. Banister., 4 Mass. R., 514, 515). 
 
 Prima facie., a building erected by one person on an- 
 other's land, is to be treated as a fixture, and a part of the 
 realty. The legal effect of putting the building on another's 
 land, would be to make it a part of the freehold. But the 
 parties concerned may control the legal effect of any trans- 
 action between them, by an express agreement, and the law 
 often implies an agreement of nearly the same character 
 from the relation of lessor and lessee, or tenant and remain- 
 derman. If the parties agree, in terms, that a dwelling- 
 house shall, as between them, be considered strictly a 
 personal chattel, there are cases holding that it partakes of 
 that character {Yide Smitli v. Benson, 1 HilVs R., 176). 
 ■ But, when a person erects a building upon the land of an- 
 other, without any agreement or understanding whatever
 
 78 LAW OF FIXTURES. 
 
 with tlie owner of the land, such building thereafter becomes 
 real and not personal estate ; and by a reconveyance of the 
 land by the owner, the title and right of possession to the 
 buikling vests in the grantor of the land, all;hough the 
 building may be claimed by a third person not the owner 
 of the land. The word "land," as has been stated in a pre- 
 vious chapter, includes not only the soil, but every thing at- 
 tached to it, whether attached by the course of nature, as 
 trees, herbage and water, or by the hand of man, as build- 
 ings and fences. This has been said to be but common 
 learning ; and there is no more room for question that a 
 grant of land, eo nomine, will carry buildings and fences, 
 prima facie, than there is that it will carry growing trees 
 and herbage upon, or mines and quarries in the ground 
 {Vide Mott v. Palmer, 1 N. Y. B., 564; Ritclimyer v. 
 Morse, 37 Hoio. Pr. P., 388; S. C, 3 Keyes' P., 349.) 
 
 In a case involving this doctrine before the Superior Ju- 
 dicial Court of Massachusetts, Putnam, J., in speaking of 
 a house which a man had erected on land which did not be- 
 long to him, used by him and his men to live in every spring 
 while he carried on the Salmon fishing, observed : "It might 
 or might not be parcel of the realty. If the owner of the 
 land owned the building, it would be so. If he did not, and 
 the owner of the building had no interest in the land, the 
 building would be personal property" {Pogers v. Wood- 
 ward, 15 Pickering' s P., 156, 168). And in a case before 
 the Supreme Court of Maine, it appeared that the owner of 
 land on which another had erected a saw-mill by his con- 
 sent, executed a deed for the land and the mill ; the court 
 held that the conveyance passed no title to the mill, because 
 it was the property of the man who built \t {Russell y. 
 Richards, 1 FairfieUVs P., 431). 
 
 An interesting case of the character under discussion was 
 decided by the Court of Common Pleas of the city of New 
 York, a few years ago. The action was brought against 
 the defendant for detaining a building denominated a 
 "shanty," The building was sold under an execution from 
 a justice's court and purchased by the plaintiff. It had 
 originally belonged to the person against wliom the execu-
 
 RIGHT TO REMOVE ANNEXATIONS. 79 
 
 tion issued, and had been transferred by him to the defen- 
 dant. Several objections were made against the plaintiif's 
 right of recovery, but the main one relied upon was, that 
 the building was a part of tlie freehold, and not subject to 
 levy and sale under an execution upon a justice's judgment, 
 wdiich could issue only against ^^ goods and cliattels.^'' The 
 point to be determined, therefore was, whether the building 
 was a personal chattel ; for if it was not — if it was a part of 
 the realty — the plaintiff acquired no title by the levy and 
 sale. Tlie nature of the building as gathered from the evi- 
 dence was, that it was a structure about twenty feet square, 
 on the front of a lot adjoining a street, containing a room, a 
 bed-room, and a garret, with a chimney, windows, and a 
 door, and was occupied as a dwelling by the defendant and 
 his family at the time of the levy. The access to it was 
 from the street. It did not appear under what circum- 
 stances the building was placed upon the lot, and upon the 
 case as presented by the evidence, the court held the struc- 
 ture to be a part of the realty. Brady, J., delivered the opin- 
 ion of the court, and after referring to the evidence, and a large 
 number of authorities upon the subject of fixtures, said : 
 "We are told by the counsel for the defendant, that a 
 'shanty' is a mere temporary structure of boards or other 
 cheap materials, serving as a residence, made by a squatter 
 or other person, having a yjrecarious tenure on the soil of 
 another, and so constructed as to be readily removed from 
 place to place. This may be a correct definition of the kind 
 of building known by that name ; and if there was any evi- 
 dence here to show that the building in question was a 
 structure of that description, it would be no more the part 
 of the realty than a tent or any other movable dwelling. 
 All that we know about it is, that it stood fronting a public 
 street, that it had a chimney, window^s and door, that it was 
 divided into apartments, and that it served as a dwelling- 
 house for the defendant and his family ; and with but that 
 knowledge respecting it, we would not be warranted upon 
 principle or authority in declaring it to be a personal chat- 
 tel. If the facts lead to any presumption, it is, that from 
 the nature of the building, the position it occupied, and the
 
 80 LAW OF FIXTURES. 
 
 use to wliicli it was applied, it was a part of tlie freehold" 
 {FisJier V. SaJTer, 1 B. D. Smith's i?., 611, 613, 614). 
 
 As pertinent to tliis branch of the subject, it may be ob- 
 served, that the Supreme Judicial Court of Massachusetts 
 decided, that a building erected under an agreement with 
 the owner of the soil to convey the land at a certain price, 
 within a limited time, is a fixture, and constitutes a part of 
 the realty. It was declared, that the interest of the builder, 
 in such case, is a right to obtain the title to the soil, and 
 thus unite the fixture with the fee. Shaw, C. J., in deliv- 
 ering the opinion of the court, said : "When it is said that 
 the mill, with the appurtenances, erected by the Cushmans 
 on the land of Eastman, w^as personal property, it is true to 
 a certain extent, but not true absolutely. It was UJce per- 
 sonal property ; it was an interest in the buildings, but not 
 an ovv-nership of the soil. The true nature of that interest 
 seems to have been this : The buildings were erected under 
 an agreement with the owner of the soil to convey the land 
 at a certain price, within a limited time. They were, in 
 truth, fixtures, and constituted a part of the realty. The 
 interest of the builders was a right to obtain a title to the 
 soil, and thus unite the fixtures to the fee. It was therefore 
 an equitable interest in the realty ; not a pure ownership of 
 the buildings as chattels. It would not therefore have been 
 competent for a creditor, pending this agreement, to attach 
 such buildings on mesne process, and take them in execu- 
 tion, as chattels, on a fieri facias, sell them in four days, 
 and deliver them to a purchaser to be removed. They were 
 not therefore personal property, in the strict sense, nor in 
 that sense in which personal property is regarded as subject 
 to the process of law for the payment of the owner' s debts, 
 and for the exemption of which from attachment, when 
 mortgaged, the mortgage must be recorded in the town 
 clerk's office. It was only an equitable interest in the 
 realty, which creditors could reach through the medium of 
 the mortgagee, who was at the time owner of the soil, but 
 bound to convey it on terms" {Eastman v. Foster, 8 Met- 
 calf's M., 19, 26). 
 
 It may be affirmed, that every case in w^hich there is a right
 
 RIGHT TO REMOVE ANNEXATIONS. 81 
 
 of severing a thing from the freehold by virtue of the law 
 of fixtures, like the cases of constructive annexation, when 
 the article is seldom or never corporally attached, may be 
 set down as an exception to the general rule. And the 
 manner in which the law of fixtures operates in these ca,ses 
 may be explained in two ways : either on the supposition 
 tha.t the chattel nature of the thing is still preserved after 
 its annexation ; Or by considering that the thing ceases to 
 be a chattel by being affixed to the land, and becomes real 
 property, but reducible again to a chattel estate by separa- 
 tion from the realty. It will be found, upon an inspection 
 of the cases, that for some few purposes, or in favor of cred- 
 itors, the chattel nature of the thing is retained after its an- 
 nexation ; but that for most purposes its personal character 
 is lost, and it becomes strictly freehold. The circumstances 
 of the property being subject to a right of removal, and of 
 being reconverted to a personal chattel, does not affect the 
 nature and condition it has acquired by being incorporated 
 with the realty. 
 
 In some of the early cases, an article which is held to be 
 removable is expressly said not to be parcel of the freehold. 
 But this, and other like general expressions, may, consist- 
 ently with the principles of those decisions, be interpreted 
 to mean, that the property is not considered, in every respect, 
 in the same condition and subject to the same rights as other 
 parts of the freehold. As between certain parties, whatever 
 is fixed to the freehold cannot legally be severed. It would 
 follow, therefore, that what may be removed from the realty 
 could never have been a part of it. But this does not apply 
 to many cases as between other certain parties. For ex- 
 ample, the right between lan(Jlord and tenant does not alto- 
 gether depend upon this principle that the article continues 
 in the state of chattels; many of those articles, though 
 originally goods and chattels, yet when affixed by a tenant 
 to the freehold, cease to be goods and chattels by becoming 
 part of the freehold ; and though it is in his power to reduce 
 them to the state of goods and chattels again by severing 
 them during his term, yet until they are severed they are 
 part of the freehold, as wainscots screwed to the wall, trees 
 
 11
 
 82 LAW OF FIXTURES. 
 
 in a nursery ground, wliicli wlien severed are cliattels, but 
 standing are part of the freehold, certain grates, and the 
 like. These articles constitute essentially a part of the free- 
 hold, and until the moment of their severance are in no re- 
 spect distinguishable from the rest of the land. 
 
 Fixtures are not unfrequently compared in respect of their 
 freehold character to trees. Thus in a case before the Eng- 
 lish Court of King' s Bench, in 1822, in which it appeared that 
 certain mill-machinery, together with a mill, had been de- 
 vised for a term to a tenant, and he, without permission of 
 the landlord, severed the machinery from, the mill, and it 
 was afterward seized under ^ fieri facias hy the sheriff, and 
 sold by him. The court held that no property passed to the 
 vendor, and that the landlord was entitled to bring trover 
 for the machinery, even during the continuance of the term. 
 It was observed that the machinery, being annexed to the 
 mill, formed a part and j)arcel of the inheritance, and when 
 wrongfully severed became the property of the reversioner. 
 Holroyd, J., said: "The machinerj^ was let together with 
 the mill, and was part of the mill. It was a part of the in- 
 heritance until the devise was made ; when the devise 
 took place, it continued part of the inheritance of the land- 
 lord, and part of a chattel real in the hands of the tenant in 
 possession. By the lease or agreement the tenant has the 
 use, not the dominion, of the property devised ; and, there- 
 fore, when he separated any part of it, to convert it from a 
 chattel real to a chattel personal, his right of using it was at 
 an end for any legal purpose, that right being only to use it 
 in the state in which it was before. In the case of a lease of 
 a house, if a tenant pulls down any part of it wrongfully, 
 and not for the purpose of repair, so as to constitute waste, 
 the person who has the first estate of inheritance has a right 
 to the materials of which that house was before composed ; 
 and I apprehend he has a right to an immediate possession 
 of those materials, in the like manner as he has a right to 
 the immediate possession of timber, when it is severed from 
 the inheritance. In that case, when detached, either by the 
 wrongful act of the tenant himself, or by the act of God, it 
 immediately becomes the goods and chattels of the person
 
 ANNEXATIONS BY STRANGERS. 83 
 
 entitled to the first estate of inheritance, and the right which 
 had been for some time vested in the tenant has ceased" 
 {Farrant v. Thompson, 5 Barn. & Aid. R., 826; 828, 8. C, 
 7 Eng. C. L. R., 272, 273). But the object of this reference 
 was not to explain the remedy in case of severance of a fix- 
 ture from the freehold ; but to show the character in which 
 the cases regard fixtures which have become so by annexa- 
 tion to the freehold. With this view the case is important, 
 and should be noted. 
 
 CHAPTER V. 
 
 BULE RESPECTING ANNEXATIONS BY STRANGERS TO THE FREEHOLD 
 
 RULE IN RESPECT TO LINE TREES AND THE LIKE RULE RESPECTING 
 
 ALLUVION RULE WHEN FIXTURES ARE PLACED UPON LAND BY THE 
 
 ASSENT OP THE OWNER — WHEN FIXTURES RETERT TO THE PERSON 
 
 WHO AFFIXED THEM PROPERTY IN FIXTURES TORTIOUSLK* SEVERED 
 
 FROM THE FREEHOLD. 
 
 It will be convenient and useful in this connection, to re- 
 fer to a few more of the leading authorities which serve to 
 illustrate the principle considered in the last preceding 
 chapter ; particularly as it respects the legal effect of the 
 annexation of a personal chattel, by a mere stranger, to the 
 soil and freehold of another. The doctrine involved is im- 
 portant, and a good understanding of it will be of advan- 
 tage in the investigation of the subject in any of its vari- 
 ous phases. It will be observed that the suggestions chiefly 
 arise from the definition of fixtures hereinbefore given ; and 
 hence it will be discovered that the use of the term, in the 
 sense in which it is adopted in the definition, is attended 
 with convenience ; inasmuch as it serves to distinguish a 
 species of things which are subject to a very peculiar right 
 of propert}^ and which manifestly require sovie appro- 
 priate application. It should be remembered, however,
 
 84 LAW OF FIXTURES 
 
 that tlie application of the term fixtures to all chattels 
 affixed to land, serves to point out their physical character 
 only, and has no reference to any legal rights that may at- 
 tach. 
 
 It is the language of an early elementary writer, that 
 ' ' property accrues from the fraud and folly of another ; 
 as when persons, with an evil intent, or through igno- 
 rance, build with their own timbers on another's soil. 
 The same may be applied to those who plant or engraft, 
 also to those who sow their grain on another's land without 
 the leave of the owner of the soil. The rule in such cases 
 is, that what is built, planted and sown, shall be the owner's 
 of the soil, upon the presumption, that they were given to 
 him. For, it has been said, in these cases it would be a 
 great encouragement to such builders, planters or sowers, if 
 what was built, planted and sown, was not to belong to the 
 owners of the soil, and especially if such structures are 
 fixed, or the plants and seeds have taken root or nourish- 
 ment. But if any one perceives his folly, he may lawfully 
 remove his timber or his trees, so as he does it before our 
 writ of •prohibition comes against his removing any thing, 
 and before the timber is fastened with nails, or the trees 
 have taken root" {Britton's Pleas of the Crown, cli. 33). 
 
 The rule is laid down by another very early author, that 
 "if a piece of timber, which was illegally taken from J. S., 
 has been hewed, trespass does not lie against J. S. for re- 
 taking it. But if a piece of timber, which was illegally 
 taken, has been used in building or repairing, this, although 
 it is shown to be the piece which was taken, cannot be re- 
 taken, the nature of the timber being changed ; for by an- 
 nexing it to the freehold it becomes real property" {BrooTie' s 
 Abr., Trespass, pi. 23). 
 
 There are some very singular and curious illustrations of 
 the principles under consideration, in early, but more recent 
 authorities. Thus in a case as briefly reported by Lord 
 Raymond, it was declared, that if a man be hung in chains 
 upon the private land of another, the owner of the land 
 shall have the gibbet and the chains. This was so declared 
 •upon a motion for a new trial {Spark v. Spicer, Ld. Ray-
 
 ANNEXATIONS BY ACCIDENT. 85 
 
 moncVs B., 738). As this case is reported by Mr. Salkeld, 
 it appears, that a convict was ordered by the judge of assize 
 to be hanged in chains. The officers hung him in primtte 
 solo. Tlie owner of the premises on which the criminal was 
 executed brought trespass, and upon a plea of not guilty, 
 the jury found for the defendant ; and the plaintiff moved 
 for a new trial, but the motion was dismissed ; the court 
 holding that it was done for coimenience of place and not 
 to offend the owner {Spark v. Splcer, Salkeld'' s R., 648). 
 
 Holt, C. J., ruled at the Lent assizes at Winchester, upon 
 a trial at nisi prius, 1698, that if A. plants a tree upon the 
 extreme limits of his land ; and the tree growing extends its 
 roots into the land of B. next adjoining, A. and B. are ten- 
 ants in common of this tree. But if all the root grows into 
 the land of A., though the bows overshadow the land of B., 
 yet the branches follow the root and the property of the 
 whole is in A. (Waterman v. Soper, Ld. Raymond^ s B.., 
 337). As to the case of trees blown down, or boughs that 
 in lopping fall on the soil of another, or fruit that drops 
 from a tree growing in a hedge into the field of another, the 
 English authorities agree that in such cases the property is 
 not lost. And the rule in the American States upon the sub- 
 ject is similar to that laid down in the English law. The 
 cases in this country generally hold that a tree, which has 
 to remain body or trunk in the land of one, while the roots 
 extend and grow into the land of another, the tree is wholly 
 the property of him upon whose land the trunk stands. 
 And the American authorities seem to be uniform in hold- 
 ing that a tree standing directly upon the line of adjoining 
 owners, so that the line passes through it, is the common 
 property of both parties ( Vide Tyler'' s Law of Boundaries, 
 318-328, and the authorities there cited). 
 
 In an important case in the English Court of Exchequer, 
 it appeared that certain large masses of stone, had from 
 time to time, fallen from tlie cliffs above upon tlie field of a 
 copyholder, and had thereby become imbedded in the soil : 
 there was no evidence to show when any particular portion 
 of them had fallen within living memory. The court held 
 that those stones must be considered a part of the soil be-
 
 86 LAW OF FIXTURES. 
 
 low, belonging to tlie land, and, therefore, his property, 
 although the cliifs above did not belong to him ; and that 
 the copyholder was not entitled to take them for his own 
 profit {Deerden v. Ei^ans, 5 Meeson & Welshif s R., 11). 
 
 And in a case decided not many years since b}^ the Eng- 
 lish Court of King's Bench, it was held that sand drifted and 
 blown from the sea-shore upon the man's close becomes part 
 of it, and belongs to the owner of the close. The action was 
 trespass for taking away the sand from the plaintiff's close, 
 and it was pleaded that the close was contiguous to the sea- 
 shore in Cornwall ; tliat the sand had from time to time drifted 
 and been carried by the wind from the sea- shore upon the said 
 close, and been there deposited ; tliat in the parish of St. Erme 
 there was a custom for all inhabitants for the time being, occu- 
 pying lands in said parish, to enter the close at reasonable 
 times, and take therefrom reasonable quantities of all such 
 sand as had so drifted and been carried upon the said close, 
 for the purpose of manuring the land in their occupa- 
 tion in the said county, and the defendant Justified, as one 
 inhabitant and occupier of lands in said parish. The court 
 held that the plea was bad, because the supposed custom 
 was void, inasmuch as the sand, when drifted upon a close, 
 becomes a part of it, and the claim therefore was to take a 
 profit in ctlieno solo. Lord Denman, C. J., said: "It is clear 
 that this cannot be a good custom. The sand, the article 
 claimed, is a part of the soil, and inseparable from it." 
 Littledale, J., said : "The right as here claimed is at any rate 
 attended with great uncertainty. It would apply to many 
 places which are not separated from the sea- shore by hedges, 
 and where all the soil has been thrown up from the sea- 
 shore ; and in such cases the custom, as alleged, might go 
 the length of taking the whole away. But, independently 
 of this, sand, even if blown into an inclosed field of grass or 
 corn, becomes soil. Of what is soil in general composed ? 
 Many things enter into it which are brought artificially or 
 by accident, and the moment they are so brought they be- 
 come part of the soil. The inhabitants themselves in this 
 case, allege that they carry away this sand to manure their 
 lands ; by using it as such Tuauurc they would ui:ikc it part
 
 ANNEXATIONS PLACED ON LAND. 87 
 
 of tlieir own soil ; and thus they claim, by this treatment 
 to make it soil, or no soil, as they think proper." 
 
 Patterson, J., said: "It is clear that there cannot be a 
 custom to take profit in alieno solo. This evidently is a 
 profit, since the parties take the sand to manure their lands. 
 Then it is not alieno solo f That is denied, because it is con- 
 tended that tlie taking is not in the soil. But tlie claim 
 clearly is to take a part of the ground ; whether sand be 
 blown in or mud lodged, it is a part of the close whenever 
 upon the land. A distinction may be attempted between the 
 sand lately drifted and the other soil of the close ; and, when 
 the sand forms a considerable mound, it may be easy to say 
 that the upper part is drifted ; but if that were removed, and 
 the lower arrived at, it would be impossible to distinguish. I 
 am, however, of opinion that when any thing in the nature 
 of soil is blown or lodged upon a man's close, it is part of 
 the close, and he has a right to it against all the w^orld. 
 This therefore was a claim of profit to be taken in alieno 
 sold''' {Blewett v. Ti-egonning, 3 Adolpli. & Ell. R., 554, 574, 
 575 ; S. a, 30 Eng. C. L. R., 260, 269). 
 
 Th6 rule respecting alluvion, is similar to that under dis- 
 cussion, and in matters of this kind, the first question to be 
 settled is whether the accretions are in fact alluvion or not. 
 If they have been made by a lateral increase, that is, by 
 imperceptible degrees, so that no one can know how much 
 was added in each moment of time, the law declares the 
 accumulation to be alluvion ; and when this is so deter- 
 mined, the rule is well settled that the alluvion belongs to 
 the proprietor of the land at the edge of the water. If the 
 additional soil was made suddenly, and not by imper- 
 ceptible degrees, it is not alluvion, and belongs to the owner 
 of the bed of the stream, or the soil under the water where 
 it originally flowed {Tylefs Laio of Boundaries, 87). 
 
 In the case of a chattel placed on the soil of another, but 
 severable from it, the English Court of Queen's Bench has 
 held, that this does not necessarily become a part of the 
 freehold, even though it may be accessorial to a principal 
 thing that is itself connected with the soil ; but that it is 
 alw:iys matter of evidence whether it belongs to the free-
 
 88 " LAW OF FIXTURES. 
 
 hold or not. Thus the owner of a mill had placed a hatch 
 and fender for the use of his mill npon a stream of water, 
 where neither the banks of the stream, nor the adjoining 
 land belonged to him. The fender moved up and down in 
 a groove fixed to the brick- work, and when down, rested 
 upon a sill also fixed to the brick- work. The court held 
 that this fender did not necessarily become part of the free- 
 hold ; but that it was matter of evidence whether by agree- 
 ment it did not remain the property of the original owner, 
 though placed on the soil of another ( Wood v. Bewett, 14 
 Laio Journal i?., 247). It is remarked by Mr. Ferard, that 
 in this case, it was said by counsel in the argument, that it 
 had been decided in a case of lfa7it v. Collins, in the Queen's 
 Bench at Trinity Term, 1842, not reported, that a door which 
 hung upon hinges, and which could be removed by lifting 
 it up, was a personal chattel ; upon which Lord Denman, 
 C. J., observed, that the case might be taken to this extent, 
 that it is matter of evidence how such a thing came where it 
 is, and in what manner it was intended to be used and en- 
 joyed {Ferardy s Law of Fixtures, 15). 
 
 There is no doubt, then, that when a chattel is annexed to 
 the freehold by a mere stranger, with no agreement or un- 
 derstanding with the owner of the freehold in respect of it, 
 the chattel becomes a part of the realty, and the one who 
 placed it there has no legal right to remove it. But when 
 the chattel is placed upon the realty with the assent or 
 license of the owner, the rule is different. This doctrine is 
 well sustained by authorities cited in the last preceding 
 chapter ; and it was, at an early day, carried by the Eng- 
 lish Court of King's Bench, to an extent beyond the cases 
 heretofore referred to. The case was as follows : The owner 
 granted liberty,* license, power and authority to another, 
 and his heirs to build a bridge on his land, upon the latter' s 
 consenting to build the bridge for public use, and to keep 
 it in repair, and not demand toll. The court held that the 
 materials of the bridge when built and dedicated to the 
 public still continued to be the property of the original 
 owner, subject to the right of passage by the public, and 
 when severed and taken away by a wrongdoer, that he
 
 ANNEX A TIONS B Y LICENSE. 8 9 
 
 miglit maintain trespass for the asportation. Lord Ellen- 
 borough, in his opinion, said: "The question is, whether 
 the original right of the person with whose materials the 
 bridge was originally constructed, and whose property in 
 them was only suspended by the use of them by the public 
 while in the form of a bridge, when those materials cease to 
 be parts of the bridge, whether his exclusive right of prop- 
 erty in them do not revert to him ? lam clearly of opinion 
 that as against a wrongdoer who has carried them away, the 
 original owner's exclusive right of property does revert to 
 him so as to enable him to maintain this possessory action. 
 They were dedicated by him to the public for given pur- 
 poses, but a scintilla of property still remained in him ; and 
 when those purposes could no longer be answered by their 
 ceasing to be combined in that form in respect of which the 
 dedication was made, without saying that he could have 
 recovered them himself, they returned to him again as his 
 absolute property, and he may well maintain this action 
 against a wrongdoer for the materials now subsisting in the 
 shape of several chattels. It is something analogous to the 
 case where the founder of an eleemosynary foundation dedi- 
 cates his land to its support, and it afterwards ceases, the 
 land reverts to him or his heirs. Here there was a qualified 
 right of property subsisting in the plaintiff after the dedi- 
 cation of the bridge to the public, which upon the severance 
 of the materials became a perfect right of property in him." 
 Grose, J., was more decided, saying: "In order to sus- 
 tain the count on the asportavit, it must appear that the 
 stones were the property of the plaintiff, and they were 
 taken from his possession. Sir George Warren granted to 
 the plaintiff the privilege of building the bridge on his land 
 on the Stockport side of the river. The materials were fur- 
 nished by the plaintiff whose property they were, and he 
 never parted with his property in them to any other, but 
 only gave a right to the public of passing over them in the 
 form of a bridge ; he never affected to give the public his 
 right to the stones themselves. Then being his property 
 they continued in his possession in point of law, just as any 
 chattel would be which was placed by permission on 
 
 12
 
 90 LAW OF FIXTURES. 
 
 another' s ground. If any of tlie stones had fallen down by 
 accident, that would not give a right to any person to take 
 them, but the property would revert to the plaintiff ; the 
 public having had all the use of them which they were in- 
 tended to have, while forming part of the bridge" {Harri- 
 son V. Parker^ 6 Bast's JR., 154). 
 
 It will be observed that the question in the case of Harri- 
 son V. Parker arose between the person who placed his ma- 
 terials in the bridge and a wrongdoer ; and the court did 
 not necessarily decide whether the materials which were 
 w^rought into the bridge, under the circumstances of the 
 case, became so annexed to the freehold, as, between the 
 owner of the soil and the one placing them there, to prevent 
 their removal against the will of the owner of the realty. 
 But it is presumed that, when chattels are attached to land 
 for a specific purpose, with the license and consent of the 
 owner of the freehold, when the purpose for which they 
 were so attached is fully accomplished, and such chattels 
 are no longer used as originally intended, they would revert 
 to the original owner, and he would have the right to 
 remove them. In the case cited, after the stones were sev- 
 ered from the bridge, the exclusive property in them, would, 
 undoubtedly, revert to the builder, and he could hold them 
 as against the whole world. 
 
 The English Court of King's Bench, in a case decided 
 later than that last cited, held that certain contractors for 
 making a navigable canal, having, with the permission of 
 the owner of the soil, erected a dam of earth and wood upon 
 his close, across a stream there, for the purpose of complet- 
 ing their work, had sufficient title and possession to entitle 
 them to maintain trespass against a wrongdoer. The court 
 said: "The dam was erected by the plaintiffs at their own 
 expense, and with their ow-n materials, upon the locus in 
 quo, with the consent of the owner of the soil, for a special 
 purpose. Until that purpose was completed, the plaintiffs 
 were entitled to the possession of the dam. Now, it is per- 
 fectly clear that the persons in possession of property, 
 whether rightfully or wrongfully, may maintain trespass 
 ai-aiiist a nn-re wioiiodoer. liid(.^ed, if tlipy ]i;nl ai.iy other
 
 ANNEX A TIONS BY LI CENSE. 9 1 
 
 than a partial or subordinate interest in the dam, trespass 
 is the only proper remedy. This case is distinguishable 
 from that oi" The Dulce of Nemcastle v. Clarke^ for there the 
 commissioners of sewers had no possession, but had a mere 
 right to enter upon the locus in quo, and to do certain acts. 
 In Welsh v. JSfash (8 East, 394), the posts were put upon 
 the lands of another without his permission ; and yet it was 
 held, that the party who put them there might recover in 
 trespass for taking them away, when the general issue only 
 was pleaded. Now, that could be only on the ground that 
 the posts were the property of the plaintiff ; for if they were 
 not so, it would have been a good defense to the action" 
 {Dyson v. Collick, 5 Barn. & Aid. JR., 600; .S^. C, 1 ,Eng. 
 a L. B., 203, 204). 
 
 The principle under consideration is further illustrated 
 by American authorities. A case decided by the Supreme 
 Judicial Court of Massachusetts is in point. The action was 
 submitted to the court on an agreed state of facts, by which 
 it appeared, that one Davenport, being the owner of a lot of 
 land with a dwelling-house thereon, mortgaged the same to 
 the plaintiff ; that afterward he took down the house, and 
 with the materials partly, and partly with new materials, 
 built a new house on another lot of his at some distance ; 
 and that after the new house was completed, he, for a valu- 
 able consideration, sold the last mentioned lot and house to 
 the defendant. 
 
 On the conceded facts of the case, it was insisted by the 
 plaintiff's counsel, that the old house was the property of 
 the plaintiff, and that Davenport had no right to take it 
 down, and could not therefore acquire any property in the 
 materials by such a wrongful act ; that the new house, be- 
 ing built with the materials from the old house in part, 
 became the property of the plaintiff, although new materials 
 were added, by right of accession ; and that Davenport, 
 having no property in the house, as against the plaintiff, 
 could convey no title to it to the defendant. The court 
 were of the opinion that Davenport was responsible for 
 taking down and removing the old house, but were against
 
 92 LA W OF FIXTURES. 
 
 the plaintiff's counsel in the position, that, therefore, the 
 property in the new house vested in the plaintiff. 
 
 Wilde, J., drew up the opinion of the court, and, among 
 other things, said: "The rules of law, by which the right 
 of property may be acquired by accession or adjunction, 
 were principally derived from the civil law, but have long 
 been sanctioned by the courts of England and of this coun- 
 try as established principles of law. 
 
 "The general rule is that the owner of property, whether 
 the property be movable or immovable, has the right to that 
 which is united to it by accession or adjunction. But by 
 the law of England as well as by the civil law, a trespasser, 
 who wilfully takes the property of another, can acquire no 
 right in it as the principle of accession, but the owner may 
 reclaim it, whatever alteration of form it may have under- 
 gone, unless it be changed into a different species and be 
 incapable of being restored to its former state ; and even 
 then the trespasser, by the civil law, could acquire no right 
 by the accession, unless the materials had been taken away 
 in ignorance of their being the property of another (2 
 KenVs Comm., 362; Betts v. Lee, 5 JoJins. H., 348). But 
 there are exceptions to the general rule. 
 
 " It is laid down by Molloy as a settled principle of law, 
 that if a man cuts down the trees of another, or takes timber 
 or plank prepared for the erecting or repairing of a dwelling- 
 house, may, though some of them are for shipping, and 
 builds and ship, the property follows not the owners but the 
 builders {Mol de Jure Mar., lib. 2, c. 1, § 7). 
 
 "Another similar exception is laid down by Chancellor 
 Kent in his Commentaries, which is directly in point in the 
 present case. If, he says, A. builds a house on his own 
 land with the materials of another, the property in tlie land 
 vests the property in the building by right of accession, and 
 the owner of the land would only be obliged to answer to 
 the owner of the materials for the value of them (2 KenV s 
 Comm., 360, 361). This principle is fully sustained by the 
 authorities. In Bro., tit. Property, pi. 23, it is said, that if 
 timber be taken and made into a house, it cannot be re- 
 claimed by the owner; for tlie nature of it is cliaiigod, and
 
 ANNEXATIONS BY LICENSE. 93 
 
 it has become a part of the freehokl. In Moore, 20, it was 
 held, that if a man takes trees of another and makes them 
 into houses, still the owner may retake them, but that if a 
 house be made with the timber it is otherwise. 
 
 "In Popliam, 38, this principle is further extended. The 
 plaintiff in that case had mixed his own hay with hay of the 
 defendant on his land, and the defendant took away the hay 
 thus intermixed ; and it was held, that he had a right so to 
 do. But it was also held, that if the plaintiff had taken the 
 defendant's hay and carried it to his house and then inter- 
 mixed it with his own hay, the defendant could not take 
 back his hay, but would be put to his action against the 
 plaintiff, for taking his hay. If there can be any doubt of 
 the doctrine laid down in this case, it does not affect the 
 13resent case. The doctrine laid down in the former case is 
 fully supported by the Year Books, 5 Hen. 7, 16 ; and I am 
 not aware of any modern decision or authority, in which 
 this old doctrine of the English law has been controverted" 
 {Pelrce v. Goddard, 22 Pickering's B., 559, 561, 562). 
 
 The case of Peirce v. Goddard was decided in 1839, but 
 the doctrine has been reiterated by the same court in later 
 cases. Thus, in the year 1851, a case came before the court 
 in which it appeared, that a grant of land was made in 1740 
 "to the inhabitants of the west precinct in Sudbury." The 
 town of Sudbury then consisted of two parishes ; but the 
 east parish was in 1780 incorporated as a separate town. 
 The town maintained a school-house, on the land granted, 
 from 1735 to 1798, and then removed it. In 1823 the town 
 voted to permit the school-district to move the school-house 
 back to the original site, which was accordingly done ; and 
 the school-house remained there for eight or ten years, when 
 it was again removed by authority of the town. The west 
 parish was first organized as a corporation distinct from the 
 town in 1836. In 1847 the town build a new school-house 
 on the site originally occupied by the old one. The land in 
 question w^as part of the common, which had been used as 
 a training field for more than an hundred years, and on 
 which the meeting-house of the west parish always stood. 
 The court held, that the original grant of the land to "the
 
 94 LAW OF FIXTURES. 
 
 precinct ' ' impressed upon it a parochial character ; tliat it 
 retained that character, while the corporation exercised the 
 functions of both town and parish ; and that, upon the sep- 
 aration, it remained the property of the parish. It was 
 held, also, that the erection of the new school-house having 
 been unauthorized by the parish, the town was not entitled 
 to remove it. 
 
 Bigelow, J., delivered the opinion of the court, and upon 
 the point pertinent to this discussion, said: "The decision 
 presented by the report of the auditor in this case depends 
 upon elementary principles. The term 'land' legally in- 
 cludes all houses and buildings standing thereon. What- 
 ever is affixed to the realty is thereby made parcel thereof, 
 and belongs to the owner of the soil. Quicquid plantatur 
 solo., solo ceclit. Things personal in their nature, but pre- 
 pared and intended to be used with real estate, having been 
 fixed to the realty and used with it, become part of the land 
 by accession, pass with it, and belong to the owner of the 
 land (1 Cruise' s Big.^ Grenl. ed.^ 41 ; Gibbons on Flxt.., 2). 
 It follows, that where there is no agreement to change the 
 legal rights of the parties, materials, when used for building 
 a house, become part of the freehold, and cannot be re- 
 claimed by their original owner after annexation to the 
 realty, as against the owner of the land to which they have 
 been affixed. Buildings erected on land of another volun- 
 tarily and without any contract with the owner become part 
 of the real estate, and belong to the owner of the soil 
 {Washburn v. Sproat, 16 Ifass., 449; Leland v. Gassett^ 
 17 Verm., 403; Peircev.Goddard, 22 Piclc., 559). 
 
 " An exception is admitted to this general rule, where there 
 is an agreement, express or implied, between the owner of 
 the real estate and the proprietor of materials and buildings, 
 that, when annexed to the realty, they shall not become 
 parts of it, but shall still remain the property of the person 
 annexing them. In such case, the law gives effect to the 
 agreement of the parties, and personal property, though 
 affixed to the realty, retains its original characteristics, and 
 belongs to the original owner. Within this exception are 
 included not only cases where there is an express agreement
 
 ANNEXATIONS TORTIOUSLY SEVERED. 95 
 
 between tlie parties, that personal property shall not become 
 real ©state by annexation to the soil, but also that large 
 class of cases which arise between landlord and tenant, in 
 which.by agreement, either express, or implied from usage 
 or otherwise, the tenant is allowed to retain as his own 
 property, if reasonably removed, fixtures erected by him 
 for purposes of trade, ornament or ordinary use, upon lease- 
 hold premises during his tenancy" {First Parish in Sud- 
 hury V. Jones, 8 Cusliing's R., 187, 189, 190). 
 
 In respect to the claims of the owner of fixtures after they 
 have been tortiously severed from the freehold, in order to 
 deprive him of his property, the civil law required the thing 
 to be changed into a difi:'erent species, and to be incapable 
 of being restored to its ancient form, as grapes made into 
 wine ; until such a change occurred, the original proprietor 
 could not lose his title to the fixtures ; nor even then, did 
 the other party acquire any title by the accession, unless 
 the materials had been taken away, in ignorance of their* 
 being the property of another {Vinnius' Inst., lib. 2, tit. 1, 
 § 25, Dig. 10, 4, 12, 3). The civil law, in its usual wisdom, 
 gave no encouragement to trespassers or wrongdoers. 
 
 The rule of the English common law upon this subject is 
 similar to that of the civil law. It is laid down, in the Year 
 Books, after solemn argument on demurrer, that whatever 
 alterations of form any property had undergone, the owner 
 may seize it in its new shape, if he can prove the identity of 
 the original materials ; as if leather be made into shoes, or 
 cloth into a coat, or a tree be squared into timber (5 JIe?i. 
 VII, 15 ; 12 IIe7i. VIII, 10 Mtz. Abr., Bar., 144). 
 
 It has been sometimes intimated in the courts that the 
 rule of the civil law in those cases was too vigorous upon 
 the wrongdoer, in depriving him of the benefit of his labor 
 bestowed upon the article wrongfully taken. But it is re- 
 spectfully suggested that the civil law in this respect is in 
 conformity not only with plain principles of morality, but 
 is supported by cogent reasons of public policy, and, as has 
 been before stated, is in accordance with the drift of au- 
 thority, both in this country and in England. The acknowl- 
 edged principle of the civil law is, that a wilful wrongdoer
 
 96 LAW OF FIXTURES. 
 
 acquires no property in the goods of another, either by the 
 wrongful taking or by any change wrought in, them by his 
 labor or skill, however great that change may be. The new 
 product in its improved state belongs to the ow.ner of 
 the original materials, provided, it be found to have been 
 made from them ; the trespasser loses his labor, and that 
 cliange which is regarded as a destruction of the goods, 
 or an alteration of their identity in favor of an honest pos- 
 sessor, is not so regarded as between the original owner and 
 a wilful violator of his right of property. That is to say, 
 by the rule of the civil law, the original owner of any thing 
 improved by the act of another, retained his ownership in 
 the tiling so improved, unless it was changed into a differ- 
 ent sp^ecies ; as if grapes were made into wine, the wine be- 
 longed to the maker, who was only obliged to pay the owner 
 for the value of his grapes. The species, however, must 
 be incapable of being returned to its ancient form ; and 
 the materials must have been taken in ignorance of their 
 being the property qt another. And the rule of the com- 
 mon law in this respect is the same as the civil ; or at least, 
 it is as rigid, if not more so than the civil law. So long as 
 property wrongfully taken retains its original form and sub- 
 stance, or may be reduced to its original materials, it be- 
 longs, according to the admitted principles of the common 
 law, to the original owner, without reference to the degree 
 of improvement, or the additional value given to it by the 
 labor of the wrongdoer. Indeed, the rule holds good against 
 an innocent purchaser from the wrongdoer, although its 
 value be increased an hundred fold by the labor of the pur- 
 chaser. This is said to be the consequence of the continu- 
 ance of the original ov/nership. The wrongful conversion 
 of the original materials into an article of a different name 
 or a different species will not work a transfer of the title 
 from the true owner to the trespasser, provided the real 
 identity of the thing can be traced by evidence. The diffi- 
 culty of proving the identity is not a good reason. That 
 relates merely to the convenience of the remedy, and not at 
 all to the right. 
 
 Now this is the rule in respect to personal chattels,, and
 
 ANNSXATIONS TORTIOUSLY SEVERED. 97 
 
 the same rule obtains in the case of the wrongful remover 
 of fixtures from the freehold. In a case before the old Su- 
 preme Court of the State of New York, it appeared that a 
 trespasser cut wood on another' s land and converted it into 
 charcoal. The court held that the charcoal still belonged to 
 the owner of the wood. Here was a change of the wood 
 into an article of different kind and species. No part of 
 the substance of the wood remained in its original state ; its 
 identity could not be ascertained by the owner, nor could 
 it be returned to what it originally was. And yet it was 
 held that the trespasser got no title to the property merely 
 by changing it from one species to another {Curtis v. Oroat, 
 e" Johns. JR., 169). 
 
 The same distinguished court, at a later date, held that, 
 where one tortiously cuts trees upon lands of another into 
 logs, and then another trespasser takes the logs from the 
 lands and saws them into boards or plank, the owner of the 
 trees may take the boards or plank; or bring trover for 
 them. The court said: "Here was, beyond all doubt, a 
 tortious taking of the trees. The consent of the owner is not 
 pretended. The taking of the logs by the de:^ndant was 
 also tortious. The only question is, whether the former 
 was entitled to the boards which the defendant made of 
 them. We think the property was not changed by this act. 
 The rule, in case of a wrongful taking is, that the taker 
 cannot, by any act of his own, acquire title, unless he either 
 destroy the identity of the thing ; as by changing money 
 into a cup, or grain into malt ; or annexing it to, and mak- 
 ing a part of some other thing, which is the principal ; or 
 changing its nature from personal to real property ; as 
 when it is worked into a dwelling-house" {Broionv. Sax, 
 7 Cow. R., 95, 97). 
 
 These cases have been expressly approved by the same 
 court by later decisions. Thus, it has been held that, when 
 property is tortiously taken, the plaintiff is entitled to re- 
 cover it& enhanced value ; for example, when saw- logs are 
 taken and converted into hoards and plank, the plaintiff is 
 entitled to recover the value of the boards and plank, and is 
 not confined to the value of the logs, either in the woods or 
 
 13
 
 98 LAW OF FIXTURES. 
 
 at the place wliere they are sawed into boards and plank. 
 This is, of course, on the principle that the property re- 
 mained that of the original owner of the trees standing in its 
 changed state. Savage, C. J., who delivered the opinion of 
 the court, said: "That the party whose property has been 
 tortiously taken is entitled to the enhanced value, until it 
 has been so changed as to alter the title, is a doctrine as old 
 as the Year Book. In this court it has been held that the 
 owner of timber may reclaim it when made into shingles 
 (5 Johns. R., 348, 9), and the law in England is stated to go 
 much further ; that whatever alteration of form any prop- 
 erty has undergone, the owner may seize it in its new shape, 
 if he can prove the identity of the original materials — as 
 leather made into shoes, cloth into a coat, trees squared into 
 timber. In the case of Curtis y. Groat {1 Johns, i?., 168), 
 this principle was applied to wood converted into coal" 
 {BaJter v. Wheeler, 8 Wend. H., 505, 508). 
 
 A similar decision has been made by the present Supreme 
 Court of the State of New York, where it was held that in 
 case trees are taken wrongfully, and manufactured into 
 shingles, thp ow-ner may recover of the wrongdoer the en- 
 hanced value of the timber as made into shingles. The 
 court declared this to be a well settled proposition, and re- 
 ferred to the cases herein examined for authority {Jiice v. 
 Hollenheck, 19 Barb. B., 664). If trees are taken and a 
 house built from them, he from whom the trees are taken 
 cannot tear down the house to take them again, because 
 other things are joined with them. But if a thing is taken 
 wrongfully, and nothing is joined or mingled with it, nor is 
 it altered to a thing of another nature, the party may take 
 it again. For example, if one takes a tree and square it 
 with an axe, then the party may take it again, because it is 
 changed to another article, nor is any thing mingled or 
 joined with it. Notwithstanding this, the tree may be known. 
 in the case of timber used in the building of a house, the 
 timber is changed ; becoming a part of the freehold ; and 
 for this cause, it cannot be taken by the owner; and so in 
 all similar cases. 
 
 On the whole, it may safely be afHrnied that the common
 
 ANNEXATIONS TORTIOUSLY SEVERED. 99 
 
 law does not essentially differ from the civil law in respect 
 to tlie particular branch of the subject under discussion. 
 At least, there is good reason to believe that both systems are 
 alike. The civil law on the general subjects of accession, 
 especially accession by sjyecificaUon, confusion and adjunc- 
 tion, was adopted by the English as early as the time of 
 Bracton, and probably it was adopted precisely as it stood 
 in the Digest. Brett, C. J., said in the English House of 
 Lords: "We know that many of the maxims of the com- 
 mon law are borrowed from the civil law, and are still 
 quoted in the language of the civil law. Notwithstanding 
 the clamor raised by our ancestors for the restoration of the 
 the law of Edward the Confessor, I believe that those and 
 all the Norman customs which followed would not have 
 been sufficient to form a system of law sufficient for the state 
 of society in the time of Henry the Third. Both courts of 
 Justice and law writers were obliged to adopt each of the 
 rules of the digest as were not inconsistent with our princi- 
 ples of jurisprudence" {Gifford v. Tarborougli, 5 BingJiam^ s 
 B., 163; S. a, 15 Eng. O. L. R., 403, 406). This was a 
 case of derelict lands, and falls under the same rule, in re- 
 spect of the point under consideration, as that of fixtures 
 tortiously removed from the freehold. In the case of ac- 
 cession by confusion or intermixture, the common law has 
 gone further than the civil law in discriminating between 
 unintentional and wilful wrong. Then, if the intermixture 
 be by consent or accident, the proprietors become tenants 
 in common. But if it be wilful., the common law, to guard 
 against fraud, gives the entire property to the one whose 
 property was taken by the wrongdoer. Chancellor Kent 
 says : " The English law will not allow one man to gain a title 
 to the property of another upon the principle of accession, 
 if he took the other's property wilfully as a trespasser. ^^ 
 ' ' So (he continues) the civil law, in order to avoid giving 
 encouragement to trespassers, would not allow a party to ac- 
 quire a title by accession, founded on his own act, unless he 
 had taken the materials in ignorance of the true owner, and 
 the materials were incapable of being restored to their origi- 
 nal form" (2 Kent's Comm., 362, 363).
 
 100 LAW OF FIXTURES. 
 
 But this branch of the subject will be discussed more in 
 detail in a subsequent part of this treatise, where the reme- 
 dies in respect to fixtures are considered. It is a general 
 rule in every civilized state, that a man can only lose his 
 title to property by the operation of law, or his own volun- 
 tary act. But this, like most other general rules, has its 
 exceptions. If one wrongfully take the chattel of another, 
 and never change its form and nature by bestowing his la- 
 bor and skill upon it, without destroying its identity, the 
 property still remains in the original owner, and he may 
 eithqr retake it, or recover the value in its state of improve- 
 ment. But if the thing be changed into an entirely differ- 
 ent species, so that it cannot be reduced to its former rude 
 materials, it then belongs to the new operator ; and he is 
 only to make satisfaction to the former owner for the ma- 
 terials converted. . And these principles apply with full 
 force in cases of wrongful severance of fixtures from the 
 freehold. 
 
 CHAPTER VI. . 
 
 TESTS BY "WHICH FIXTURES MAY BE DETERMINED ADAPTABILITY OF THE 
 
 ARTICLE TO THE USE OF THE FREEHOLD, A TEST OP MORE OR LESS CER- 
 TAINTY EXAMINATION OF THE PRINCIPLE REFERENCE TO AUTHOR- 
 ITIES ILLUSTRATING THIS TEST. 
 
 But there are other tests, in the form of general prin- 
 ciples, besides those which are connected with the annex- 
 ation of the article, by which to determine whether the 
 thing in controversy is a fixture or not. The first test always 
 is as to whether the article, personal in its nature, has 
 been so annexed to the land as to give it the character of 
 real estate, and thus may be regarded as a permanent fix- 
 ture. This test has been fully examined in previous chap- 
 ters, and it only requires, in this connection, to consider
 
 .TESTS TO DETERMINE FIXTURES. 101 
 
 some other tests, which may be applied to aid in the de- 
 termination of the question. 
 
 And first, another test, not so certain in its character as 
 the one already examined, but a test nevertheless, is, that 
 of the adaptability of the thing to the use of the freehold. 
 This, though seldom decisive of the question, is often an 
 important inquiry, and is found to be an essential aid in 
 the investigation. The circumstance that the article may 
 or may not be removed without great injury to the freehold 
 is sometimes dwelt upon with considerable stress. But it 
 is not now deemed to be controlling. Whether the thing is 
 actually annexed or not, that is whether the annexation is 
 of a permanent character or not, is the first test to be ap- 
 plied to the question, and next in order is to ascertain the 
 use or purpose of the thing when it is fixed ; that is, what 
 is its adaptability to the realty to which it is attached. ^ The 
 simple criterion of physical annexation is so limited in its 
 range,- and so productive of contradiction, that it will not 
 apply with much force except in respect to fixtures in 
 dwellings. And the old notion that a thing belonging to 
 the realty, and an integral part of a building, say a manu- 
 factory or a mill, must be regarded as personal property, 
 merely because it may be unscrewed or unstrapped, taken 
 to pieces, and removed, is now entirely ignored ; and while 
 this consideration may be taken into the account in determin- 
 ing the character of the thing — whether it is personal or 
 real, it is regarded as entirely too uncertain to be considered 
 a test. It would be difficult to point out any sort of ma- 
 chinery, however complex in its structure, or by what 
 means soever held in its place, which might not, with care 
 and trouble, be taken to pieces and removed in the same 
 way, and the greater or less facility with which it could be 
 done, would be too vague a thing to serve for a test. It 
 would allow the stones, hoppers, bolts, meal-chests, screens, 
 scales, weights, elevators, hopper-boys, and running gears of 
 a grist-mill, as well as the hammers and bellows of a forge, 
 and parts of many other buildings erected for manufac- 
 tories, to be put into the class of personal property, when 
 it v.'ould be palpably absurd to consider them such. If
 
 102 LAW OF FIXTURES. 
 
 physical annexation were the criterion in regard to such 
 things, the slightest tack or ligament ought to constitute it ; 
 else if ever so little were taken away from it, no criterion 
 at all would be afforded. There are so many fashions, 
 methods, and means of it, and so many changes of connec- 
 tion between material substances, that there is nothing 
 about which men would more readily differ than whether a 
 thing held by a band or a cleat was permanently annexed 
 to the freehold, or only for a season ; and it has been well 
 said, that the proof of this is seen in the results of the de- 
 cisions professedly regulated by it. To avoid discrepance, 
 it would be necessary to hold the slightest fastening to 
 be sufficient, but to exclude from the character of real prop- 
 erty, as well every thing constructively attached to it by the 
 nature of the thing, as every thing held to the ground by 
 the attraction of gravitation. Another test, therefore, must 
 often be applied, and in this connection comes in very natu- 
 rally the question of the adaptability of the article 'to the 
 place where it is fixed, and the use to which it is put. For 
 example, look sft the machinery in a cotton manufactory ; 
 the question to be examined would be, whether the machinery 
 was necessary to constitute the factory, and without it 
 would the building in which it was used be a manufactory 
 at all ? Whether the machinery was fast or loose, would 
 not determine the question whether it was a part of the 
 freehold or not ; but whether it was particularly adapted 
 to the use of the building, and was really necessary in 
 order to constitute the building fit for the uses to which it 
 was erected. 
 
 This, independent of other circumstances, or rather where 
 there exist no other controlling circumstances in the case, 
 may lead to a correct conclusion whether or not the thing in 
 question is a fixture. For example, take the case of a well 
 dug upon land, with the windlas, bucket, or other machinery 
 erected for the use of the well. Now this machiner}^ may 
 be capable of being taken away with very little trouble, and 
 very little damage, if any, to the land. But from its pecu- 
 liar fitness and adaptability to the well in order to its. use, 
 the inevitable conclusion is, that it is a fixture, and it is not
 
 TESTS TO DETERMINE FIXTURES. 103 
 
 competent to remove it against tlie will of the owner of the 
 soil. Although machinery is, in its nature, generally per- 
 sonal property, yet when it is erected upon the freehold and 
 especially adapted to the enjoyment of the freehold, the 
 rule is different ; it is then to be regarded as a fixture and 
 attached to the land. And instances not unfrequently 
 occur, in which portions of machinery may be detached 
 from the land, for the time being, but being adapted to the 
 use for which it was erected, those portions temporarily _ 
 severed do not cease to be a part of the freehold, while their 
 places are occupied by other pieces necessary for the general 
 management. According to the ordinary criterion, only 
 those parts or pieces in place and fixed for use would be 
 deemed a part of the realty. But by the test under con- 
 sideration, they must be regarded equally a part of the free- 
 hold when unfixed to give place to others. From the ad- 
 judged cases, it would appear, as a general rule, that every 
 thing put into or forming a part of a building, or machinery 
 for manufacturing purposes, as essential to the manufactory, 
 is part of the freehold ; the wheels of a mill, the stones, and 
 even the bolting cloth, are parts of the freehold, and cannot 
 be removed as personal property, because they are all 
 adapted to, and necessary for the use of the freehold in the 
 way that it is designed. This suggestion is made without 
 reference to the relation of the parties raising the question, 
 whether landlord and tenant or otherwise. The suggestion 
 is made as a general proposition, and unless there appear to 
 be circumstances in the case, which may have the effect to 
 change the ordinary rule, the question would be determined 
 by the principle before indicated. As to the full extent of 
 the rule in its application to the various degrees of cases 
 and persons, that will not be discussed in this place. As 
 an abstract principle, it may be affirmed, if an article is 
 attached to the freehold in the manner that things ordinarily 
 are which are designed to be permanent, and it is particu- 
 larly adapted to the purpose for which it is used, and in 
 the place where it is used, the presumption is, that it was 
 annexed as a fixture, and should not be removed. This,
 
 104 LAW OF FIXTURES. 
 
 although not conclusive, is always an important consider- 
 ation. 
 
 Upon the test under consideration, cliiefly, the Supreme 
 Judicial Court of Massachusetts, recently held that a stone 
 sink, weighing two hundred or two hundred and fifty 
 pounds, set by the owner of a dwelling-house, closely 
 against the wall, in a corner of one of the rooms, in a frame, 
 under the spout of a wooden pump connected with a cistern 
 of water below (which pump soon afterwards was removed) ; 
 was used for washing dishes and other appropriate domestic 
 work ; the waste water being conducted from one end of it, 
 by a lead pipe, through the side of the house, into a drain, 
 until the pipe wore out, and being afterward dipped out, or 
 drawn off through a hole filled with a stopple — was a fix- 
 ture, and belonged to the freehold. Gray, J., delivered the 
 opinion of the court, and said: "Upon the facts stated in 
 the bill of exceptions, we are unanimously of opinion that 
 the stone sink was annexed to and became a part of the 
 freehold of Hiram Cobb. This is shown by the purpose and 
 the mode of placing it on the premises. In Park v. Baker 
 (7 Allen, 78), which is relied on to support the ruling of the 
 court below, the ice chest held to be a chattel was not an 
 article which necessarily or usually forms part of the fitting 
 up of the house itself, and was expressly agreed to have 
 never been in any way connected with or affixed to the 
 building. But the sink in this cas^, if not absolutely neces- 
 sary to the completeness of the dwelling-house, was not 
 only by its construction and position obviously adapted and 
 intended to be, as it afterward was, in fact, used daily for 
 the ordinary domestic work ; but it was fitted in a frame, 
 and set closely in the corner and against the sides of the 
 room, over a cistern of water ; was so heavy as to require 
 no other fastening to keep it in place ; and was originally 
 connected by a pump with the cistern under it, and by a 
 pipe, passing through the side of the house, with a stone 
 drain to carry off the waste water" {Baimoay v. Cobh, 99 
 Mass. B., 457, 458). 
 
 The general rule is, that every thing annexed to realty, 
 whether by physical attachment or by adaptation of the
 
 TESTS TO DETERMINE FIXTURES. 105 
 
 article to the proper use of the property, becomes part of it, 
 and cannot legally be severed without the owner' s consent. 
 This is the general rule, to which there is an occasional ex- 
 ception, although the adaptation of the article to the place 
 where it is used is always proper to be taken into the ac- 
 count to determine whether the article is a fixture or not. 
 In a well considered case before the Supreme Court of Penn- 
 sylvania, it was held, that a planing machine, lathes, and 
 vises in a machine shop or car factory, are fixtures, and as 
 such belong to the realty, irrespective of the manner in 
 which they are attached to the building in which they are 
 used, if they are a necessary part of the machinery for car- 
 rying on the business. Knox, J., who delivered the opinion 
 of the court, said: "There was some uncertainty in the 
 evidence respecting the manner in which the lathes were put 
 up in the machine shop. Mr. Bisbing, one of the partners, 
 testified that the largest lathe stood on blocks, and that the 
 lathe and blocks were fastened to the floor by screw bolts, 
 and that the counter shaft for running the lathe, and which 
 was part of it, was fastened by bolts to the ceiling ; and the 
 other bolts were fastened to the floor by driving staples 
 across the feet to the floor, and the counter shafts bolted to 
 the ceiling. All the lathes were run by steam power, but 
 one was rigged for foot power, and partly worked with a 
 treadle. Another witness, Ezekiel Mann, said the lathes were 
 all fastened to the floor by staples or hooks. On the part 
 of the defendant, it was stated by one witness that the lathes 
 were not fastened to the floor in any manner. But the ques- 
 tion is not whether these lathes were bolted and strapped to 
 the floor and ceiling ; for if they were a necessary part of the 
 machinery for carrying on the business of the machine shop, 
 they belonged to the manufactory, whether bolted to the 
 floor or not. That a machine shop for manufacturing rail- 
 road cars would be incomplete, if not useless, without 
 lathes, is almost a self-evident proposition ; and that one of 
 these lathes was little used, is not material, for the charac- 
 ter of the machinery does not depend upon its frequent use, 
 nor upon its precise adaptation to the purposes for which 
 it is intended. In Yoorhis v. Freeman (2 ^Y. & S., IIG), 
 
 14
 
 106 L^W OF FIXTURES. 
 
 duplicate rolls of an iron rolling-mill were held to be fix- 
 tures, because they might be wanted in an emergency, as 
 those in use were liable to be broken. Yoorliis v. Free- 
 man, where it was held that the rolls of a mill were part of 
 the freehold, because they were necessary in manufacturing 
 iron, followed as it was by Pyle v. Pennock (2 W. & S., 
 390), and repeatedly recognized by subsequent cases, is of 
 unquestioned authority ; and the principle there ruled is 
 applicable to the case in hand, for it is clear that lathes are 
 as necessary in a machine shop as rolls are in a rolling- 
 mill. It was not in the power of the defendant to evade 
 this rule of law by proving that there was a custom in oppo- 
 sition to it ; and the rejection of the question relative to 
 damages, even if erroneous, becomes immaterial by the ver- 
 dict of the jury" {Christian v. I)ri'px>s, 28 Penn. P., 271, 
 278, 279). It will be observed that the judge, in this case 
 observes that the character of the machinery does not depend 
 "upon its precise adaptation to the purposes for which it is 
 intended;" but it is quite evident that the adaptability of 
 the articles in question had much to do in leading to the 
 conclusion that they were fixtures, and the cases of VoorMs 
 V. Freeman and Pyle v. Pennock, cited by the learned 
 judge in his opinion, are often referred to as authority for 
 the test under consideration. 
 
 A case referred to in a previous chapter, decided by Lord 
 Mansfield, also furnishes an authority for the principle 
 stated. That was a case of salt pans, made of hammered 
 iron and riveted together, which were brought into the salt- 
 houses in pieces and might be removed in pieces. The pans 
 were held to be fixtures. Lord Mansfield, C. J., among other 
 things, said: "The salt-spring is a valuable inheritance, 
 but no profit arises from it unless there is a salt- work, which 
 consists of a building, etc., for the purpose of containing 
 the pans, etc., which are fixed to the ground. The inher- 
 itance cannot be enjoyed without them. They are acces- 
 sories necessary to the enjoyment and use of the principal" 
 {Lawton v. Salmon, 1 Henry Black sto ne s P., 259, note). 
 The ground of the decision was, that the pans had a specific 
 relation to the inlK^-itanco. They woiv adai)ted to use in
 
 TESTS TO DETERMINE FIXTURES. 107 
 
 connection with the inheritance, and, by removal, would 
 lose all the value which that adaptation gave them, and be- 
 come merely oki iron. It was this on which the case turned. 
 The specific form which the iron had received, fitted the 
 pans lor use witli, and made them valuable in relation to, 
 the inlieritance, and not valuable as property unconnected 
 with the inheritance. A case decided by the present Su- 
 preme Court of the State of New York, is also in point upon 
 the branch of the subject now under consideration. The 
 articles claimed to be fixtures, and a part of the realty, con- 
 sisted of the shelves, drawers and counter- tables in a build- 
 ing used as a country store. They were put up by the 
 owner to fit the building for the uses of a retail dry goods 
 and grocery store, and without them the building was not 
 adapted to the business. The court held them to be fixtures, 
 and a part of the freehold. Brown, J., gave the opinion, 
 and said : "The qualities of a fixture are that it must be 
 essential to the business of the erection, and attached to it 
 in some way, or mechanically fitted so as, in ordinary un- 
 derstanding, to make a part of the building itself. It must 
 be permanently attached, or the component part of some 
 erection, structure or machine which is attached to the free- 
 hold, and without which the erection, structure or machine 
 would be imperfect and incomplete" {Tahor v. Boblnson, 
 36 Barh. R., 483, 484). 
 
 Judge Washburn, in his approved treatise on Real Prop- 
 erty states the rule thus : "If the owner of lands provides 
 any thing of a permanent nature, fitted for and actually 
 aiyplied to use upon the premises by annexing the same, it 
 becomes a part of the realty, though it might be removed 
 without injury to the premises^' (1 Wash, on Real Prop., 7). 
 And in most of the elementary treatises upon the law of real 
 property, the adaptability of the article to the use of the 
 freehold, is laid down as one of the tests by which to deter- 
 mine whether the article is to be deemed a fixture or not. 
 
 Pothier says, that where, in the construction of a large 
 vestibule or hall, niches are made, the statues attached to 
 those niches make part of the house, for they are placed 
 there ad Integrandam domym — t\\ey serve to complete tliat
 
 108 LAW OF FIXTURES. 
 
 part of the house. Indeed, the niches being made only to 
 receive the statues, there will fail to be any thing in the 
 vestibule without the statues {Pothier de Communaute, § 5Q). 
 So, by the French law, statues placed in a niche made 
 expressly to receive them, though they could be removed 
 without fracture or deterioration, are immovable, as part of 
 the realty ; while those standing on pedestals, in houses, 
 court-yards, and gardens, retain their character of movable 
 or personal, unless placed on a substantial or permanent 
 base made expressly for them, in which case they are gov- 
 erned by the same rule as when placed in niches made ex- 
 pressly to receive them ; and the general rule is laid down, 
 that the law will regard such ornaments as mirrors, pictures, 
 and statues, as immovable, when they cannot be taken away 
 without fracture or deterioration, or leaving a gap or va- 
 cancy. A statue is regarded as integral with the perma- 
 nent base on which it rests, and which was erected expressly 
 for it, when the removal of the statue will offend the eye by 
 presenting before it a distasteful gap — a foundation and 
 base no longer appropriate or useful. Things immovable 
 by distinction are those objects, movable in their nature, 
 which, without being actually held to the ground, are des- 
 tined to remain there perpetually attached, for use, im- 
 provement, or ornament {Code Napoleon, § 525, 3 TouilUer, 
 Droit Civil de France, 12, 2 Repertoire Generale, Journal 
 du Palais, hy Ledru Rollin, 618, §§ 30, 129, 139). 
 
 Aside from facts shown in a case indicating an actual 
 affixing of the article in dispute to the freehold, it seems 
 quite clear from authorities, that, if the thing be in no way 
 affixed to the freehold, when taken in connection with the 
 place where it is located, it 'may be deemed a fixture by 
 distinction and appropriation — as essential to the purpose 
 for Avhich it was designed — and as leaving a useless and 
 repulsive looking vacanc}^, if removed therefrom ; that is to 
 say, when these essential elements are found in the case. 
 Whether a thing is a fixture does not always depend upon 
 the manner in which it is attached to the freehold. Its . 
 character is often indicated by the uses and purposes to 
 which it is devoted; by the peculiar adMi)tation it wr^y
 
 TESTS TO DETERMINE FIXTURES. 109 
 
 have for the use to which it is applied. On this principle 
 many things have been held to be fixtures which within 
 other rules might be considered movable and as personal 
 chattels. 
 
 There is a class of authorities in which it is laid down 
 that the true test of a fixture, is the adaptation of the article 
 to the use or purpose to which the thing is appropriated, 
 however slight its physical connection with the realty. 
 And some cases have gone so far as to make this the only 
 test, and even dispense with actual or physical annexation. 
 This rule, however, is in conflict with the general tenor of 
 authority, and it will not bear examination as a criterion of 
 general application. If adaptation and necessity for the 
 use and enjoyment of the realty, be the sole test of a fix- 
 ture, then, as has been well said, the implements and 
 domestic animals necessary for the cultivation of a farm, 
 and a great variety of other articles subject to the use of 
 the land or its appurtenances, which never have and never 
 can be recognized as such, would be fixtures. The most 
 that can be said is, that if the thing in controversy be con- 
 nected with the freehold, and in every respect adapted to 
 the place where it is used, there is potent reason for regard- 
 ing it as a fixture. The test is by no means conclusive, 
 because there may be circumstances in the case to weaken 
 its force, or do it entirely away. When there rs a manifest 
 and necessary dependence and adaptation between the article 
 in question and the realty to which it is attached, as a rule, 
 the thing will be held to be a fixture ; and some well ad- 
 judged cases have holden that the true test of a fixture is 
 to be found in the relation it bears to the uses of the free- 
 hold. 
 
 As an illustration of the inconclusiveness of the test under 
 consideration, reference may be had to a comparitively late 
 case decided by the Supreme Judicial Court of Massachu- 
 setts, wherein it was held, that a large and heavy wooden 
 box, lined with zinc, which was put together in a room of a 
 tavern, and used as an ice chest, was personal property and 
 did not pass by a deed of the real estate, although it ap- 
 peared that it could not be removed from the room without
 
 110 LAW OF FIXTURES. 
 
 being taken in pieces, and was well adapted to tlie use of 
 a tavern. 
 
 Bigelow, C. J., delivered the opinion of the court, and 
 said: "If we regard the right of the plaintiil in a light 
 most favorable to his claim to hold all the articles on the 
 premises described in the writ, which, according to the most 
 liberal construction of the rule of law, could be deemed to 
 be fixtures as between vendor and purchaser of real estate, 
 we can see no ground on which it can be maintained that he 
 acquired any to the article which is the sole object of contro- 
 versy in the present action. It had none of the distinguish- 
 ing characteristics of a fixture. It was not actually annexed 
 to the freehold, nor was it of a nature to be deemed con- 
 structively affixed to the realty, like locks, keys, windows, 
 blinds or shutters, which, though they may be temporarily 
 disannexed, are nevertheless^ perpetui usus causa^ ■ and 
 necessary for the convenient occupation of the premises. It 
 is true that it was well adapted to be used in carrying on 
 the business to which the premises had been appropriated 
 before the purchase of them by the plaintiff. But this of 
 itself is quite an immaterial element in determining the na- 
 ture of the article. Many articles of furniture and other 
 chattels of a purely personal nature are useful and con- 
 venient in the prosecution of a particular trade or business, 
 which can in no just sense or as between any classes of per- 
 sons be deemed to be fixtures. The only fact in the case 
 which forms even a plausible ground for the plaintiff's 
 claim is, that the article in controversy was large and heavy, 
 and could not be removed from the room in which it was 
 situated without being taken in pieces. But this is quite 
 insufficient to make it a fixture, in the legal sense of that 
 word. The nature or character of the article cannot be de- 
 termined by its size or weight only. A bookstand, ward- 
 robe, sideboard or bookcase is often large and heavy and 
 incapable of being removed from a room or house without 
 being taken apart ; but no one would contend that for that 
 reason such an article is to be regarded as a fixture, and 
 that it would pass on a sale of the realty to the purchaser. 
 If, in the case at bar, the ice chest had been of smaller di-
 
 TESTS TO DETERMINE FIXTURES. HI 
 
 mensions and easily removable, there would certainly have 
 been no ground for claimino- it as a fixture. It w^as not 
 shown that the one in controversy could not have been 
 readily taken in pieces, or that its removal by separating it 
 into parts would essentially injure it ; so that its size and 
 weight are wholly immaterial in their bearing on the ques- 
 tion whether it was in a legal sense a fixture" {Park v. 
 Baker, 7 Allen's li., 78-80). 
 
 Here it will be discovered that the ice chest held to be a 
 chattel was not an article which necessarily or usually forms 
 part of the fitting up of the house itself, and was expressly 
 agreed to have never been in any way connected with or 
 affixed to the building. Had it been physically attached to 
 the realty, or placed in some part of the building apparently 
 prepared for it, and to which it was fitted and adapted, it 
 might have been well regarded as a fixture. 
 
 On the contrary, another Massachusetts case may be re- 
 ferred to in which the test under consideration was regarded 
 as quite effective. It was held in this case, that a steam- 
 engine, boilers, etc., and machinery adapted to be moved by 
 such engine, by means of connecting bands and other gear- 
 ing, which were placed in a building designed for the manu- 
 facture of steam-engines and other heavy iron work, were 
 fixtures, or in the nature of fixtures. Shaw, C. J., said: 
 "The difficulty is somewhat increased, when the question 
 arises in respect to a mill or manufactory, where the parts 
 are often so arranged and adapted, so ingeniously combined, 
 as to be occasionally connected or disengaged, as the object 
 to be accomplished may require. In general terms, we think 
 it may be said, that when a building is erected as a mill, 
 and the water- works, or steam works, which are relied upon 
 to move the mill, are erected at the same time, and the works 
 to be driven by it are essential parts of the mill, adapted to 
 be used in it and with it, though not at the time of the con- 
 veyance, attachment or mortgage, attached to the mill, are 
 yet parts of it, and pass with it by a conveyance, mortgage 
 or attachment. * * * In the present case, we are of opinion, 
 upon the evidence submitted to the court, that the engine 
 and boilers, and the machines for working iron, upon which
 
 112 LAW OF FIXTURES. 
 
 they operated, considering the manner in which they were 
 fitted and adapted to the mill, were fixtures, and part of the 
 realty, and were of course covered by a mortgage of the 
 real estate" {Winsloio v. Merchants' Insurance Company ^ 
 4 Met. B., 306, 314, 315). 
 
 In respect to the machines for working iron which they 
 operated, involved in the last case cited, it is evident that 
 the question was "determined upon the way in which they 
 were fitted and adapted to the mill. The words "fitted and 
 adapted to the mill," are pregnant expressions. They mean 
 something more than simply being set down upon one of 
 the floors of the building, or such fitness and adaptation as 
 they would have had upon being removed and set down 
 upon the floor of any other building; and yet the adapta- 
 tion of the machinery to the objects for which the freehold 
 was used, had great weight in the opinion of the court. 
 
 And the same principle was expressly recognized in a late 
 case decided by the Commissioners of Appeals of the State 
 of New York. One Kimmey, being the owner of a saw 
 and grist-mill, for the purpose of supplying steam power to 
 both, in 1850 erected a substantial building, adapted for the 
 purpose, to contain the requisite machinery, and placed 
 therein a steam-engine, boilers, shafting, etc.; the engine 
 and boilers were placed upon and bolted to solid brick 
 foundations resting upon the ground excavated for the pur- 
 pose ; the brick- work being carried up and over the boilers ; 
 the shafting and gearing were apparently constructed with 
 special reference to the place ; was adapted to the nature 
 and objects of their employment, and were flrmly fastened 
 and bolted to the building, but could be removed without 
 injury to its walls. They were put up without special in- 
 tent, on the part of Kimmey, either ©f making them part 
 of the freehold or of removing them at a future time. The 
 court, by a majority voice, held that the steam-engine, boil- 
 ers, shafting and gearing, especially, were fixtures : Hunt, 
 Com., said: "The referee finds specially that said boilers 
 and the steam-engine were erected in a building put up for 
 the purpose of containing and using the same or other like 
 machinery therein, and were placed upon solid brick founda-
 
 TESTS TO DETERMINE FIXTURES. 113 
 
 tions upon the ground, excavated for the purpose. The said 
 foundations were laid in mortar and built in a permanent 
 and substantial manner, and the engines and boilers were 
 bolted into such foundations. * * * That the shafting and 
 gearing embraced in the schedule was all fitted to the spe- 
 cial use of transmitting power from the engine to the par- 
 ticular machines which were employed in the building, and 
 was in length and adjustment, adapted to the building 
 where it was used, and was not of value except as old ma- 
 terial, in any other place, unless such other place, in its 
 local arrangements, was nearly the same as the said mills. 
 * * * In relation to the engine and boilers, shafting and 
 gearing, it would seem to be clear that they were actually 
 and permanently annexed to the freehold, and adapted to 
 use in that position, and intended to be a permanent acces- 
 sion to the freehold" {Voorhees v. McGinnis^ 48 iV^, Y. H., 
 278, 284, 286). 
 
 On the principle of the test under consideration, the roll- 
 ing stock of a railway is regarded as a part of the realty. 
 It is argued that the articles constituting this stock ; for ex- 
 ample, the cars are a necessary part of the entire establish- 
 ment, without which it would be inoperative and valueless. 
 Their wheels are fitted to the rails ; they are constantly upon 
 the rails, and except in cases of accidents, or when taken off 
 for repairs, nowhere else ; they are not moved off the land 
 belonging to the company ; t7iey are peculiarly adapted to 
 the use of the railioay, and in fact cannot be applied to any 
 other purpose ; they are not the objects of general trade ; 
 they are permanently used on the particular road where 
 they are employed, and are seldom, if ever, changed to any 
 other. These are the characteristics of the rolling stock of 
 a railroad, and they savor strongly of the realty ; and 
 some of them have been deemed almost conclusive to make 
 it a part of the freehold ; and not the weakest consideration 
 in this connection is the fact of its adaptation to the use of 
 the realty. This fact is a test, stronger in some cases than in 
 others : it always has its weight, and in cases of machinery, 
 where the machinery is essential to the purposes of the build- 
 
 15
 
 114 LAW OF FIXTURES. 
 
 ing in whicli it was erected, this fact alone lias often been 
 lield sufficient of itself, to constitute it real estate. 
 
 CHAPTER yil. 
 
 TESTS BY WHICH FIXTURES MAY BE DETERMINED INTENT OF THE 
 
 PARTIES MAKING THE ANNEXATION THIS TEST MORE CONTROLLING 
 
 THAN OTHERS WHICH HAVE BEEN CONSIDERED THE DOCTRINE EX- 
 AMINED AUTHORITIES ILLUSTRATING THE PRINCIPLES REFERRED TO 
 
 AND DISCUSSED. 
 
 Another test, in the form of a general principle, that will 
 aid in the determination of the question whether a given ar- 
 ticle is a fixture or not, is the intention of the party making 
 the annexation. If the intention of the party is apparent 
 from the circumstances, to make the annexation a perma- 
 nent accession to the realty, "this goes far to characterize the 
 attachment as a fixture. This test of the intention of the 
 party at the time of making the annexation, as a gen- 
 eral proposition, is more controlling upon the question of 
 the character of the annexation than either of the other 
 tests considered. In a late case decided by the New 
 iftrk Court of Appeals, the law upon this subject, as suc- 
 cinctly summed up in a case before the Supreme Court of 
 Ohio, was expressly approved ; where it was held, that the 
 true criterion of a fixture is the united application of these 
 requisites : First, Actual annexation to the realty, or sorj.e- 
 thing appurtenant thereto. Second, Application to the nze 
 or purpose to which that part of the realty with which it i;: 
 connected is appropriated. Third, The intention of the party 
 making the annexation, to make a permanent accession ^o 
 the freehold {Pottery. Cromioell, 40 JSF. Y. B., 287, 296, 297). 
 
 Washburn, in his treatise upon real property, says : "It 
 may be stated that whether a thing which may be a fixture 
 becomes a part of the realty by annexing it, depends as a
 
 TESTS TO DETERMINE FIXTURES. 115 
 
 general proposition, upon the intention with which it was 
 done" {lWas?ib. on Beal Prop.,8). And other elementary 
 writers lay down the rule as a general proposition, that the 
 character of the property, whether real or personal, in re- 
 spect to fixtures, is governed very much by the intention of 
 the owner and the purposes to which the erection was to be 
 applied. 
 
 That the principle of the inteiition of the party making 
 the erection, is important in questions as to fixtures, is well 
 illustrated in the case of landlord and tenant. All that is re- 
 quired of a tenant, is to leave the land occupied by him as 
 leasehold in as good condition as it was in when he received 
 it. When therefore, a tenant erects expensive structures 
 for carrying on his trade or business, which can be removed 
 without their destruction or material injury to the freehold, 
 the presumption is a rational one, that it was not the inten- 
 tion of the tenant to make them permanent accessions to the 
 freehold, and thereby donations to the owner of it. The in- 
 tention of the tenant clearly inferrible from his situation and 
 relation to the landlord, is the real foundation of the right 
 of removal, with which he has been favored. It is true, 
 other reasons of great subtlety and considerations of public 
 policy, have been frequently assigned for this right of re- 
 moval, but they are doubtless attributable in some degree 
 to a laudable desire on the part of the courts to carry out 
 the real intention of the party. In no case is a fixture cre- 
 ated without the apparent intention of the party making the 
 annexation to make it a permanent accession to the freehold. 
 And whether articles are personal property or fixtures, must 
 be determinable and plainly appear from an inspection of the 
 property itself taking into consideration its nature, mode of 
 attachment, purpose for which used, and in some instances 
 perhaps, other attending circumstances, indicating the 
 intention to make it a temporary attacliment or a perma- 
 nent accession to the realty. These statements are sub- 
 stantially repeated from the opinion of Bartley, C. J., 
 in a well considered case decided by the Supreme Court of 
 Ohio, and have therefore the insignia of authority {Teaffv. 
 Hewitt, 1 Ohio Ji., N. S., 511). The intent with which a
 
 116 LAW OF FIXTURES. 
 
 tenant's fixtures are attached to the property leased, enters 
 largely into consideration in lidding the fixtures to be 
 movable. 
 
 On the same principle, it has been held that rails placed 
 along the line of an intended fence for the purpose of being 
 laid into the fence, though not actually applied to that jise, 
 must be regarded as fixtures, and will pass by deed of the 
 land on which they are thus placed. In such a case, the inten- 
 tion to appropriate the rails to the use of the land, is con- 
 sidered manifest from the facts, and is controlling in respect 
 to the character of the property. This was substantially so 
 held by a decision of tlie Supreme Court of Wisconsin pro- 
 nounced early in the history of the state {Co/ilclm v. Par- 
 sons, 1 Chandlefs R., 240). And the same doctrine was 
 recognized in a case decided by the old Supreme Court of 
 the State of New York, wherein it was held, that the mate- 
 rials of wliich a fence is composed, though temporarily de- 
 tached from the land, without an}^ intent to divert them 
 from their original use, are fixtures, and will pass by a con- 
 veyance of the land, as being a part of the freehold. Cowen, 
 J., in giving the opinion of the court, said : " The Common 
 Pleas appear to have taken the same view of Goodrich's, or 
 rather Vose's title to the boards, as did the justice. There 
 cannot be a doubt that they were right. Fences are a payt 
 of the freehold ; and that the materials of which they were 
 composed are accidentally or temporarily detached, loliJiout 
 any intent in the oioner to divert them from their use as a 
 part of the fence, works no change in their nature" {Good- 
 rich V. Jones, 2 HilVs R., 142, 143). 
 
 In a case decided by the. New York Court of Appeals, in 
 which it was held that certain looms in a woolen factory 
 were personal property, the doctrine under consideration 
 was expressly recognized. Johnson, Ch. J., delivered the 
 opinion of the court, and upon this point said : "The ques- 
 tion then is, were these looms realty as between mortgagor 
 and mortgagee ? Between these parties, and between grantor 
 and grantee, the effort of a court is always to ascertain the 
 intent of the parties, and to give it effect. If their language 
 affords evidence that a chattel is intended to pass, it will, of
 
 TESTS TO DETERMINE FIXTURES. 117 
 
 course, whether it be a mere chattel or one which by an- 
 nexation has become part of the realty. But where no 
 specific intention is collectible, or when the conveyance is 
 of land by metes and bounds, and on the land a building 
 stands in which is the thing in controversy, then it will pass 
 or not, according as the thing is or is not, in law, part of 
 the realty. In such a case the only specific intention is, 
 that the realty sliall pass, and the inquiry to which a court 
 in such a case addresses itself is, does the law regard the 
 thing in question as pertaining to the realty ? It is obvious 
 that this question presents itself in the neatest way, com- 
 pletely unembarrassed by any collateral considerations, 
 upon the death of the general owner in fee of the land. 
 The chief distinction between the different species of prop- 
 erty, is in the course of devolution on the general owner's 
 death. Realty goes to the heir, personalty to the executor 
 or other personal representative. Accordingly, the cases of 
 heir and executor, and of vendor and vendee, in the absence 
 of evidence of specific intention, have always been deemed 
 identical in respect to their fights in a chattel claimed to be 
 a part of the realty. It was so held in 21 Hen. 7th, 26, and 
 it has continuously since been so held" {Murdock v. Grford, 
 18 iV. r. Ji., 28, 31). 
 
 The doctrine under consideration was brought into requi- 
 sition by the same court, in a case in which it was held that 
 poles, used necessarily in cultivating hops, which were 
 taken down for the purpose of getting the crop, and piled 
 in the yard with the intention of being replaced in the sea- 
 son of hop-raising, are fixtures, and a part of the real estate. 
 Gardiner, Ch. J., who delivered the prevailing opinion, said: 
 "The only question presented in this case is whether the 
 hop-poles, at the time of tlie sale to the defendant, were 
 personal property, or to be deemed part of the realty. This 
 question, I think, is settled by the facts stated in the answer, 
 to which the plaintiff has demurred. If hop-poles can con- 
 stitute a portion of the real estate, the defendant acquired 
 no title to those purchased by him, conceding the truth of 
 the answer. Assuming, as we must, the truth of the facts 
 alleged by the defendant in his answer, the hop- poles were.
 
 118 LAW OF FIXTURES. 
 
 at the time of tlie sale, a part of the realty. Of course, no 
 title passed to the purchaser, and the note in question was 
 wholly without consideration. 
 
 "The root of the hop is perennial, continuing for a series 
 of years. That this root would pass to a purchaser of the real 
 estate, there can be no question. The hop-pole is indispens- 
 able to the proper cultivation of this crop. It is distinctly 
 avowed, and admitted, that the poles belonged to the yard 
 upon those premises, that they were used for the purposes 
 of cultivation, and were removed from the place where they 
 were set, in the usual coarse of agriculture, with a view to 
 gather the crop, and without any design to sever them from 
 the freehold ; but, on the contrary, with the purpose of re- 
 placing them, as the exigency of the new growth required. 
 In a w^ord, they were to be permanently used upon the land, 
 and were necessary for its proper improvement. If the 
 poles had been standing in the yard at the time of the sale, 
 all admit, that they would have formed a part of the realty. 
 But by being placed in heaps for a temporary purpose, they 
 would not lose their distincti\;e character, as appurtenant 
 to the land, any more than rails, or boards from a fence in 
 the same condition, would become personal property" {Blsli- 
 op V. BUliop, 11 N. Y. R., 123-125). Here, it will be ob- 
 served, the learned chief judge, assumed that the hop-poles 
 when set up in the earth, for the vine to entwine itself 
 around, would be conceded to be fixtures ; and he argues 
 that by being taken from their standing position and placed 
 in heaps, without any intention on the part of the husband- 
 man to sever them from the freehold ; but rather with the in- 
 tention of replacing them when the exigency of the newgrow^th 
 of the vine required it, the character of the property was not 
 changed by the severance. Denio, J., who delivered a dis- 
 senting opinion, thought that the purpose for which the 
 poles were set up was temporary on each occasion, though 
 it was annually recurring, and therefore, it seemed to him 
 that they partook of the character of implements or uten- 
 sils rather than of permanent fixtures. So his opinion 
 was that the poles never became parcel of the realty by 
 actual annexation, and hence never were fixtures. But, the
 
 TESTS TO DETERMINE FIXTURES. 119 
 
 learned judge evidently recognizes the test, in determining 
 the character of the property, under consideration, and 
 argues that the intention of the party setting up the poles 
 was, that they should not be permanently attached to the 
 freehold. 
 
 And the same distinguished court, in a case hereinbefore 
 referred to, decided that a "portable grist-mill" for grind- 
 ing flour, situated as it was in the building, was a fixture, 
 and the principle under consideration, was regarded as an 
 important element in producing the result. Daniels, J., in 
 a very learned opinion, said: "Under all the authorities, 
 therefore, in this state as well as elsewhere, this mill was a 
 fixture. For it was annexed to the building erected upon 
 the land, to be applied and appropriated to the business 
 there to be carried on, with the design that it should be a 
 permanent structure for use as a custom grist-mill for the 
 neighborhood existing about it" {Potter v. Cromwell, 40 
 JY. r. It, 287, 297). 
 
 And the same test was applied by the same court, in the 
 disposition of a very late case, wherein it was held, in so 
 many words, that where chattels are annexed to real estate 
 with the intent that they shall not thereby become part of 
 the freehold, as a general rule the intent will control. Fol- 
 ger, J., in giving the opinion of the court, said : "It is well 
 settled that chattels may be annexed to the real estate and 
 still retain their character as personal property. * * * Of 
 the various circumstances which may determine whether in 
 any case this character is or is not retained, the intention 
 with which they are annexed is one ; and if the intention 
 is, that they shall not by annexation become a part of the 
 freehold, as a general rule, they will not" {Tift v. Horton, 
 53 N. T. R., 377, 380). And the Commission of Appeals, 
 in a late case, recognized the same test, in express language. 
 Speaking of the several tests, in the form of general princi- 
 ples, that will aid in the determination of the question of 
 fixtures. Hunt, C, said: "A third test is that of the in- 
 tention of the parties at the time of making the annexation. 
 * * * In relation to the engine and boilers, shafting and 
 gearing, it would seem to be clear that they were actually
 
 120 LAW OF FIXTURES. 
 
 and permanently annexed to tlie freehold, adapted to use in 
 that position, and intended to be a permanent accession to 
 the freehold. Kimmey, who was the owner and erected 
 them, had no intention of removing them at any future 
 time." Gray, C, dissented from the conclusions come to 
 by the majority of the court, although he laid as much sti-ess 
 upon the test in question as was done in the prevailing 
 opinion. He said : "I do not concur in tlie suggestion of 
 the learned Judge in Potter v. Cromioell (40 JY. Y., 283, 
 296), that annexation will constitute the article annexed to 
 be a part of the realty when no different intention or pur- 
 pose is manifested. It was not necessary to the decision of 
 the case, the affirmative fact having been found that a per- 
 manent accession to the freehold was intended. * * * Tlie 
 better rule is the Vermont rule, * * * requiring the inten- 
 tion to render the article a fixture, by the act of annexation, 
 to be made affirmatively to appear ; it will do something 
 towards the accomplishment of what the statute intended, 
 and be more just to creditors and those whose personal 
 property has been or may be wrongfully annexed. In this 
 case the referee has found, as a fact, that the boilers, engine, 
 shafting and gearing were annexed without an intent of 
 either making them a part of the freehold or any intention 
 of removing them. The fact that they were annexed for the 
 purpose of trade and manufacture, and were capable of be- 
 ing removed without injury to the building containing them, 
 ought not to constitute the article annexed as part of the 
 freehold, in the absence of a finding that an accession to the 
 freehold was intended" {Voorhees v. McGinnis, 48 iY. Y. 
 Ji., 278, 282, 286, 291, 292). 
 
 The principle under discussion was somewhat involved in 
 the decision of an earlier case in the New York Court of 
 Appeals, which related to a ball-room erected upon lease- 
 hold property, and was held to be within the principle of 
 erections made for the purposes of trade. Comstock, J., in 
 his opinion, said: "The keeper of an inn or hotel, in some 
 sense, exercises a trade. In the English bankrupt system he 
 is a trader, being so expressly declared by statute (6 Geo. 
 IV, c7i. 16, §2). Although his right to remove fixtures and
 
 TESTS TO DETERMINE FIXTURES. 121 
 
 erections put up by liira as tenant, for liis own convenience 
 or profit in that business, has not been settled by adjudica- 
 tion. Yet I incline to think that the spirit of the decisions 
 will carry ul^ to that extent. Adopting that conclusion, as 
 I do with some hesitation, it is decisive of the present ques- 
 tion. The building in controversy was erected by the ten- 
 ant of a hotel, because a ball-room, as he thought, would 
 add to the attractions of his house as a place of resort, and 
 to the benefit of his business. So far as we know, he had 
 no design of attaching it permanently to the freehold. 
 The mode of annexation does not evince any such design" 
 {Ombony v. Jones, 19 JST. T. R., 234, 241). 
 
 Another case decided by the old Supreme Court of the 
 State of New York, may be referred to as illustrative of the 
 piinciple under consideration. The action related to ma- 
 chinery erected for manufacturing purposes by the owner of 
 the freehold. The machinery was put up with a view to its 
 being removed without injury to the building in which it 
 was erected, and the court held, under the circumstances, 
 that it was not a fixture. Whittlesey, J., delivered the 
 opinion of the court, and upon this point said : "The ques- 
 tion of intention enters into and makes an element of each 
 case. The circunLstances are to be taken into account to 
 show whether the erections were made for the permanent 
 improvement of the freehold, or for the temporary purposes 
 of trade. When, therefore, a legal doctrine is advanced 
 for government of a jury, we must examine the circum- 
 stances of the case to ascertain whether it is applicable to 
 them" {FarrciTY. Chanffetete^ 5 Benid s JR., 527, 531). 
 
 The same doctrine is implied in another case decided by 
 the present Supreme Court of the State of New York. The 
 action was concerning certain looms, placed upon the floor 
 of a woolen factory, and fastened to the floor by means of 
 screws. In the absence of any proof that when they were 
 thus annexed to the building it was not intended they should 
 remain indefinitely in their position, to be used as long as 
 they were capable of use, the court held, that it would not 
 be presumed that the annexation was merely temporary. 
 Johnson, J., in his opinion, said: "The answer alleges that 
 
 16
 
 122 LAW OF FIXTURES. 
 
 the looms are placed upon the floor of the factory building 
 and are fastened to said floor by means of the screws in each 
 loom, merely for the purpose of keeping the said looms in 
 their places and in a steady position, and nftt otherwise, 
 during the operation and working of said looms. Sucli are 
 the conceded facts of the case. It is obvious that those 
 looms, thus aflixed, had become and were, at the time the 
 mortgage was executed, a permanent and essential part of 
 the woolen factory. Tliey were thus attached at that time, 
 and there is nothing in the case to show that when they were 
 thus annexed to the building it was not intended they 
 should remain indefinitely in their position, to be used as 
 long as they were capable of use" {Murdock v. Harris, 20 
 Barb. R., 407, 408). 
 
 The test by which a fixture may in part be determined, 
 now under discussion, is very decidedly recognized by the 
 Supreme Court of Errors of the State of Connecticut, in a 
 case recently disposed of by that distinguished court, wherein 
 it was declared that, to constitute a fixture, it is necessary 
 that it shall appear, fi'om all the circumstances, that a per- 
 manent annexation of the article to the freehold was in- 
 tended : and it was said that the character of the annexation 
 was of great importance as showing the intent with which 
 it was made. Park, J., delivered the opinion of the court, 
 and upon this point, said: "It is exceedingly difficult to 
 lay down any rule of universal application upon this sub- 
 ject, but one perhaps that comes nearer to it than any other 
 is, that it is essential to constitute a fixture that an article 
 should not only be annexed to the freehold, but that it 
 should clearly appear from an inspection of the property 
 itself, taking into consideration the character of the annex- 
 ation, the nature and the adaptation of the article annexed to 
 the uses and purposes to which that part of the building was 
 appropriated at the time the annexation was made, and the 
 relation of the party making it to the property in question, 
 that a permanent accession to the freehold was intended to 
 be made by the annexation of the article. This rule is in 
 harmony with many of the cases. * * * This rule shows the 
 reason why it is held in many cases, that it is essential to
 
 TESTS TO DETERMINE FIXTURES. 123 
 
 constitute a fixture that tlie annexation should be so perma- 
 nently made that the articles could not be removed without 
 injury to the freehold, for it is easy to see that in a great 
 majority of cases the intent of the party to make a perma- 
 nent accession to the freehold can only be shown by the 
 character of the annexation, for there is nothing in the na- 
 ture of the case except this that goes to show the intent, 
 and such an intent to make the annexation a permanent one 
 must affirmatively appear or the article will be deemed to be 
 personal property. 
 
 "This rule explains the reason why the law is said to be 
 indulgent to a tenant in cases that arise between him and 
 his landlord, and declares that to be a chattel which between 
 grantor and grantee would be held to be real estate. This 
 arises from the fact that when a tehant erects expensive 
 structures for the carrying on of his trade or business, which 
 can be removed without destruction to them or material in- 
 jury to the freehold, the relation of the tenant to the prop- 
 erty in question renders it unreasonable to suppose that he 
 intended to make them a part of the realty belonging to 
 another, thus making a donation of them to the owner of 
 the soil. 
 
 "This rule was substantially recognized in the case of 
 Swift V. Thompson (9 Conii., 63). In that case the question 
 was whether the machinery adapted to the manufacture of 
 cotton cloth in a manufacturing establishment was a part of 
 the realty or not. The case finds that all the machinery 
 could be removed without any injury to the freehold. The 
 court say, in giving their opinion, ' It is material here to 
 observe that an important- part of the description is that 
 they were thus attached to the building to render them 
 stable, but that they might be removed to any other place 
 without any injury to the freehold. To operate success- 
 fully tliey must be fixed like clocks and many other articles 
 which are clearly personal and movable. We resort thus 
 to the criterion established by the rules of the common 
 law, could this property be removed without injury to the 
 freehold? The case finds this fact. This then should 
 satisfy us.'
 
 124 LAW OF FIXTURES. 
 
 "The court say that the fact is material and important, that 
 the articles were attached to the freehold sim])ly to render 
 them sufficiently stable for the successful working of them. 
 Why was this fact material and important? Because it 
 showed for what purpose the annexation of the articles was 
 made, that it was done with no design to make them a part 
 of the realty. It should be observed Jhat there was nothing 
 in this case that could show that these articles were a part 
 of the realty but the character of their annexation, and in 
 order to render that sufficient to show an intent on the part 
 of the party making it to constitute the articles a part of the 
 freehold, it was necessary that the articles should be so at- 
 tached to the realty that they could not be removed without 
 damage to the building" {Capen v. PecJcham, 35 Conn. H., 
 88, 94-96). 
 
 The same distinguished court, at a still later date, recog- 
 nized the same doctrine to the full extent here claimed, viz. : 
 that the intent of th^ parties is an essential test to aid in 
 the determination of the question whether a given article is 
 a fixture or not. The case involved the question whether a 
 tenant, who erected a building on leased property, had a 
 right to remove the same at the termination of his lease. 
 Carpenter, J., delivered the opinion of the court, and, upon 
 the subject under discussion here, said: "In this case it is 
 apparent that both parties intended that the building, at the 
 termination of the lease, should belong to the owner of the 
 land. This is evident, in the first place, from the materials 
 used, and the manner of construction. It was attached to 
 the freehold in the same manner that buildings ordinarily 
 are which are designed to be permanent. This, although 
 not conclusive, is an important consideration. In the next 
 place, the interview between the parties at the time very 
 clearly shows that neither party expected or intended that 
 the building should be removed. In view of all the circum- 
 stances we think the court below was clearly right in hold- 
 ing that the building was a part of the realty" {Linahan 
 V. Barr, 41 Conn, i?., 471, 473). 
 
 The Supreme Court of Pennsylvania has recently held, in 
 a case relating to the character of the property in certain
 
 TSSTS TO DETERMINE FIXTURES. 125 
 
 boilers in a steam-mill, that it is not the character of the 
 physical connection with the realty which is the criterion of 
 annexation ; but that the intention to annex, whether right- 
 fully or wrongfully, is the legal criterion. Agnew, J., gave 
 the opinion of the court, and expressed himself thus on the 
 point: "It is not the character of the physical connection 
 with the realty which constitutes the criterion of annex- 
 ation, as the authorities hereafter cited abundantly show ; 
 bat I may now observe that the brick structure upon which 
 the boilers are placed is essential for their use. The fire 
 cannot be applied to the boiler to make steam unless it be 
 built into a structure to prevent the escape of the heat. 
 When those boilers and those connections were built into 
 the mill of Snodgrass, it is clear it was with no intention on 
 his part, or those who acted for him, to affix it to the realty 
 as his property, or with an intention to make it his own 
 by a wrongful conversion. * * * How then can it be said 
 that a chattel is converted into realty when it was neither 
 the intention of the owner of the chattel nor that of the 
 owner of the freehold to annex it ? If it be considered as 
 annexed it must be purely on account of its physical attach- 
 ment or because the mortgagee had acquired a lien upon it. 
 The latter was not the fact, and the former we shall show is 
 not the criterion of the law. Unquestionably the intention to 
 annex, whether rightfully or wrongfully, is the true legal cri- 
 terion. It is on this principle that when one fixes his own chat- 
 tel on the land of another, it is in legal effect a gift of it to the 
 owner of the land. So where the owner of the land wrong- 
 fully fixes the chattels of another (as materials in a building), 
 it is a conversion of them iato the realty, and by the change 
 of their nature leaves the remedy of the owner only in dam- 
 ages. ^ * * The same want of intention to convert is im- 
 puted to a tenant who attaches to the land fixtures for the 
 use of his business, the law presuming in favor of trade 
 that he meant to remove them before the end of his term ; 
 and it is only on leaving without removal, the intention to 
 make a gift of them to the landlord is imputed to him. 
 * * * For tlie same reason even the owner of the freehold 
 may place fixtures on his land which will pass to his exec-
 
 126 LAW OF FIXTURES. 
 
 utor, and not to tlie heir or remainderman" {Ilill v. Sewald, 
 53 Pe?i7i. H., 271, 273, 274). 
 
 In conformity with this principle many other authorities 
 might be referred to as illustrations, both English and 
 American, and from both state and federal courts, but a few 
 only will be noticed in addition to those already given. 
 
 In an important equity case decided by the Court of 
 Chancery of New Jersey, the chancellor declared that the 
 permanency of the attachment "does not depend so much 
 upon the degree of })hysical force with which the thing is 
 attached, as upon the motive and intention of the party in 
 attaching it. If the article is attached for temporary use, 
 with the intention of removing it, a mortgagee cannot inter- 
 fere with its removal by the mortgagor. If it is placed there 
 for the permanent improvement of the freehold, he may." 
 The case involved the rights of a mortgagee in a steam- 
 engine, which had been lirmly attached to the freehold by 
 the mortgagor, who was the owner in fee, and which was 
 essential to the full and beneficial enjoyment of the realty. 
 On those facts, standing alone, the court held that the en- 
 gine was a fixture for the benefit of the mortgagee ; but it 
 was distinctly declared, that such an engine, put in to meet 
 a temporary necessity, occasioned by a failure of the water- 
 power by which the mill on the premises was usually car- 
 ried, b}^ the mortgagor, would not be a fixture, as between 
 him and the mortgagee. It was added, however, that if the 
 mortgagor, being the owner in fee, intended to work a per- 
 manent change in the proj^erty, or in the manner of enjoy- 
 ing the same, and to this end, substituted the new steam- 
 engine for the old machinery, th^i the same would become a 
 fixture, as between him and the mortgagee. And yet, if 
 such a change was made by a tenant, the chancellor thought 
 the rule would be different {Crane v. Brigham, 3 Stockton'' s 
 H., 29, 35). And a similar principle has been maintained 
 by the Supreme Court of New Hampshire, though in a case 
 where the articles in question were held to be fixtures, be- 
 cause they were attached to the freehold without any inten- 
 tion on the part of the one who affixed them, at the time they
 
 TESTS TO BETERMINR FIXTURES. 127 
 
 were so attached, to remove them {Burnside v. Twitchell^ 
 43 iV". H. R., 390). 
 
 The rule adopted in Vermont, upon the point under dis- 
 cussion, is more stringent than in some of the states, but 
 the test of intent is distinctly recognized there. The only 
 peculiarity is, that in that state, in order to change prop- 
 erty from personal to real by annexing it, the intention to 
 do so must be affirmatively established. 
 
 In other words, the Supreme Court of the State, by Ben- 
 nett, J., has stated the rule thus: "To change the cliarac- 
 ter of an article from a chattel to a fixture, there should be 
 some positive act and intent to that effect on the part of the 
 person annexing it to the building, and if the intent is in 
 doubt, upon an inspection of the property itself, taking into 
 consideration its nature, the mode, extent, and purpose of 
 its annexation, it should be held to be personal property." 
 And it was accordingly held, that the simple fact that such 
 chattel is essential to the use of the building, for its then 
 purposes, does not make it part of the freehold, especially, 
 if it be attached, not for the permanent improvement of the 
 building, but for its more convenient use as a chattel {Hill 
 V. Wentworth, 28 VL 72., 428, 436, 437). 
 
 The English courts are quite decided that an important 
 test in cases of alleged fixtures is, the object and purpose of 
 the annexation ; whether it was for the permanent and sub- 
 stantial improvement of the realty, or merely for a tem- 
 porary purpose, or the more complete enjoyment and use of 
 it as a chattel. This was expressly stated by Park, Baron, 
 in a late case before the Court of Exchequer {Hellcmell 
 V. Eastwood, 6 Welshy, Hurlstone & Gordon's R., 295). 
 And the same doctrine has been distinctly recognized by 
 the Court of Common Pleas. In one case before that court, 
 AVilliams, J., said: "No doubt the maxim ' Quicquid plan- 
 iatur solo solo ced'it,' is well established ; the only question 
 is, what is meant by it? It is clear that the mere putting a 
 chattel into the soil of another cannot alter the ownership 
 of the chattel. To apply the maxim, there must be such a 
 fixing to the soil as reasonably to lead to the inference that 
 it was intended to be incorporated with the soil." And
 
 128 ' LAW OF FIXTURES. 
 
 Crowder, J., in concluding his opinion in the case, said: 
 "The plaintiffs, therefore, did not lose their property in it 
 by placing it in the soil, inasmuch as it was placed there for 
 their own purposes, and not for the purpose or with the in- 
 tention of making it part of the soil" {Lancaster y. Eoe, 
 5 /. ScoWs N. 8. 11, 111, T21-T2<d ; 8. C, 94 Eiig. C. L. B., 
 715, 726, 727. A7id mde also Walmsley v. Milne, 7 J. 
 8coWs R., 115 ; 8. C, 97 Eng, C. L. R., 114). 
 
 In fine, it may be afhrmed, that the courts every where 
 regard it an important consideration in determining whether 
 an article attached to the freehold is a fixture or not, to as- 
 certain the intention with which it was annexed ; that is, 
 whether it was intended for a permanent and substantial 
 improvement to the realty, perpetui usus causa, or, as it is 
 sometimes said, 2>oitr un profit del inheritance ; or whether 
 it was put up and used for a temporary object, or for the 
 more convenient occupation and enjoyment of the premises 
 for the particular purpose for which the party used them, 
 so that it was useful and necessary rather to the comfort- 
 able and convenient occupation of the article or the free- 
 hold itself. That is to say, the courts will consider the 
 property in dispute, having regard to its nature, the mode 
 of its annexation, tli^e intention of the parties manifested by 
 their acts and declarations, and decide whether the same 
 shall' be treated as a fixture or not. It is not the mere fixing 
 or fastening which is regarded, but the use, nature and in- 
 tention, which make things personal pass as fixtures, and 
 by this principle the question of fixtures is often determined.
 
 FIXTURES VARIED BY AGREEMENT. 129 
 
 CHAPTER YIIL 
 
 THE GENERAL LAW OF FIXTURES MAY BE VARIED BY AGREEMENT OF 
 
 PARTIES EXTENT TO WHICH THE SUBJECT MAY BE CONTROLLED BY 
 
 AGREEMENT THE PRINCIPLE EXAMINED AND DISCUSSED AUTHORI- 
 TIES ILLUSTRATING THE DOCTRINE REFERRED TO AND CONSIDERED 
 
 GENERAL RULE STATED AND THE EXCEPTION TO IT POINTED OUT. 
 
 The tests which are brought into requisition to aid in de- 
 termining the question of fixtures, are often weakened, or 
 quite overcome, by the agreement of the parties, which, di- 
 rectly or impliedly, may have relation to the question ; for 
 it is a principle as applicable to the law of fixtures, as well 
 as to any other branch of law, that individuals, on entering 
 into a contract, may agree to vary the strict positions in 
 which they would otherwise legally stand toward each 
 other ; that is, where no absurdity or general inconvenience 
 would result from the transaction. The maxim, modus et 
 conventio mncunt legem— " the custom (manner) and agree- 
 ment supersede law" —applies as well to the question of 
 fixtures as to other branches of law. The principle is illus- 
 trated more frequently in cases between landlord and ten- 
 ant than in any other relation, but it is recognized with more 
 or less force in all cases where the question of fixtures may 
 arise. It has even been judically declared, that the parties 
 concerned may control the legal effect of any transaction be- 
 tween them, by an express agreement ; but this general and 
 unqualified statement, must, doubtless, be taken subject to 
 exceptions. 
 
 The extent to which the agreement of the parties may con- 
 trol the question of annexations to the freehold, is well con- 
 sidered by Denio, J., in a case decided by the ]S'ew York 
 Court of Appeals. He says: " It will readily be conceded 
 that the ordinary distinction between real estate and chat- 
 tels exists in the nature of the subject, and cannot in gen- 
 eral be changed by the convention of the parties. Thus it 
 would not be competent for parties to create a personal 
 
 17
 
 130 LAW OF FIXTURES. 
 
 chattel interest in a part of the separate bricks, beams or 
 other materials of which the walls of a house are composed. 
 Right by way of licenses might be created in such a subject, 
 but it could not be made alienable as chattels, or subjected to 
 the general rules by which the succession of that species of 
 property is reguhited. But it is otherwise with things 
 which, being originally personal in their nature, are attached 
 to the realty in such a manner that they may be detached 
 without being destroyed or materially injured, and without 
 the destruction of, or material injury to the things real with 
 which they are connected ; though their connection with the 
 land or other real estate is such that in the absence of an 
 agreement or of any special relation between the parties in 
 interest, they would be a part of the real estate. The cases 
 respecting trade fixtures put up by a tenant sufficiently 
 exemplify this distinction. * * * If a subject which would 
 otherwise be real estate can be made personal by the crea- 
 tion of special relations between the parties, it is clear that 
 the same parties may effect the same thing by special agree- 
 ment. Accordingl}^, it has been repeatedly held that erec- 
 tions wliich, by the general rules of law, would belong to 
 the freehold, have become chattels in consequence of a con- 
 tract to that effect between the owner of the land and the 
 party claiming the erection as personalty." The case in- 
 volved the right to salt kettles, which were bought, and 
 mortgaged to the seller as personalty. They were imbedded 
 in brick arches, but could be removed without injury to 
 them by displacing a portion of the brick, at an inconsider- 
 able expense, and the owner of the manufacture required 
 them to be removed and to be reset annually. It was held 
 that they continued personalty, as against a subsequent 
 purchaser who had no notice of the facts, other than con- 
 structively from the filing of the chattel mortgage. The 
 question was also in the case, whether the method in which 
 the salt kettles' were affixed to the freehold was such that 
 they could be claimed as chattels, or whether they were to 
 be considered as real property. After discussing this ques- 
 tion, the learned judge says : "The kettles were originally 
 personal property. The agreement contained in the chattel
 
 FIXTURES VARIED BY AGREEMENT. 131 
 
 mortgage preserved their character as personalty, which 
 would otherwise have been lost by this annexation. They 
 therefore continued to be personal chattels, notwithstanding 
 the annexation, and the plaintiff, by filing the mortgage, 
 observed all the formalities required by law to preserve their 
 lien upon that kind of property. The title to the kettles 
 did not therefore pass by the conveyances to the plaintiff. 
 Those conveyances embraced only the interests which the 
 grantors had a right to dispose of, including any advantage 
 which would occur to the grantors by the laches of the for- 
 mer owners, in giving the constructive notice which the law 
 required to be given ; but I do not see that any such laches 
 occurred. This seems to me the true state of the case upon 
 principle" (Ford v. Cobb, 20 JV. Y. H., 344, 348, 349, 352). 
 The same doctrine is recognized by the same court, in a 
 case decided at an earlier date, and referred to as authority, 
 in the case last cited. It appeared that the defendant in 
 the action had sold and conveyed to the plaintiff by deed 
 containing a covenant of seisin, a farm, certain of the fences 
 standing upon which had been put up by a third person 
 under an agreement with the defendant that he might take 
 it off at pleasure. This third party had recovered the value 
 of the^fences of the plaintiff, who had refused to let him take 
 them off, in an action of trover, upon which the plaintiff 
 sued the defendant, his grantor, for a breach of covenant, 
 and was permitted to recover the value of the fences. The re- 
 covery could be sustained only on the assumption that fen- 
 ces were prima facie parcel of the freehold, but might legally 
 become personal property by force of sych an agreement as 
 was proved in the case. The court were unanimous in the 
 opinion that an agreement of such a description would have 
 the effect to preserve the character of personalty in things so 
 affixed to the freehold, although, but for the agreement they 
 would become a part of the realty. There was an able dis- 
 senting opinion in the case, but not upon the point under 
 consideration here. Bronson, J., in his opinion, said : "It is 
 undoubtedly true that the soil may be owned by one man, 
 and the fences and buildings by another ; and as between 
 such owners, those structures will be regarded as personal
 
 132 LAW OF FIXTURES. 
 
 property. * * ''^ In tins case the defendant covenanted, that 
 he was ' the lawful owner of the premises above granted, and 
 seized of a good and indefeasible estate of inheritance therein.' 
 The covenant extended to the whole of 'the premises ;' and 
 included the fences, as well as the trees, buildings, mines, 
 quarries, and other things which were granted by the deed. 
 As to the fence, and the rails of which it was composed, the 
 defendant had no title ; he was not the owner ; the property 
 belonged to Brown. The covenant was as plainly broken, 
 as it would have been had Brown owned the house and 
 barn, or a coal mine or an ore bed in the land. * * * It was 
 a matter of no importance how Brown acquired title to the 
 rails. It was enough that he owned them." 
 
 Johnson, J., in his opinion, said: " P/* ma /ftc/d the rails 
 which were then lying in a fence upon the land were part 
 of it and passed by the deed as land, with tlie seizin in fee 
 in the vendor guarantied by the covenant. 
 
 "But it is said that this fence in fact was not part of the 
 freehold ; that having been built by a tenant under an 
 agreement that it might be removed, it was mere personal 
 property and did not pass by the deed ; and the agreement 
 assumes that it was not a part of the realty and would not 
 therefore pass by the deed, the covenant of seizin aid not 
 extend to it. But it is no answer to say that because the 
 grantor had no title, and could grant none, to what upon 
 the face of his deed he undertook to convey, the covenants 
 of seizin does not therefore apply it and is not broken. The 
 same answer might be given with equal force in regard to 
 the title to the soij itself. It is not so much a question 
 as to whether the title to the rails did actually pass under 
 the deed, as it is conceded that they did not ; and if they 
 had there would clearly have been no breach. But it is 
 more properly a question what upon the face of the instru- 
 ment and by its terms the grantor undertook to convey and 
 to covenant that he was seized of. The undertaking is one 
 thing and its effect upon the subject matter of the under- 
 taking and the rights of the parties under it quite another. 
 And it is precisely because the grantor undertook to convey 
 and to be the owner of that to which he had no right, and
 
 FIXTURES VARIED BY AGREEMENT. 133 
 
 could convey none, tliat tlie action lies if it can be sustained 
 at all." 
 
 Gardiner, J., in a dissenting opinion, said: "The agree- 
 ment by which the rails in question are converted into real 
 estate, in order to bring them within the purview of the 
 grant of the defendant, is substantially as follows : Rails 
 made into a fence and attached to the freehold become part 
 4)i the land. The rails in question were made into a fence 
 and attached to the land conveyed to Palmer. Therefore as 
 between vendor and vendee. Brown's rails were a part of 
 Mott's land ; and it being admitted that Mott the defendant 
 neither owned the rails nor 'was seized of an indefeasible 
 estate of inheritance therein,' at the delivery of the deed, he 
 is liable for breach of his.covenants. This is plausible. The 
 infirmity of the syllogism consists in what logicians call the 
 petltioprincipU. It assumes the very point in issue, namely, 
 that the rails in question were attached to the land as to 
 become parcel of the premises. This proposition, which is 
 Indispensible to the maintenance of the action, is not only 
 unsupported by proof, but was conclusively disproved by 
 the evidence. Brown, the tenant, swore ' that he cut the 
 rails upon his own land, and put them in fence upon Mott's 
 land for the purpose of cutting a piece of grass upon the prem- 
 ises, under an agreement with Mott that if he would build 
 the fence there he might move it off whenever he pleased.' 
 
 " The question is, were those rails, under the circumstances, 
 attached to the freehold ? Is there not something of an ab- 
 surdity in asserting that the property of one man placed 
 upon the land of another with the unlimited right of remo- 
 val becomes thereby a part of the inheritance? The as- 
 sumption, it is believed, has no foundation in principle or 
 authority. Rails upon a fence are constructive fixtures 
 (3 Kent's Com., 347, n). They are in their own nature per- 
 sonal property, and become parcel of the realty, as the term 
 •fixtures imports, in virtue of their annexation to the land 
 {Id., 345, n). The annexation which will convert personal 
 into real estate, js not affected by placing the chattel upon 
 or even by affixing it to the land ; it must be fixed to the 
 freehold ^m?e^?i/ usns causa {Id. 347 and note; Walker v.
 
 134 LAW OF FIXTURES. 
 
 Sherman, 20 Wend., 647, m5 ; 3 Dane's Abr., 156 ; 4 Adol & 
 Ellis, 884). Hence, if the annexation is made by virtue of 
 a. contract with the owner of the land for the purposes of 
 trade (9 Kent, 345 ; 2 R. 8., 83, §§ 6, 1, 8), or of agriculture 
 ( Whiting v. Brestow, 4 Pick.., 310), the chattel does not be- 
 come a part of the freehold, but remains personal property. 
 In tliis case, the fence was built for the purjxjse of cropping 
 a part of the land under a contract with the owner which se-4 
 cured to the tenant the right to remove it at pleasure. The 
 rails of which it was composed were never attached to the 
 freehold and were consequently personal property at the 
 time of the conveyance to the plaintiff. And the covenant 
 of seizin could have no more application to them, than to 
 the vehicle by which they were transported to the premises'" 
 {Mott V. Palmer, 1 N. Y. P., 564, 572-578). 
 
 Again ; the doctrine that erections which, by the general 
 rules of law, would belong to the freehold, may become 
 chattels in consequence of a contract to that effect between 
 the owner of the land and the party claiming the erections 
 as personalty, is w^ell illustrated in a case decided by the old 
 Supreme Court of the State of New York, in which it ap- 
 peared that a building used as a grocery and dwelling-house 
 had been erected under an agreement with tlie proprietor 
 of the soil that it might be removed at any time. One who 
 claimed title under the party who erected it, but who had 
 no interest in the land, mortgaged it as a chattel, and after- 
 ward sold it as personal property. The question was be- 
 tween the mortgagee and the subsequent purchaser, and the 
 former was allowed to recover in trover against the latter, 
 who had converted the house. Cowen, J., delivered the opin- 
 ion of the court, and said: "The building was slightly 
 fixed to the freehold ; and all parties — the owner of the lot 
 on which it was built — the builder himself — Ladd the mort- 
 gagor who succeeded him and the plaintiffs, the mortgagees — 
 regarded it as the subject of removal at any time ; and when 
 the mortgage came to be given by Ladd to the plaintiffs, 
 they treated it as a mere movable thing, ori a footing with 
 other personal property. The defendants themselves took 
 from Ladd ; they stand in his shoes, and the case is the same
 
 FIXTURES VARTEB BY AGREEMENT. 135 
 
 as if they bad given the mortgage themselves. Thus, both 
 those parties agreed to consider it as in a state of severance 
 from the freehold ; and no one had ever thought of its being 
 so fixed as to be irremovable. Prima facle^ such a building 
 would be a fixture, and would not be removable. The legal 
 effect of putting it on another's land, would be to make it a 
 part of the freehold. But the parties concerned may con- 
 trol the legal effect of any transaction between them, by ex- 
 press agreement. They have, in effect, stipulated, that the 
 placing of this building on the ground of Brackett and 
 Wood, should work nothing more towards changing its na- 
 ture than if it had been the loose timber of the house, 
 instead of the house itself. The law often implies an agree- 
 ment of nearly the same character from the relation of lessor 
 and lessee, or tenant and remainderman. And, surely, the 
 parties may, by express agreement, do the same thing, and 
 even more. If they agree, in terms, that a dwelling-house 
 shall, as between them, be considered strictly a personal 
 chattel, it takes that character. And so of any equivalent 
 agreement or undertaking, which we think existed in this 
 case between all the parties concerned" {Smith v. Benson, 1 
 HilVs R., 176,178,179). 
 
 And the same doctrine is expressly recognized in an early 
 case before the present Supreme Court of the State of New 
 York, in which it appeared, that, by a written contract, a 
 party was to manufacture certain machinery and set it up 
 in the mill of another, and remain the owner of it until it 
 was paid for. The machinery was set up in the mill, accord- 
 ing to the contract ; the mode of annexation being such that 
 it could be removed without injury to the building. The 
 court held, that the machinery did not, by the annexation, 
 become part of the realty, so as to pass by a deed of the mill 
 and lot, executed by the owner thereof ; but that it continued 
 to be the personal property of the party who manufactured 
 it, and to belong to him, so long as the purchase money re- 
 mained unpaid. T. R. Strong, J., delivered the opinion 
 of the court, and said: "By the terms of the contract 
 between the plaintiffs and Stoddard, Freeman & Co., the 
 machinery was to be set up in the mill of the latter, the
 
 136 LAW OF FIXTURES. 
 
 plaintiffs furnisliing a suitable person to superintend that 
 business, and the plaintiffs were to remain the owners of it 
 until it should be paid for. The machinery was set up in 
 the mill according to the contract, and the evidence clearly 
 shows that the mode of annexation was such that it could 
 be removed without injury to the building ; tliat the build- 
 ing would after its removal, and without any labor or ex- 
 pense, be equally as well fitted and prepared to receive other 
 machinery of a similar kind as it was for the reception of 
 this in question. Upon these facts, and a balance of the 
 price remaining unpaid, I am satisfied the law is, that the 
 machinery did not by the annexation, become part of the 
 realty, but continued to be personal property, and to be- 
 long to the plaintiffs. * * * The deed of Stoddard and wife 
 to the defendants, did not affect the right of the plaintiffs to 
 the machinery. The machinery being personal property, 
 the grantors could not convey a greater interest in it than 
 they had. It is not material whether or ,not it would have 
 passed by the deed without the special clause embracing 
 fixtures, and as part of the land, but for the agreement that 
 the plaintiffs should remain the owners ; it was in either 
 case personal property, belonging to others, whose title the 
 grantors could not transfer. Nor does the fact that the de- 
 fendants are bo?ia fide grantees in the conveyance, make 
 any difference. The plaintiffs in no way consented to the 
 conveyance ; they have not practised any fraud on the de- 
 fendants ; their equities are at least equal to those of the 
 defendants, and the recording act has no application to the 
 case. I am not aware of anj^ principle upon which it could 
 be held that the plaintiffs have lost their title" {Goddard v. 
 Lamb, 14 Barh. B., 662, 6Qd, 666). 
 
 The same court, at a later date, decided a case of fixtures 
 upon the same principle. The action involved the right to 
 a certain steam-engine, boilers, and other attachments, 
 which had been mortgaged by the owner before they were 
 annexed to the freehold, with the understanding (according 
 to the view of the court) tliat they should, as to the mort- 
 gagee, remain personal property. The mortgage was the 
 usual chattel mortgage, and was dul}'" filed. The property
 
 FIXTURES VARIED BY AGREEMENT. 137 
 
 was subsequently annexed to the freehold, and was claimed 
 by a purchast?r under the foreclosure of a real estate mort- 
 gage covering the freehold, to which it was annexed. The 
 court held that the property remained personal, and was 
 subject to the chattel mortgage. Miller, J., delivered the 
 opinion of the court, and upon this point, said: "Passing 
 over this aspect of the case, I will assume that the engine 
 and boilers were placed upon and became parcel of the real 
 estate, and consider the effect of the arrangement between 
 the owner of the land and the mortgagees in the chattel mort- 
 gages, by which it was agreed, that although they were 
 connected with and annexed to the freehold as it was contem-. 
 plated that they should be before the first chattel mortgage 
 was executed and before they were actually placed upon 
 the premises, that they should continue to remain as per- 
 sonal property, to such an extent as would be necessary 
 and essential to give effect and validity to the personal tnort- 
 gages. * * * I do not think that the removal of the boilers 
 and engine required any such damage to the realty, or de- 
 struction of them, as to cancel, annul and destroy an agree- 
 ment by which they were to remain personal property, and 
 were liable to be taken away and disposed of as such in the 
 event of a failure to compl}^ with the terms of the chattel 
 mortgage. * * * The views which I have expressed lead me 
 to the conclusion that neither the steam-engine and boilers, 
 nor any of the other articles covered by the chattel mort- 
 gages, were so connected with and annexed to the freehold 
 that their identity became destroyed as personal chattels, 
 and therefore there is no legal ground for refusing to en- 
 force the arrangement incorporated in the mortgages, by 
 which they were regarded and designated as personal prop- 
 erty, and were to retain that distinctive character" {Voor- 
 liees V. McGlnnis, 46 Barh. i?., 242, 251-253). 
 
 These views of Justice Miller were concurred in by Jus- 
 tices Hogeboom and Peckham, and the judgment of the 
 referee was accordingly, unanimously affirmed. But the 
 case was taken to the Commission of Appeals, and the 
 judgment of the Supreme Court and of the referee was re- 
 versed ; not upon the ground, however, that the doctrine 
 
 18
 
 138 * LAW OF FIXTURES. 
 
 laid down was not tenable, but that it was not applicable to 
 the case ; that is to say, that was the view which seems to 
 have been taken by three of the five commissioners, and the 
 judgment was declared by three commissioners against two 
 (Voorheesv. McGinnis, 48 JV. Y. R., 278). The Supreme 
 Court supposed that the case of Ford v. Cohh, (20 N. Y. H., 
 344), was an authority for the view taken by Miller, J., 
 while that case is not even referred to in the prevailing 
 opinion in the Commission of Appeals. 
 
 But the principle under discussion here has been expressly 
 recognized, and applied in a late case decided by the New 
 •York Court of Appeals, in which it was held, tliat neither 
 a prior nor subsequent mortgagee of lands can claim, as 
 subject to the lien of his mortgage, chattels brought upon 
 and affixed to the lands under an agreement between the 
 owner of the fee and the owner of the chattels, that the 
 character of the latter as personal property is not to be 
 changed, and that they are subject to a right of the owner 
 to remove them. Folger, J., delivered the opinion of the 
 court, and said: "It may in this case be conceded, that if 
 there were no fact in it but the placing upon the premises 
 of the engine and boilers in the manner in which they were 
 attached thereto, they would have become fixtures, and 
 would pass as a part of the realty. But the agreement of 
 the then owner of the land and the plaintiff is express, that 
 they should be and remain personal property until the 
 notes given therefor were paid ; and by the same agreement, 
 power was given to the plaintiff, to enter upon the premises 
 in certain contingencies, and to take and carry them away. 
 While there is no doubt but that the intention of the owner 
 of the land, was that the engine and boilers should ulti- 
 mately become a part of the realty, and be permanently af- 
 fixed to it, this was subordinate to the prior intention ex- 
 pressed by the agreement. That fully shows her intention 
 and the intention of the plaintiffs, that the act of annexing 
 them to the freehold, should not change or take away the 
 character of them as chattels, until the price of them had 
 been fully paid. And as parties may by their agreement, 
 expressing their intention so to do, preserve and continue the
 
 FIXTURES VARIED BY AGREEMENT. ' 139 
 
 character of the chattels as personal property, there can be 
 no doubt but that as between themselves, the agreement in 
 this case was fully sufficient to that end." There were other 
 questions pertaining to the law of fixtures discussed and 
 considered in the case, but the decision was placed squarely 
 upon the ground that there were cases where personal chat- 
 tels may or may not become fixtures, according to the agree- 
 ment of the parties, and that the one at bar was such a case, 
 and the agreement controlled {Tlfft v. Horton, 53 iV. T. R., 
 377, 380, 381). 
 
 The same doctrine was virtually affirmed by the same dis- 
 tinguished court, at an earlier date, although not quite as de- 
 cidedly in terms, perhaps, as in the last case cited. Chattels 
 which would otherwise be regarded as part of the realty were 
 held to retain the character of personal property, because 
 the same had been mortgaged prior to their being attached to 
 the freehold, under circumstances showing that, as between 
 the parties, they were to be considered personal chattels, al- 
 though subsequently attached to the freehold. Peckham, J. , 
 delivered the opinion of the court, and upon this point, 
 said: "The first question arising here is, did title to. the 
 machinery mentioned in the chattel mortgage to Van Cu- 
 ren, transferred by him to the defendant after the chattels 
 had been attached to the freehold, pass to the defendant by 
 such transfer ? I think it did. This machinery was pur- 
 chased for the mill, where it was attached and used. Just 
 before it was affixed. Van Curen, who then held the mort- 
 gage upon the premises to which it was affixed, took a 
 personal mortgage upon it. This mortgage was taken in 
 October, 1858. In October, 1854, he continued the mortgage 
 in life by filing a statement of the amount due, and on the 
 8th of November, 1854, he was proceeding to sell this ma- 
 chinery, pursuant to advertisement, under the chattel mort- 
 gage, when he met the defendant and sold the chattel mort- 
 gage to him. In order that there might be no doubt as to 
 the title, the defendant also, at the same time, took a bill of 
 sale from Mrs. Anderson, the owner of the fee of the prem- 
 ises and the mortgagor in the personal mortgage of the same 
 machiner}^, her husband and one North joining therein.
 
 140 ' LAW OF FIXTURES. 
 
 This transfer of the personal mortgage, and the giving of 
 the bill of sale, was all one transaction, executed at tlie 
 same time, on the 8Lh of November, 1854. The defendant 
 paid therefor to Van Curen, the mortgagor in the chattel 
 mortgage, the amount secured by the chattel mortgage. As 
 between mortgagor and mortgagee of real estate, it may well 
 be conceded that tliis machinery, after it was affixed, be- 
 came real estate; but it was, in my judgment, of such a 
 character, so near the border line, that the parties interested 
 might, by agreement, make it personal property, as they 
 clearly did, if in their power to do so. Van Curen, mort- 
 gagee in the real estate mortgage, covering the mill, and 
 mortgagee in the chattel mortgage. Mrs. Anderson, owner 
 of the equity of redemption, and the defendant, the pur- 
 chaser, all treat this as personal property, and the defendant 
 pays his money for it to Van Curen. As between those 
 parties, it thus became personal property. * * * As between 
 Van Curen and the defendant, I have no doul)t the property 
 described in the chattel mortgage was pei'sonal property, 
 and might be taken and sold under that mortgage" {Shel- 
 don V. Bdioards, 35 JY. Y. R., 279, 282, 283). 
 
 The same doctrine, upon the points under consideration, 
 is held by courts of other states. In a well considered case 
 decided by the Supreme Court of Pennsylvania, a steam- 
 engine and appurtenances for the use of a grist-mill, fixed 
 in a building attached to the mill, were held to be and re- 
 main the personal property of the machinist who manu- 
 factured the same, on an agreement that the same, after 
 being attached to the freehold, should continue their prop- 
 erty, unless the owner of the freehold should arrange to pay 
 for the same. Chambers, J., gave the opinion of the court, 
 and, among other things, said : "The rule of sevt^rance and 
 removal is one subject to the control and modification of 
 the parties to the contract and representing the property, 
 who may vary the same according to their convenience, 
 pleasure, or regard to right. * * * For whether attached to 
 the realty or not, or in whatever manner attached, is imma- 
 terial, when the parties agree to consider it personal prop- 
 erty. * * * This case, in the oi)inion of the court, is
 
 FIXTURES VARIED BY AGREEMENT. 141 
 
 governed by tlie intention and assent of the parties having 
 control of the right of property and possession in the boilers 
 and wheel of the unfinished engine ; and under the contract 
 between them, the plaintiffs, Haywood and Snyder, had 
 both the right of property and the right to possession of the 
 boilers and what at the time of the levy and sale made by 
 defendant. The right of removal was in the plaintiff, and 
 the right to sustain this action" {Shell v. ffayicood, 16 
 Penn. B., 523, 530, 531). 
 
 In an earlier case, the same court recognized the same 
 principle ; holding that an engine-house, partly of stone, 
 and partly of wood, with stone foundations for a steam-en- 
 gine, erected by a tenant for years for the use of a coal 
 mine, he having the privilege of removing all fixtures at the 
 expiration of his term, was not the subject of a mechanic's 
 lien. It is true, that the court considered the property as 
 personal, on account of the latitude and indulgence extended 
 to tenants in their erections for the purposes of trade and 
 the like; but Rogers, J., in delivering the opinion of the 
 court, said: "Besides, if there was any doubt on general 
 principles, that doubt is removed by the contract ; for the 
 lessor and lessee agree, that all the steam-engines, fixtures, 
 and improvements erected by the lessee on the premises, 
 from materials furnished by him, may be removed and 
 taken away at the expiration of the lease, or other deter- 
 mination thereof, unless the lessors or their assigns elect to 
 retain the same. * * * For, whether attached to tlie realty 
 or not, or in whatever manner attached, is immaterial when 
 the parties agree to consider it personal property" ( Whitens 
 Appeal, 10 Penn. P., 252-254). 
 
 And the same distinguished court ratified the same doc- 
 trine in a late case, wherein it appeared that a party put up 
 boilers in the mill of another, under an agreement that he 
 should be paid four dollars per month for their use, and 
 have the right to remove them when he pleased. At the 
 time of the agreement and putting up of the boilers, the 
 mill was covered by a mortgage executed by the owner to 
 secure purchase money. The court held that the boilers 
 were not subject to the mortgage, by reason of the agree-
 
 142 LAW OF FIXTURES. 
 
 ment before mentioned. Agnew, J., in his opinion, said: 
 "When these boilers and their connections were built into 
 the mill of Snodgrass, it is clear it was with no intention on 
 his part, or those who acted for him, to affix it to the realty 
 as his property, or with an intention to make it his own by 
 a wrongful conversion. They were placed there as the per- 
 sonal cliattels of Hill under a valid contract of hiring for 
 their temporary use, the right of removal being expressly 
 reserved. * * * In Va7i Ness v. Packard (2 Wheat., 146), 
 Judge Story says that the question whether fixtures erected 
 for the purposes of trade are or are not removable, does not 
 depend on the form or size of the building to be removed, 
 whether it has a brick foundation or not, or is one or two 
 stories high, or has a brick or other chimney. The sole 
 question (he says) is whether it is designed for the purpose 
 of trade. So, in White's Appeal (10 Barr, 252,) in which 
 an engine-house, built of stone and wood, with stone founda- 
 tion for a steam-engine, was held to be personalty. Jndge 
 Rogers says, the building being attached to the freehold 
 makes no difference. The same doctrine is held in Shell v. 
 Hayioood and Snyder (4 Harris, 530). For whether, says 
 Judge Chambers, attached to the realty or not, or in what- 
 ever manner attached, is immaterial when the parties agree 
 to consider it personal property. For this he cites Piper v. 
 Martin (8 Barr, 211); Mitchell v. Freedly {\0 id., 198); 
 and White's Appeal {Id., 254). Besides these cases, which 
 fully sustain the doctrine of Judge Chambers, the still 
 later cases of Harlan v. Harlan (8 Harris, 303) ; Coleman 
 V. Lewis (3 Casey, 291), not cited either in the court below 
 or here, are more to the point. Harlan v. Harlan is a 
 second report of the same case in 3 Harris, 607. It was 
 held that the machinery in a cotton -mill, though realty, may 
 be converted into personalty by a mere agreement against a 
 purchaser at sheriff's sale under a prior judgment with no- 
 tice of the agreement and where the machinery was still in 
 place at the time of sale. Coleman v. Lewis is still stronger. 
 There a brother built a dwelling-house on his own land for 
 his sister, she to pay cost of erection and to live in it as long 
 as she pleased, with the right to remove it if she saw fit, or
 
 FIXTURES VARIED BY AGREEMENT. 143 
 
 if lie sold his lot or it was sold from him. This agreement 
 was held to prevent annexation to the realty. It will be 
 observed that in that case the structure was not one for the 
 convenience of trade, was erected 'hy the owner himself on 
 his own land out of materials provided by himself and was 
 firmly attached to the land, and was to continue an indefi- 
 nite time, dependent on the will of the sister. The intention 
 not to make it parcel of the realty was the sole and govern- 
 ing fact in the case. In the case now before us, the owner of 
 the realty was not the owner of the boilers and did not be- 
 come so by purchase. He was a mere bailee of personalty 
 for hire without an intention to annex to the realty, and 
 with a positive agreement for their return to the ow^ner of 
 the chattels" {Hill v. Sewald, 53 Penn. R., 271, 273-275). 
 
 In the case of Coleman v. Lewis., cited by Judge Agnew, 
 Lowrie, J., said: "The general law relating to fixtures is 
 intended to define certain relations which have been left un- 
 defined by the contract of the parties ; and it does not at all 
 apply' to this case, if the defendants have succeeded in 
 proving a contract right to remove the property in question, 
 and that tlie plaintifl" below is involved in that relation insti- 
 tuted by the contract. 
 
 "The defendants justify under the right of Sarah Fleming ; 
 and there is evidence that she was the owner of the house 
 that was removed, that she had it built on her brother's lot 
 under an agreement with him that she might remove it 
 whenever the lot should be sold, or whenever she pleased, 
 and that the plaintiff knew of this before his purchase at 
 sheriff's sale. 
 
 " There is no plainer principle of law than the one that a 
 Judgment is a lien only on the interest which the defendant 
 actually has in the land, and that a jDurchaser under that 
 judgment, with notice or knowledge of a valid title of any 
 Idnd in another, takes the land subject to such title ; and it 
 is an obvious corollary of this that if Lewis bought this lot 
 w^ith know^ledge of Sarah Fleming's right to take away the 
 house, he has no foundation for his claim for damages for 
 her exercise of the right" {Coleman v. Lewis, 27 Penn. R., 
 291, 292). And in the case of Harlan v. Harlan., cited by
 
 144 LAW OF FIXTURES. 
 
 Judge Agnew, Black, C. J., said: "It is settled that the 
 niachineiy of a cotton-mill is part of the realty. It ought 
 to be settled, if it is not, that such machinery may be de- 
 tached by the agreement of owners and lien creditors, and 
 converted into personalty. If this be done, it does not pass 
 with the freehold under a sheriff's sale " {Harlan \\ Harlan, 
 20 Penn. i?., 303, 306, 307). 
 
 The doctrine is also recognized in the state of Massachu- 
 setts, although where the question arises between a mort- 
 gagee and a claimant of the fixtures, the mortgagee is re- 
 garded with more favor, from the fact that mortgagees of 
 land in that state have greater rights than in some of the 
 other states. In a late case before the Supreme Judicial 
 Court of the state, the question arose between a person who 
 had furnished iron to a railroad company under an agree- 
 ment that the same should be used upon the road-bed of 
 said company, but remain the personal property of such 
 person until further arrangements, and a mortgagee of the 
 said company of the road-bed and other property of such 
 company. Foster, J., delivered the opinion of the court, 
 and said : " There can be no doubt that the rails when laid 
 upon the road-bed and fastened there so that engines and 
 cars could pass over them, would have become annexed to the 
 realty and ceased to be personal property, in the absence of 
 any agreement changing the ordinary rule of law. * * * 
 Our own adjudged cases fully support the position that the 
 rails when laid become a part of the realty in the absence of 
 any agreement to the contrary {Peirce v. Goddard, 22 Pick., 
 559 ; Winslow v. Merchants' Insurance Company, 4 Met, 
 306 ; Butler v. Page, 7 Met., 40 ; Richardson v. Copeland, 
 6 Gray, 536). They likewise recognize the doctrine that 
 buildings and other erections or fixtures so attached to the 
 realty as to become ordinarily a part thereof may, by agree- 
 ment between the parties, remain personal property" {Hunt 
 V. Bay State Iron Company, 97 Mass. B., 279, 282, 283). 
 
 To the same effect is an earlier case before the same dis- 
 tinguished court, in which it was held that a house built 
 upon the land of another, with his consent, is personal 
 property ; although it was further held, that if the owner
 
 FIXTURES VARIED BY AGREEMENT. 145 
 
 of the house sells it to the owner of the land, it thereby 
 becomes a part of the realty. Chapman, J., said : "It has 
 been decided by this court in several cases that, if a man 
 builds a house on land which is not his own, by consent of 
 the owner, the house is personal property. * * * It re- 
 mains separate from the freehold by virtue of the agreement 
 between the parties. As the agreement relates to personal 
 property, it may be made by parol. 
 
 "Assuming, then, that the dwelling-house in question was 
 personal property wlien it was tirst erected, the defendant 
 contends that it did not remain so, because Connor, the 
 owner, authorized the defendant by parol to mortgage it to 
 Williams with the land, to secure money which Williams 
 had advanced to Connor towards building it ; and because 
 a mortgage w-as made in pursuance of this agreement. 
 
 "There is no reason why a parol agreement of Connor to 
 this effect should not be equally valid with a verbal agree- 
 ment that he should have the house as personal property. 
 The effect of it would be to affix the house to the land and 
 make it a part of the realty, so far as the mortgage was con- 
 cerned, and Williams would hold it accordingly" {Curtis 
 V. Riddle, 7 Allen's R., 185, 187). 
 
 The same general doctrine is also held by the courts of 
 New Hampshire. In a leading case decided by the Supreme 
 Court of that state, it appeared that it was agreed between 
 the Concord and Portsmouth Railroad and the iDlaintiffs, 
 that the plaintiffs should deliver to the road a certain 
 quantity of iron rails ; that the road should lay them in a 
 designated part of the track of the road, and that, upon the 
 payment by the road of a specified price, the rails should 
 become the property of the road ; but that until such pay- 
 ment they should remain the property of the plaintiffs. The 
 rails were laid, not so inseparably annexed to and incor- 
 porated with the realty that they could not be removed for 
 non-payment of the price. The court held, that the rails 
 having been laid in the track under this bargain, did not 
 become the property of the road until they were paid for, 
 and the rails, not having been paid for, it was held, that 
 the plaintiffs were entitled to hold them against subsequent 
 
 19
 
 146 ' LAW OF FIXTURES. 
 
 mortgagees of the road, who liad notice of the plaintiffs' in- 
 terest when they took the mortgage. It was declared, that 
 the agreement of the parties superseded the general rule of 
 law, and was binding upon subsequent mortgagees with 
 notice. Notice to the trustees was held to be notice to the 
 bondholders under such a mortgage. But without notice 
 it was. considered that the mortgagees would not be affected 
 by a private agreement changing the natural and legal char- 
 acter of the property from real to personal, but would have 
 a right to suppose that they acquired all the incidents and 
 appurtenances which by the general rules of law would 
 result from such a purchase. This latter qualification is 
 quite reasonable, but the doctrine under consideration was 
 recognized as of general application {Haven v. Emery., 33 
 N. H. B., 66). 
 
 It is unnecessary to multiply cases in the discussion of 
 this point, and it may be affirmed that the general principle 
 contended for is recognized in all ])laces and by all courts. 
 As a rule, the general law governing fixtures may be changed 
 by the express agreement of the parties. It is true, that 
 agreements cannot in all cases control ; like other general 
 rules, this has its exceptions. The limitation to the rule is, 
 when the subject or mode of annexation is such as that the 
 attributes of personal property cannot be predicated of the 
 thing in controversy, as when the property cannot be re- 
 moved without practically desh'oying it, or when it or part 
 of it, is essential to the support of that to which it is at- 
 tached. With this exception, chattels may be affixed to 
 the realty, and yet by the arrangement of the parties, may 
 continue to retain the character of persoi^alty.
 
 FIXTURES AS TO CONTENDING PARTIES. 147 
 
 CHAPTER IX. 
 
 LAW OF FIXTURES AS AFFECTED BY THE RELATIONS OF THE CONTENDING 
 PARTIES— NUMBER OF CLASSES OF PERSONS BETWEEN WHOM CONTRO- 
 VERSIES RESPECTING FIXTURES PRINCIPALLY ARISE THE RULE BE- 
 TWEEN LANDLORD AND TENANT — HISTORY AND REASON OF THE RULE — 
 EXAMINATION OF AUTHORITIES UPON THE SUBJECT OF THE RULE. 
 
 It may be remarked, in general terms, that the right of 
 severing and removing personal chattels which have been 
 affixed °to the freehold, is different in certain cases, and as 
 between certain classes or individuals. That is to say, the 
 right of xjropt^i'ty in what are ordinarily denominated fix- 
 tures, often depends upon the situation of the party claim- 
 ing the same, or the relation to which the adverse claimants 
 su'stain to each other. What may be considered removable 
 by one party, may be regarded as a permanent fixture in re- 
 spect to another. Much depends upon the situation of the 
 party making the annexation, and the relation which he 
 sustains to the freehold, or the owner of the realty. As has 
 been before shown, the general rule of the common law is, 
 that whatever is once annexed to the freehold becomes part 
 of it, and cannot afterward be removed, except by him who 
 is entitled to the inheritance. But this rule is flexible, and 
 has its exceptions, and the exceptions are more liberal as 
 between certain parties than as between others. It will be 
 important, however, in considering the subject of fixtures 
 in any of its aspects, to keep in view the general rule, that 
 fixtures are attached to the freehold, and cannot legally be 
 removed ; and whenever they may be removed, the right of 
 removal is the exception to the general rule. As a rule, 
 chattels actually annexed to the freehold, have the character 
 of fixtures, and are to be regarded as real and not as personal 
 estate ; and whenever chattels thus affixed to the realty are 
 allowed to retain the character of personalty, it is an ex- 
 ception to the rule, adopted in favor of parties sustaining 
 peculiar relations to the owner of the freehold, or on account
 
 148 LAW OF FIXTURES. 
 
 of some policy wliich it has been thought best to encourage 
 for the benefit of commerce or the public good. And it 
 should also be stated, that when chattels are so far annexed 
 to the freehold as to become a part of it, and to acquire the 
 character of fixtures, they become mere incidents to the 
 realty, and conform to the laws by which the realty is gov- 
 erned. 
 
 Controversies relating to fixtures, have arisen principally 
 between four classes of persons, and it will be more con- 
 venient and more intelligible, to consider the claims of these 
 four classes, respectively, because many of the rules on 
 which the doctrine of fixtures depends, are not alike ap- 
 plicable to each of the classes of individuals, between which 
 the questions arise. Obviously, therefore, to attempt to 
 consider the subject under one general head, would lead to 
 a confused and inaccurate view, and make it appear that the 
 law relating to fixtures is, in many respects, contradictory 
 and uncertain. 
 
 Although questions respecting the right to fixtures usually 
 arise between specified classes of persons, it is a fact, never- 
 theless, that in nearl}'- all the cases relating to the doctrine, 
 the conflicting rights of individuals to some particular ob- 
 jects have been the subject of dispute, when the one party 
 has claimed the property as being permanently affixed to 
 the freehold of which he is the proprietor, and the other has 
 rested his title to it, on the ground of its having been fixed 
 up by himself, or by some other person of whom he is the 
 legal representative. In other words, one of the parties to 
 the controversy, is almost invariably the owner of the free- 
 hold, on which the annexation has been made, and the 
 other is the party who made the annexation, or some other 
 person legally representing the party who attached the fix- 
 tures to the realty. 
 
 The class of persons, between whom the right to fixtures 
 arises, whose claims will first be considered, is that of la/id- 
 lord and tenant ; that is to sa}^, first in order, it is proposed 
 to consider the doctrine of fixtures in the case of landlord 
 and tenant, and treat of the property which a tenant con- 
 tinues to possess, and the right of removal that belongs to
 
 RULE BETWEEN LANDLORD AND TENANT. 149 
 
 him, when he has, during his term, annexed any matter to 
 the soil or freeliold, which may be considered a fixture., 
 within the definition of that term as usually understood and 
 accepted. 
 
 Now, it has been shown in the last preceding chapter, that 
 the general rule of law respecting annexations denominated 
 fixtures, is open to variation by agreement of parties ; and 
 it was stated, that this doctrine was illustrated more fre- 
 quently in cases arising between landlord and tenant than 
 between any other class of persons. It is quite obvious, 
 from the reading of that chapter, that the respective claims 
 of the landlord and tenant may be essentially affected by 
 the nature and the terms of the contract that has been 
 entered into between them. But, in order to obtain a cor- 
 rect view of the general principles on which the law of fix- 
 tures depends, it is necessary to consider the rights of those 
 parties independently of any private agreement between 
 them. The situation of the tenant, and the extent of his 
 privileges, may or may not be varied by the conditions he 
 makes with his landlord, but it is not proposed to consider 
 this part of the subject in this place. Here, the subject 
 will be treated as though nothing is to be found in the terms 
 of the demise controlling the general right of the tenant in 
 regard to fixtures, and upon the supposition that there ex- 
 ists nothing between the parties but the mere relation of 
 landlord and tenant. Cases illustrating the other aspects of 
 the subject, will be fully considered hereafter. 
 
 The general rule of law, with respect to annexations made 
 by a tenant during the continuance of his term, has been 
 established from a very remote period, and may still be re- 
 garded ^s the rule in ordinary cases. This general rule is, 
 that whenever a tenant has affixed anything to the demised 
 premise during his term, he can never again sever it with- 
 out the consent of his landlord. The property, by being 
 annexed to the land, immediately belongs to the owner of 
 the freehold. The tenant, by making the property a part of 
 the freehold, is considered to abandon all future right to it, 
 so that it would be waste in him to remove it afterward. It 
 therefore falls in with his term, and comes to the reversioner
 
 150 LAW OF FIXTURES. 
 
 as part of the land. This doctrine is fully sustained by the 
 authorities, and more especially by the earlier authorities, 
 which do not seem to be questioned by the authorities of 
 more recent date. 
 
 In Smith's Leading Cases, it is said : "The general rule of 
 law governing this subject is, that the tenant, if he have 
 affixed any thing to the freehold during liis term, cannot 
 again remove it without the consent of his landlord {Co. 
 L/tL, 57 a). But, inasmuch as a tenant for years was not 
 punishable for waste, before the statute of Gloucester, 
 neither the rule nor its exceptions could have been of much 
 consequence previous to that period. After the passage of 
 that act, questions between landloixl and tenant occasionally 
 arose in actions of waste ; and an o])inion was soon ex- 
 pressed by the court, that a lessee engaged in trade and wlio 
 had set up fixtures for the purpose of cariying that trade 
 on advantageously, had, in some cases, a right to remove 
 them at the expiration of his term" (2 Smith'' s Leading 
 Cases, 1th Am. ed., 188, 189). 
 
 It has been very properly suggested, that a strict observ- 
 ance of the general rule, that every thing fixed to the land, 
 either immediately, as a house, or indirectly as a window 
 or door in the house, belongs to the proprietor of the land, 
 which appears originally to have admitted of no distinction, 
 whatever may have been the obji.^ct of the annexaticm, or the 
 iiitention of the part}' in making it, must have been attended 
 with great hardship and injustice to tenants ; and it may be 
 supposed that early endeavors were made to obtain a relaxa- 
 tion of it. In progress of time, certain exceptions and modi- 
 fications were introduced into the rule, which tended greatly 
 to limit its operations, and led to the establishing of some 
 very important principles in favor of tenants, and the rigor 
 of the old law relating to fixtures, as between landlord and 
 tenant, became generally relaxed, as a more just method of 
 reasoning suggested, that a man may have occasion to fix a 
 chattel belonging to himself to the land of another, and 3^et 
 not be willing to make a donation of it to the owner of the 
 realty. Accordinglj^, it became settled that many things 
 might be removed from the demised premises \)y the tenant,
 
 RULE BETWEEN LANDLORD AND TENANT. 151 
 
 wliicli formerly could not be taken away. This was ihouglit 
 to be no injury to the landlord, for the tenant would leave 
 the premises in the same state in which he found them, 
 while he would be benefited by making the annexation. 
 Courts adopted the principle that it was for the benefit of 
 the public to encourage tenants to make improvements in 
 trade, and to do that which was advantageous for the estate 
 during the term, with the certainty of their being benefited 
 by it at the end of the term. 
 
 It appears, however, from the old reports, that the in- 
 dulgence was at first granted by the courts not wdthout 
 doubt, and after some struggle. Indeed, on its introduction 
 it does not seem to have been maintained upon any settled 
 or intelligible ground ; for in the earlier cases, the privilege 
 is found to be built on legal subtleties and nice distinctions, 
 instead of being made to rest upon principles of general 
 policy, which the modern determinations have declared to 
 be the proper foundations of it. The history of these innova- 
 tions upon the ancient rule, and the struggle of the courts, 
 in bringing about so radical a change, is given in full in a 
 previous chapter and need not be repeated here. 
 
 At this distance of time, as was said fifty years ago, it is 
 difficult to ascertain the precise x)eriod when a relaxation of 
 any kind was first admitted. Lord Holt stated, in allusion 
 to a particular class of fixtures, that the right of the tenant 
 to remove erections of that description was by the common 
 law {Poole's case, SalJcelcT s M., 368). This statement, how- 
 ever, is not literally true, for it is shown in the extract here- 
 inbefore taken from 2 Smith's Leading Cases, 188, 189, that 
 by the common law, and before the Statute of Gloucester, a 
 tenant for years was not punishable for any species of 
 waste. It was after that statute, and in consequence of its 
 provisions, that the questions respecting the right of re- 
 moving things erected by tenants during their term, fre- 
 quently became subjects of judicial consideration ; and 
 many of those questions are to be met with in the reports of 
 very early cases. 
 
 The fixtures to which Lord Holt refers, are those which a 
 tenant erects upon the demised premises for the purpose of
 
 152 LAW OF FIXTURES. 
 
 carrying on his trade and manufacture ; which the rule as 
 now understood is, that, upon principles of general policy, 
 a tenant, whether for life, for years, or at will, is permitted 
 to carry away all such fixtures of a chattel nature, as he 
 has himself erected upon the demised premises, for the pur- 
 poses of ornament, domestic convenience, or to carry on 
 trade ; provided the removal can be effected without ma- 
 terial injury to the freehold {Taylor's Landlord and Ten- 
 ant, § 544). 
 
 Certain it is, that the ancient common law rule in respect 
 to fixtures, has been greatly relaxed, in respect to annexa- 
 tions by tenants, and 3-et there seems not to be entire harmony 
 in the authorities, as to the period when the modern rule 
 upon the subject, was first recognized by the courts of Great 
 Britain. Says Mr. Bingham in his treatise on the law of 
 real property: "Those who have assumed that there has 
 been a radical change in the common law of fixtures within 
 the current century, or that the present improved modes of 
 supplying the comforts of living demand a cliange thereof, 
 fail to comprehend the character of the common law. They 
 seem to suppose that, like the law of codes, it is a system of 
 arbitrary rules, while in fact it is a system made up only of 
 established principles, whiph are founded upon the eternal 
 fitness of things, and not subject to change w^ith every pro- 
 gressive step taken by society. Thus the doctrine of fix- 
 tures is founded upon a principle which is the same now as 
 it was two hundred years ago, and is just as applicable to 
 the ingenious and finished implements, machines and struc- 
 tures of the present age, as it was to the rude contrivances 
 of the past. 
 
 It is true that the difference between a screw and a nail, 
 between a block and a stone, and between an iron bolt and 
 a leather band, is not now as important in determining 
 whether a chattel has become a fixture, as it was in the 
 time when such questions were chiefly confined to barns on 
 blocks, to wainscots and chimney-pieces, to picture-frames 
 and pier-glasses. But the principle whereb}^ to determine 
 the question was the same tlien as now. * * * The form, tlie 
 structure, and the manner of using imj^lements and ma-
 
 RULE BETWEEN LANDLORD AND TENANT. 153 
 
 cliines, the various and ingenious contrivances to aid the 
 Labors of man, and the furniture and trapjpings of his habi- 
 tations are continually changing, and may, therefore, in the 
 way of evidence of the intention of the party who appro- 
 priates them to use by annexing them to his premises, be 
 subject to changes in the eifect which they are entitled to 
 upon the minds of men. Illustrations of that character have 
 been made and are continually occurring, but the principle 
 itself, of the law of fixtures, remains unchanged" {Bing. on 
 Real Estate, 513, 514). 
 
 The authorities, however, agree, that the old law favored 
 the realty in respect to annexations to the freehold ; but 
 that the rule has been much relaxed as between landlord 
 and tenant, and more especially, in favor of trade, what- 
 ever may be regarded the principle upon which the change 
 has gradually been made, although, it is generally under- 
 stood, that the reason for relaxing the rule in the latter 
 cases, was from motives of public, policy. And all are 
 agreed also in the fact, that the general rule of law relating 
 to fixtures, is always construed with much greater latitude 
 between landlord and tenant, in' favor of the tenant, than 
 between any other class of individuals. Things may be an- 
 nexed to land for the purposes of trade or of domestic 
 convenience or ornament in so permanent a manner as 
 really to form a part of the land ; and yet the tenant who 
 has erected them is entitled to remove them during his 
 term, or it may be within a resonable time after its expi- 
 ration. 
 
 The rule, which allows this special right of removal be- 
 tween landlord and tenant, may come into operation either 
 during the tenancy or at its expiration, in an action in the 
 nature of waste, brought against the tenant by the rever- 
 sioner in respect of the removal of things which the tenant 
 claims to be within the privilege, or in an. action by the ten- 
 ant against the landlord for hindering their removal ; and 
 it is understood that it may equally arise between the as- 
 signees, whether special or general, of the original parties. 
 This doctrine is rested here upon the bare statement of it, 
 for the reason that it is proposed to elaborate the principle, 
 
 20
 
 154 LAW OF FIXTURES. 
 
 and examine the authorities upon tlie subject in another 
 place. It may be added, however, that, except in cases of 
 bankruptcy and a seizure by the sheriff under execution 
 against the tenant, tlie question most frequently arises after 
 the tenancy. During the tenancy it may arise upon the 
 question, whether certain things are or are not subjects of 
 distress. The privilege has also been mixed up with the 
 question of what are fixtures within the classes before re- 
 ferred to ; but recent cases have effectually disentangled 
 this confusion, and shown that a decision in favor of tlie re- 
 movability of a thing by a tenant is no evidence that it is 
 not a fixture, although a decision against its removability 
 shows that it is. 
 
 Much that is pertinent to this subject is found in a 
 learned opinion delivered in a case decided by the present 
 Supreme Court of the State of New York, a liberal extract 
 from which may be very properly here inserted. The action 
 involved the title to a nursery planted by a tenant, and 
 turned upon the law applicable to fixtures; Harris, J., in 
 his opinion said: "The ancient rule, that whatever was 
 attached to the freehold by the tenant became a part of the 
 fi-eehold, and could not afterwards be removed by him, has 
 gradually been relaxed in favor of the tenant, until now, I 
 understand the general rule to be, that any one, who has a 
 temporary interest in land, and makes additions to it or 
 improvements upon it, for the purpose of the better use or 
 enjoyment of it, while such temporary interest continues, 
 may, at any time before his right of enjoyment expires, 
 rightfully remove such additions and improvements. If he 
 omit to sever the addition or improvement until his right of 
 enjoyment ceases, such omission is to be deemed an aban- 
 donment of his right, and thereafter the addition or im- 
 provement he has made becomes, to all intents, a part of 
 the inheritance, and the tenant, as well as any other person 
 who severs it, becomes a trespasser. I think this may now 
 be stated to be the general rule in respect to fixtures which 
 a tenant attaches to the freehold. To this extent, has the 
 original rule of the common law, qulcquid plantaiur solo, 
 solo cedlt, yielded to the changed condition of society.
 
 RULE BETWEEN LANDLORD AND TENANT. l55 
 
 Public policy, especially in tins country, requires tliat the 
 tenant should be permitted so to use the premises he occu- 
 pies, as to derive from them the greatest amount of profit 
 and comfort, consistent with the rights of the owner of the 
 freehold. There may be exceptions to the general rule I 
 have stated, but I think they will be found limited to cases 
 where the removal of the additions or improvements made 
 by the tenant, would operate to the prejudice of the inher- 
 itance, by leaving it in a worse condition than when the 
 tenant took possession" {King y. Wilcomb, 7 Barb. R., 
 263, 266). 
 
 It will be observed, that the rule here laid down is very 
 broad ; sometimes it has been thought that the rule is stated 
 somewhat too broadly. The general maxim of the law is, 
 that whatever is fixed to the realty becomes a part of it, and 
 partakes of all its incidents and properties. This is the rule, 
 even in the relation of landlord and tenant. Many exceptions 
 have been engrafted upon it, but.it is thought that the rule 
 itself has never been revoked. How^ever, Judge Harris, a year 
 or two later than the case of King v. Wilcomb^ re-examined 
 the questions therein considered, and said: "The very 
 learned argument of the plaintiff's counsel made me willing 
 to review the grounds which had led me to that conclusion. 
 That review has resulted in a stronger conviction that I had 
 not misapprehended the present rule of law on the subject. 
 The position which the plaintiff's counsel advocates is, that 
 fixtures, though attached to the freehold by the tenant, can- 
 not be removed, even during his term, unless by virtue of 
 some valid agreement. He admits that erections for the 
 purposes of trade may be removed, but insists that such 
 erections constitute an exception, and the only exception, 
 to the general rule. The case of Elioes v. Maio (3 East, 38), 
 undoubtedly maintains the general doctrine for which the 
 plaintiff's counsel contends. Lord Ellenborough, in that 
 case, reviewed all the English decisions on the subject from 
 the time of the Year Books, and although different judges 
 had, at different periods in that country, entertained differ- 
 ent opinions upon the question, down to the very time of 
 that decision, he came to the conclusion that there was a
 
 156 LAW OF FIXTURES. 
 
 distinction between annexations to the freehold for the pur- 
 poses of trade and those made for agricultural purposes ; 
 that, while the tenant, in the one case, had tlie right to 
 remove what he had annexed, in the other, the annexation 
 having been made, became a part of the realty, and could 
 never afterwards be removed by the tenant. 
 
 "This distinction, although it may not have been in any 
 single instance broken down by any adjudged case, has not, 
 I am persuaded, been regarded with much favor in this 
 country, if, indeed, it has in England. The foundation upon 
 which it rests, is narrow and artificial. The general policy 
 which has created exceptions to the general rule, that what- 
 ever is affixed to the freehold cannot be removed without 
 the consent of the owner of the inheritance, applies as well 
 to erections for agriculture and other purposes, as to erec- 
 tions for the purpose of trade" {Dubois v. Kelly, 10 Barb. 
 Ji., 496, 500, 501). 
 
 In a well considered case before the Supreme Judicial 
 Court of Massachusetts, Bigelow, J., said: "Certain rules 
 may be taken as well settled by the uniform current of ju- 
 dicial decisions. The first and leading one is, that the law 
 regards with peculiar favor the rights of tenants, as against 
 their landlords, to remove articles annexed by them to the 
 freehold, and extends much greater indulgence to them in 
 this respect than it could as to executors, remaindermen or 
 any other class of persons. * * * The reason for this is, that 
 tenants usually pay to their landlords adequate rent, and it 
 is therefore equitable that they should have the right to re- 
 move fixtures which have been put up by them for their 
 own convenience and use, and at their own expense. 
 
 " Another well settled rule is that fixtures, which a tenant 
 is allowed to disannex and take away, are comprehended 
 within two classes, or are of a mixed nature, falling partly 
 within and partaking of the nature of both. Those classes 
 are, first, those which are put up for ornament or the more 
 convenient use of the premises, and are called domestic fix- 
 tures ; second, those which are put up for purposes of trade, 
 and are known as trade fixtures" {Wall v. Hi fids, 4 Gray's 
 R., 256, 270, 271).
 
 RULE BETWEEN LANDLORD AND TENANT. 157 
 
 The doctrine under consideration is far from being new. 
 In a comparatively old case before the English Court of 
 Common Bench, Tindal, C. J., remarked : "It is difficult to 
 draw any very general and at the same time precise and ac- 
 curate rule on this subject ; for we must be guided in a great 
 degree by the circumstances of each case, the nature of the 
 article and the mode in which it is fixed. * * * The rule 
 has always been more relaxed as between landlord and ten- 
 ant, than as between persons standing in othej relations. It 
 has been liolden that stones are removable during the term ; 
 grates, ornamental chimney-pieces, wainscots fastened with 
 screws, coppers, and various other articles ; and the circum- 
 stance that, upon a change of occupiers, articles of this sort 
 are usually allowed by landlords to be paid for by the in- 
 coming to the outgoing tenant, is confirmatory of this view 
 of the question." 
 
 Park, J., observed in the same case : " The rules with re- 
 gard to property of this description vary according to the 
 relation in which parties stand towards each other. The 
 rule as between heir and executor is more strict than as be- 
 tween landlord and tenant, and even as between landlord 
 and tenant it has been relaxed in modern times ; for in Laio- 
 ton V. Lawton (3 Atlc, 18), Lord Hardwicke held, that wain- 
 scot might be removed by the tenant, although it would 
 have been waste to have removed it in the time of Hen. 7." 
 
 And Bosanquet, J., observed : "Whether property of this 
 kind be removable or not, depends in some degree on the re- 
 lation between the parties ; and in the relation of landlord 
 and tenant the rule is less strict than in others" {Orymes v. 
 Bowman, 6 Bingham's R., 437; S! C, IQ Ertg. C. L. R., 
 123-125). 
 
 But the principal design of this chapter was to give the 
 general doctrine of the law of fixtures as between landlord 
 and tenant ; regardless of the rules which are brought into 
 requisition in determining the question in respect to the dif- 
 ferent kinds of erections which the tenant may put upon the 
 leasehold premises and claim the right to remove. And upon 
 this subject, it is apparent from the authorities, that the law 
 regards with favor the right of tenants, as against their
 
 158 ■ LAW OF FIXTURES. 
 
 landlords, to remove annexations made by them to the free- 
 hold, and that the general rule in respect to fixtures is much 
 more relaxed as between landlord and tenant, than as be- 
 tween persons standing in other relations ; that as between 
 landlord and tenant, many things are treated as personal 
 propert}^, which seem, in a very considerable degree, to be 
 attached to the freehold ; and the doctrine is, that a tenant 
 may remove, during his term, all erections made by him for 
 the purpose of trade, ornament or convenience, that can be 
 removed without injury to the land or something perma- 
 nently attached thereto. Such a rule promotes the interest 
 of the tenant, and >vorks no injury to the landlord. In a 
 word, " the law of fixtures, in its application to the relation of 
 landlord and tenant, partakes of the liberal and commercial 
 spirit of the times" (2 Kent's Comm., 344, notef). And it 
 may perhaps be accepted as a general principle that when- 
 ever articles such as a tenant would at his own hand place 
 in the house leased by him for his own temporary conven- 
 ience and enjo^-ment, and not in some considerable degree 
 fixed to the tenement, such as would entitle his landlord to 
 prevent their removal, the tenant is at liberty to remove them 
 during his term. But wlien any article is so far fixed, and 
 has clearly been originally placed upon the leasehold prem- 
 ises to improve the same, and obviously intended to be per- 
 manent, though perhaps it might be possible to dissever it 
 without injury to it, or to the tenement or lands, but which 
 separation would clearly be injurious to the amenity of the 
 place, while the article in its separate state would be little, 
 if at all, suited for any other locality, then, in the combined 
 circumstances, the article must remain where originally 
 placed.
 
 RULE AS BETWEEN LANDLORD AND TENANT. 159 
 
 CHAPTER X. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT NATURE OP 
 
 THE tenant's eights OR INTEREST IN FIXTURES ERECTED BY HIM 
 
 THE INTEREST OF THE TENANT REGARDED AS OF A PECULIAR NATURE 
 EXAMINATION OF AUTHORITIES UPON THE SUBJECT. 
 
 In the last preceding chapter, the general principles gov- 
 erning the subject of fixtures in cases arising between land- 
 lord and tenant, were considered, and the distinctive doc- 
 trine applicable in such cases was sought to be ascertained 
 and succinctly stated. It was found that the rule of law 
 respecting annexations made by a tenant had been estab- 
 lished from a very remote period, and that by this rule, the 
 rights of tenants are regarded with favor, in all questions 
 relating to their fixtures, which may arise between them and 
 their landlords. The general rule of law in respect to fix- 
 tures was found to be more relaxed as between landlord and 
 tenilnt than as between persons standing in other relations, 
 and yet the question as between those parties depends very 
 much upon the nature, character and purpose of the an- 
 nexations, which the tenant may have made, altliough the 
 rules applicable to the different branches of the subject werf* 
 reserved for future consideration and statement. 
 
 And now, before entering upon the examination of the 
 special privilege of the tenant to remove fixtures, which he 
 has annexed to the demised premises during his term, as 
 affected by the question of the particular purposes for which 
 they were annexed, it will be profitable to examine and as- 
 certain the nature of the tenant's right, or the interest which 
 he has in the articles annexed, during the time in w^hich he 
 has the privilege of removal. A correct understanding of 
 this point, or branch of the subject, is essential to an intelli- 
 gent consideration of the question of the tenant's rights to 
 remove fixtures which have been erected by himself, for the 
 different purposes of trade, ornament or domestic con- 
 venience. A precise knowledge of this aspect of the subject
 
 160 LAW OF FIXTURES. 
 
 is of particular importance in the examination of the law of 
 fixtures in its application to the derivative relations subsist- 
 ing between contending parties. 
 
 In respect to the nature and extent of the tenant' s privi- 
 lege, in an early case before the English courts, where the 
 sheriff had taken in execution against the tenant, a soap 
 boiler, vats, coppers, tables, partitions, and the paving of a 
 courtyard, it was decided by Lord Holt, that "during the 
 term the soapboiler might well remove the vats he set up in 
 relation to trade, and that- he might do it by common law 
 (and not by virtue of any custom), in favor of trade and to 
 encourage industry. But after the term they became a gift 
 in law to him in reversion, and are not removable;" and 
 further, "that the sheriff might take them in execution as 
 well as the under lessee remove taem, and this was not like 
 tenant for years without impediment of waste ; in that case 
 he (Lord Holt) allowed the sheriff could not cut down and 
 sell, though the tenant might ; and the reason is, because in 
 that case the tenant hath only a bare power without an in- 
 terest, but here the under lessee hath an interest as well as a 
 power, as tenant for years hath in growing corn, in wl|ich 
 case the sheriff can cut down and sell" {Poolers case, 1 
 SalkelcVs H., 368). 
 
 To the same effect was a comparatively late case decided 
 by the English Court of Exchequer, where it appeared that 
 a tenant, on entering a house, purchased certain fixtures 
 then in the house, and afterward erected others, all of which 
 he was entitled to remove during the term. He agreed, at 
 the request of his landlord, a few days before the expiration 
 of his tenancy, to forbear to remove the fixtures, the land- 
 lord agreeing to take them at a valuation. Accordingly^, at 
 the expiration of the term, the tenant delivered up the house 
 to the landlord, leaving the fixtures on the premises, and 
 the landlord took possession of them, together with the 
 house. On the following day, the fixtures were valued by 
 brokers, mutually selected and agreed upon, and the valua- 
 tion was signed. The landlord having refused to pay for 
 the fixtures, the tenant brought his action of indebitatus 
 assumpsit for their price and value, as bargained and sold,
 
 THE TENANT'S PROPERTY IN FIXTURES. 161 
 
 and sold and delivered ; and the court held that the action 
 was maintainable in this form, although the fixtures were 
 removed from the freehold. Parke, B, said : "The general 
 rule is, that goods, by being affixed to the freehold, become 
 parcel of it, subject to the rights of the tenant, if he affixed 
 them or purchased them, to remove them during the term, 
 or to part with them to any incoming tenant" {Hallen v. 
 Bunder, 1 Crompton, Meeson& Roscoe' s R., 266-272). 
 
 From these authorities it appears that the right of the 
 tenant in the annexation, is not merely a right to remove 
 the same, but an actual interest in it ; and fixtures subject 
 to this right do not become the landlord' s during the con- 
 tinuance of the period for exercising that right, but remain 
 the tenant's till its expiration. If this were not the case, 
 the plaintiff in Hallen v. Runder\ last cited, could not have 
 recovered for the price of the fixtures bargained and sold, 
 but only under the count for a price agreed to be paid for 
 abandoning them. By virtue of this interest the tenant may 
 separate them during the term, and thus convert them into 
 goods and chattels. 
 
 In a late case before the English Court of Common Pleas, 
 in which the question was involved, Williams, J., delivered 
 the judgment of the court, and said : " The question is thus 
 reduced to the inquiry whether the mortgagee's right to 
 sever the fixtures from the freehold is a ' right or interest ' 
 within the meaning of this rule of law. And we are of 
 opinion that it is. Certainly it is an interest of a peculiar 
 nature, in many respects rather partaking of the character 
 of a chattel than of an interest in real estate. But we think 
 that it is so far connected with the land that it may be con- 
 sidered a right or interest in it, which if the tenant grants 
 away, he shall not be allowed to defeat his grant by a sub- 
 sequent voluntary act of surrender" {London and West- 
 minster Loan and Discount Com-pany v. Drake, 9 Common 
 BencJi R., m S., 798, 811 ; S. C, 95 Eng. C. L. R., 796, 809). 
 
 In a much earlier case before the same court, Gibbs, C. J., 
 said: "I was stiuck by one proposition of the Solicitor- 
 General, that those would pass to the executor ; because 
 the line is drawn the strictest, as Lord Ellenborough, C. J., 
 
 21
 
 162 LA W OF FIXTURES. 
 
 observes, in Elwes v. Maw (3 East., 38), between lieir and 
 executor ; and whatever is fixed to the freehold. And it is 
 to be recollected, that the rights between landlord and ten- 
 ant does not altogether depend upon this principle, that the 
 articles continue in the state of chattels ; many of those ar- 
 ticles, though originally goods and chattels, yet when affixed 
 by a tenant to the freehold, cease to be goods and chattels by 
 becoming part of the freehold ; and though it is in his power 
 to reduce them to the state of goods and chattels again by 
 severing them during his term, yet until they are severed they 
 are part of the freehold, as wainscots screwed to the wall, trees 
 in a nursery ground, which when severed are chattels, but 
 standing, are part of the freehold, certain grates, and the 
 like. And unless the lessee during the term uses his con- 
 tinuing privilege to sever them, he cannot afterwards do it ; 
 and it never, I believe, was heard of, that trover could be 
 afterwards brought" {Lee v, Risdon, 7 Taunton's R., 188; 
 S.C.,2 Eng. C. L. R., 69, 70). 
 
 Mr. Tajdor, in his valuable treatise on the American Law 
 of Landlord and Tenant, speaks upon this subject, as fol- 
 lows : "The decisions, also, uniformly agree, that whatever 
 fixtures the tenant has a right to remove must be removed 
 before 7iis term expires, or at least before he quits possession ; 
 for if the tenant leave the premises without removing them, 
 they then become the property of the landlord. The ten- 
 ant's right to remove is rather considered as a privilege 
 allowed him, than an absolute right to the things them- 
 selves, as distinct from the land" {Taylof s Landlord and 
 Tenant, § 551). 
 
 The nature of the tenant's property in fixtures erected by 
 hip on the leasehold premises was examined in an impor- 
 tant case before the English Court of Queen's Bench in 1851, 
 in which it appeared, that the plaintiff, tenant of a house 
 for term of years, being possessed of shelves, stoves, ranges, 
 ovens, boilers, and other articles of household use, his own 
 property, but annexed to the freehold, requested the land- 
 lord to purchase them at the expiration of the term, or let 
 them remain for purchase by the incoming tenant, but to 
 be taken away by the plaintiff if the tenant should refuse
 
 THE TENANT'S PROPERTY IN FIXTURES. ' 163 
 
 tliem. The landlord wrote an answer, declining to purchase, 
 but adding : "I have no objection to your leaving them on 
 the premises, and making the best terms you can with the 
 incoming tenant." The articles remained unsevered from 
 the freehold till the entry of the new tenant, who came in 
 under a demise from the same landlord, but who declined 
 to take them. The plaintiff then (after the tenant had been 
 two months in possession) demanded liberty to enter and 
 remove the fixtures ; but the tenant refused permission ; and 
 the plaintiff thereupon brought case for the hindrance, and 
 trover, against the tenant. It was held that trover would 
 not lie for the articles, unsevered from the freehold. Pat- 
 terson, J., in his opinion, said : "As to the question whether 
 or not trover lies, cases certainly run very near the wind ; 
 but tlie general principle is, that; when the articles are of 
 such a kind as to become fixed to the freehold, the tenant, 
 if they are the tenant's fixtures, ma}^ remove them during 
 the term, or during such time as he may hold possession 
 after the term in the capacity of a tenant. That is the only 
 right which exists on this head between him and the land- 
 lord. If the articles had been so disannexed, they might 
 have been chattels for which trover would have lain ; or if 
 they had never been annexed ; but I do not find it suggested 
 here that the things in question were not annexed to the 
 freehold, or had been disannexed. The question of their 
 being a gift to the landlord is not raised here ; this is not 
 the ground on which the plaintiff's claim is disputed, but 
 the nature of the things themselves, from which it results, 
 that (as my brother Williams has stated in note (r) to Greene 
 V. Cole, (2 Wm. Sazmd., 259 c, 6th edit.), until they are sev- 
 ered from the freehold, they do not become goods and 
 chattels, and trover does not lie to recover them" {Roffery 
 V. Henderson, 11 Queen' s Bench R., 674, 586, 587; S. C, 79 
 Mig. a L. R., 573, 585). 
 
 And in a somewhat recent case decided by the English 
 Common Bench, Maule, J., said : -"It appears that this was 
 an action of trover brought to recover tlie value of certain 
 goods. The goods in question consisted of fixtures, — 
 amongst others, a ladder, a crane, and a bench. The case
 
 164 LAW OP FIXTURES. 
 
 was very fully argued, and the law as to fixtures was gone 
 into at very considerable length ; but I do not conceive it to 
 be necessary to give an opinion at any length. 
 
 "Generally speaking, no doubt, fixtures are part of the 
 freehold, and are not such goods and chattels as can be 
 made the subject of an action of trover. But there are 
 various exceptions to this rule, in respect of things which 
 are set up for ornament, or for the purpose of trade, or for 
 other particular purposes. As to these there are many dis- 
 tinctions, some of which are nice and intricate" {Wilde v. 
 Waters, 16 Common Benc7i JR., 637, 651 ; S. C, 81 E/iff. C. 
 L. R., 637, 650). 
 
 In tlie English Court of King's Bench, fixtures have been 
 held as "goods, chattels, and effects," Abbott, C. J., said: 
 " I am of opinion that the value of these fixtures maybe 
 recovered under the terms mentioned in the declaration, 
 'goods, chattels, and effects.' Fixtures may be taken in 
 execution under a fieri facias, which contains similar 
 words. They are not distrainable, not being severable from 
 the fi'eehold ; and, for that reason, not being capable of 
 being restored in the same pliglit in which they were before 
 severance" {Fitt v. Shaio, 4 Barnwell & Alder son' s Ji., 
 206, 207; S. C, 6 Eng. C. L. R., 402, 403). 
 
 It has sometimes been said that the most crucial case upon 
 the question of fixtures would arise, when the true owner 
 of immovable property claimed it against the supposed 
 owner, or when possession or the right to possession re- 
 verted to him after the termination of an exceptional priv- 
 ilege of removal was terminated, had affixed things so as to 
 make them part of the immovable, the property in the 
 things affixed would belong to the owner of the immovable ; 
 but as to all things upon the premises which were still 
 chattels, the property would remain in their original owner. 
 Thus, in an action of trespass, or trover, or waste between 
 the true owner and the supposed owner, or between the 
 owner and one whose exceptional privilege of removal had 
 expired (as between landlord and tenant), the decision as to 
 whether the things sued for wert? removable by the one or 
 by the other would turn upon the question whether they
 
 THE TENANT'S PROPERTY IN FIXTURES. 1G5 
 
 were or were not fixtures. But this thought will not be 
 pursued. 
 
 In one American case, at least, it has been held that fix- 
 tures erected by a tenant of a character that they may be 
 removed during the term, may be removed by the tenant 
 after the term has expired, though he might be in respect to 
 his entry upon the demised premises to recover them, a 
 trespasser. It was declared in the case, that erections made 
 by a leslee for years for the better enjoyment of his term, 
 become part of the realty ; but otherwise, if made for the 
 exercise of a trade, or for the mixed pui'poses of trade and 
 agriculture. And in this latter case, it was said that the 
 tenant might remove the fixtures after the expiration of the 
 term, subjecting himself to an action in respect to his entry 
 only {Pemherton v. King, 2 Devereaux's R., 376). The 
 authorities, as a general thing, however, are adverse to this 
 doctrine laid down in the North Carolina case. The pre- 
 vailing opinion is, that fixtures erected by a tenant, as be- 
 tween him and the landlord, may be treated as personal 
 property, but, that, whatever may be the nature of his title 
 to the property, the tenant may not treat such fixtures as 
 personal property, after his tenancy has expired. If the 
 article were not in reality a fixture, doubtless the tenant 
 might take it away any time after his tenancy had expired ; 
 although he would be a trespasser for entering upon the 
 premises without the consent of the landlord, in order to 
 take it away. 
 
 On the whole, the tenor of the authorities is, that, during 
 the period within which the tenant has the right, of removal, 
 he has an actual interest in the things aflixed by him or 
 purchased by him as fixtures ; an interest which is neither 
 an interest in chattels nor an interest in land, but it is a 
 chattel interest in things for the time being affixed to land ; 
 an interest by virtue of which those things may be bargained 
 and sold by him, and will pass to his assigns in bankruptcy. 
 The tenant's right to remove the things affixed by him, does 
 not rest simply upon privilege allowed him, but upon a title 
 to the things themselves, as distinct from the land. His 
 interest in the fixtures is certainly of a peculiar nature, in
 
 1 G G LA IV OF FIXTURES. 
 
 many respects rather partaking of the character of a cliattel 
 than of an interest in real estate ; but it is nevertheless an 
 absolute interest, and amounts to absolute ownership for 
 the time in which the tenant may enjoy the use of the 
 realty. 
 
 It appears also by the authorities, that some of the an- 
 nexations of the tenant are interests in land, defeasible by 
 the act of the tenant who has the right to remov^e them ; 
 while others of them are chattels pure and simple, and are 
 not even defeasible interests in land. The doctrine laid 
 down by the English Year Books, to which reference has 
 been made in previous chapters, conspires to show that fix- 
 tures, as well those of the modern as those of the old law, 
 were part and parcel of the frank-tenement or freehold, so 
 long as they continued annexed to it; and that such of 
 them as were annexed by the landlord (that is to say, by 
 the owner of the freehold) formed indefeasible parts of the 
 freehold, whereas such of them as were put up by the ten- 
 ant (the strictly agricultural fixtures being always excepted) 
 were defeasible parts of the freehold, but became indefeasi- 
 ble parts of it immediately the time for their removal by 
 the tenant had expired, and he had failed or omitted to 
 remove them. And the views expressed in the Year Books 
 are fully borne out by the subsequent decisions, both early 
 and recent. Such is the doctrine of the case of Lee v. Jlis- 
 doiis, decided in 1816, hereinbefore referred to, and the 
 opinion of Gibbs, C. J., given at considerable length. 
 
 To the same effect is a case decided by the English King's 
 Bench, in 1§30, where it was held that bells hung by a yearly 
 tenant at the sole expense of the tenant himself, but allowed 
 by him to remain fixed to the freehold after the expiration 
 of his term, became the property of the landlord, and did 
 not even when afterward severed by the landlord resume 
 the character of chattels so as that the tenant might bring 
 trover for them. Lord Tenterden, C. J., said: "The ques- 
 tion arose as to the right of a tenant to certain bells he 
 had put up in, and annexed to a house, so as to make them 
 fixtures. He did not take them away during his term, and 
 the question is, whether they having been afterward severed
 
 THE TENANT S PR OPER T Y IN FIXTURES. 167 
 
 from the freehold, and become goods and chattels, he can 
 now maintain trover. * * * According to these authorities, 
 then, the property in fixtures which would be in the ten- 
 ant if he removed them during the term, vests in the land- 
 lord on the determination of the term. That being so, the 
 only remaining question is, whether any thing said or done 
 by the defendant had the effect of revesting the property in 
 the bells in the plaintiff? It appears that the bells had been 
 taken down by the defendant, and that he, on the applica- 
 tion of the plaintiff, had consented to give them up, if the 
 plaintiff would pay 61. rent. The only effect of that is, that 
 if he would pay that sum he would not disturb him about 
 the bells ; it does not amount to a recognition of his right to 
 take them a.way''^ {Lyde v. Hussell, 1 Barnwell <& Aclol- 
 plius' R., 394 ; S. C, 20 Eng. C. L. B., 407-409). 
 
 The same doctrine is laid down in a late case decided, by 
 the Supreme Judicial Court of Massachusetts, wherein 
 Gray, J., said: ."Fixtures annexed to real estate become 
 part of it. If annexed by the owner of the land, they pass 
 with it by a sale or mortgage from him, or by a levy of ex- 
 ecution for his debt ; and if he dies intestate, seised of the 
 land and fixtures, they go to the heir as against the execu- 
 tor. If annexed by a tenant for purposes of trade, or some 
 other immediate or temporary uses, or for ornament, he 
 may indeed, while remaining in possession, sever them from 
 the land, and thus change their character back again from 
 realty to personalt}^ ; but if, without having done so, he 
 voluntaril}^ quits the premises at the expiration of his term, 
 without any special agreement with his landlord, neither he 
 nor his vendee can afterward claim them against the owner 
 of the land" {Bliss v. WJiiluey, 9 Alle7i's Ji., 114, 115). 
 
 And in an oft quoted case decided by the Supreme Court 
 of Maine, in 1&29, Weston, J., in giving Judgment, said: 
 "It is not denied that other parts of the machinery neces- 
 sary for the purposes of the mill go with the mill ; but it is 
 insisted that the mill-chain is personal property, and there- 
 fore does not pass by the deed, not being expressly men- 
 tioned in it. But to this it may be answered : 1. That if it 
 be an essential part of the mill it is included in that term.
 
 168 LAW OF FIXTURES. 
 
 whether real or personal. 2. That what is in its nature per- 
 sonal may change its character, if it is fixed, used, and ap- 
 propriated to that which is real. Is it too nincli to say tliat 
 the mill is incomplete without a chain, notwithstanding that 
 a millwright who contracts to erect the mill may be deemed 
 (and he is deemed) to have completed his engagement with- 
 out supplying a chain ? Accordingly we are of opinion 
 that the chain is a part of the realty" {Farrar\. StacJcpole, 
 QGreenleaf's R., 154). 
 
 There are cases which seem to lay dowm a different rule, 
 some of which have been noticed, and at the proper time,' 
 when another branch of the subject is under discussion, it 
 will appear, upon very good authority, that fixtures are not 
 an interest in land within the meaning of the Statute of 
 Frauds, so as to require a note or memorandum in writing, 
 to pass the title to a purchaser. Upon this point, however, 
 there is very respectable authority, both ways. And it is 
 sometimes thrown out by the judges, that the quality of fix- 
 tures in themselves, whether they are real estate or personal 
 chattels, remains in truth an open question. The better 
 opinion, however, would seem to be that fixtures are real 
 and not personal estate, subject to the exception which is 
 allowed in favor of articles which remain permanently chat- 
 tels. As a rule, it may be said, that fixtures of all sorts are 
 to be considered, during the period of their annexation to 
 the freehold, whether that annexation be actual or merely 
 notional, excessive or trivial, as being and remaining real 
 estate ; and especially so with respect to the owner of the 
 land. And yet, as has been before stated, the interest of 
 the tenant in his fixtures, during the tiijie in which he may 
 remove them, is of a peculiar nature, partaking of the char- 
 acter of a chattel rather than of an interest in real estate. 
 Indeed, as between landlord and tenant, many authorities 
 hold, that, in all cases, when the fixtures are of such a 
 character as that the tenant may remove them during his 
 term, such fixtures will be regarded as personal property, 
 and may be transferred by the tenant as such ; and some of 
 the authorities declare that the tenant may maintain trover 
 for such fixtiires, against a partj^ converting them : and in
 
 FIXTURES AS BETWEEN LANDLORD AND TENANT. 169 
 
 tlie state of Maine, it has been held that such annexations 
 may be attached and sold by a creditor of the owner, and 
 that, if the owner of the land refuses to deliver them on de- 
 mand to the purchaser, an action of trover may be brought 
 to recover their value {Russell v. Richards^ 1 Fairfield' sR.., 
 429 ; and mde Wanshrough v. Maton, 4 Adolplius & Ellis' 
 R., 884; S. C, 31 Eng. C. L. R., 386). 
 
 Although by annexation of fixtures by the tenant, they 
 have lost their quality of goods and chattels, yet it has been 
 held that the tenant's right to them is not an interest in 
 land, and is not therefore within the provision of the Statute 
 of Frauds requiring contracts in relation to lands to be in 
 writing, but the same may pass by parol contract of sale, 
 and an agreement for their sale by the tenant will be bind- 
 ing though unwritten. The rule, however, as to the landlord, 
 in respect to the same fixtures, might be different. The in- 
 terest of the landlord in a fixture put up by a tenant when 
 he has actually acquired it, is his interest as owner of the 
 hereditaments, since he must claim it on the ground of its 
 being part of them, and would own it by virtue of his title 
 to them. It is difficult to see, therefore, how the landlord 
 could, before severance, pass such fixtures, except by the 
 same means as would be apt for the transfer of real estate. 
 But this proposition will be fully discussed hereafter. 
 
 CHAPTER XL 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TEXANT DOCTRINE IN 
 
 RPJSPECT TO ERECTIONS BY A TENANT FOB PURPOSES OF TRADE AND 
 MANUFACTURES FOUNDATION OF THE RULE IN SUCH CASES EX- 
 AMINATION OF THE EARLY ENGLISH AUTHORITIES UPON THE POINT. 
 
 The first branch in order, of the law of fixtures, as be- 
 tween landlord and tenant is, that of fixtures erected by the 
 tenant for purposes of trade and manufactures. This is 
 
 22
 
 170 LA W OF FIXTURES. 
 
 not the order in which the subject of annexations made by 
 tenants, as between them and their landlords, is always 
 taken up ; but, as this class of annexations is more extensive 
 and more generally engages the attention of courts than any 
 other, connected with the law of fixtures, it may properly 
 take precedence in the order of discussion. The subject 
 will be considered in this pltice, independent of certain dis- 
 tinctions which exist in the nature of the tenant's business 
 or employment, and which may very properly affect the 
 rule applicable to annexations for trade. 
 
 Upon examination of the cases involving the question of 
 annexations made by tenants for trade, it will be observed, 
 that the trade carried on by a tenant may be of two kinds. ' 
 It may be a trade unconnected with, and independent of the 
 land which he occupies, such as dyeing, brewing, and the 
 like ; or it may be a trade derived from the land itself and 
 depending essentially on the peculiar produce of the land ; 
 as the getting and vending of coals from a colliery, or 
 the manufacturing of salt from salt-springs, and the like. 
 It is obvious that the rules governing these kinds of trades 
 respectively, must be, in many respects, quite different 
 and variant. These distinctions in the nature of the ten- 
 ant's business and employment will be noticed in another 
 place ; inasmuch as they are the foundation of certain rules 
 in the doctrine of fixtures, which are very important, and 
 involve points of diflicult solution. Hence, the subject will 
 be considered upon the assumption that the tenant carries 
 on any general trade upon the premises demised, and that, 
 in the prosecution of his trade he annexes an article to the 
 freehold, the right of severing and removing which, becomes 
 a matter of dispute between himself and his landlord. 
 
 It will be remembered that, by the history given in a pre- 
 vious chapter, it appears tliat the first class of fixtures whicli 
 were made an exception to the general rule, were made in 
 favor of annexations for trade purposes, and which were de- 
 nominated trade fixtures. 
 
 The earliest authority on this subject, adverted to by Mr. 
 Amos, occurs in the Year Book, 42 Edward III, p. 6, pi. 19. 
 The case referred to was an action of vv^aste brought against a
 
 TENANT'S TRADE FIXTURES. 171 
 
 lessee, for removing a furnace wliicli he had erected and 
 affixed to the walls of a house demised to him for a term of 
 years. The fact of the furnace being annexed to the wall 
 is not mentioned in the report ; but it appears to have been 
 so fixed according to remarks on the case in subsequent 
 authorities in the Year Books. The point was then raised, 
 whether the removal of the furnace was justifiable, or if it 
 amounted to waste. After the question was discussed, it 
 was considered to be doubtful, and adjourned, and was 
 hence left undetermined. 
 
 The next case in order is found in the Year Book of the 
 20 Henry YII, 13 a and b, which was the case of trespass 
 "against executors for removing a furnace fixed witli mortar 
 by their testator and annexed to the freehold. The question 
 involved was, whether the furnace should go to the executor, 
 or to the heir of the owner of the fee, who had put it up. The 
 court held that the removal of the furnace by the executor 
 was wrongful, and in the course of the judgment in the case 
 the proposition was laid down, that "if a lessee for years 
 makes a furnace for his advantage, or a. dyer makes his vats 
 or vessels to occupy his occupation during his term, he may 
 remove them ; but if he suffer them to be fixed to the earth 
 after his term, these things belong to the lessor. And so of 
 a baker. And it is not waste to remove such things within 
 tlie term by law; and this shall be against the opinions 
 aforesaid." The report thus states, that in 42 Edward III, 
 it was doubted whether this was waste or not. Here, it will 
 be observed, that the exception, in favor of trade fixtures is 
 pointed out, and the limitation within which the tenant may 
 remove such fixtures, is also specified. 
 
 In reference to the case last mentioned, Mr. Amos, in his 
 work on the law of fixtures, makes the following criticisms 
 and remarks, which may be quoted at length, because it 
 contains much of importance upon the point now under 
 consideration. He says: "This case is generally adduced 
 as the first which in terms recognizes the right of a tenant 
 to remove fixtures. It is quoted, moreover, as the great au- 
 thority for the prevalence of a rule, in very early times, in 
 favor of trade fixtures. For it is insisted, that the privi-
 
 172 LAW OF FIXTURES. 
 
 ledge which is there said to belong to the lessee, is admitted 
 in respect to articles of trade only ; and is understood to be 
 a right arising solely out of the principle of protecting com- 
 merce and manufactures. The expression in the original, 
 which has given rise to the supposition, is ^pour occupier 
 son occupation f and it has been imagined, that the in- 
 stances of the dyer's vessels are intended, not merely as ad- 
 ditions made by a tenant for his common domestic accom- 
 modation, but to indicate fixtures put up by him expressly 
 in relation to the trade which he is carrying on upon the 
 premises. 
 
 "It may, however, be doubted if this is a fair inference from 
 the case cited. For, in the first place, it deserves to be men-* 
 tioned, that in another report, or rather abstract of the case 
 in the Year Book, 20 Hen. VII, which was published at a 
 subsequent but very early period, the passage upon which 
 the supposition in question mainly proceeds is particularly 
 introduced, but the expression '•pour occupier son occupa- 
 tion ' is left out. If this circumstance had been mentioned 
 to the courts in the discussion of the subsequent cases, it 
 would probably have been thought to merit attention, as 
 tending to show that the rule laid down by the judges in 
 the time of Henry the Seventh was not universally con- 
 sidered to have been founded on an exception arising solely 
 out of trade. And the inference that trading fixtures were 
 not particularly and exclusively intended hj the judges iu 
 this case, will more clearly appear from the remark whicli 
 follows in the report, viz.: that in 42 Ed. Ill, it was doubted 
 whether this was waste or not. !N^ow, on referring to the 
 case in 42 Ed. Ill, p. 6, pi. 19, it will appear that no allusion 
 whatever is made to an exception in favor of trade, neither 
 is it mentioned or implied that the furnace then in dispute 
 was erected for a trading purpose. Again, in the same sen- 
 tence in which the dj^er's vat is mentioned, and immediately 
 before it, is put the instance of a furnace erected by a lessee, 
 and this is said to be removable like the vat. And so 
 far from its being intimated that the furnace is connected 
 with trade, it is, on the contrary, described as put up for
 
 TENANT'S TRADE FIXTURES. 173 
 
 the convenience of the lessee, 'pour son amntage,' or (as 
 the abridgment has it) pour son pleasure: 
 
 " But furtlier, if this principle of allowing an exemption 
 on the ground of trade had been clearly recognized in the 
 case in question, it might be expected that it would have 
 been applied to the solution of subsequent cases. But the 
 contrary is the fact : and all the ancient cases which follow 
 the decision of 20 Hen. VII, are found to proceed upon a 
 distmction depending altogether upon the mode of annexa- 
 tion. Thus, in a case wliich occurred immediately after- 
 wards, and before the same judge (21 Ben. VII, 62, and 
 see Br. Abr., tit. Chattels, pi. 7, 11), it was laid down by the 
 court, that if a lessee makes an erection, as a furnace or 
 post, &c., and fixes it to the soil, or to the middle of the 
 house only, and not to the walls, he may take it away. 
 Nothing is said in this case of a distinction in respect of 
 trade: on the contrary, Kingsmill, J., apparently in allu- 
 sion to the particular instances of vats in a brew-house or 
 dye-house, relies solely on this construction and annexa- 
 tion ; and says the removal of such things would not be 
 waste, because the house would not be impaired by it. So 
 lastly, in the cases which followed some time after those in 
 the Year Books, there is no recognition whatever of any par- 
 ticular privilege in regard to trade, for Coolers case {Moore, 
 177, 24 Eliz.\ is wholly silent upon it. And in a case 're- 
 ported m Owen, 70, and Cro. Eliz., 374 {Day v. Austin and 
 Blsbitch, 37 Eliz.; and see 1 Moll. Ab., 891, pi. 50), (which 
 respected the power of a sheriff to seize a furnace under an 
 execution against a termor), the article is expressly stated 
 to have been erected for the use of the dyer ; and the court 
 adverting to the right of the termor in such a case, deter- 
 mines It by the circumstance of the article being fixed to the 
 walls, and not to the middle of the house. On this particu- 
 lar ground they considered that the furnace would not be 
 removable : and the principle of an exemption on the ground 
 of trade is altogether unnoticed. 
 
 " Upon the whole, then, it can scarcely be inferred that the 
 expression used by the court in 20 Hen. VII, pi. 13, were 
 employed in any other sense than as mere general examples
 
 174 LAW OF FIXTURES. 
 
 of fixtures, the object of which was to illustrate the legal 
 doctrine of an exception introduced for the benefit of all 
 tenants alike, by a less rigid construction of the old rule of 
 law. Indeed with regard to the doctrine itself, it should be 
 observed, that it is entirely extrajudicial, and appears in a 
 decision in which tlie judgment of the court proceeded on a 
 totally difi'erent principle" {Ferard'' s Law of Fixtures^ 
 18, 19, 20). 
 
 The other report of the case given in the Year Book of the 
 20 Henry VII, to which Mr. Amos refers, appears to be a 
 book printed in tjie year 1614, entitled " Un Abridgment de 
 touts les Ans del Roy Henrie le Sej)t,'''' and the position in 
 question is thus expressed : "And if lessee for years makes 
 any such furnace for his pleasure, or a dyer makes his vats 
 and vessels, he may remove them during the term," etc., 
 "and so of a baker. And some semhle^ that it is not waste 
 to remove such things within the term ; but this is contrary 
 to the opinions aforesaid," etc. 
 
 And, upon this point, Mr. Amos, in a note, says: "It 
 may not be unimportant to notice the manner in which the 
 concluding part of the above passage from the Year Book, 
 on which so much stress has been laid, was contained in a 
 modern case. In Elioes v. Maio (3 East, 42), the counsel 
 read it thus, ' It is no waste to remove such things within 
 the term by any ;' Lord EUenborough renders it, ' It is 
 not waste to remove such things within the term by some:'' 
 according to either of which constructions, it seems to be 
 left in doubt whether the concluding words of the sentence 
 are not intended to refer to tenants. In the original, the sen- 
 tence is thus printed and punctuated, ' Ft n^ est ascun waste 
 de remuer tlel chose diens le terme, i^er Ascuns ;' it is no 
 waste to remove such things within the term, according to 
 the opinion of some judges. It is clearly thus intended, 
 from what immediately follows in the report {Ferard' s 
 Law of Fixtures, 18, note b.) Mr. Smith, in his valuable 
 Notes on Leading Cases, remarks on these criticisms of Mr. 
 Amos as follows: "Mr. Amos, in his valuable work, con- 
 tends with much ingenuity, that this case establishes an ex- 
 ception in favor of other fixtures set up by lessees for years,
 
 TENANTS TRADE FIXTURES. 175 
 
 besides trading fixtures, and lie argues that the words si le 
 lessee a fait ascun-furneis pur son avantage, must be 
 taken to mean, if the lessee have set up any furnace/or Jiis 
 pleasure; and he cites a book entitled 'Un abrldgmeut 
 de touts les ans du Roy Henri le Sept,' when the words 
 'pur son 2)lesure' are substituted for, 'pur son avantage.' 
 But this abridgment is scarcely to be relied on, for it omits 
 the subsequent words poitr occupier son annexation, which 
 are very important to the question mooted by Mr. Amos. 
 There certainly appears to be some improbability in the 
 idea of the lessee having put up a furnace in his house for 
 pleasure. Besides, Co. Litt, 53 a, is express that, in 
 ordinary cases, a furnace could not be removed ; and if it 
 were removable in all cases, why should the words pior son 
 avantage have been added at all. 
 
 This is, however, merely matter of curiosity, for the law 
 respecting the tenant's right to remove fixtures was not long 
 allowed to depend upon decisions in the Year Books, and 
 his privilege of removing trade fixtures, was finally estab- 
 lished by PooVs case (1 SalJc, 368, MicJi., 2 Anne) ; whereit 
 is laid down by Lord Holt among other things, ' that during 
 the term, a soapboiler might well remove the vats he sat up 
 in relation to trade, and that he might do it by the common 
 law (and not by virtue of any special custom) in favor of 
 trade, and to encourge industry. But, after the term, they 
 became a gift in law to him in the reversion, and are not re- 
 movable.' Tins case was followed by many others, assert- 
 ing the same exception, and grounding it on the same rea- 
 son, namely, the encouragement afforded to trade by public 
 policy" (2 Smith's Leading Cases, 1th Am. ed., 189). 
 
 Mr. Smith appears to have been under the impression tliat 
 the argument of Mr. Amos rested wholly on the abridg- 
 ment published in 1614, which he refers to, whereas that 
 abridgment seems to have been a part only of the founda- 
 tion of the reasoning of Mr. Amos. However, Mr. Smith is 
 an English author of much research, ^nd his construction 
 placed upon the case in the Year Book of the 20 Henry VII, 
 is generally approved, and is borne out by the understand- 
 ing of modern authoiities.
 
 176 LAW OF FIXTURES. 
 
 But it is of com pari tively little importance respecting tlie 
 equivocal state of the law in its earlier stages ; and yet an 
 examination of the authorities is not without interest, be- 
 cause it may serve to give the practitioner a more perfect 
 view of the doctrine relating to fixtures, by presenting a 
 comparison between the law as it stood formerly and as it 
 will be found to be established in later times. 
 
 The earliest reported case, in which it is agreed on all 
 sides, it was held tliat trade fixtures was an exception to the 
 general rule, occurred a considerable length of time after the 
 decisions cited from the Year Books. It was the case of a 
 soapboiler, an under tenant, who, for the convenience of his 
 trade, had put up certain vats, coppers, tables, partitions, 
 and paved the backside, and the things thus put up were 
 all taken away by virtue of an execution against such under 
 tenant. The first lessee, being the lessor of the under-ten- 
 ant, brought an action against the sheriff, who took away 
 the things, for the damage occasioned to the house, and 
 which he was liable to make good. Lord Holt, C. J., held 
 that the fixtures were liable to the execution, and laid down 
 the rule, among other things, that during the term, a soap- 
 boiler might well remove the vats he set up in relation to 
 trade, and that he might do it by the common law (and not 
 by virtue of any special custom) in favor of trade, and to 
 encourage industry. But, after the term, he declared, the 
 fixtures become a gift in law to him in the reversion, and 
 are not removable {Poole's case, 1 Salh Ji., 3G8). 
 
 Poole's case was followed by many others, asserting the 
 same exception, and grounding it on the same reasons, 
 namely, the encouragement offered to trade by public policy ; 
 and from this time, the right of. a tenant to take away trade 
 fixtures may be considered to have been fully established. 
 And not only has the doctrine been confirmed by many sub- 
 sequent decisions, but a very sound and satisfactory prin- 
 ciple is assigned as the foundation of the principle. This is 
 to be collected in thQ first instance from some cases which 
 came before the courts of equity, during the period in 
 which Lord Hardwicke presided there. 
 
 One of the cases in equity to which refererence is made,
 
 TENANT'S TRADE FIXTURES. 177 
 
 occurred barely fifty years after the decision of the case of 
 Poole, and is of much greater importance than that of Poole ; 
 for not only are the facts of the more recent case better 
 kno-vra, but the judgment also is pronounced with all that 
 accuracy and fullness which were necessary to indicate the 
 difficulty, and the manner of avoiding the difficulty, which 
 the earlier judges experienced, in moulding the rigorous 
 rules of the old law to the altered condition of modern times. 
 The case alluded to was decided by Lord Hardwicke in 1743 ; 
 and as well for the reasons before suggested, as also because 
 the case is accepted, both in England and in America, as the 
 leading case upon this branch of the law of fixtures, the case 
 may properly be set out in full in all its material parts. 
 
 The question in the case was, whether a fire-engine set up 
 for the benefit of a colliery by a tenant for life should be 
 considered as freehold estate, and go to his executor, or as 
 fixed to the freehold, and go to the remainderman. On the 
 trial of the cause, evidence was given to show that it was cus- 
 tomary to remove fire-engines of the kind in question, and 
 that the sheds built for the purpose of receiving them were 
 constructed with a view to the custom, having holes in them 
 for receiving the timber-ends. The engine was also a very 
 extravagant one in price, having cost over 3501., and left the 
 testator largely indebted to his creditors. Lord Chancellor 
 Hardwicke, in holding that the fire-engine in question should 
 be considered personal estate, and should be liable in the 
 h&nds of the executors of the deceased, observed : "The 
 court will construe the. fund available for assets to the utmost 
 extent possible in favor of creditors. * * * Now in the old 
 cases the decisions go a great way upon the annexation to 
 the freeJiold, and so long ago as Henry the Seventh's time 
 the courts of law construed even a copper and furnace to be 
 part of the freehold ; but since that time the courts have re- 
 laxed their strict construction of the law, and have done so 
 for the general encouragement of tenants for life to do what 
 is advantageous to the estate during their term. 
 
 " Thus, landlords have no right to retain against a tenant 
 coppers and brewing vessels, notwithstanding these require 
 
 23
 
 178 -^^1 ^^ '^P FIXTURES. 
 
 to be fixed before tliey can be used ; this is because such 
 articles are for the convenience of trade. 
 
 "Now such being the general rule, and such the principle 
 of the relaxation of it, consider how the case stands with 
 the fire-engine which is now in question. Firstly, the rule 
 of principal and accessory does not here apply. Secondly, 
 it is not true to say that the colliery could not subsist with- 
 out engines ; and the question is, therefore, entirely of more 
 and less, or lohether the colliery is more conveniently fur- 
 nished loith this engine or not. There is no doubt the case 
 would be very clear between landlord and tenant ; and even 
 as between ancestor and heir, it would be very hard if such 
 things should in every instance go to the heir. One reason 
 which weighs very strongly with me in the present case is, 
 its being a mixed case between enjoying the profits of the 
 land and carrying on a species of trade ; and considering it in 
 this light, it conies very near the instances of furnaces and 
 coppers in brew-houses, etc. The case, too, of tlie cider- 
 mill, before Comyns, C. B., is very strong; for although 
 cider is part of the profits of the real estate, yet the cider- 
 mill was held by that very able common lawyer to be per- 
 sonal estate notwithstanding, and to belong to the executor. 
 This is not a case between an ancestor and an heir, but it is 
 an intermediate case, being between a tenant for life and a 
 remainderman. 
 
 " It is very well known that little profit can be made of coal 
 mines without this engine, and tenants for lives would be 
 discouraged from erecting them if they must go, upon their 
 deaths, to some remote remainderman. These reasons of 
 public utility weigh greatly with me ; they are a principal 
 ingredient in my present opinion. 
 
 "Upon the whole, IJ[hink this fire-engine ought to be con- 
 sidered as part of the deceased's personal estate, and go to 
 the executor for the increase of the assets" {Lawton v. Law- 
 ton, 3 Atk. R., 12-16). 
 
 The case of Lawton v. Lawton, as before remarked, is a 
 leading authority, both in England and America, and it was 
 soon followed in 1751, by another case before the same dis-
 
 TENANT'S TRADE FIXTURES. 179 
 
 tingnished Lord Chancellor, wherein there was a similar 
 question as to the right of the executor of a particular tenant 
 to take a fire-engine as against the remainderman ; and it 
 was held that the fire-engine, on the death of the tenant, 
 went to his executor, and not to the remainderman. On 
 this occasion. Lord Hardwicke observed: "Some general 
 rules are very clear, as what is annexed to the freehold is 
 to be considered a part of it ; and yet there are some excep- 
 tions to that rule, as between landlord and tenant ; what is 
 erected by the latter for the sake of trade may be removed, 
 though fixed to the freehold. * * * The determinations 
 have been from consideration of the benefit of trade" {Lord 
 Dudley v. Lord Warde, Amblef s B., 114; S. C, Bullefs 
 N. P., 34). 
 
 Clearly, in the case last cited, Lord Hardwicke placed his 
 decision upon the principle of encouraging trade generally, 
 by the assurance which his judgment gave to tenants for life 
 under similar circumstances of their personal estate being 
 recouped after their death the extraordinary disbursements 
 which it should have been put unto during their life by 
 reason of the imperative necessities of trade. And it will 
 be observed, as the cases are examined, that the courts of 
 common law have proceeded upon the same principle. 
 
 A case may be referred to here upon the subject, though 
 not in exact chronological order, which was decided in 1799, 
 and in which it was held, at Nisi Prius, that certain erec- 
 tions called Dutch barns, being sheds with a "foundation 
 of brick in the ground, and uprights fixed in, and rising 
 from the brick-work and supporting the roof, which was 
 composed of tiles, the sides being open," were not included 
 within the scope of a covenant by a tenant whereby he had 
 bound himself to lease all the buildings w^iich were at the 
 date of the lease already erected, or which should or might 
 during the continuance of the lease be erected upon the land 
 demised to him. Lord Kenyon (the judge w^ho tried the 
 case) being of opinion that erections like the barns in ques- 
 tion which were put up for the benefit of trade or manufac- 
 ture, for the more advantageous carr3ang on thereof, were 
 not included under the word '■'buildings^'''' or ^^ erections,'''
 
 180 LAW OF FIXTURES. 
 
 expressed in the covenant, which he said were only such 
 buildings and erections as were " annexed to * * * the re- 
 versionary estate.'''' Lord Kenyon's remarks are: "If a 
 tenant will build upon premises demised to him, a substan- 
 tial addition to the house, or add to its magnificence, he 
 must leave his additions, at the expiration of his tei-m, for 
 the benefit of his landlord ; but the law will make the most 
 favorable construction for the tenant where he has made 
 necessary and useful erections for the benefit of his trade or 
 manufacture, and which will enable him to carry it on with 
 more advantage. It has been held so in the case of cider- 
 mills, and in other cases ; and I shall not narrow the law, 
 but hold erections of this sort., made for the benefit of trade., 
 or constructed as the present to be removable at the end of 
 the term'''' {Dean v. Allalley^ ^Espinasse' s C. N. P., 11). 
 
 These "Dutch barns" were simply roofs resting on posts, 
 and how they could, strictly speaking, be regarded as fix- 
 tures for the benefit of trade is not, at first glance, very ap- 
 parent ; and the decision of the case, upon the ground on 
 which it is generally understood to have been placed by 
 Lord Kenyon, has been the subject of adverse criticism. 
 And it should be noted that the case was disposed of by 
 Lord Kenyon at Nisi Frius, and did not undergo a subse- 
 quent review by himself and the rest of the court; and 
 hence, it may not be regarded with as much force, as the 
 judgments of the distinguished judge are, when pronounced 
 after the deliberation of a judge sitting in banc. It is quit^ 
 probable that the judge did not regard the erections as 
 of that substantial character which is implied by the word 
 fixtures ; or he may have considered the erections in ques- 
 tion, although agricultural, to have been of a mixed sort, 
 which were rather useful and convenient in the profitable 
 management, than necessary to the bare or simple manage- 
 ment of the farm, and being so, they fell under the mildness 
 of the new, and were exempted from the rigors of the old 
 law. But, however this may be, the case does not seem ever 
 to have been overruled, or the doctrine of Lord Kenyon ex- 
 pressly repudiated ; so that it may still be regarded as a
 
 CASES OF TRADE FIXTURES. 181 
 
 precedent to illustrate the principle wliich prevails in respect 
 of trade fixtures as between landlord and tenant, at the 
 present day. 
 
 CHAPTER XII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT — DOCTRINE 
 IN RESPECT TO ERECTIONS BY A TENANT FOR PURPOSES OF TRADE 
 AND MANUFACTURES — EXAMINATION OF FURTHER ENGLISH AUTHOR- 
 ITIES UPON THE POINT. • 
 
 It will be observed that all of the cases referred to in the 
 preceding chapter, explanatory of the doctrine applicable to 
 annexations made by tenants upon premises demised, for 
 the purposes of trade and manufactures, are selected from 
 the early English authorities reported upon that subject. 
 In continuation of the English decisions, reference may be 
 had to a case, often referred to by Judges in their opinions, 
 and which has been referred to in a previous chapter upon 
 another point. The case was decided by the Court of King' s 
 Bench in 1782. The action was trover, brought by the 
 executor against the tenant of the heir at law of the tes- 
 tator, to recover certain vessels used in salt works, called 
 salt-pans. A case was reserved by consent, which stated, 
 that the testator, some years before his death, placed the 
 salt-pans in the works ; that they were made of hammered 
 iron and riveted together ; that they were brought in pieces 
 and might be again removed in pieces ; that they were not 
 Joined to the walls, but were fixed with mortar to a brick 
 floor ; tl;at there were furnaces under them ; that there was 
 a space for the workmen to go around them ; that there 
 were no rooms over them ; but that there were lodgings at 
 the end of the wych-houses ; that they might be removed 
 without injuring the buildings, though the salt-pans would 
 be of no value without them, which with them were let for 
 8?. per week. The question presented for decision was,
 
 Ig2 LAW OF FIXTURES. 
 
 whether the executor or the heir at law was entitled to the 
 salt-pans. 
 
 It was argued on behalf of the plaintiff, the executor of 
 the deceased owner of the freehold, who placed tlie salt- 
 pans in the salt works, that it appeared from the statement 
 of the case, that the pans were not affixed to the freehold, 
 but might be removed, and they ought therefore clearly to 
 go to the executor. On the contrary, the counsel for the 
 defendant, who was the tenant of the heir at law of the de- 
 ceased owner of the freehold, insisted that the salt-pans were 
 so annexed to the freehold as to pass to the heir at law, both 
 in respect to the strict rule of law, and the nature of the 
 property itself ; although they were not fixed in the wall, 
 yet they were to the floor, which is part of the freehold. 
 
 The decision wf^s given in favor of the heir, on the particu- 
 lar ground stated in the j)revious chapter. But in the course 
 of the Judgment, Lord Mansfield states that there had been 
 a relaxation of the strict rule, for the benefit of trade be- 
 tween landlord and tenant ; that many things might be 
 taken away which could not formerly, such as erections for 
 carrying on any trade, when put up by the tenant. He ob- 
 served: "It would have been a different question if the 
 springs had been let, and the tenant had been at the expense 
 of erecting these salt works ; he might very well have said, 
 I leave the estate no worse than I found it. That, as I 
 stated before, would be for the encouragement and con- 
 venience of trade, and the benefit of the estate" {Laioton v. 
 Salmon, 1 //. BlacTc. H., 259, in notls ; S. C, 3 Al/c. i?., 16, 
 in notis). 
 
 The doctrine under consideration was involved in a case 
 decided by the English Court of Common Pleas in 1789, 
 seven years later than the decision of the last case cited. 
 The action was in the nature of waste, in which it appeared 
 that the defendant, from the year 1768, had been tenant of the 
 premises in question from year to year ; that the plaintiff, in 
 the year 1787, became the purchaser of the land, and shortly 
 afterward commenced an action of ejectment against the 
 defendant to remove him from the premises. In March, 1788, 
 the plaintiff and defendant agreed that tlie plaintiff should
 
 CASES OF TRADE FIXTURES. 183 
 
 sign iudgment in tlie action of ejectment with a stay of ex- 
 ecution till tlie Michaelmas following, till which time the 
 defendant was to continue in possession. In the agreement 
 no mention was made of any buildings, or fixtures. 
 
 Between the time of entering into the agreement and the en- 
 suing Michaelmas, the defendant took away several things 
 from the premises, among which were, a wooden stable 
 which stood on blocks or rollers, which he had before re- 
 moved from an estate of his own adjoining to the premises 
 in question, a shed which he had firmly built on brick- work, 
 and even posts and rails which he had also put up upon the 
 premises For this the action was brought ; and the case 
 came on for trial before Mr. Justice Gould, who expressed 
 the opinion, at the trial, that the defendant would clearly have 
 been entitled to take away the articles, if he had done it, 
 during the continuance of his term from year to year ; but, 
 he was of the opinion, that by the agreement the parties had 
 made a new contract, which put an end to the term. Ac- 
 cording to this opinion, the jury found for the plaintiff, and 
 at a term of the court, a rule was granted to show cause 
 why the verdict should not be set aside, and a new trial 
 
 granted. -l n t a 
 
 In support of this rule, it was contended, that the defend- 
 ant had a right to take away the buildings and things which 
 he had himself erected on the premises, the strictness of the 
 ancient rule which allowed nothing annexed to the freehold 
 to be removed, being relaxed by modern authorities. It 
 was also said that, under the circumstances of the case, 
 there was no implied contract between the parties to con- 
 tinue the tenancy from year to year, and if so all the rights 
 which the defendant had under the tenancy, must continue. 
 The counsel for the defendant was about to show cause 
 against the rule, but was stopped by the court, who said, 
 it%vas not necessary to go into the general question, as to 
 the rights of a tenant to remove buildings, etc., since the 
 fair interpretation of the agreement was, that as the defend- 
 ant was to remain in possession for a certain time after the 
 agreement was entered into, and judgment signed in the 
 ejectment, he should do no act in the meantime to alter the
 
 184 LAW OF FIXTUR ES. 
 
 premises ; but should deliver them up, in the same situa- 
 tion, as they were in, when the agreement was made, and 
 the judgment was signed. The rule was, therel'ore, dis- 
 charged {Fitzlierlert v. Sliaw, 1 Henry Blackstone' s i?., 
 258). 
 
 It will be noticed that in the case of Lawton v. Salmon, 
 the controversy was not between landlord and tenant ; and 
 in the case of FUzlierhert v. SJiaio, the right to remove the 
 fixtures in controversy by the tenant, was not ostensibly 
 considered by the court in banco; but it is clear, neverthe- 
 less, that both cases turned upon the point that the erections 
 of structures were trade fixtures. It is i)ertinent, therefore, 
 that the cases be noted upon the point now under consider- 
 ation. 
 
 In 1801, the principle was again involved in a case decided 
 by the Court of King's Bench, which was an action of tres- 
 pass for breaking and entering a certain yard and divers 
 buildings of the plaintiff, and pulling to pieces the buildings 
 and taking away certain materials belonging to the yard. 
 At the trial before Lord Kenyon, C. J., it appeared that the 
 building, wliich was taken awa}^, was built of wood by the 
 defendant, or tenant of the premises, on a foundation of 
 brick for the purpose of carrying on his trade as a maker of 
 varnish. The foundation of the building was let into the 
 ground, and the superstructure was of wood, brought from 
 another place where the defendant had carried on his busi- 
 ness, and had a chimney belonging to it. The term of the 
 tenant had expired, but he remained in possession for some 
 time afterward, and was in fact in possession of the premises 
 at the time he pulled down the wooden superstructure, and 
 carried away the materials, which was the subject of the 
 action. A verdict was taken for the plaintiff, subject to the 
 question, whether the defendant was warranted in pulling 
 down the building, and taking away the materials, after the 
 expiration of the term ; and on the argument of the case 
 before the court in banc, the counsel for the landlord sub- 
 stantially admitted that, b}^ the latitude which modern de- 
 terminations had given to tenants to remove certain fixtures 
 annexed to the freehold for the purpose of carrying on trade,
 
 CASES OF TRADE EIXTURES. 185 
 
 file defendant might during the continuance of the term, 
 have removed the building in question ; but he contended 
 that the defendant had no right to do so after the term was 
 expired, for in that case he v^^ould be guilty of a trespass. 
 
 Lord Kenyon, C. J., said : "The old cases upon this sub- 
 ject leant to consider as realty whatever was annexed to the 
 freehold by the occupier ; but in modern times the bearing 
 has always been the other way in favor of the tenant, in 
 support of the interest of trade which has become the pillar 
 of the state. What tenant will lay out his money in costly 
 improvements of the land, if he must leave every thing be- 
 hind him which can be annexed to it. Shall it be said that 
 the great gardeners and nurserymen in the neighborhood of 
 this metropolis, who expend thousands of pounds in the erec- 
 tion of green-houses and hot-houses, etc., are obliged to leave 
 all these things upon the premises, when it is notorious that 
 they are even permitted to remove trees, or such as are likely 
 to become such, by the thousand, in the necessary course of 
 their trade? If it were otherwise, the very object of their 
 holding would be defeated. This is a species of property, 
 divided from the realty. And some of the cases have even 
 gone further in favor of the executor of tenant for life against 
 the remainderman, between whom the rule has been holden 
 stricter; for it has been determined that the executor or 
 tenant for life was entitled to take away the fire-engine of a 
 colliery. The case of Fltzherh^t v. Shaw turned upon the 
 construction of an agreement that such things should be 
 left on the premises, and decided nothing against the gen- 
 eral principle. Here the defendant did no more than he had a 
 right to do ; he was in fact still in possession of the prem- 
 ises at the time the things were taken away, and therefore 
 there is no pretence to say that he had abandoned his right 
 to them." 
 
 Lawrence, J., said: " It is admitted now that the defen- 
 dant had a right to take these things away during the term ; 
 and all that he admits upon this record against himself, by 
 suffering judgment to go by default as to the breaking and 
 entering, is that he was a trespasser in coming upon the land, 
 
 24
 
 186 LAW OF FIXTURES. 
 
 but not a trespasser de bonis asportatls ; as to so much 
 therefore, he is entitled to judgment" {Pentoii v. liohart, 2 
 last's Ji., 88). 
 
 Whatever may be said of this case as an authority in favor 
 of a tenant tortiously holding over, to remove his fixtures, 
 it is very clearly an authority in favor of the doctrine that 
 the tenant may remove certain trade fixtures during the con- 
 tinuance of his term ; and the case is also an illustration as 
 to what annexations may be regarded as fixtures for pur- 
 poses of trade, for it is evident that the decision, that the 
 building in question w^as removable by the tenant, was put 
 upon the ground that it was a trade fixture, and iipon no 
 other ground. 
 
 In commenting upon this case, Mr. Bingham, in his 
 treatise on the Law of Real Property, expresses the opinion 
 that, if the doctrine of trade fixtures rested alone upon this 
 case, it might be questionable whether it had a substantial 
 foundation, and adds: "The doctrine was not necessarily 
 involved in the disposal of the case, for the building was 
 , placed on the premises by agreement between the landlord 
 and tenant, and was, therefore, as we have before shown, 
 not a fixture, but to be regarded and treated as personal 
 property, for all purposes and between all parties" {Bing. 
 on Real Estate, 517). 
 
 But the agreement referred to by Mr. Bingham does not 
 necessarily enter into the (Ase. The action was brought by 
 the original landlord, the owner of the freehold, and the de- 
 fendant was an under tenant of the sub- tenant of the 
 executors of the original tenant ; and the agreement referred 
 to was between the sub-tenant of such executors and his 
 under tenant, the defendant, that he might occui)y the 
 ground, and erect a building thereon for the purpose of 
 making varnish. It is palpable, therefore, that the original 
 landlord was Hot privy to the agreement, and not bound by it. 
 
 It is very clear from the opinions in the case, that the 
 court considered that a tenant, during his term, would liave 
 been entitled to remove an erection used as a varnish- house 
 for carrying on a varnish ma^ufactor3^ The force of th(3 
 case, however, as a general authority upon the tenant's
 
 CASES OF TRADE FIXTURES. 187 
 
 right of removal of his fixtures is weakened, when the fact 
 is mentioned, that it appears from the statement of the case, 
 that the erection which the defendant removed, and which 
 gave rise to the dispute, was a part of the building only ; 
 for he took away only the wooden superstructure which, 
 according to the JMsi Prius report of the case, was merely 
 placed upon a loooden plate, laid upon the brick founda- 
 tion. The foundation, and the chimney belonging to the 
 building, were not removed. From this view of the facts, it 
 might well be contended that the principle of fixtures would 
 not be involved in the case ; for there are decisions holding 
 that an erection constructed like that portion of the building 
 which the tenant removed, is not considered a part of the 
 freehold, but remains a mere personal chattel. 
 
 From a want of an accurate examination of the circum- 
 stances last mentioned, Mr. Amos says: "The case of 
 Penton v. Robart has not unfrequently been supposed to 
 authorize the removal of buildings of a more substantial 
 nature than is warranted by any other decision. But even 
 if it be thought that it may be implied from the determina- 
 tion, that the court deemed the erection to be actually 
 affixed, still the peculiar character and construction of the 
 building will not admit of the case being considered an 
 authority for a very extensive right on the part of the ten- 
 ant' ' {Ferard' s Law of Fixtures, 30). And as a corroboration 
 of Mr. Amos' view of the case, he adds in a note, that when 
 the case was before Lord Kenyon at Nisi Prius, he is re- 
 ported to have said, that the mere erection of a chimney 
 could not prevent the right of takfng away the rest of the 
 building which surrounded it. 
 
 Mr, Brown, an English writer of some note, in a treatise 
 on the Law of Fixtures, after stating, that in the case of 
 Penton v. Robart, it was held that a certain varnish-house 
 was removable by the tenant at the end of his term, and 
 under the j)articular circumstances, even after the end and 
 full expiration thereof, says: "Lord Kenyon (the judge 
 who tried the case) resting his decision in this case also (as 
 he had done in Dean v. Allalley upon the 'costly' or su- 
 pererogatory and unnecessary character of the fixtures, as
 
 188 LAW OF FIXTURES. 
 
 distinguished from those which are barely necessary for the 
 cultivation of the land as such — a distinction which may in- 
 deed be attributed primarily to Lord Kenyon, whose custom- 
 ary legal acumen perceived in it a means of observing the law 
 at the same time that he escaped in the matter of modern fix- 
 ures from the early rigors of it" {Brown on Fixtures, § 55). 
 
 But however facetious some writers may attempt to make 
 themselves in commenting upon this decision of Lord Ken- 
 yon, it must be remembered that Lord Kenyon was a very 
 able, learned and upright Judge, and always aimed to do 
 justice, while he designed to keep himself within tlie rule of 
 safe precedents and well established principles ; and his de- 
 cisions are uniformly quoted with respect by the courts, and 
 are seldom overruled or seriously questioned. This case, 
 therefore, still remains as a precedent for what may be re- 
 garded as annexations for trade. 
 
 In 1803, the doctrine of fixtures was considered in a very 
 elaborate manner in the English Court of King's Bench, 
 which, while it is not a case in point upon the branch of the 
 subject now under consideration, contains a review of the 
 cases and enunciated principles held to be applicable to the 
 point in hand. The erections, the right to which was in- 
 volved in the case, were substantial brick buildings of brick 
 and mortar, tiled and having foundations dug in the soil ; 
 but they were not put up for the purposes of trade or manu- 
 factures, and consequently were not held to be removable. 
 Lord EUenborough, C. J., delivered the opinion of the court, 
 and throughout his judgment in the case, spoke of huildlngs 
 constructed for the purpose of trade. And it is worthy of 
 remark, that it is an aigument on which he principally re- 
 lies, that the indulgence allowed to tenants in respect of 
 trade had, by no valid authority, been extended to the 
 particular description of buildings then in dispute, when 
 erected for agricultural purposes. The case turned upon 
 the distinction which the learned Chief Justice deemed to 
 exist between trade and agriculture, in respect to annexa- 
 tions made by the tenant. But it is quite apparent from the 
 opinion of the learned judge, that had the erections in ques- 
 tion been put up for the purposes of trade, lie would liave
 
 CASES OF TRADE FIXTURES. 189 
 
 held them removable ; for it would have furnished a very 
 obvious answer to the defendant's case, to have said (had the 
 court so considered it) that the claim in question was too 
 extensive even on the ground of trade itself, on account of 
 the permanent nature and construction of the building. 
 But instead of there being any such intimation in the opin- 
 ion, on the contrary, the learned Chief Justice confines the 
 exception to the general rule respecting fixtures, in favor of 
 trade, but denies that the exception extended to annexations 
 for the purpose of agriculture {Elwes v. Maw, 3 East's H., 
 38). This is regarded as a leading case upon the subject of 
 fixtures, both in England and in this country, and it will be 
 more fully considered hereafter, as it has already been here- 
 inbefore referred to upon another branch of the subject. 
 
 It may, however, be well to mention in this place, that 
 Lord EUenborough, in the course of his judgment in the 
 case of Elwes v. 3faw, lays down a rule, that a building 
 which is accessory to a removable utensil, is equally re- 
 movable with the thing to which it is incident. This is an 
 .important principle, if it is sound law ; but it will be ob- 
 served that Lord EUenborough founds the position upon 
 the precedent of two cases decided by Lord Hardwicke, 
 which have been already referred to ; namely, the cases of 
 Lawton v. Lawton (3 AtJc. R., 13), and Lord Dudley v. 
 Ward {Ambler's JR., 113) ; and by reference to those authori- 
 ties, it will be perceived that Lord Hardwicke' s observations 
 concerning the sheds and the walls of the fire-engine only 
 amount to this — that akhough, by removing an utensil, 
 its accessorial building may be impaired, such an injury 
 shall not deprive a party of his right to remove the utensil 
 itself ; whereas. Lord EUenborough says that the court, in 
 those cases, " may be considered as having decided mainly on 
 this ground, that where the fixed instrument, engine, or uten- 
 sil (and the building covering the same falls within the same 
 principle), was an accessory to a matter of a personal na- 
 ture, that it should be itself considered as personalty." But 
 it does not appear, from either of the judgments in those 
 cases, that the sheds over the engines were considered by 
 Lord Hardwicke to be removable.
 
 190 LAW OF FIXTURES. 
 
 In 1818, a case was decided by the English Court of King's 
 Bench, wliicli may serve as a precedent as to what are to be 
 considered trade fixtures, as between landlord and tenant, 
 although the case seems to have turned upon a holding that 
 the property in dispute was never attached to the freehold 
 so as to deprive it of the characteristics of personal property. 
 The action was trover, and the property in controversy con- 
 sisted of certain pieces of machinery called jibs, described 
 as follows : certain caps and steps of timber were fixed into 
 a building, and the jibs were placed in those caps or steps, 
 and were the uprights that turned round the work in the 
 caps and steps ; they were fastened by pins above and be- 
 low, and might be taken in and out of the caps and steps 
 without injuring them or the building, but could not be re- 
 moved without being a little injured themselves. The case 
 is examined at length in a previous chapter upon another 
 point, but may be briefly noticed upon the point now under 
 consideration. For the plaintiff it was insisted, that these 
 jibs having been fixed up for the x^urpose of trade, might be 
 removed by the tenant ; that it appeared that these articles 
 might be removed without injuring the freehold ; and that 
 the fact of their having been usually valued between the in- 
 coming and outgoing tenant, showed that they were gen- 
 erally understood to be the property of the latter. For the 
 defendant it was insisted that the things constituted part of 
 one entire machine, of which the other parts were fixed to 
 the freehold, and that they did not come within the descrip- 
 tion of goods and chattels. The court were evidently of 
 the opinion that if the articles had been annexed to and be- 
 came a parcel of the freehold, the tenant might have removed 
 them during the term, as being erections for the benefit of 
 trade ; but under the circumstances of the case, considering 
 the proof that they might be removed without injury to them- 
 selves, or the building in which they were placed, it was 
 held that they were not fijstures properly so called, but 
 should be considered as personal chattels {Davis v. Jones^ 
 2 Barmo. & Aid. R., 165). 
 
 Another case may also be referred to, which was decided 
 by the same court, in 1824, which turned upon another ques-
 
 CASES OF TRADE FIXTURES. 191 
 
 tion, but, nevertheless, involved the consideration of the 
 point now under examination. The action was for a breach 
 of covenant to repair demised premises, but there was a dis- 
 cussion whether a tenant had a right to take away a Ume- 
 Mln^ which had been erected on the premises. The kiln was 
 stated to be a substantial building constructed of brick and 
 mortar, at an expense of 160Z., and having its foundations let 
 into the ground. It was admitted that the kiln had been 
 erected for the use of trade, and the lime that was burnt was 
 brought from a distance. The decision of the case ulti- 
 mately proceeded upon a particular ground, depending on 
 the terms of certain leases by which the premises had been 
 demised ; and the court gave no opinion as to the general 
 right of a tenant to remove an erection of the description of 
 tlie one in question. The case, however, is worthy to be no- 
 ticed in this connection, for the reason that the court during 
 the argument appeared to be struck with a view of the con- 
 sequences which might follow, if every erection, such as an 
 extensive manufactory, built by a tenant for the convenience 
 of trade, might be demolished at the expiration of the lease. 
 And they expressed themselves as considering the general 
 question to be one of importanee, and which would require 
 much deliberation in any future discussion. The reporter 
 understood that the case left it in doubt whether lime-kilns, 
 erectefl for the purpose of trade by a tenant, are removable, 
 but the real question in the case was, whether the removal 
 of the lime-kilns in controversy, was a breach of the cove- 
 nant to repair, contained in the lease ; and the ground was 
 taken by the counsel of the tenant, among other things, that 
 the kilns, being erected for the purpose of trade, were re- 
 movable generally. In answer to this proposition, Abbott, 
 C. J., in his opinion, said : "Now it is settled, by tiie case 
 of Naylor v. ColUngs (1 Taunt., 19), that buildings erected 
 for the purpose of trade, under a lease containing such a 
 covenant, cannot be removed by the lessor, the terms of the 
 covenant being general, and containing no exceptions. And 
 this is highly reasonable, because the expectation of build- 
 ings to be erected during a term, and left at its expiration, 
 is often one of the inducements to the granting of a lease,
 
 192 LAW OF FIXTURES. 
 
 and forms a considerable ingredient in the estimate of the 
 rent to be received. And if buildings for trade erected dur- 
 ing a lease cannot be removed without a breach of such a 
 covenant, neither can buildings erected before, and existing 
 at the date of a lease, be removed without a breach of the 
 covenant, unless there shall be some very special matter to 
 take them out of the operation of the covenant" {Tkres/ier 
 V. London Water Works, 2 Barnwell & CresswelV s B., 608; 
 S.C.,9 Eng. C. L. H., 198, 200). It may be suggested very 
 properly, that the inference from this opinion is, that the 
 court were inclined to hold that a lime-kiln erected by a 
 tenant on demised premises for the purpose of manufactur- 
 ing lime, should be regarded as a trade fixture, and remova- 
 ble as a trade fixture, although such holding was not called 
 for in the decision of the case. 
 
 CHAPTER XIII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT FOR PURPOSES OF TRADE AND 
 
 MANUFACTURES EXAMINATION OF THE ENGLISH AUTHORITIES UPON 
 
 THE POINT CONTINUED EXAMINATION BROUGHT DOWN TO THE PRES- 
 ENT DAY INCREASED LIBERALITY IN FAVOR OF TENANTS. 
 
 Iisr the further consideration of the current of the English 
 decisions upon the rights of tenants in trade fixtures, as be- 
 tween them and their landlords, reference may be had to a 
 case decided by the Court of Common Pleas, in the year 
 1840, which was an action of covenant, and, therefore, in- 
 volved the construction of the contract between the parties ; 
 but, nevertheless, embraced in its range, an examination of 
 the branch of law now under discussion. It appeared that 
 the plaintiff in the case demised to the defendant certain salt 
 springs, and the defendant was to erect salt-works on the 
 premises, and pay a rent in proportion to the number of
 
 CASES OF TRADE FIXTURES. 193 
 
 works erected ; and covenanted to leave the works in good 
 repair at the end of the term. The defendant went on and 
 put up, at his own expense, divers erections for the carry- 
 ing on the manufacture of salt ; and had also put in cer- 
 tain salt-pans. These pans were composed of plates of iron, 
 which rested by their own weight, without any fastenings, 
 upon low brick walls. They had rings in their sides, by 
 which they could be lifted off. They were used in the boil- 
 ing of the salt, and were necessary for making it ; and were 
 essential to the existence of the salt-works. The defendant, 
 at the termination of his term removed and carried away the 
 salt-pans with their attachments, and in doing so, was obliged 
 to pull down a part of the gable end of tlie pan houses, but 
 left on the premises every erection and building character- 
 ized by the term salt-works. 
 
 On the part of the tenant, it was contended that these 
 pans were chattels, not affixed to the freehold, and did not 
 fall within the description of suit-works which the defen- 
 dant had contracted not to remove. Upon the decision of 
 Lawton v. Salmon (1 Hen. Black., 259 note), it was argued 
 that there was a distinction between the works and the pans, 
 as the works consisted of buildings, etc., and that the ques- 
 tion, being between lessor and lessee, turned only on the 
 meaning to be put to the wov^ works in the lessee's cove- 
 nant, and upon the authority of Laioton v. Lawton (3 At- 
 kyn's H., 13), it was contended that the pans were personal 
 property, and that the case of Naylor v. ColUngs (1 Taun- 
 ton's R., 19), where it was held, that a covenant by a ten- 
 ant to yield up -in repair, at the expiration of his lease, all 
 buildings which should be erected during the term upon the 
 demised premises, included buildings erected and used by 
 the tenant, for the purpose of trade and manufacture, if 
 such buildings were let into the soil, or otherwise fixed to 
 the freehold, was not an authority that the pans in the case 
 at bar were included, because the pans simply rested upon 
 blocks or pattens, and that in Naylor v. ColUngs, it was ex- 
 pressly declared that such articles were not included in the 
 term fixtures. 
 On the contrary, the counsel for the landlord argued, that 
 
 25
 
 194 LAW OF FIXTURES. 
 
 the s^xU-ioorls necessarily included the pans, as the works 
 would be incomplete, and the brine spring useless, without 
 such pans ; and that the pans were not sj^ecified in the cove- 
 nant to leave in repaii-, because the word icorJcs sufficiently 
 comprehended them, and, it was suggested, that an enumer- 
 ation of particulars was always pregnant with risk of litiga- 
 tion. Tindal, C. J., delivered the opinion of the court, and 
 in respect to the matter bearing upon the subject under con- 
 sideration in this chapter, said: ''The articles, for the re- 
 moval of which the action was brought, consisted of certain 
 salt-pans, in which the brine was brought from the salt 
 spring into the brine-pits ; the salt-pans being made of plates 
 of iron, supported upon brick-work, and having rings upon 
 their sides, by which they were lifted off to be repaired ; 
 the pi])es being metal pipes, partly carried under ground, 
 and partly along troughs supported by tressels. No real 
 distinction, however, appears to us to arise between the 
 salt-pans and the pipes, as to the application of the law 
 which we conceive to apply to the present case. 
 
 "If this had been the ordinary case between landlord and 
 tenant, as to the right of the latter to remove fixtures, or 
 other things erected on the premises, at the end of the term, 
 we should have entertained no doubt but thafthe salt-pans 
 had been removable by the tenant, as well from the nature 
 and description of their annexation to the freehold, as upon 
 the doctrine laid down by Lord Mansfield, in Laioton v. 
 Salmon (1 H. Bl., 259), in note, 'that it would have been a 
 different question if the things had been let, and the tenant 
 had been at the expense of erecting those 'salt- works ; he 
 might very well have said, ' I leave the estate no worse than 
 I found it.' That would be for the encouragement and con- 
 venience of trade, and the benefit of the estate.' 
 
 "But the question before us does not turn upon any gen- 
 eral rule of law, but upon the interpretation of a positive 
 contract into which the parties have entered with each 
 other ; and the point we liave to determine is, whether, 
 nnder that contract, it was the intention of both parties that 
 the salt-pans should be left at the determination of the 
 term, or that the tenant should have the power to remove
 
 CASES OF TRADE FIXTURES. 195 
 
 them" {Sari Mansfield v. Blac7cbur?ie, 6 Bingham'' s H., 
 iV. a, 442, 449 ; S. C, 37 Bq. C. L. R., 442, 449). 
 
 The court, in this case, substantially hold, that salt-pans 
 placed on a frame of brick, and used in the boiling of salt, 
 were parcel of such works, and by declaring, that, as be- 
 tween landlord and tenant, the tenant erecting such works 
 and attaching to them such salt-pans, would be entitled to 
 remove them at the end of his term, virtually decide that 
 the same may be regarded as trade fixtures, and ordinarily 
 removable as such. 
 
 Tn 1833, the Court of King's Bench substantially held that 
 a steam-engine erected by a tenant for the purpose of work- 
 ing a colliery, was a trade fixture and removable as such, 
 provided there was nothing in the terms of the lease between 
 the parties to change the general rule ; and that such a 
 fixture did not come under the description of "goods and 
 chattels" in the English Bankrupt Act. Parke, J., said: 
 "The steam-engine, if affixed to the freehold, does not come 
 within the description of goods and chattels in the Bank- 
 ruptcy Act. This was determined in the case of Horn v. 
 Baker, and since that case, as far as my experience goes, I 
 never knew that any distinction was made between such 
 fixtures as would be removable between landlord and ten- 
 ant, and such as would not be so. But further, the steam- 
 engine was the absolute property of the lessor, and the 
 bankrupt had the same right to use it during the term." 
 
 And Mr. Justice Littledale remarked, that the reason why 
 'property affixed to the freehold is not within the intent of 
 the Bankruptcy Acts was this, that "the possession of such 
 property did not create a visible ownership in the bankrupt, 
 so as to procure him credit" [Coombs v. Beanmont, 5 Barn. 
 & Adolpli. R.,12\ S. C, 27 B/ig. C. L. R., 38). 
 
 The assertion of. Parke, J., that tlie steam-engine in the 
 case was the absolute property of the lessor, was predicated 
 upon the fact, that, by the lease between the parties, the 
 lessee had expressly obligated himself, to deliver up to the 
 lessor, at the expiration of his term, all fixtures on the 
 premises, for his own use and benefit. But for that clause 
 in tlie lease, it is very evident, that the court would have
 
 196 LAW OF FIXTURES. 
 
 regarded the property a movable fixture, as between land- 
 lord and tenant, and yet not "goods and chattels" within 
 the meaning of the Bankruptcy Act. 
 
 The same species of property was virtually declared to be 
 a trade fixture, and consequently removable by a tenant at 
 any time during his term, in a case decided by the English 
 Court of Exchequer, in 1837 ; four years after the decision 
 of the case last cited in the King's Bench. The case in- 
 N'olved the rights of the tenant in certain steam-engines, 
 whimsies, pumps, wagons, iron-rails, and other machinery 
 and implements of a colliery, erected by a tenant, upon 
 demised premises, and affixed in the ordinary way. The 
 action was trover against the sheriff, who had seized and 
 sold the property under an execution against the tenant ; 
 but the question as to the character of the fixtures was 
 before the court, and evidently considered. Parke, B., sa?d : 
 " We must take these engines, on the report of the learned 
 judge, to have been in part affixed in a substantial manner 
 to the freehold, in the ordinary way in wliich steam-engines 
 are erected ; and the law is clearly settled by the case of 
 Lee V. Ulsdon, 7 Taunt. ^ 191, 2 Marsh., 495; and Halleii v. 
 Rundel, 1 C. M. & i?., 266 ; 3 Tyrwh., 959, that every thing 
 substantially and permanently affixed to the soil is, a jix- 
 ture. The principle of law is, that ' quicquld solo plantatur, 
 solo cedit.'' The riglit of a tenant is, only to remove during 
 his term the fixtures lie may put up, and so to make them 
 cease to be any longer fixtures. That right of the tenant 
 enables the sheriff to take them under a writ, for the benefit" 
 of the tenant's creditors. I assent to the doctrine laid down 
 in Gooiiibs v. Beaumont, 5 B. & Ad., 72; 2 N. & 31., 235, 
 and Boy dell v. M' Micliael, 1 G. M. & R., Ill ; 3 Tyrioh., 
 974, that such fixtures are not goods and chattels within 
 the bankrupt law, though they are goods and chattels when 
 made such by the tenant's severance, or for the benefit of 
 execution creditors. * * * These engines, therefore, were 
 never goods and chattels at all, so as to pass to the plain- 
 tiffs. They had only the same right of removal as the ten- 
 ant, which certainly ceased in June, 1829, when the tenancy 
 was determined, and that right of removal would not have
 
 CASES OF TRADE FIXTURES. 197 
 
 enabled hl7n, to sue in trover for them, even during his 
 term. The judgment in Davis v. Jones (2 B. & Aid., 165), 
 proceeded entirely on the ground that the jibs, which were 
 the subject of the action, were not fixtures at all, but were 
 personal chattels. Here there is no doubt that the steam- 
 engines were left affixed to the freehold after the expiration 
 of the term, and after the plaintiffs had any right to con- 
 sider themselves tenants" {Mlnshall v. Lloyd, 2 Meeson 
 & Welshy's R., 450). 
 
 Precisely to the same effect is another case decided by the 
 same court, the following year, in the year 1838. The action 
 was trover for fixtures and furniture, in which it appeared, 
 that the plaintiff was an innkeeper at Liverpool, and the 
 defendants his assignees in bankruptcy ; and that the defen- 
 dants had put up to sale* by auction the fixtures and furni- 
 ture in question, together with the plaintiff's lease and the 
 goodwill of his business. The fixtures at the time of the 
 sale remained fixed to the freehold, as they also did at the 
 time of bringing the action. Parke, B., in giving judgment 
 against the plaintiff, said: '-'Minshall v. Lloyd \^ a direct 
 authority on this point. I gave ray opinion in that case not 
 on my mere impression at the time, but after much consid- 
 eration of this point — that the principle of law is, that 
 whatsoever is planted in the soil belongs to the soil — quic- 
 quid plantatur solo, solo cedit ; that the tenant has the 
 right to remove fixtures of this nature during his term, or 
 during what may (for this purpose) be called an excresence 
 on the term ; but that they are not goods and chattels at 
 all, but parcel of the freehold, and as such not removable 
 in trover. That case is a direct authority ; and I think it 
 was a correct decision" {Mackintosh v. Trotter, 3 Meeson 
 & Welsby's R., 184). 
 
 The same kind of fixtures were held to be trade fixtures 
 by the same court, two years later, in 1840, although the 
 action turned upon the rights of the tenant in the property 
 after the termination of his lease. The action involved the 
 title to a steam-engine boiler, put up by a tenant upon the 
 demised premises. Alderson, Baron, in giving judgment 
 said: "The rule to be collected from the several cases
 
 198 LAW OF FIXTURES. 
 
 decided upon this subject seeras to be this, that the tenant's 
 right to remove fixtures continues during his original term, 
 and during sucli further period of possession by hitn as lie 
 holds the premises under a riglit still to consider himself as 
 a tenant" {Weeton v. Woodcock, 1 Meeson & Welsh]/ s H., 
 14). Clearly, if the learned baron had not regarded the 
 steam-engine boiler, such a fixture, as the tenant would 
 have a right to remove, as the principle applicable to trade 
 fixtures, as between landlord and tenant, the language 
 quoted would have been impertinent and uncalled for. 
 
 In a case decided by the Court of Common Pleas in 1855, 
 a ladder, crane, and a bench fixed up in demised premises 
 by a tenant, and fastened with nails or screws to the fioor 
 at the bottom, and to the joists at the top, the ladder being 
 the only mode of access to the room or loft above, which 
 was occupied as a wareroom ; the bench was fixed to the 
 wall, and the other things were fastened in the usual way, 
 were held to be movable by the tenant, during his term, 
 provided they were put up for purposes of ornament or 
 trade. But in the absence of any thing to show that they 
 were so put up for purposes of ornament or trade, it was held 
 that trover would not lie for them. The real question 
 before the court was, as to whether trover would lie for the 
 fixtures, but, from the questions discussed and considered, 
 the case may be regarded as a precedent upon the subject 
 of fixtures for purposes of trade. It appeared that the 
 fixtures might have been removed without injury to the 
 freehold. The question arose between the tenant who put 
 up the fixtures, and the tenant who succeeded him in the 
 occupation of the demised premises. They were left by the 
 outgoing tenant, who subsequently demanded them from 
 the incoming tenant, and on his refusal, either to pay for 
 them or to deliver them uj), the action was brought. 
 
 The counsel for the outgoing tenant, understood the 
 question to be, whether the articles were fixtures, so as not 
 to be the subject of an action of trover ; and they argued 
 that they were not. They said, the ladder and the crane 
 were merely fixed at the top and bottom for the purpose 
 of keej)ing them steady for use as chattels ; the articles
 
 CASES OF TRADE FIXTURES. 199 
 
 were never so fixed to tlie premises as to cease to have the 
 character of movable chattels. 
 
 To this last position of the learned counsel, Maule, J., 
 said : " Appljdng an adequate force, every thing is remov- 
 able ; it is in all cases but a question of degree." The 
 counsel continued at great length, and reviewed a large 
 number of authorities where it had been held that similar 
 articles, though fixtures in one sense, were such, as, being 
 removable without injury to the freehold, might be dis- 
 trained for rent ; arguing therefrom, that the fixtures in ques- 
 tion were not such as the tt^ant was bound to remove before 
 the expiration of his term, or lose his entire property in them. 
 
 On the contrary, the counsel for the incoming tenant 
 argued that if tlie artick^s in question were trade fixtures, 
 which the tenant might remove before the expiration of his 
 term, still, his having left them when his term expired, and 
 he removed from the demised premises, they became im- 
 movable, and the property of the landlord ; and hence, that 
 the incoming tenant could not be made liable in trover for 
 detaining them from the outgoing tenant. Among other 
 things, the learned counsel said: "In Hellaioell v. East- 
 wood (6 ExcJi.^ 295), the question was, whether machinery 
 fixed for the purposes of manufacture by means of screws, 
 some into the wooden floors of the mill, and some by being 
 sunk into the stone flooring, and secured thus by molten lead, 
 were distrainable for rent. They were things in which the 
 landlord had a contingent interest as landloi'd, if not re- 
 moved during the term. The landlord waived his right ; as 
 against the tenant they were personal chattels. There, as 
 well as in Davis v. Jones (2 B. & Aid., 165), the articles in 
 question were trade fixtures." Here Jervis, C J., inter- 
 rupted and said : "So may those be ;" to which the counsel 
 replied: "There was no evidence that they were;" fyid 
 finally concluded their argument as follows: "There was 
 no evidence of any severance in this case. A vane attached 
 to the roof of a house, though in a certain sense not fixed, 
 inasmuch as it is intended to turn with the wind, would 
 nevertheless go with the house. So, here, the crane being 
 so fixed as to swing does not make it any other than a fix-
 
 200 LAW OF FIXTURES. 
 
 ture ; it would not be available as a source of power unless 
 fixed. • It is not, therefore, motion, but locomotion, that de- 
 fines a chattel of the character of a 'fixture.' Upon the 
 whole, it is submitted that all these articles were fixtures, 
 and that, whatever right the tenant might have had to dis- 
 annex them during the continuance of his possession in tlie 
 character of tenant, he lost that right by omitting to avail 
 himself of it at the proper time."* 
 
 Maule, J., delivered the judgment of the court, and said : 
 "In the case of Wilde v. Waters^ which was tried before 
 me at the sittings in London in Easter Term last, leave was 
 reserved to the defendant to move to enter a nonsuit. A 
 motion was accordingly made to that effect, and tlie case 
 was ai'gued early in the last term, before the Lord Chief 
 Justice, my Brothers Cresswell and Crowder, and myself. 
 My Lord, being engaged at JS'isi Frius, has desired me to 
 express our joint opinion. 
 
 It appears that this was an action of trover brought to re- . 
 cover the value of certain goods. The goods in question 
 consisted of fixtures, — amongst others, a ladder, a crane, 
 and a bench. * * * General!}^ speaking, no doubt, fixtures 
 are part of the freehold, and are not such goods and chat- 
 tels as can be made the subject of an action of trover. But 
 there are various exceptions to this rule. * * * In the pres- 
 ent case, however, there is nothing special or peculiar in 
 the fixtures, the value of which is sought to be recovered. 
 Neither the ladder, the crane, nor Mie bench was ornamen- 
 tal. There was nothing in the manner in which they were 
 affixed to the premises at all special or peculiar; nothing 
 to take the "case out of the ordinary rule. They were put 
 up in the oidinary way, and for the ordinary use and con- 
 venience of the premises to which they were affixed. The 
 
 *fii a case decided by the English Court of Exchequer in 1855, Piatt, Baron, said : 
 " So long as the chattel is annexed, it is in some sense a fixture, but the tenant's 
 right to remove, or obligation to leave it, may depend upon the subject demised. If 
 a landlord demised a house with grates or gas-fittings at an entire rent, they would 
 belong to him at the expiration of the term.. But, if he had let the house unfur- 
 nished with those conveniences, and the tenant, for the enjoyment of his occupation, 
 fixes tliem in the house, the tenant, unless he had contracted to leave them behind, 
 might undoubtedlj- remove them during his term."
 
 CASES OF TRADE FIXTURES. 201 
 
 ladder was nailed to the floor and the Joists above, and was 
 the only mode of access to the loft ; the crane was in like 
 manner fixed to the floor and the joists above, in the usual 
 way ; and the bench was flxed in the usual manner to.the wall. 
 
 "We therefore think that these articles fell within the gen- 
 eral rule" {Wilde v. Waters, 16 Common Bench R., 637, 
 651 ; /S'. a, 81 Eng. C. L. R., 637, 650). 
 
 There is no doubt that the flxtures in this case, if put up 
 by the tenant for the purposes of trade, would come within 
 the rule as to trade fixtures, and be removable by the tenant 
 during the continuance of his term. It is doubtful whether 
 the case showed that they were put up by the tenant for such 
 purposes ; and if they were not, they were affixed in such a 
 way as to fall within the general rule as belonging to the 
 freehold. But, even if they had been shown to be trade 
 flxtures, the question would still remain, whether the tenant 
 had not lost his right to tliem by leaving tliem on the de 
 mised premises at the expiration of his term. 
 
 Another important case came before tlie same court in the 
 year 1856, which turned upon the construction given to the 
 lease between the parties, but nevertheless has an important 
 bearing as a precedent upon the question now under con- 
 sideration. The facts of the case as found, by an arbitrator, 
 were as follows : A tenant leased a certain house in Wool- 
 wich, England, for the purpose of carrying on therein the 
 trade and business of a linen-draper. When he took posses- 
 sion of the house in question, there was in it an ordinary 
 shop sash-window, which, being unsuited to his business, 
 and unfit for tlie proper display of his goods, was removed 
 by him, and a plate-glass shop-front or window substituted 
 in its place. This plate-glass shop front or window was 
 brought to the house in question completely made, and then 
 placed in its position, having above it the brestsummer of 
 the house, below it the window-sill, and on each side of it 
 the two story-posts. Several wooden wedges, about 2^ inches 
 in thickness, were then inserted between the plate-glass 
 front or window-frame and the story-posts, which had the 
 effect of keeping the plate-glass front or window securely in 
 its position. No screws, nails, or glue were used in fixing 
 
 26
 
 202 LAW OF FIXTURES. 
 
 it in its place. AVlien the wedges were withdrawn, — which 
 could be easily done, — the plate-glass front or window could 
 be lifted out of its place, and could be removed entire. At- 
 tached to the edge of the window-frame, and projecting a 
 little therefrom, ran a kind of wooden headmg called a 
 shutter- stop, which covered and concealed the wedges, and 
 prevented the shutters from touching and injuring the plate- 
 glass front or window-frame. This shutter-stop was not 
 connected with the brestsumraer, the story-posts, the win- 
 dow-sills, or with au}^ part of the fabric of the building, but 
 formed a part of the plate-glass front or window itself. The 
 intention of the tenant in fixing tlie plate-glass front or win- 
 dow in the manner mentioned, w^as to enable him to remove 
 it when he should think proper. He did remove it entire 
 during his term, and placed it in other premises belonging 
 to him, and at the same time replaced in the demised prem- 
 ises the sash-window which he had previously removed as 
 aforesaid, without thereby doing any injury to the demised 
 premises. The action was brought by the lessor to recover 
 the value of the plate-glass front or window. • 
 
 On the foregoing facts, found by the arbitrator, applica- 
 tion Avas made to the court, r?i banco, for judgment. 
 
 On the part of the plaintiff, it was contended that upon 
 the facts found by the arbitrator in the case, the defendant 
 had no right to remove the plate-glass front ; that it was a 
 "fixture'' within the meaning of the covenant. Here, 
 Cresswell, J., interposed and said: "It is found as a fact 
 that the shop-front w-as not fixed:' To which the counsel 
 replied : " If not a 'fixture,' it w^as at aU events an 'improve- 
 ment ' within the terms of the covenant." The counsel con- 
 tinued at considerable length to examine authorities upon 
 the point, and concluded that the window was so fixed that 
 it could neither have been taken in execution on a fieri 
 facias, nor distrained for rent ; and hence that it was cov- 
 ered by the terms of the covenant. 
 
 On the part of the defendant, the points marked for argu- 
 ment, were : "1. That the plate-glass front having been found 
 not to be a fixture in point of fact concludes the plaintiff, as 
 the question whether in point of law a thing is a fixture or
 
 CASES OF TRADE FIXTURES. 203 
 
 not only arises when the thing is actually affixed, but for 
 some reason is excepted out of the general rule that what is 
 attached to follows the freehold. 2. That if it is open to 
 the plaintitf to say that the plate-glass front is in fact a fix- 
 ture, it is a trade fixture, and that trade fixtures are not 
 within the covenant. 3. That the covenant to surrender 
 does not refer to a plate-glass front temporarily set up for 
 the better display of trade goods, and that a plate-glass 
 front is not an 'improvement' within the meaning of the 
 covenant, the word 'improvement,' after the words 'erec- 
 tions and buildings,' must mean improvements ejusdem gen- 
 eris 'erected, built, and made upon' the demised premises." 
 
 The counsel elaborated his points in the argument, and 
 finally insisted, that the plate-glass front or window was 
 clearly neither an "improvement" or a "window," within 
 the terms of the covenant. 
 
 The court, without stopping to consider whether the plate- 
 glass shop-front was an "improvement" within the meaning 
 of the covenant, or whether it was so fixed to the freehold 
 as to belong to the landlord, were clear that it was a "win- 
 dow" within the meaning of a clause in the lease, and hence 
 decided that the tenant had no right to remove it {Burt v. 
 Haslett, 18 Common Bench i?., 162 ; 8. G., 86 Eng. C. L. R., 
 161). Although the question was not expressly decided, 
 because not required, it is doubtless safe to infer from the 
 discussions of counsel, and the tenor of the remarks of the 
 judges, that a fixture of the description of the one involved 
 in the case of Burt v. Haslett, when put up by a tenant, in 
 the manner and for the purpose, stated in that case, would 
 be regarded as a "trade fixture" within the rule, and 
 clearly removable by the tenant, within the time during 
 which such fixtures may be removed. 
 
 And yet another important case may be noted, which was 
 decided by the English Court of Common Pleas, in 1859, as 
 indicative of what may be considered trade fixtures, and 
 removable, as between landlord and tenant, although tlie 
 case is more properly a precedent in other branches of the 
 subject of fixtures. The action related to certain erec- 
 tions made by a brewer and innkeeper and proprietor of
 
 204 LA W OF FIXTURES. 
 
 baths. The articles in controversy were a steam-engine 
 and boiler, a hay-cutter, a malt-mill or corn-crusher, and a 
 pair of grinding-stones, — the steam-engine being used for 
 supplying water to the baths, and also for setting in motion 
 the hay-cutter, malt-mill, and grinding-stones ; the hay- 
 cutter, and malt-mill being fastened to the buildings with 
 screws and nuts, but being capable of being removed with- 
 out injury to the premises or to themselves ; and the lower 
 grinding-stone being boxed on to the floor, and the u})per 
 stone attached with running-gear in the usual way. The 
 whole were put up for the purposes of trade. The articles 
 were claimed by the assignees of the bankrupt owner of the 
 freehold, on whose behalf it was contended, that the things 
 were not fixtures at all, because not permanently attached 
 to the freehold, but were mere movable chattels which 
 passed to the assignees ; or, if fixtures, having been put up 
 by the bankrupt for purposes of trade, they were removable 
 by the bankrupt before his bankruptcy, and consequently 
 upon his bankruptcy became the property of the assignees. 
 The counsel referred to several cases to sustain their posi- 
 tion, and among others, an authority respecting "trade 
 fixtures," when Byles, J., interrupted and said: "The 
 question tliere arose between landlord and tenant." 
 
 On the contrary, the counsel opposed, admitted that, as 
 between landlord and tenant, the latter is at liberty to 
 remove trade fixtures, and by implication conceded, that 
 the articles in question were trade fixtures ; but they in- 
 sisted, that the rule did not apply in this case, because it 
 was not a case between landlord and tenant ; that as between 
 the parties to this controversy, the articles were clearly 
 fixtures, and belonged to the freehold. 
 
 The court seems to have concurred in these latter views ; 
 Crowder, J., saying: "On the part of the plaintiff it was 
 contended, — first, that the articles in question were not fix- 
 tures at all, because not permanently attached to the free- 
 hold, but simply movable chattels, which therefore passed 
 to the assignees of the bankrupt, — or, secondly, that, if 
 fixtures, they were trade fixtures, and therefore removable 
 by the bankrupt, and so would pass to his assignees.
 
 CASES OF TRADE FIXTURES. 205 
 
 "The case of Hellawell v. Eastwood (6 Excli., 295), was 
 cited in support of the first proposition. * * * Now with- 
 out expressing any opinion upon that case, it is sufficient 
 on the present occasion to observe, that, assuming it to be 
 well decided, it is no authorit}^ for holding that the disputed 
 articles in the case at bar are not fixtures forming part of 
 the freehold; for, we are of opinion, as a matter of fact, 
 that they were all firmly annexed to the freehold for the 
 purpose of improving the inheritance, and not for any tem- 
 porary purpose. * * * They, therefore, resemble in no 
 particular (excepting fixed to the building by screws) the 
 'mules' put up by the tenant in the case of Hellawell v. 
 Eastwood (6 Exch., 295). 
 
 "But secondly, it was contended on the part of the plain- 
 tiff, that assuming the articles in question to have been so 
 aflSxed as not to be removable according to the general law, 
 yet that, as they were trade fixtures, they might be removed, 
 and so would pass to the bankrupt's assignees. 
 
 "The whole of the plaintifl^'s argument upon this head was 
 founded upon the well-established exception to the general 
 rule, that, when a tenant puts up fixtures for the purpose of 
 trade during his term, he may before its expiration, without 
 the consent of his landlord, disunite them from the freehold." 
 
 The learned judge then examines a number of authorities, 
 and concludes that the bankrupt moi'tgagor in the case was 
 ■ in no sense a tenant, and then adds : "All the cases, there- 
 fore, which show, that, when a tenant for years has put up 
 trade fixtures, he may remove them before his tenancy ex- 
 pires, bear no application to the case at bar" ( Walmsley v. 
 Milne, 1 J. Scott's R., N. 8., 115, 129-133; 8. C, 97 E?ig. 
 C. L. R., 114, 130-132). 
 
 From the foregoing statements extracted from the report of 
 the case of Walmsley v. Milne, it clearly appears, that the 
 court were of the opinion that, when a tenant annexes fix- 
 tures to the leasehold premises of the character, and in the 
 manner described in that case, for the purposes of trade, 
 they will be held to be "trade fixtures," removable as 
 such ; and the case may, therefoie, be regarded as a prece- 
 dent upon this point.
 
 206 LAW OF FIXTURES. 
 
 A late case decided by one of the vice-cliancellors of Eng- 
 land, that is in 1867, may also be cited as a precedent upon 
 the point under consideration, although the case turned upon 
 another question. The controversy was in respect to cer- 
 tain looms put up by a lessee in cotton mills, for his own 
 convenience, during the existence of his term ; and the 
 question involved was, whether the articles were really fix- 
 tures as between landlord and tenant, or whether they re- 
 tained the character of simple goods and chattels. If the 
 looms were to be regarded as fixtures, the right of the ten- 
 ant would be controlled by the rules applicable to trade 
 fixtures, which are much more limited than those applicable 
 to goods and chattels. 
 
 It appeared that the looms were placed on a flag pave- 
 ment within the mill, and worked by means of straps which 
 connected them with the driving shaft of a steam-engine. 
 In order to keep them steady while being worked, a num- 
 ber of small holes about half an inch in diameter were set 
 in the pavement, and filled with plugs of wood. Each loom 
 w^as supported by four legs, each of which terminated in a 
 broad flat piece of iron called the loom-foot, aiid each loom- 
 foot, on the side of the loom opposite to that at which the 
 strap was attached, had a small hole drilled through it of suf- 
 ficient size to admit an ordinary nail to pass tlirough the hole. 
 The looms were then so placed that each hole in a loom-foot 
 was directly above one of the plugs, and a nail was driven 
 through the hole into the plug beneath it. The loom-feet at 
 the end of the loom nearest the driving shaft were left free. 
 
 On the one side, it was contended that these looms were 
 not fixtures as between landlord and tenant, but were merely 
 furniture of the mill, and not essentially a part of the build- 
 ing itself, and evidence was adduced that it was according 
 to the custom of the district where the property was located, 
 to consider looms placed in the mill by the lessee as the fur- 
 niture of the mill, and to value the same as purely personal 
 chattels. On the other side it was argued that the looms 
 were fixtures, and annexed to the freehold ; but that they 
 were nevertheless trade fixtures, and subject to the rules 
 governing such fixtures as between landlord aild tenant.
 
 CAS1£S OP TRADE FIXTURES. 207 
 
 Sir W. Page Wood, V. C, before whom the case was 
 tried, was of the opinion, upon authority, tliat the looms 
 were to be considered as fixtures, belonging to the tenant 
 during the continuance of his term under his lease. In 
 respect to the custom said to prevail, that such articles, 
 thus annexed to the freehold, were not to be regarded as fix- 
 tures, the learned Vice-Chancellor, was of the opinion that 
 the case must be disposed of upon the construction to be 
 given to certain writings between the parties ; and he did 
 not, therefore, consider the circumstances in the case. 
 
 In the course of his remarks, the court referred to a case 
 that was decided in 1855, by the Lord Chancellor, in which 
 this language was used: "By 'fixtures' we understand 
 such things as are ordinarily affixed to the freehold for the 
 convenience of the occupier, and which may be removed 
 without material injury to the freehold, such will be ma- 
 chinery, using a generic term ; and in houses, grates, cup- 
 boards, and other like things." The court then added: 
 "They are those things which an occupier has put up for his 
 own convenience, and he also, for his own convenience, dur- 
 ing the term, or during the existence of his interest, attached 
 to the property which he held" {Boyd v. Sherrock, 5 Equity 
 Cases, 72, 78 ; ^. C, 5 Laio Reporter, 72, 79). 
 
 It is very clear, that looms attached to a building hj a 
 tenant for manufacturing purposes, in the manner those 
 were attached in the case of Boyd v. SherrocJc, are "trade 
 fixtures," as between landlord and tenant ; and unless the 
 tenant, in such a case, should remove them according to the 
 rules governing cases of trade fixtures, they would be re- 
 garded as permanently annexed to the freehold. 
 
 The foregoing are the principal cases to be found in the 
 English Reports upon the rights of a tenant to remove fix- 
 tures erected by him upon the demised premises for pur- 
 poses of trade and manufactures. From the cases examined 
 it will be perceived, that in very early times exceptions were 
 engrafted upon the ancient rule in respect to annexations to 
 the freehold in favor of the tenant's right to remove fix- 
 tures erected for various purposes as against his landlord ; 
 and with regard o things annexed for the purposes of trade.
 
 208 LAW OF FIXTURES. 
 
 the early decisions upon the subject, have generally received 
 the sanction of the superior courts down to the present day, 
 and the right, in modern times, has been very much ex- 
 tended. / 
 
 CHAPTER XIV. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT FOR PURPOSES OF TRADE AND 
 
 MANUFACTURES EXAMINATION OF THE AMERICAN AUTHORITIES UPON 
 
 THE POINT DECISIONS OF THE COURTS OF NEW YORK. 
 
 Havij^g examined the leading cases found in the English 
 Reports upon the subject of "trade fixtures," as between 
 landlord and tenant, it remains to consider the American 
 cases upon tlie same subject. A reference to these cases is 
 important, not only because of the principles enunciated, 
 but for the reason that they may serve as precedents for 
 determining the character of similar cases which may here- 
 after arise. 
 
 The earliest case decided by the courts of the State of New 
 York involving the precise subject of this chapter, came 
 before the old Supreme Court of the State in 1822. The 
 question of fixtures had been before the courts in a few in- 
 stances prior to that date, but not in a case in which the 
 question of fixtures as between landlord and tenant was pro- 
 fessedly examined. In the year 1822, a case came before 
 the Supreme Court, which involved the rights of a tenant 
 from year to year, in a cider-mill and press, erected by her 
 upon the demised premises, at her own expense, and for her 
 own use, in making the cider on the farm leased by her. 
 The cider-mill and press were affixed to the land in the 
 ordinary manner. It was held that the mill and press were 
 accessory to t7i,e trade of making cider ^ and were therefore 
 the property of the tenant, within the principle that trade 
 fixtures are removable by the tenant, as between him and
 
 CASES OF TRADE FIXTURES. 209 
 
 his landlord. Spencer, Cli. J., delivered the opinion of the 
 court, and, among other things, said: "It is admitted, in 
 this case, that the defendant erected the cider-mill and 
 press, at her own cost, during her tenancy, for the purpose 
 of making cider on the farm. I confess, I never could per- 
 ceive the reason, justice or equity of the old cases, which 
 gave the landlord such kind of erections as were merely for 
 the use and convenience of the tenant, the removal of which 
 neither defrauds nor does the least injury to the landlord. 
 The rule anciently was very rigid ; but I think it has yielded 
 materially to the more just and liberal notions of modern 
 times. In Lawtoji v. Lawtoa (1 Atk., 13), the question 
 arose between the tenant for life and the remainderman. 
 The subject of controversy was a fire-engine, set up by the 
 tenant for life, for the benefit of a colliery ; and the point 
 was, whether it should be considered as personal estate. It 
 appeared that, in building sheds for securing the engine, 
 holes were left for the ends of timber, to facilitate removal,' 
 and they were capable of being removed. Lord Hardwicke, 
 after observing that the rigor of the law was relaxed upon 
 this subject, pronounced it a mixed case between enjoying the 
 profits of the land, and carrying on a species of trade. He 
 adverted, with evident approbation, to a decision of Chief 
 Baron Comyns, at the assizes of Worcester, in which the 
 subject of discussion was a cider-mill, and the question was 
 between the executor and the heir. In that case, it was de- 
 cided, that though cider is part of the profits of the real 
 estate, yet it was personal estate, notwithstanding, and 
 should go to the executor. Lord Hardwicke, in the prin- 
 cipal case, decided, that the fire-engine was personal estate ; 
 and he makes a very strong distinction between the rights 
 of a tenant from year to year, as between him and the land- 
 lord, and between a tenant for life and a remainderman. 
 In Laioton v. Salmon (1 H. Bl., 2m, in the notes), Lord 
 Mansfield stated the change that had taken place in the 
 law, as between landlord and tenant. He observed that 
 many things may now be taken away which could not be 
 formerly; such as erections for carrying on any trade, 
 marble chimney-pieces, and the like, when put up by the 
 
 27
 
 210 LAW OF FIXTURES. 
 
 tenant. This, lie adds, is no injury to the landlord, for 
 the tenant leaves the premises in the same state in which 
 he found them, and the tenant is benefited. 
 
 "In the case of Culling v. Ti(f?ial, before Treby, Chief 
 Justice, in 1694 [Bull. iV. P., 34), the tenant rented a 
 barn on the premises, and put it on pattens and blocks, but 
 not fixed in, or to the ground, and moved it off ; he was 
 held to be justified because it was usual to remove such 
 buildings in that part of the country. But BuUer states, 
 that the question could now be decided in favor of the ten- 
 ant without difficulty, for that, of late years, many things 
 are allowed to be removed by tenants, which were not 
 formerly ; and he specially instances cider-mills, which the 
 tenant may now remove. In Dea?i v. Allalbj, (3 Esp. Rep. 
 11), Lord Kenyon held, that the law would make the most 
 favorable construction for the tenant, where he had made 
 necessary and useful erections, for the benefit of his trade 
 or manufacture ; and he said it had been held so, in case of 
 cider-miUs, and in other cases ; and he should not narrow 
 the law, but held erections of that sort, made for the benefit 
 of trade (or constructed as the sheds were in that case), to 
 be removable at the end of the term. In the case of Elwes 
 V. Mem (3 East, 38), the buildings erected by the tenant, 
 and which he removed, were of bricks and mortar, and 
 tiled, and foundations were one foot and a half deep in 
 the ground ; and Lord Ellenborough said, that those were 
 fixtures, and not movable as between landlord and tenant. 
 This case does not call for any expression of an opinion on 
 the correctness of that decision, nor do we intend to approve 
 or disapprove of it. It is very materially different from the 
 present case. Lord Ellenborough refers to the decision of 
 Chief Baron Comyns, in the case of the cider-mUl ; he says, 
 he may have considered it a mixed case, between enjoying 
 the profits of the land, and carrying on a species of trade, 
 and as considering the cider-mill as properly accessory to 
 the trade of making cider ; and I can see no good reason 
 why it may not thus be considered, for cider is an article of 
 trade. He refers, also, to the case before Chief Justice 
 Treby, and admits the tenant might remove the barn on
 
 CASES OF TRADE FIXTURES. 211 
 
 pattens and blocks ; for, he says, they were not fixed in 
 or to the ground, and so they were not fixtures. 
 
 "The plea here states, that the mill and press were annexed 
 to, and parcel of, the farm ; but it does not state how they 
 were annexed ; whether the mill was let into the ground or 
 not. It states a mere matter of law, and not of fact. But 
 it is immaterial whether the mill was let into the ground or 
 not. The tenant, in my judgment, had an unquestionable 
 right to remove it, as personal property" {Holmes v. 
 Tremper, 20 Jolms. R., 29-32). 
 
 This case justifies the space occupied with it here, because 
 it is the earliest case in which the subject now under con- 
 sideration was examined by the courts of the state of New 
 York ; the judgp who wrote the opinion was one of the 
 ablest that ever graced the American Bench, and the de- 
 cision has often been referred to in subsequent cases, and 
 always with approbation. Besides, the question was thor- 
 oughly examined, and the English cases upon the sub- 
 jects, were referred to and noted in the opinion ; all tending 
 to make the case of more than ordinary importance as a 
 precedent. 
 
 The next case in chronological order, in which the prop- 
 erty of tenants in trade fixtures was distinctly recognized 
 by the courts of the state of New York, came before the 
 same distinguished court for adjudication, in the year 1826. 
 
 The action was trover for certain copper stills, or kettles, 
 steam-tubs, coolers, and a worm, which tenants had placed 
 in a stone distillery which they held under a lease, for the 
 purpose of carrying on the distiUing business. The articles 
 were aflixed to the building; the kettles or boilers being 
 masoned up in brick arches, and the steam-tubs and coolers, 
 with the worm, were all connected with the boilers by logs 
 and braces affixed to the building. The court held the ar- 
 ticles to be trade fixtures, and as such, were movable by the 
 tenant during the continuance of his term. 
 
 Sutherland, J., delivered the opinion of the court, and, 
 upon this branch of the subject, observed: "The old rule, 
 that whatever was attached to the freehold, became a part 
 of it and could not be taken away, has been very much re-
 
 212 LAW OP FIXTURES. 
 
 laxed by modern determinations, as betwet»n landlord and 
 tenant. ^* ^ * In Poole's case (1 Sail'., 368), it was lield by 
 Lord Holt, that a soap boiler, during the tenn, might re- 
 move the fats, coppers, &c., which he had set up for the 
 convenience of his trade ; and that he might do it at com- 
 mon law, in favor of trade, and to encourage industry. In 
 Lawton v. Lawton (3 Atk., 12), it was held that a fire-en- 
 gine set up for the beneiit of a colliery, by a tenant for life, 
 was to be considered a part of liis personal estate, and to go 
 to the executor. And Lord Hardwicke observes, that what 
 would have been waste in Henry the 7th' s time, as remov- 
 ing wainscot fixed only with screws, and marble chimney- 
 pieces, is now allowed to be done ; and he adds, coppers 
 and all sorts of brewing vessels cannot possibly be used 
 without being as much fixed as fire-engines. And in brew- 
 houses especially, pipes must be laid through the walls, 
 and supported by walls ; and yet, as they are laid for the 
 convenience of trade, landlords will not be allowed to retain 
 them. * * * These cases very conclusively establish that 
 the tenant in the case now under consideration, had a right 
 at any time during his term to remove the articles in ques- 
 tion from the demised premises" {Reynolds v. Shuler, 5 
 Cow. M., 323, 327, 328). 
 
 In another case before the same court in 1839, the law of 
 fixtures was elaborately examined by Cowen, J., and al- 
 though the case turned upon a different question, the doc- 
 trine was substantially declared, that two double carding 
 machines, a picking machine, a shearing machine, a spin- 
 ning machine, and looms, set up in a woolen factory by a 
 tenant, although affixed to the building, as between land- 
 lord and tenant, they would be regarded as fixtures for 
 trade or manufacture, and removable by the tenant as such. 
 Cowen, J., said: "The question is one between tenants in 
 common, the owners of the fee ; and is, we think, to be de- 
 cided on the same principle as if it had arisen between 
 grantor and grantee, or as if partition had been effected by 
 the parties through mutual deeds of bargain and sale. As 
 between such parties, the doctrine of fixtures making a part 
 of the freehold, and passing with it, is more extensively ap-
 
 CASES OF TRADE FIXTURES. 213 
 
 plied than between any others. As between tenant for life 
 or years and reversioner and remainderman, all erections 
 by the former for the purposes of trade or manufactures, 
 .though fixed to the freehold, are considered as his personal 
 property, and as such, may be removed by him during his 
 term, or be made available to his creditors on a fieri facias'' 
 {Walker Y. Sherman, 20 Wend. R., 636, 638). 
 
 In another case decided by the same distinguished court 
 in 1845, it was held that engines and machinery in a steam 
 planing mill, firmly affixed to the building by a tenant for 
 years, for the purpose of carrying on a business of a per- 
 sonal nature, should be regarded as trade fixtures, as be- 
 tween the tenant and his landlord, and might be removed 
 by the tenant as his personal property. Beardsley, J., de- 
 livered the opinion of the court, and, upon this question, 
 said : "The Jury were instructed that if the plaintiffs recov- 
 ered at all, they w^ere entitled to the full value of all the 
 property destroyed, and this is the only point which remains 
 to be particularly noticed. As to ordinary personal chat- 
 tels there can be no difficulty ; the value of the things de- 
 stroyed is the first measure of damages. And although the 
 engines and machinery by which the mill was moved, may 
 have been firmly affixed to the building, yet, having been 
 so affixed for the purpose of carrying on a business of a 
 personal nature, they were still the personal property of 
 the tenants, and as such removable at theu^ will" {Coolc 
 V. The Champlain Transportation Company, 1 Denio's 
 
 R., 91, 102). 
 
 In the year 1850, a case came before the present Supreme 
 Court of the State of New York, at a Special Term, in which 
 the general subject of fixtures was elaborately and learnedly 
 examined, and it was held, that all the erections connected 
 with a cotton factory, and other mills propelled by water- 
 power, including the dams, water-wheels, and gearing, and 
 machinery fastened to the ground or buildings, erected upon 
 demised premises, were prima facie a part of the freehold, 
 and passed to the remainderman, as between him and the 
 tenant for life ; but that all such buildings and fixtures 
 made or purchased by the tenant for life should be regarded
 
 214 LAW OF FIXTURES. 
 
 as trade fixtures, and belong to the tenant. Hand, J., gave 
 a long and exhaustive opinion, and upon the point under 
 consideration, observed : " Several important questions have 
 been argued in this case. It is contended on the part of th^ 
 plaintiff that most of this property, from its very nature, is 
 personalty, and that were it otherwise, it must all be so con- 
 sidered, in equity, because there is an equitable conversion. 
 
 "What shall be considered fixtures and as such pass with 
 the realty, is often a vexed question, and is not always easy 
 of determination. Different rules prevail under different 
 circumstances, depending upon the relation of the parties 
 and the nature and use of the property. One rule obtains 
 between heir and executor, vendor and vendee, mortgagor 
 and mortgagee ; another between landlord and tenant, 
 whether it be trade or agriculture. Another between the 
 personal representatives of the tenant for life and the re- 
 mainderman or reversioner. Indeed as to machinery, the 
 motive power has been deemed worthy of consideration. 
 Hardly any two decisions can be said to be precisely alike ; 
 each generally having some distinguishing peculiarity. The 
 application of any common principle is therefore very diffi- 
 cult. The old law favored the realty ; but that has been 
 much relaxed in favor of trade. 
 
 Our revised statutes declare that things annexed to the 
 freehold, or to any building for the purposes of trade or 
 manufactures, and not fixed into the wall of a house so as 
 to be essential to its support, shall be deemed assets ; and 
 go to the executor or administrator, to be applied and dis- 
 tributed as part of the personal estate of the testator or in- 
 testate. * * * Formerly whatever w^as affixed to the realty 
 undoubtedly by the mere act of annexation, immediately 
 became parcel of the freehold itself. * * * Amos and 
 Ferard, in their treatise on the Law of Fixtures, say, that in 
 order to constitute a fixture, it is necessary that the article 
 should be let into the ground, or united to it, or to sub- 
 stances previously united therewith {Law of Fix., 2). * * * 
 As between tenant for life and remaiderman or reversioner, 
 the rule in favor of the realty is, as we have seen, some- 
 what relaxed. And I am inclined to think that a tenant
 
 CASES OF TRADE FIXTURES. 215 
 
 for life who erects a fixture for tlie purposes of trade or 
 manufacture, has an equal right, in respect to their removal, 
 with a tenant for years {Law of -Fix., 117), though the cases 
 have perhaps not generally gone so far. But this only ap- 
 plies to those fixtures put up by the tenant. * * * The 
 plaintiff claims as grantee or vendee of Phinehas H. Buck- 
 ley, the husband of Phebe Buckley. If this property was 
 real estate, and Phinehas was tenant by the curtesy, he had 
 the same right to the fixtures annexed to the land as his 
 wife, as an ordinary tenant for life {Law of Fix., 126). A 
 tenant by the curtesy was always liable for waste (2 Saund. 
 B., 252, n. 1 \ 2 Bl., 283). Though tenants for life were not 
 punishable at common law, but were by statute (1 Cruise' s 
 Dig., 69 ; 2 Bl., 283). It has been held that the assignees 
 of a tenant by the curtesy, was not liable {Bates v. Shroeder, 
 13 Johns., 260). But now the assignee is liable (2 B. S., 
 334, § 1). The interest of the plaintiff, as having an estate 
 pur aider vie, on his death perhaps under our statute, 
 would become a chattel real (1 B. S., 722, § 6). But how- 
 ever that may be, if Phinehas H. Buckley possessed this 
 property as tenant by the curtesy, the plaintiff, I think, 
 has all the rights of a tenant for life {Law of Fix., 26). And 
 of course, as to erections placed upon the premises by the 
 Buckleys for the purposes of trade, the question is substan- 
 tially between a tenant for life and remainderman." The 
 learned Judge then proceeds at great length, examining other 
 phases of the case ; and finally gives directions for the de- 
 cree, declaring how two -thirds of the property is to be dis- 
 posed of, or rather the avails thereof, and then directs: 
 " Of the remaining third, the plaintiff is entitled to the value 
 of an estate for the life of Phinehas H. Buckley therein. 
 Also absolutely, to a reasonable proportion of the avails, as 
 owner of one- third of the buildings and fixtures, and im- 
 provements made, built or purchased for the purposes of 
 trade or manufacture, since the death of Townsend McCoun. 
 But this does not include erections, fixtures, &c., repaired 
 merely and not originally made, erected, or entirely rebuilt, 
 or purchased since his death. The remainder of the avails 
 of tills one-third belongs to the children of Mrs. Buckley ;
 
 216 LAW OF FIXTURES. 
 
 the share of Mrs. Riitlierford being subject to any interest 
 to wliicli her husband is entitled" {Buckley v. Bucldey, 11 
 Barb. R., 43, 52, 54, 61, 64, 65, 79, 80). 
 
 Although this case was decided at Special Term, by a sin- 
 gle judge, it is well considered, and much valuable learning 
 is developed in the opinion. It does not appear that any 
 appeal was taken from the judg-ment in the case, and the 
 decision has been often quoted as authority in subsequent 
 cases, and even in the court of dernier resort. It may, 
 therefore, be safely relied upon as a precedent, in cases of 
 trade fixtures, as between landlord and tenant. 
 
 In the year 1856, a case came before the same court, at 
 General Term, which may also be regarded as a precedent 
 in cases now under consideration. It appeared that the les- 
 see of an inn erected a building upon the demised jiremises, 
 for a ball-room. A small room, used as a kitchen, attached 
 to the principal building, was moved a few feet, and some 
 picket fence was removed to clear tlie ground where the 
 ball-room was placed. The ground was graded, and the 
 building placed upon stone pillars, which were sunk into 
 the ground from one to two feet. The pillars were laid up 
 without any kind of cement, and the sills of the building 
 placed thereon, but in no manner attached thereto, except 
 by the weight of the building. The building was not at- 
 tached to any other building upon the premises. It was 
 thirty feet by sixty, and one story high. 
 
 On the one side, it was argued that the building in ques- 
 tion, when erected, became a part of the freehold, and be- 
 longed to the landlord, and that neither the tenant nor his 
 creditors had any right to remove it. And it was insisted 
 that the building was not erected for any purpose of trade 
 or manufacture, nor for agricultural uses, but solely as a 
 part of the dwelling-house, and for the convenience or 
 pleasure of the inmates. 
 
 On the other side, it was insisted that the objection that 
 the building in question was so attached to the freehold that 
 it was not removable, was not before the court, because it 
 was not raised upon the trial, at Wisi Prius ; but that if 
 the question was properly before the court as to whether
 
 CASES OF TRADE FIXTURES. 217 
 
 the building was removable, it was well settled by authority 
 that it was removable. * 
 
 The court decided that the building was the property of 
 the tenant, within the meaning of the mechanic' s lien law of 
 the state, and that proceedings might be instituted against 
 him as the owner of the building, under that act, by persons 
 furnishing materials, with w^hich to construct it. S. B. 
 Strong, J., delivered the opinion of the court, and, upon the 
 question under consideration here, said: ''The principal 
 question in this case is whether Barmore was, to the extent 
 required by the statute, the owner of the building erected 
 by him on the defendant's land. He had constructed it on 
 land occupied by him as a sub-tenant, with the assent of the 
 landlord, at his own expense, for his own use, and with the 
 declared intent (under the circumstances) of removing it 
 when his residence uj)on the land should terminate ; the 
 foundation was to some extent imbedded in the earth, but 
 the building was not in any manner fastened to it, nor to 
 the main building ; and it could be removed without doing 
 any damage to the soil, or to the other erections upon it. 
 The kitchen had been removed, and in doing this some vio- 
 lence had been perpetrated upon tlie dwelling-house. But 
 that was with the knowledge, and I think it may be fairly 
 inferred, with the assent of the owner, and was by no means 
 prejudicial to him. Under these circumstances it seems to 
 me that pursuant to the liberal and just principles which 
 have latterly prevailed, the building was tlie property of the 
 tenant, with the right to remove it away wlien his residence 
 upon the land should terminate" {Ombony v. Jones, 21 
 Barb. B., 520, 529). 
 
 This case was taken to the Court of Appeals, and the judg- 
 ment of the Supreme Court affirmed ; and the case, as it was 
 disposed of in tlie appellate court, is more apparently a pre- 
 cedent upon the jooint under discussion in this chapter, than 
 it is as it was presented in the lower court. In the Court of 
 Appeals, Comstock, J., said: "Barmore being a tenant at 
 will of the premises on which he erected the building in 
 controversy, the first question is, whether the statute 
 (Laws of 1852, ch. 384) is applicable to such a case. The 
 
 28
 
 218 LAW OF FIXTURES. , 
 
 first section declares ' that any person who shall, by virtue 
 of any contract with the owner tJiereqf, perform any labor 
 or furnish any materials in building, &c., any house or other 
 building, &c. (in certain counties of this state), shall have a 
 lien for the value of such labor and materials uj^on such 
 house or building, and upon the lot of land on which the 
 same shall stand, to the extent of the right, title and inter- 
 est, at the time existing of sucJi owner, ^ &c. The term 
 'owner,' as used in this statute, obviously refers to the 
 erection, and not to the land on which it is placed. If the 
 land is owned by one person, and the building by another, 
 it is only the title of the latter which can be affected by the 
 lien. If he has any interest in the land, that will be in- 
 cluded in the same charge. In short, the statute, in its 
 terms and policy, is adapted to the case of a fixture remova- 
 ble by a tenant, not less than to cases, more common, where 
 the owner of the freehold himself makes and owns the im- 
 provement. If, therefore, Barmore had the right to remove 
 the erection, it became subject to the lien of the jjlaintiffs 
 for materials furnished, and they could acquire a good title 
 by a sale under a judgment against him, obtained according 
 to the statute. 
 
 "Barmore was a tenant at mil under Wynant, who had a 
 lease of the i)remises for five years. * * * The only ques- 
 tion which has occasioned any considerable doubt is, whether 
 the building put up by Barmore was an erection which he 
 had a right to remove, his tenancy being qualified by no 
 agreement on that subject. He was the tenant of a large 
 hotel and boarding-house, and, as accessory to the business 
 of keeping the establishment, he put up a ball-room adjoin- 
 ing, sixty feet by thirty in its dimensions, built of wood. 
 There was nothing in the mode of its annexation to the soil, 
 or to the main edifice, which necessarily imputed to it the 
 legal characteristic of immovability. It could be detached 
 and taken away without injury to the reversion. Beyond 
 all doubt, it would be real estate, as between vendor and 
 vendee of the land, or between the heir and executor of the 
 owner. But the rule of law prevailing in these relations is 
 by no means decisive of the present question.
 
 » CASES OF TRADE FIXTURES. 219 
 
 " In a somewhat recent case in the Supreme Court of this 
 state, it was said by an able judge, 'that amj person who 
 has a temporary interest in land, and who makes additions 
 to it or improvements upon it, for the purpose of better use 
 and enjoyment of it while such temporary interest continues, 
 may, at any time before his right of enjoyment expires, right- 
 fully remove such additions and improvements ' {King v. 
 Wilcomb, 7 Barb., 266 ; Dubois v. Kelly, 10 id., 500). The 
 rule, as thus stated, is, I think, laid down somewhat too 
 broadly. The adjudged cases, I am confident, do not sus- 
 tain a distinction so general. * ^ * The building now in 
 question was, in its nature, real estate. Admitting that un- 
 der the law of fixtures it could be removed by the tenant 
 and placed in another situation, it would still be real estate, 
 unless fixed in its new situation under circumstances like 
 those which justified the removal from its original site. 
 There are, in the books, many examples of movable fix- 
 tures, which become chattels the moment they are severed, 
 and have none of the characteristics of land. That cannot 
 be said in the present case. A building is, in its very na- 
 ture, an annexation to land, and it becomes a chattel only 
 by the application of some exceptional rule. The mode of 
 annexation may be material when the question is one of de- 
 parture from the general law in the particular relation of 
 landlord and tenant, or the anjj^logous one, in this respect, 
 of tenant for life, or remainderman or reversioner. 
 
 " I have looked at many cases on this subject, but I do not 
 think it necessary or useful to cite them at large. The 
 most comprehensive of the exceptions which they establish 
 is that of fixtures put up for the pui-pose of trade or manu- 
 facture ; and this exception has certainly been applied with 
 great liberality. It has been held to include improvements 
 o^^ agricultural lands, which combined also some of the ele- 
 ments of trade. It has also been extended to various occu- 
 pations having an afiinity or resemblance to trade, although 
 hardly included in the usu^l definitions of that term {Fe- 
 rard on Fixtures, 61, 69, and notes; 20 Johns., 29; 4: Pick., 
 310 ; 2 Fast, 91 ; 7 Taunt., 131). The keeper of an inn or 
 hotel, in some sense, exercises a trade. In the English bank-
 
 220 LAW OF FIXTURES. 
 
 ruj)t system lie is a trader, being so expressly declared by 
 statute (6 Geo. IV, ch. 16, § 2). Although his right to re- 
 move fixtures and erections put up by him as a tenant, for 
 his own convenience or profit in that business, has not been 
 settled by adjudication, yet I incline to think that the spirit 
 of the decisions will carry us to that extent. Adopting that 
 conclusion, as I do with some hesitation, it is decisive of the 
 present question." 
 
 Grover, J., in his opinion, said : "The defendant claims 
 that the building in question formed part of the real es- 
 tate, and that Barmore had no right to remove it from 
 the demised premises. As between vendor and vendee, 
 mortgagor and mortgagee, there can be no doubt that the 
 building would constitute a part of the realty and pass 
 with it. Unless Barmore, as tenant, had the right of removal, 
 the plaintiff acquired no title to the building, and the mo- 
 tion for a nonsuit should have been granted. The premises 
 were used as a public house. The building in question was 
 erected for the accommodation of the business. It falls 
 within the reason of the rule conferring upon tenants the 
 right of removing buildings erected for the purpose of trade 
 and manufacture. There can be no reason why a tenant en- 
 gaged in keeping a boarding-house, a tavern or livery stable 
 upon demised premises and requiring additional accommo- 
 dations, should not be at liberty to construct buildings and 
 remove the same at the end of his term, that will not apply 
 with equal force to buildings erected for the purpose of 
 manufacture. The distinction between erections for trade 
 and agriculture rests upon artificial reasoning not very satis- 
 factory, but is perhaps too firmly established to be disre- 
 garded. The building in question is more nearly allied to 
 the former than to the latter class, and should be treated as 
 an erection for the purpose of trade. Within tlie rules es- 
 tablished in regard to those there can be little difficulty in 
 sustaining the right of Barmore to remove it" {Omhony v. 
 Jones, 19 N. Y.R., 234, 237, 239-243). 
 
 The case of Omhony v. Jones, in the light in which it 
 was treated by the Court of Appeals, will serve as a very im- 
 portant precedent in cases of trade fixtures, as between land-
 
 CASES OF TRADE FIXTURES. 221 
 
 lord and tenant. The rule in favor of tenants to remove 
 trade fixtures, liad not before been extended quite so far, in 
 terms, as to comprehend a structure of the character of the 
 one in question in this case. It is proper to suggest, how- 
 ever, that the Judgment in the case was dissented from by 
 two able judges, who sat upon the hearing of it, but all the 
 remaining judges concurring, it became an authority of the 
 court of last resort in this state, and the judgment stands 
 well approved at the present day. 
 
 In 1862, another case came before the Court of Appeals of 
 the State of New York, in which it was substantially held, 
 that a tenant for years who had erected certain warehouses 
 on the demised premises for the use of himself and his cus- 
 tomers, and to rent to others, had a right to remove the 
 buildings at the expiration of his term. The action was 
 brought by the tenant against a wrongdoer for damaging 
 the buildings during the tenancy, and the ground was taken 
 that there could be no recovery, because the buildings, as 
 between landlord and tenant, belonged to the freehold. The 
 court evidently held that the buildings were the property 
 of the tenant, although it was declared, that, if the tenant 
 was entitled to remove the buildings on the expiration of 
 his term, there was a direct injury to his property; but 
 that, if the buildings became part of the freehold, his lia- 
 bility to the landlord for tortious waste would entitle him 
 to maintain an action against a wrongdoer ; so that in any 
 event the tenant could recover for the damage. Wright, J., 
 in his opinion, said: "Are the plaintiffs entitled to main- 
 tain the action ? It was alleged in the complaint, and ad- 
 mitted by the answer, that the plaintiffs were the lessees 
 of the pier lots, and had erected thereon buildings or ware- 
 houses for their own use, and to rent to others. They had, 
 therefore, erected and oioned the building injured.''' 
 
 Allen, J., said: "It was alleged in the complaint and 
 admitted in the answer, that the plaintiffs had been, from 
 the 1st of June, 1850, a time long anterior to the injury com- 
 plained of, and still were, ' lessees of certain lots and prem- 
 ises of the firm in front of the city of Albany, and had erected 
 there certain buildings or warehouses for the use of them-
 
 222 LAW OF FIXTURES. 
 
 selves, their customers, and to rent to others.' The damages 
 claimed and recovered were for injuries to their buildings. 
 * * * If they owned the buildings, with the right of removal 
 at the expiration of their term, the destruction of them was 
 a direct injury, for which an action lay for the present value 
 of the property destroyed" {Austin v. The Hudson River 
 B. R. Company, 25 N. Y. R., 334, 340, 343, 344). 
 
 In 1861, an important case was decided by the Supreme 
 Court of New York, wherein it appeared that tenants leased 
 certain premises to be used for the purposes of a soda, sale- 
 ratus and drug factory and mill. The tenants went on and 
 put upon the demised premises a steam-engine, pans, ket- 
 tles and boilers, at their own expense, for the use of their 
 trade and business. The boilers were held in their place 
 by masonry having five ii'on bolts running through the 
 same and over the boilers, passing through the wall of the 
 building, and fastened by nuts on the opposite wall. The 
 tenants claimed the right to remove the property at the 
 expiration of their lease, and the landlord sought to restrain 
 them by injunction. The injunction was ultimately denied 
 by the court, upon the ground that the articles annexed to 
 the demised premises were trade fixtures, and subject to re- 
 moval by the tenants. 
 
 Brown, J., delivered the opinion of the court, and, among 
 other things, said: "The real question is upon the nature 
 and character of the property sought to be removed. Was 
 it i)ersonal proj)erty, or were the articles or fixtures annexed 
 to and a part of the freehold \ As between landlord and 
 tenant I have no hesitation in saying that they were not 
 fixtures. They were the personal property of the ten- 
 ants and subject to their removal. I know of no rule of 
 justice or reason by which the landlord can assert any title 
 to the property. It never was his, and he contributed 
 nothing to its erection. It was the property of the tenants, 
 put upon the demised premises by them with the assent of 
 the landlord, and for the consideration of the annual rent 
 reserved in the lease. It can be removed without injury to 
 the freehold, or prejudice to the landlord" {Kelsey v. Dur- 
 kee, 83 Barb. R., 410, 413),
 
 CASES OF TRADE FIXTURES. 223 
 
 The language of Justice Brown, as expressed in liis opin- 
 ion, in the case last cited, would justify the inference, that 
 the learned judge considered that the property in question 
 was never made a fixture. But the real ground of the de- 
 cision was, that the annexations were trade fixtures, and 
 removable by the tenants as such. Fixtures of this kind 
 have often been spoken of by courts in the United States as 
 personal property, even while attached to the soil. As they 
 were the personal property of the party attaching them to 
 the soil before they became fixtures, and as he has the right 
 to remove them at any time, and again convert them into 
 personal property, courts have sometimes seen proper to 
 hold them all the time as such. Under this view of the 
 case, actions of trover have sometimes been sustained for 
 fixtures that were never removed or detached from the free- 
 hold. In all these cases, the courts call the things which are 
 the subject of litigation personal property ; that is, things 
 attached to the land, but with a privilege on the part of 
 some one other than the owner of the land to remove them. 
 It was evidently in this sense that the trade fixtures in con- 
 troversy in Kelsey v. DurJcee, were called by the learned 
 judge in his opinion, personal property. 
 
 And in 1860, the same court held, that a brick chimney 
 which was sunk three feet into the ground for a foundation, 
 and pierced the roof, and could not be removed without 
 being taken down, together with machinery, which were 
 erected and put into the building by the tenant for the pur- 
 poses of trade, were not fixtures, but might be removed by 
 him on being dispossessed for non-payment of rent. 
 
 Brown, J., said: "The character of the belts, shafts and 
 pulleys admits of no manner of doubt. They were clearly 
 not fixtures, not so attached to the freehold as to become a 
 part of the realty. The chimney was a thing somewhat dif- 
 ferent, and in its nature partook more of the character of a 
 fixture than the other articles, for it was built of brick and 
 mortar, was sunk some three feet in the ground before it 
 came to a secure foundation, contained some 1,200 brick, and 
 projected up through the roof of the building, where they 
 were connected together. It was not movable without tak-
 
 224 LAW OF FIXTURES. 
 
 ing it down, and was in every respect a ponderous structure. 
 Nevertheless, under the circumstances of the present case, 
 it was not a fixture. The rigor of the ancient law of fix- 
 tures has yielded, and must continue to yield, to the con- 
 tingencies of modern times. The law must take notice of 
 trade and manufactures and their wants, and att'ord to them 
 adequate and appropriate protection" {Moore v. Wood, 12 
 Abb. Pr. R., 393-395). 
 
 CHAPTER XV. 
 
 LAW OP FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT FOR PURPOSES OF TRADE AND 
 
 MANUFACTURES EXAMINATION OF THE AMERICAN AUTHORITIES UPON 
 
 THE POINT DECISIONS OF THE COURTS OF MASSACHUSETTS THE 
 
 RULE IN MAINE AND THE OTHER NEW ENGLAND STATES. 
 
 In continuing the current of American decisions upon the 
 law of fixtures, as between landlord and tenant, in respect 
 to erections made by a tenant for purposes of trade and 
 manufactures, it was held by the Supreme Judicial Court 
 of Massachusetts, in 1864, that platfoi-m scales, set in an 
 excavation in a highway and extending under a building 
 upon adjoining land and put into a room to which a part 
 of the scales by which the weight was ascertained was 
 firmly attached, were a fixture ; but if placed there by a 
 tenant, the tenant was entitled to remove them before the 
 explication of his term. 
 
 Gray, J., delivered the opinion of the court, and said: 
 "Fixtures annexed to real estate become a part of it. If 
 annexed by the owner of the land, they pass with it by a 
 sale or mortgage from him, or by a levy of execution for 
 his debt ; and if he dies intestate seised of the land and fix- 
 tures, they go to the heir as against the executor. If an- 
 nexed by a tenant for purposes of trade, or some other 
 immediate or temporary uses, or for ornament, he may in-
 
 CASSS OF TRADE FIXTURES. 225 
 
 deed, wliile remaining in possession, sever tliem from the 
 land, and thus change their character back again from 
 realty to personalty ; but if, without having done so, he 
 voluntarily quits the premises at the expiration of his tenn, 
 without any special agreement with his landlord, neither 
 he nor his vendee can afterwards claim them against the 
 owner of the land. -^ * * 
 
 The platform scales, to recover the price of which this 
 action is brought, are shown by the bill of exceptions to 
 have been set into the soil, and firmly attached to the build- 
 ing. The earth had been displaced, and a wall built around 
 the excavation, to receive the platform. To remove the 
 platform and scales would leave this excavation under and 
 in front of the building, and deface the room to which the 
 weighing apparatus was fastened. They were as much a 
 part of the freehold as a furnace or fire frame, or dyer's ket- 
 tles, fixed in brick-work, in the cases mentioned. 
 
 It does not appear by the bill of exceptions whether 
 Holmes & Hubbard, the plaintiff's vendors, were th^ own- 
 ers or the tenants of the building, nor by whom the scales 
 were put in. But assuming (as most favorable to the plain- 
 tiff) that Holmes & Hubbard were tenants only, and had 
 themselves put in the scales, the utmost right which they 
 could exercise or transfer, without their landlord's assent, 
 was to remove tlie scales during their occupation, and thus 
 make them personal property " {Bliss v. Whitney, 9 Allen'-s 
 M., 114, 116). 
 
 In this case, it is quite palpable from the drift of the 
 opinion delivered, that the court was prepared to hold that 
 platform scales affixed to the realty in the manner these 
 were, when placed there by a tenant for his own use, are to 
 be regarded as trade fixtures, as between landlord and ten- 
 ant, and removable by the tenant as such. 
 
 The same distinguished court, inferentially held, at a later 
 date, in 1867, that a trip-hammer firmly attached to a block 
 set in the ground ; blower of a forge ; a force pump and its 
 pipes, for raising water on the premises ; and shafting fast- 
 ened to the building by screws and bolts, if erected by a 
 tenant upon demised premises for trade or manufacturino- 
 
 29
 
 226 LAW OF FIXTURES. 
 
 purposes, would be regarded as trade fixtures as between 
 landlord and tenant ; tliougli in the case before the court, 
 it was decided that the party who erected the fixtures, did 
 not sustain the relation of a tenant to the owner of tlie 
 freehold, and, therefore, they could not be legally removed. 
 Gray, J., delivered the opinion of the court, and observed : 
 " The articles which the defendant contends were fixtures, 
 annexed to the freehold, and therefore ought to be ac- 
 counted for as personal property of the partnership, were 
 put by the plaintiff into a building erected by Gerry; the 
 owner of the land, of which the plaintiff was in possession 
 under a bond from Gerry to convey it to him upon the pay- 
 ment of a price therein stipulated. The plaintilf had not 
 the same right to remove fixtures annexed by him to the 
 land so occupied by him, without paying rent to the owner, 
 under a contract for its purchase, as an ordinaiy tenant 
 would have against his landlord. * * * His rights in this 
 respect were no greater than those of a vendor or mortgagor 
 against- his vendee or mortgagee. A mortgage passes even 
 tmde fixtures, annexed to the freehold by the mortgagor, 
 for the more convenient use and improvement of the prem- 
 ises, whether before or after the mortgage. * * * In ascer- 
 taining what are fixtures, regard is to be had to the objects, 
 the effect, and the mode of annexation. 
 
 "The trip-hammer, firmly attached to a block set in the 
 gipund, the blower of the forge, the force pump and its 
 pipes for raising water on the premises, and the shafting 
 fastened to the building by screws and bolts, having been 
 annexed by the plaintiff to the freehold, and specially 
 adapted to be used in connection therewith, became part of 
 it, and could not be severed again without the consent of 
 the owner of the land" {McLaughlin v. Nash, 14 Allen's 
 M., 136, 138). 
 
 At the same term, the court disposed of another case in- 
 volving the right of a tenant to remove fixtures erected by 
 him for manufacturing purposes. The action was for the 
 conversion of a wooden building and a machine called a 
 callender, with fixtures appertaining thereto, erected by 
 tenants at will upon the demised premises for the purpose
 
 CASES OF TRADE FIXTURES. 227 
 
 of carrying on the business of dyeing and bleaching cotton 
 and woolen fabrics. Tlie building was used as a dry-house, 
 was seventy-five feet in length, thirty feet wide, and about 
 thirty-five feet in height, boarded and clapboarded on the 
 outer sides and ends, the roof boarded and shingled, and 
 the inner sides and ends thereof lathed and plastered ; a 
 brick chimney and furnace were in the building, having 
 their foundations set in the ground ; the furnace was used 
 for generating heat for dyeing purposes ; the building had 
 no cellar under it, and it was fastened to the ground by 
 means of twenty-six iron bolts, passing through the lower 
 timbers or sills of the building, into as many stones or rocks 
 in the ground, one or more of which was natural or ancient 
 rocks, and on which the sills of the building rested, a few 
 inches above the top of the ground. The building was so 
 sliglitly constructed that it could not have been removed 
 from the premises without a large expense in strengthen- 
 ing it. 
 
 The cal lender, so called, was a large machine of iron and 
 steel, of the weight of about six tons, used by the tenants 
 in their business, and was set up by them in one of the 
 buildings of their landlord, on a stone and mortar founda- 
 tion erected by tliem, about eight feet long and six wide, 
 and extended up into the second story of the building, with 
 the first floor fitted close around the bottom of its frame, 
 and braced and bolted to various parts of the building, and 
 so constructed that it could not be removed from the build- 
 ing without being taken to pieces and taking up the floor 
 and cutting into the walls and sides of the building. 
 
 The court held that the building erected by the tenants, 
 and the machine were fixtures, and, as it appeared that the 
 tenants had abandoned the demised premises, leaving them 
 there, the court decided, that they passed to the owner of 
 the real estate. It is clear from the opinion of the court, 
 that the erections were regarded as trade fixtures, but it is 
 not so certain, that the court did not consider the fixtures 
 so attached to the realty, as to be movable by the tenants, 
 even before the expiration of their term. 
 
 Bigelow, C. J., said : "The building was of large dimen-
 
 228 LAW OP FIXTURES. 
 
 sions, so constructed that it could not be removed from tlie 
 premises without a change in its structure at great cost ; it 
 was built on stone foundations, partly natural and partly 
 artificial, to which it was fastened by iron bolts ; a brick 
 furnace and chimney, also resting on a base set in the 
 ground formed part of the structure, and it was erected by 
 the tenants during the term, to be used in connection with 
 other buildings on the premises belonging to the landlord 
 for the same purposes for which the estate was leased to 
 the tenants. It is difficult to see in what manner a building 
 could be more effectually annexed to the realty than the 
 one in controversy {Sudbury v. Jones, 8 Gush., 184-189; 
 Bliss V. Whitneij, 9 Allen, 114). The case last cited is de- 
 cisive also as to the nature of the machine called a callender. 
 It was placed on a solid foundation of stone, erected for the 
 purpose of supporting it, in the soil which formed the 
 bottom of the cellar ; its removal would have left large holes 
 in the first and second floors of the building belonging to 
 the landlord, which was included in the demise ; it was 
 securely fastened to the timbers which composed the frame 
 of the building by iron bolts, and it could not have been 
 taken away without serious damage both to the inner and 
 outer portions of the structure. These facts show that it 
 was a fixture, within the strictest meaning of the word 
 ( Wallv. Hinds, 4 Gray, 256 ; Bliss v. Whitney, ubi supra). 
 We cannot doubt, therefore, that the building and machine 
 are to be regarded, not as movable chattels, such as the tenant 
 misht have removed within a reasonable time after the ex- 
 piration of the tenancy, but as belonging to that class of 
 fixtures which, if removable at all, must be removed by the 
 tenant from the realt}^ during the term demised, or, if suf- 
 fered to remain annexed thereto after the expiration of the 
 tenancy, belong to the landlord as a part of the freehold" 
 {Tathot Y:Whipple, 14 Allen's R., Ill, 181, 182). 
 
 This case has sometimes been considered a little remark- 
 able, if not inconsistent. The judge writing the opinion 
 seemingly adopts a train of reasoning which leads to the 
 conclusion that the building and machine, in controversy, 
 were so affixed to the realty, as to be legally immovable ;
 
 CASES OF TRADE FIXTURES. 229 
 
 while he leaves it plainly to be inferred, that as between 
 landlord and tenant, he is of the opinion that they were not 
 irremovable by the tenant who erected them. The erections 
 were clearly enough trade fixtures, and the only question that 
 could arise would be, whether they were so annexed to the 
 freehold that they could be removed without material in- 
 jury to the estate. If they could, they would be removable 
 by the tenant ; if not, they would, as a rule, be irremovable. 
 Although the circumstances of the demise or the intent of 
 the parties, may be such, as to make the thing removable 
 by the tenant, whatever might be the effect of its removal 
 upon the premises. For example ; if the premises were let 
 to the tenant, for the express purpose of being used in the 
 business, to carry on which, the erections were indispensable, 
 the tenant would have the right to sever them at the end of 
 his term, notwithstanding the removal might essentially in- 
 jure the freehold. 
 
 In 1869, the Supreme Judicial Court of Massachusetts 
 held, that a wooden ice-house, large enough to hold upward 
 of two thousand tons of ice, built on leased land by the les- 
 see, upon no foundations except a wooden block under 
 each corner of the sMls, which were set into the ground, 
 upon a layer of charcoal, at a depth varying with the surface 
 of the land from six inches to three feet, and banked on the 
 outside with soil to prevent the air from circulating under 
 them, was a fixture which the lessee might remove. 
 
 Wells, J., said: "At the former hearing, the case pre- 
 sented no such ground for regarding the delay as reason- 
 able ; and there was an apparent liability of the defendants 
 for at least nominal damages. But it was there stated that 
 ' there was evidence tending to show that this building, as 
 originally constructed, and up to the time of its removal, 
 was not a fixture to the freehold.' If it was personal prop- 
 erty, there might be no damages beyond a nominal sum. 
 Upon the case as it now appears the building is manifestly 
 a tenant's fixtute liable to be removed during the term of 
 the lease, or, when the lease is terminated as this has been, 
 within a reasonable time afterwards" {Antoniy. Belknap, 
 102 3Iass. R., 193, 200).
 
 230 LAW OF FIXTURES. 
 
 And, at tlie same term, it was held, that bowling alleys, 
 with their usual appurtenances, erected by a tenant, with 
 the consent of the landlord and " for the purpose of profit," 
 in a room leased "for hall purposes," were trade fixtures 
 which tbe tenant might remove before the end of his term, 
 although they were nailed to the floor, and the drawing of 
 the nails would do some injurj^ to the building. 
 
 Ames, J., said: "The original rule of the common law 
 subjected every thing that was affixed to the freehold to the 
 law governing the freehold. But the law of fixtures has 
 grown into a system, which almost renders the right of re- 
 moval a general rule, instead of an exception. The ancient 
 rule has been especially relaxed, and rendered more liberal, 
 in its application to the relation of landlord and tenant. It 
 seems now to be well established by the cases, that things 
 which the tenant has at his own expense affixed to the free- 
 hold for purposes of ornament or domestic convenience, or 
 for purposes of trade, business or manufactures, may be 
 removed by him before the expiration of his term. The 
 right of removal depends ui)on the mode in which the thing 
 to be removed is annexed to the freehold, and the effect 
 which its removal would have upon the premises. It may 
 be exercised in such a case, whenever it is not contrary to 
 any prevailing usage, and causes no material injury to the 
 estate, and when the thing can be removed without losing 
 its essential character or value as a personal chattel. Under 
 .this rule', chimney-pieces, wainscot, grates, furnaces, cider- 
 mills, buildings resting on blocks, and many other things 
 of like nature have been held to be removable by the out- 
 going tenant. ^ * * The numerous cases cited by the text- 
 writers are quite sufficient to bring the defendant's bowling 
 alleys in this case within the list of things removable as 
 falling under the description of 'trade fixtures.' * * * He 
 is described as occupying the premises ' for hall purx)oses ;' 
 and the alley was ap^Darently constructed for temporary use, 
 incident to his occupation" {Hanrahan v. O'Reilly, 102 
 Mass. R., 201, 203, 204). 
 
 In 1871, a case was decided by. the same distinguished 
 court, wherein it appeared, that a tenant of an eating-room
 
 CASES OF TEABE FIXTURES. 231 
 
 in which intoxicating liquors were sold, bought and plaiced 
 in the room for use in his business, a couple of counters ; 
 one was called an oyster and trench counter, and was ten 
 or twelve feet long and two or three feet wide, and was 
 brought into the room entire and nailed to the floor, and 
 afterward enlarged by an addition, of about the same size, 
 constructed of joists and a base-board both nailed to the floor, 
 and of boards nailed to the joists and to each other ; tlie 
 other wns called a bar; was twenty feet long and two feet 
 wide, and was brought into the room entire and fastened to 
 the floor by nails and with iron knees. The court held that 
 the counters were trade fixtures, and could be severed and 
 taken away by the tenant during his term ; but that while 
 they remained unsevered, the landlord could not be made 
 liable in an action of trover for their conversion, on his 
 refusal to allow the tenant to remove them. 
 
 Colt, J., said: "We are of opinion that these counters 
 ceased to bear the character of movable chattels, when they 
 became attached to the building in the manner here de- 
 scribed. The permanency of their annnexation, and the 
 relation which they bore to the intended future use of the 
 tenement, were such as to make them part of the realty. 
 They would have passed by deed, as between grantor and 
 grantee, or mortgagor and mortgagee ; and upon the death 
 of the owner of the estate they would have gone to the heir 
 rather than to the executor or administrator. But as they 
 were put in by the tenant for use in his business, and not 
 for the purpose of improving the inheritance, they were 
 removable by him during the term. Within certain limits, 
 articles so annexed to the real estate may be converted 
 back again into personal property by the tenant. So long 
 as they remain annexed, however, they are to be treated as 
 parcel of the inheritance, and the landlord who forbids and 
 prevents the tenant, during the term, from removing them, 
 cannot be made liable in trover for their conversion as per- 
 sonal property" {Guthrie v. Jones, 108 Mass. jR., 191, 196). 
 
 In 1874, the same court held that a counting-room put 
 into a store by a tenant, which was made of a framework of 
 three sid<^s fastened to the floor by nails and to the brick
 
 232 LAW OF FIXTURES. 
 
 wall of the building in wliicli it stood, was a trade fixture. 
 The counting-room was a structure eight or nine feet square, 
 six or seven feet high, not reaching within several feet of the 
 ceiling, sheathed and panelled both outside and inside, and 
 made double, and fastened as before stated. There were 
 two doors in the structure, and windows in two or three 
 sides, and the room was used as an ofSce. 
 
 Colt, J., said: "This property was origintvUy placed iu 
 the defendant's store by the tenant under a written lease 
 from the defendant. The tenant transferred his title to all 
 of it as it is claimed by bill of sale to a third person under 
 whom the plaintiffs claim title. 
 
 "At the time of the service of the writ the court finds that 
 this counting-room, so called, was securely fastened to the 
 floor and wall against which it stood, so as to require the 
 use of a crowbar and to be necessarily separated into three 
 pieces before it could be removed and taken possession of 
 by the sheriff. » 
 
 "Under a ruling of the court that the counting room Avas 
 not included in the bill of sale or any of the subsequent 
 writings under which title was claimed by the plaintiff, the 
 parties agreed to a verdict for the plaintiff as to all the prop- 
 erty replevied except that, and for the defendant as to that. 
 
 "It is unnecessarry to consider whether the right construc- 
 tion was given to the language used in the writings in ques- 
 tion or not, for it is plain upon the facts in this case that 
 whatever may be the plaintiffs' remedy, replevin wall not lie 
 for an unremoved fixture of this description. Taking the 
 most favorable view claimed by the plaintiff's, this room or 
 office was a trade fixture placed in the defendant's store and 
 removable by the tenant during the time of his lease. So 
 long as it remained annexed to the real estate it Avas part of 
 the freehold. The landlord is not liable in trover for its con- 
 version, and replevin can be maintained only for the taking 
 of a personal chattel, not for an injury to that which is 
 affixed to the inheritance. * * * When the writ was sued 
 out, it was part of the realty" {Brown v. Wallis, 115 Mass. 
 i?., 156, 158). 
 
 At the October term of the Supreme Judicial Court of
 
 CASES OF TRADE FIXTURES. 233 
 
 Massachusetts, in 1874, it was held, that counter-shafting, 
 pulleys, hangers and belts, placed in a cotton-mill by the 
 tenant, though fastened to tlie building ; a portable boiler, 
 and steam pipes supported by hooks attached to the build- 
 ing, all put into the mill by the tenant for his own use as a 
 manufacturer, were trade fixtures, or personal property, and 
 might be removed by the lessee who put them into the 
 building. The machinery in the mill was operated by water 
 j)ower in the usual manner ; the counter-shaft in question 
 was belted from the main shaft, and with the pulleys and 
 hangers appertaining thereto, was fastened to the timbers 
 or floors of the building by bolts and screws, and was con- 
 nected to the machines by bolts. All this machinery was 
 purchased for and adapted to the use of the mill as a cotton 
 mill, and all of it could be detached and removed from the 
 building without substantial injury thereto or to the ma- 
 chines. 
 
 Gfray, C. J., read the opinion of the court, and observed : 
 "It was admitted at the argument, that at the beginning of 
 the term there was no machinery on the premises, except the 
 main shafts. The counter- shafting, pulleys, hangers and 
 belts, the portable boiler and the steam pipes connected with 
 it, were either trade fixtures, removable by the lessees dur- 
 ing the term, or personal chattels. -^ * * The fact that the 
 lease contained an agreement of the lessor to sell the prem- 
 ises to the lessees did not affect their rights in this respect. 
 The right of a tenant to remove trade fixtures may doubt- 
 less be qualified by the covenants in the lease" {Holhrook 
 V. CJtamberlln, 116 Mass. B., 155, 161, 162). 
 
 And in November of the year 1874, the same court, in 
 effect decided, that an engine placed by a tenant on solid 
 masonry, to which it was affixed by iron bolts, and connected 
 with a mill by pipes, bolts, shafting and gearing, as well as 
 a boiler connected with an engine, and set upon solid ma- 
 sonry, but not affixed thereto except by its weight, and which 
 could not be removed without tearing down brick-work sur- 
 rounding it, and also part of the building, were fixtures for 
 the purpose of trade or manufactures, and removable by the 
 tenant ; and that they were not mere chattels for which tro- 
 
 30
 
 234 LAW OF FIXTURES. 
 
 ver would lie by one deriving his title, after condition 
 broken, from the person who sold them to the tenant by a 
 conditional sale, in the absence of evidence that the tenant 
 placed them upon the premises without the consent of the 
 vendor. 
 
 The engine and boiler were placed by the tenants on the 
 demised premises, where a small frame building was erected 
 over them. This building was adjacent to and connected 
 by shafting and steam pipes with a manufactory of woolen 
 fabrics near by, and the engine was affixed in the manner 
 stated. The tenants assigne'd their lease to an under tenant, 
 who refused to comply with a demand made for the engine 
 and boiler by the men who sold them conditionally to the 
 original tenant, and they brought trover for the conversion. 
 
 At the trial before the Superior Couit and a jury, the 
 judge was asked to rule, that if tlie engine stood upon stone 
 foundations, to which it was attached only b}^ its weight 
 and bolts, and could be removed without disturbing the 
 foundations by simply removing the nuts from the bolts, it 
 was personal property. The judge instructed the jury on 
 this point, tliat if the engine and boiler were located and at- 
 tached as hereinbefore described, the action would not lie 
 upon a refusal to deliver them on demand. This ruling was 
 sustained by the appellate court. 
 
 Gray, C. J., said: "The only exception relied on is to 
 the refusal of the instruction requested, and to the instruc- 
 tion given ; and cannot be sustained. Whatever might have 
 been the right of removal, the engine and boiler, so long as 
 they were affixed to the realty in the manner stated in the 
 bill of exceptions, were not mere chattels, and therefore this 
 action in the nature of trover will not lie for them" {Rad- 
 den V. Arnold, 116 Mass. R., 270-272). 
 
 All of the cases hereinbefore examined from the Massa- 
 chusetts reports upon the subject of "trade fixtures," as 
 between landlord and tenant, are comparatively late, and 
 some of them quite late. One other case, by no means 
 an early case, but earlier than any of those examined, will 
 be referred to and considei'ed. It was decided in the year 
 1855, and seems to have been well considered, and is val-
 
 CASES OF TRADE FIXTURES. 235 
 
 nable as a precedent in cases now under discussion, although 
 cyther pertinent questions were involved in the case. The 
 court held, that a cistern and sinks, though fastened by 
 nails, or set into the floor by cutting away the boards, and 
 w^ater pipes, fastened to the walls by hooks, and passing 
 through holes cut for the purpose in the floors and parti- 
 tions, if put by the lessee into a building leased for a hotel 
 and boarding-house, may be removed by the tenant during 
 the term. And it was also held, that gas-pipes passing from 
 the cellar through the floors and partitions, and kept in place 
 in the rooms by metal bands, though some of them pass 
 through wooden ornaments of the ceiling which would need 
 to be cut away for their removal, were also fixtures which 
 the tenant might remove. 
 
 Bigelow, J., delivered the opinion of the court, and after 
 disposing of other questions, said: "The next point in- 
 volves a question of more difficulty and importance. The 
 plaintiffs claim to recover on the covenant in the lease, by 
 which the lessee stipulates that he will not make or suffer 
 any waste upon the premises during the term, and to prove 
 a breach they rely mainly upon the removal therefrom of 
 the gas and water j)ipes, which were put into the building 
 by tenants thereof holding the same as assignees of the 
 lessee. The defendant, on the other hand, contends that 
 these articles having been placed on the premises by the 
 tenants, did not belong to the plaintiffs, and that their re- 
 moval does not constitute waste for which this action can be 
 maintained against him. This raises the question, whether, 
 under the circumstances i3roved in this case, the pipes an- 
 nexed to the building for the purpose of conducting water 
 and gas into the various rooms, can be regarded as ' tenant's 
 fixtures,'' which term, in its strict legal definition, is to be 
 understood to signify things which are fixed to the freehold 
 of the demised premises, but which nevertheless the tenant 
 is allowed to disannex and take away, provided he season- 
 ably exert his right to do so. The cases on this subject are 
 very numerous, and many of them, being from their nature 
 decided on the facts peculiar to such case, do not afford 
 much light upon the general principles which courts of
 
 236 t^^^ OF FIXTURES. 
 
 justice have adopted in settling the mutual rights of lessor 
 and lessee to property of this nature. 
 
 "Certain rules, however, may be taken as well settled by 
 the uniform current of judicial decisions. The lirst and 
 leading one is, that the law regards with peculiar favor the 
 rights of tenants, as against their landlords, to remove 
 articles annexed by them to the freehold, and extends much 
 greater indulgence to them in this respect than it concedes 
 to executors, remaindermen or any other class of persons. 
 * * ^ The reason for this is, that tenants usually pay to 
 their landlords adequate rent, and it is therefore equitable 
 that they should have the right to remove fixtures which 
 have been put uj) by them for their own convenience and 
 use, and at their own expense. 
 
 "Another well settled rule is that fixtures, which a tenant 
 is allowed to disannex and take away, are comprehended 
 within two classes, or are of a mixed nature, falling partly 
 within and partaking of the nature of both. These classes 
 are, first, those which are put up for ornament or the more 
 convenient use of the premises, and are called domestic fix- 
 tures ; second, those which are put up for the purposes of 
 trade, and are known as trade fixtures. * * ->^ In order to 
 determine, whether in any particular case chattels annexed 
 to the freehold come within these classes, so that the tenant 
 has the right to remove them, several considerations are to 
 be regarded. One of the chief of these is the mode of their 
 annexation to the building ; that is, whether they are an- 
 nexed to the fabric of the house, and the extent to which 
 they are so united, and whether they can be taken down 
 and removed integre, salve et commode^ without substantial 
 injury to the building or to themselves. Another impor- 
 tant consideration is the intention with which tliey were 
 annexed by the tenant, and the purposes which they were 
 designed to answer ; that is, whether they were intended 
 for a permanent and substantial improvement to the realty, 
 perpetui usiis causa., or, as it is sometimes said, pour un 
 profit del inheritance ; or whether they were put up and 
 used for a temporary object, or for the more convenient 
 occupation and enjoyment of the premises for the particular
 
 CASES OF TRADE FIXTURES. 237 
 
 purpose for whicli the tenant used them, so that they were 
 useful and necessary rather to the comfortable and con- 
 venient occupation of the building than to the building 
 itself. * * * 
 
 "The application of these rules and principles to the case 
 at bar is decisive of the nature and character of the articles 
 which were removed from the demised premises by the 
 tenants. They were but slightly annexed to the building, 
 and were removed without any substantial damage to the 
 building, and without essential injury to themselves. The 
 premises were intended for and demised as a tavern and 
 boarding-house. The articles wer« themselves of a mixed 
 nature, and may well be regarded as combining the qualities 
 of both domestic and trade fixtures. They were designed 
 by the tenants to be used in carrying on the business for 
 which they w^ere occupied, and they were also adapted for 
 the more easy and comfortable use and enjojanent of the 
 building. They were useful and convenient, rather than 
 essential permanent additions to the premises. At the time 
 of the demise, the house was supplied with water and fur- 
 nished with light by other means. The pipes were not 
 necessary therefore to the complete enjoyment of the prem- 
 ises. They were only added to subserve the domestic 
 purposes to which they were applied, and to render the 
 premises more suitable for the particular use to which they 
 were appropriated. 
 
 " It would be quite useless to multiply authorities or seek 
 out analogies, in support of the view we have taken of this 
 part of the case. We must be governed in questions of this 
 nature very much by the circumstances of each case" ( Wall 
 V. Rinds, 4 Gray's R., 256, 270-272). 
 
 This is an important case, not only as a precedent in cases 
 of trade fixtures, but on account of the enunciation of prin- 
 ciples which are controlling in cases of this kind. The case 
 is elaborately and learnedly considered, and many author- 
 ities are examined, although no Massachusetts decision is 
 referred to in the opinion as bearing upon the. point. The 
 subject of trade fixtures is discussed in previous decisions, 
 but no case in which the doctrine, as between landlord and
 
 238 LAW OF FIXTURES. 
 
 tenant, was directly considered, seems to have been pre- 
 viousl}^ reported. 
 
 It will be observed from tlie cases examined in this chap- 
 ter, that the policy of the Massachusetts courts in respect 
 to erections by tenants for purposes of trade and manufac- 
 ture, as between them and their landlords, is substantially 
 the same as that which prevails in the state of New York. 
 If any difference exists, the policy of the former state to- 
 ward the tenant is a shade more liberal than that of the 
 latter. The decisions of New York, however, upon 'the sub- 
 ject, are often referred to by the Massachusetts Judges, and 
 always with respect and approval. 
 
 In the state of Maine, the Supreme Court held in the year 
 1863, that a box board sawing machine, an edging saw and 
 table, a cutting saw and apparatus, and two saw-mill saws, 
 attached to leasehold premises by the lessee, for purposes 
 of trade or manufacture, belonged to the tenant as against 
 a vendee of the landlord, who was aware of the fact that 
 the fixtures were so annexed by the lessee, at the time of 
 the conveyance. 
 
 Appleton, C. J., said: "Where chattels are so far an- 
 nexed to the freehold as to become fixtures, they pass, in 
 all cases, to a grantee of the land, unless expressly excepted 
 in the conveyance ; * * * and become the property of a 
 mortgagee as against a mortgagor. '^ * * So the judgment 
 creditor acquires them by a levy on the real estate of his 
 debtor {Trull v. Fuller^ 28 Maine, 544), But, in the case 
 at bar, Dane and Perkins were aware of the plaintiffs' lease 
 and their rights under the same, and could, therefore, ac- 
 quire no rights as against them, though, perhaps, they 
 might have had a claim against their grantee on the cove- 
 nants of his deed {Powers v. Dennison, 30 W., 752). 
 
 "As between landlord and tenant, the latter may, during 
 the continuance of his lease, remove fixtures erected by him 
 for purposes of trade, manufacture or ornament, when the 
 removal can be effected without permanent injury to the 
 freehold. But this removal must be made during the con- 
 tinuance of the lease. * * * The plaintiff's right of removal, 
 whatever it was, remained unimpaired and unaffected by
 
 CASES OF TRADE FIXTURES. 239 
 
 the defendant's deed to Dane and Perkins, and they might 
 at any and all times have exercised it, during the lease, had 
 they so chosen" {Davis v. Biiffum, 51 Maine H., 160-168). 
 The rule of law upon the precise question now under dis- 
 cussion is, doubtless, similar in all of the New England 
 states, to that which is declared by the courts of Massachu- 
 setts, although few cases upon the point seem to have come 
 before the courts for adjudication, outside the state of Mas- 
 sachusetts. The principle was recognized by the Supreme 
 Court of Connecticut, in a case decided in 1844. The action 
 was trespass for pulling down and destroying a shop or out- 
 house, erected by a tenant upon demised premises, partly 
 from materials taken from an old building replaced by the 
 new. Incidentally the point under consideration was passed 
 upon by the court. Storrs, J., said: "The defendant's 
 claim was, that the use of any considerable portion of the 
 materials of the old shop in the constiuction of the new, 
 vested the title to the new shop in the owner of the old one. 
 The principle, of which no complaint was made, was stated 
 to tlie jur}^, that a tenant for years has a right to remove, 
 during the continuance of the term, but not afterwards, a 
 building erected by him on the leased premises, for the pur- 
 pose of carrying on his trade. They were also instructed, 
 that the use of a portion of the materials of the old shop on 
 the premises, in the construction of the new one, by the 
 tenant, would not in law vest the title of the latter in the 
 owner of the former, if said new building was a different and 
 distinct one from the old shop, and not the old one repaired 
 or reconstructed. The title of the plaintiff to the new shop, 
 thus turned on the question whether it was substantially 
 and essentially the same shop as the old one" {Beers v. >S'^^. 
 John, 16 Conn. H., 322, 329). The shop in question in this 
 case, was built and used by the tenant for manufacturing 
 purposes, and the doctrine was conceded by the parties, and 
 recognized by the court, that such a structure built with 
 materials belonging to the tenant, would be removable by 
 the tenant.
 
 240 LA W OP FIXTURES. 
 
 CHAPTER XVI. 
 
 LAW OF FIXtDRES AS BETWEEX LANDLORD AKD TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS UY A TENANT FOR PURPOSES OF TRADE AND 
 MANUFACTURES — EXAMINATION OF THE AMERICa'n AUTHORITIES UPON 
 
 THE POINT DECISIONS OF THE COURTS OF PENNSYLVANIA AND 
 
 MICHIGAN. 
 
 Ix the State of Pennsylvania, the Supreme Court hekl, in 
 1835, that a steam-engine erected by a tenant in certain salt- 
 works, for the purpose of carrying on the business for which 
 the premises were leased, was a trade fixture, which the 
 tenant might remove, or that the same might be levied on 
 by Jlerl facias against the tenant. It apjjeared that the 
 boiler and frame were built into the wall of the building, 
 and the engine was attached by screws and pipes. 
 
 Sergeant, J., said : "The general i^rinciple is, that a fix- 
 ture erected by a tenant on demised premises, for the pur- 
 pose of carrying on his trade, is personal property, and may 
 be removed or levied on by jitri facias against him, and at 
 his death, if not disposed of, passes to his executor. * * * 
 In Yaii Ness v. Packard (2 Peters, S. C. Rep. 137), the sub- 
 ject is carefully examined by Justice Story, and the tenant 
 was there held not to be liable for pulling down and remov- 
 ing a wooden dwelling-house, with a cellar of stone or brick 
 foundation, and a brick chimney, which he had erected on a 
 demised lot of ground for a tenii of years receiving rent, 
 wdth the view of carrying on the business of a dairyman and 
 for the residence of his family and servants engaged in the 
 business. The present is the case of a steam-engine set up 
 by the tenant on the demised premises and used in lieu of 
 horse-power, for more advantageously carrying on the manu- 
 facture of salt. It must, therefore, be deemed personal 
 property belonging to him, and as such liable to be seized 
 and sold on the execution of his judgment debtor" {Leviar 
 V. Miles, 4 WatVs Rep., 330, 332). 
 
 In 1849, the same court held that an engine house, partly
 
 CASES OF TRADE FIXTURES. 241 
 
 of stone, and partly of wood, with stone foundation for a 
 steam-engine, erected by a tenant for years for the use of a 
 coal mine, was a fixture which the tenant had a right to 
 remove, 
 
 Rogers, J., said : '•' As this is a case between landlord and 
 tenant, or rather a contest between the creditors of the latter, 
 the claim to hav^ the articles considered as personal prop- 
 erty, is received with latitude and indulgence. That which 
 would otherwise be but as part of the realty and inseparable 
 from it, is treated, in favor of trade, as personalty, with all 
 the incidents and liabilities of that species of property. 
 Here, the engine and other machinery were erected by the 
 lessees to carry on the works, with the building, which is 
 nothing more than a covering for the machinery, extending 
 into the mines, by which the mines are worked, and are use- 
 less for any purpose unconnected with the working the 
 mines, and transporting the coal. * * * The building being 
 attached to the freehold, makes no difference {VoorJiis v. 
 Freeman, 2 & 116 ). Besides, if there was any doubt 
 on general principles, that doubt is removed by the contract ; 
 for the lessors and lessees agree, that all the steam-engines, 
 fixtures, and improvements erected by the lessee on the 
 premises, from materials furnished by him, nuiy be removed 
 and taken away at the expiration of the lease, or other de- 
 termination thereof, unless the lessors or their assigns, elect 
 to retain the same. 
 
 ''The sixth clause of the contract, as has been construed, 
 does not interfere with this construction. * ^'^ The building, 
 then, and machinery, although fixtures, being chattels, are 
 not the subject of a mechanics' Hen, as is held in Church & 
 Cor others v. Griffith & Dixon, decided at Pittsburgh, at our 
 last term" {WJdte' s Appeal, 10 Penn. ^., 252-254). 
 
 .In 1861, the same court held that a steam-engine with the 
 necessary gearing for the purpose of working a mine, erected 
 by the lessee of the land, for the benefit of his business, 
 was a fixture belonging to the tenant, which he might re- 
 move during his term. 
 
 Woodward, J., said : "That a tenant who erects fixtures 
 for the benefit of his trade or business may remove them 
 
 31
 
 242 LAW OF FIXTURES. 
 
 from the demised premises, is an established doctrine of the 
 law, but with this qualitication — that the removal be made 
 during the term. After the term they become inseparable 
 from the freehold, and can neither be removed by the tenant 
 nor recovered by him as jjersonal chattels by an action of 
 trover, or for goods sold and delivered ; White v. Arndt, 
 1 Wh. 94, and the cases cited in the argument. If a tenant 
 remain in possession after the expiration of his term, and 
 j)erform all the conditions of the lease, it amounts to a re- 
 newal of the lease from year to year, and I take it he would 
 be entitled to remove fixtures during the year" {Davis v. 
 Moss, 38 Penn. B., 346, 353). 
 
 And in a case decided by the same court in 1866, Agnew, 
 J., said : "Unquestionably the intention to annex, whether 
 rightfully or wrongfully, is the true legal criterion. It is 
 on this principle that when one fixes his own chattel on the 
 land of another, it is in legal effect a gift of it to the owner 
 of the land. So when the owner of the land wrongfully 
 fixes the chattels of another (as materials in a building), it 
 is a conversion of them into the realty, and b.y the change 
 of their nature leaves the remedy of the owner only in 
 damages. * ^^ * The same w^ant of intention to connect is 
 imputed to a tenant who attaches to the land fixtures for 
 the use of his business, the law presuming in favor of trade 
 that he meant to remove them before the end of his term ; 
 and it is only on leaving without removal, the intention to 
 make a gift of them to the landlord is inijouted to him" 
 {Hill V. Seicald, 53 Penn. i?., 271, 273, 274). In this case the 
 fixtures were steam-boilers placed in a steam-mill for the use, 
 and at the expense of the tenant, and they were held 
 movable. 
 
 In a well considered case before the same court in 1869, it 
 was held that a steam-engine, boiler, sliafting and a numbei' 
 of other articles of machinery of a woolen mill, erected by 
 tenants upon demised premises for the purposes of their 
 business as manufacturers of hosiery, were fixtures belong- 
 ing to the tenants, which they had a legal right to remove 
 within their term. The tenants erected the building in which 
 the machinery was placed, and put in the machinery at their
 
 CASUS OF TRADE FIXTURES. 243 
 
 own expense. They were under obligations, by the terms of 
 their lease, to leave the building upon the premises. The 
 engine was placed on a foundation separate from that of the 
 building, and screwed into it, and it was otherwise fastened 
 to the building ; the boiler was outside of the main building, 
 and other parts of the macliinery were firmly fixed to the 
 building. It was proved on the trial, at JYisi Frms, that 
 the machinery in dispute was necessary for the factory, and 
 that the boiler could not be got out except by cutting it 
 apart and tearing down the building. 
 
 It was contended on the one side, that the articles in dis- 
 pute were appurtenant to the factory, and were immovable 
 fixtures. On the otlier side, it was insisted that the articles 
 were erected by tenants for the purposes of their trade, and 
 might, therefore, be removed by the tenants, or levied upon 
 under an execution against them, or pass to their executors. 
 
 On the trial, the judge charged the jury as follows : "A 
 tenant who erects fixtures may remove them during his term, 
 and in order that I may state the law concisely, I will read 
 the following extracts to you, as the law governing this 
 case:" — 
 
 "That a tenant who erects fixtures for the benefit of his 
 trade or business may remove them from the demised prem- 
 ises, is an established doctrine of the law, but with the 
 qualification that the removal be made during the term. 
 
 ' 'After the term they become inseparable from the freehold, 
 and can neither be removed by the tenant, nor be recovered 
 by him as personal chattels, and this whether the lease is 
 terminated by lapse of time or forfeiture. 
 
 "When a tenant has a right to sever fixtures they become 
 so far his personal property tliat they are liable to be seized 
 and severed under a writ of jieri facias.'''' 
 
 The verdict was for the plaintiff, and the defendant had 
 the case certified to tlie court in banc, and adjourned over ; 
 but the verdict was sustained. 
 
 Agnew, J., delivered the opinion of the court, and said: 
 "It is a familiar principle, and the authorities cited abun- 
 dantly show, that a tenant who erects fixtures upon leased 
 propei-ty for the benefit of his trade or business, may remove
 
 244 LAW OF FIXTURES. 
 
 them from the demised premises witliin liis term. And 
 where a tenant has a right to sever and retain them they ai'e 
 liable to be seized and sold in execution and severed by the 
 purchaser. The judge at JYisi Prius so held and tlie plain- 
 tiff recovered. * * * The question is one of title, and a plea 
 of j)ro23erty must be supported by proof of a superior title on 
 the part of the landlord. This was not shown, and the de- 
 fendant necessarily failed in his plea" {Hay y. Bruner, 61 
 Penn. P., 87-91). 
 
 An important case came before the same court in 1872, 
 which involved the question now under consideration. The 
 case was an appeal from the decree of the Court of Common 
 Pleas of Chester county, in equit}-. It appeared that the 
 owner of a lot of land on which were a mill and other build- 
 ings, leased the same for three years to a tenant, for the 
 purpose of digging for Hint on the land and grinding it, for 
 which the landlord was to be paid a royalty. In the prose- 
 cution of the business, the tenant erected a frame building 
 connecting it withtlie old mill, and X3Ut into both machinery 
 suitable for his business. During the term, the frame build- 
 ing, erected by the tetiant, was seized by virtue of an execu- 
 tion against the tenant, but was not sold by the officer until 
 after the lease was surrendered to the landlord, who at the 
 time of the surrender had no knowledge of the levy. Sub- 
 sequently the building was sold on the execution, and the 
 purchaser claimed the right to remove it, and the landlord 
 brought an action to restrain him. 
 
 The master found that the building having been erected 
 for the purpose of trade was a removable fixture, which the 
 tenant might move during the term, and that the purchaser 
 under the execution sale had also the right to remove it, and 
 that his right was not affected by the surrender of the lease 
 to the landlord. 
 
 Exceptions. were filed to the master's report, and in the 
 opinion of the court on the report and exceptions, Butlei', 
 P. J., said: ^ * * "But subsequently to the seizure in this 
 case and prior to the sale, the tenant surrendered tlie lease, 
 and the plaintiff, reljdng upon the principle that a ' movable 
 fixture' can only be severed during the existence of the term.
 
 CASES OF TRADE FIXTURES. 245 
 
 or while tlie possession of the tenant continues, argues that 
 no severance can now be allowed. It is certainly tine that 
 a tenant cannot enter to remove a fixture after the expiration 
 of his term. Here the term provided tor by the lease had 
 not expired. The tenant has surrendered, and the effect upon 
 7iim is the same as if he had. He could not, after quitting 
 the possession in pursuance of this act, return and sever the 
 fixtures. But when another has acquired rights in the lease, 
 can the tenant surrender such rights or prejudice them by 
 terminating the contract with the landlord 1 "^ '^- "^ In the 
 case before ns the defendant acquired an interest in the lease 
 by the levy on the building, which, as we have seen, was 
 annexed to the term. Their title, under the sale, dates back 
 to the time of the levy. * * * The character of the property 
 was such that the officer could not take physical possession 
 and remove it from the tenant's custody, so that if the lien of 
 an execution may in any case be lost by neglect or unneces- 
 sary delay in the officer, we see nothing that would justify 
 the suggestion that the lien was lost here." * * * 
 
 The court agreed with the master that the building was a 
 trade fixture, and removable, as between landlord and ten- 
 ant ; and further that the landlord acquired no right to it on 
 the lease being surrendered, as against the levy of the exe- 
 cution ; and therefore the plaintiff's bill was dismissed, with 
 costs. 
 
 The plaintiff appealed to the Supreme Court, and assigned 
 the decree for error, when the decree was reversed, on the 
 sole ground, that the lease being surrendered to the land- 
 lord, with the building still affixed to the realty, he having 
 no notice of the levy at the time he took the surrender, the 
 building w^as a part of the freehold, and belonged to the 
 landlord. 
 
 Agnew, J., said : "Upon a careful examination there ap- 
 pears to be but one question to be decided in this case. Its 
 decision in favor of the appellant renders it unnecessary to 
 determine others raised in the discussion. * * ^ A building 
 of the kind described in the plaintiff's bill of complaint is 
 prima facie a part of the realty, of which the creditor 
 must take notice, so as to put him on inquiry as to its true
 
 246 -^^^^ OF FIXTURES. 
 
 cliaracter. No manual possession of it can be taken. In 
 view of this, therefore, and in order to give tlie landlord an 
 opportunity of protecting his rights, whatever they may be, 
 notice to him of the levy was necessary. It was necessary 
 also to prevent him and the execution creditor from being 
 prejudiced by any arrangements he might find it expedient 
 to make with his tenants for the termination of the lease. 
 If for the advancement of the remedies of creditors, erec- 
 tions constituting parts of the realty are held to be person- 
 alty, in favor of trade, and sold under execution, we cannot 
 lose sight of their apparent nature and attachment to the 
 realty, and of the right of the landlord who may be misled 
 from a want of notice of the creditor's claims. It is, there- 
 fore, inequitable to recognize no duty as devolving on those 
 who pursue these remedies. There being no notice to the 
 plaintiff, as landlord, and the rule not having been made 
 until after the termination of the lease by surrender of the 
 term, the right to remove the building was gone, as against 
 the landlord. It was a failure to prosecute the levy with 
 due diligence so as to preserve its lien. The decree dismiss- 
 ing the bill at the cost of the plaintiff is therefore reversed, 
 and a decree ordered to be entered, enjoining the defen- 
 dant from removing the building described in the plaintiff's 
 bill, from the land of the plaintiff at any and all times here- 
 after, and the costs are decreed to be paid by the defendant" 
 {Thropp's Appeal, 70 Penn. R., 395, 397, 398, 400). 
 
 This case carries the doctrine of trade fixtures to a con- 
 siderable extent, although it is probably no departure from 
 principle or precedent. The building in question was cer- 
 tainly of a permanent character, and so situated and at- 
 tached to other buildings upon the demised premises, as to 
 render it of value to the freehold, and of comparatively 
 small value to move away ; and yet the Court of Common 
 Pleas held it to be a movable fixture, vv-hich the tenant might 
 move during the term ; and upon this point, the Supreme 
 Court, obviously took the same view. The landlord was 
 permitted to hold the building on the sole ground that the 
 lease was surrendered to him fairly, while the structure re-
 
 CASES OF TRADE FIXTURES. • 247 
 
 mained in its unchanged condition, and lie had no notice of 
 any adverse claim. 
 
 So late as the year 1875, the Supreme Court of Pennsyl- 
 vania, held that certain gas fixtures, a platform scales, a 
 walnut stair railing, walnut stairs, bannisters, and closet, 
 erected by the tenants of a drug store, for their own conven- 
 ience and use, as a general rule, were fixtures belonging to 
 the tenants, and removable by them during the term. 
 
 Paxson, J., delivered the opinion of the court, and said: 
 "There are several specifications of error in this case, all of 
 which we think are sustained. The evidence referred to in 
 the first and second specifications was competent to show 
 that the tenants treated the fixtures as personal property. 
 * * * It was clearly competent to prove, upon the question 
 of intention, that the firm treated the fixtures as their own 
 property, and included them among their assets. The re- 
 maining specifications of error refer to the charge of the 
 court, and may be considered together. Under the earlier 
 decisions physical annexation was undoubtedly the test. 
 But this doctrine no longer prevails. * * * The true rule to 
 be deduced from these authorities is, that it is not the char- 
 acter of the physical connection with the realty which con- 
 stitutes the criterion of annexation, but it is the intention to 
 annex. When a tenant puts in fixtures or conveniences for 
 his own comfort, the law raises no presumption that he in- 
 tended them as permanent improvements, to be left for the 
 benefit of his landlord ; and as a general rule he will be en- 
 titled to remove them during his term. For any injury to 
 the freehold by reason of such removal, he is of course lia- 
 ble to the landlord in damages" {Seeger v. Pettit, 77 Penn. 
 P., 437, 440, 441). 
 
 In this case, the understanding of the parties at the time 
 of the demise, may, very properly, have infiuenced the court, 
 in their final disposition of it. When premises are let for a 
 specific purpose, well understood by the parties, any annex- 
 ations absolutely necessary to be made by the tenant, in 
 order that the premises may be used as designed, the tenant 
 should be at liberty to remove, whatever may be the effect 
 of the removal upon the freehold. The landlord is sup-
 
 248 LAW OF FIXTURES. 
 
 posed, in sucli case, to have been compensated, by way of 
 the paj^ment of rent, for any ordinary injury to the realty, 
 by reason of the removal of tlie annexation. Doubtless, 
 the tenant would be required to repair the injury, so far as 
 is practicable, which the removal may work to the freehold. 
 And it is regarded as reasonable, if the tenant remove a 
 fixture for the purpose of substituting one of his own, that 
 he should restore the former article, or substitute a similar 
 one for it, on removing his own. 
 
 In conformity, somewhat, to these principles, the Supreme 
 Court of Michigan decided in 1873, that a bar, bar fixtures, 
 cupboard, bowling-alley ways and racks, attached by a 
 tenant to a building occupied by him as a saloon under a 
 lease, under the circumstances of the case, were permanent 
 fixtures, so annexed to the freehold as to belong to it and 
 become the property of the landlord, and not to be remov- 
 able by the tenant's vendees. 
 
 It appeared that the lessors had fitted up the property at 
 considerable expense, with a bar and other conveniences to 
 adapt it to the business to be carried on by the lessees, and 
 soon after the lessees took possession under their lease. 
 They made numerous changes and alterations, insomuch 
 that the character of the establishment was completely 
 altered ; and the new fixtures took the place of those there 
 at the time of the execution of the lease. Under these cir- 
 cumstances, the court below deemed that the property was 
 attached to the building, and was owned by the landlord, 
 and the decision was affirmed by the Supreme Court. 
 
 Graves, J., delivered the opinion of the court, and dis- 
 posed of the question as to the character of the property in 
 a few words, saying: "But two questions were made on 
 the hearing in this court. The first being whether the 
 things in question were so annexed to the freehold as to be- 
 long to it. This question is decisively answered in the 
 affirmative by the evidence, and it would be a waste of time 
 to repeat it" {O'Brien v. Kusterer, 27 31ic7i. Ji., 289, 292). 
 
 The action was in equit}^, and the only peculiarity in the 
 case was the circumstance that the original fixtures were 
 displaced by those in controversy. Had the fixtures been
 
 CASES OF TRADE FIXTURES. 249 
 
 erected by the tenant in a building leased for the purposes 
 contemplated by such erections, and other fixtures were not 
 torn away to make room for them, it is not improbable that 
 they would have been held by the court to come Avithin the 
 principle of trade fixtures, and removable as such by the 
 tenant. This doctrine would seem to be in accordance with 
 the decision of the Pennsylvania case last quoted, and it is 
 certainly a reasonable one to be applied between landlord 
 and tenant. 
 
 CHAPTER XVII. 
 
 LAW OF 'fixtures AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT FOR PURPOSES OF TRADE AND 
 
 MANUFACTURES EXAMINATION OF THE AMERICAN AUTHORITIES UPON 
 
 THE POINT DECISIONS OF THE COURTS OF ILLINOIS AND OTHER 
 
 WESTERN AND SOUTHERN STATES. 
 
 In further discussing the law of fixtures, as between land- 
 lord and tenant, in respect to erections by the tenant for 
 purposes of trade and manufactures, and the examination 
 of the American authorities upon the subject, it may be 
 observed that the Supreme Court of the State of Illinois de- 
 cided, in the year 1860, that distillery pipes and machinery 
 were trade fixtures, and might be removed by the tenant 
 who had erected them, or bought them, at any time while he 
 was in possession of the demised premises. 
 
 Walker, J., delivered the opinion of the court, and said: 
 "A purchaser let into possession may remove trade fixtures, 
 placed upon the premises by him, at any time during the 
 continuance of the contract. Such a purchaser, failing to 
 make payment so as to lose the benefit of his purchase, is 
 held to be a tenant from year to year or at will, and there- 
 fore entitled to remove fixtures which he may have attached 
 to the freehold while in possession. {Raymond v. White, 
 7 Co?o., 321). And tliis class of fixtures pass by a sale of 
 
 32
 
 250 LAW OF FIXTURES. 
 
 the property by the owner, unless they are expressly re- 
 served by the conveyance, or belong to the tenant. * * ^ 
 
 "It then remains to ascertain whetlier the articles removed 
 by Todd fell within that class of things denominated trade 
 fixtures, and which the law authorizes the tenant to remove. 
 The question has undergone much discussion in the courts 
 of Great Britain and this country, but in their decisions there 
 is more harmony than is usually found on such questions. 
 The large majority of the cases hold, that all erections made 
 for the purposes of trade, daring tlie tenancy, such as soap 
 vats, fire-engines to work a colliery, pans used in manufac- 
 turing salt, brew-houses, furnaces and coppers, green- 
 houses, hot-houses erected by nurserymen and gardeners, 
 may be removed by the tenant. * * * From these authori- 
 ties, we think there can be no doubt, that the articles re- 
 moved from the premises in this case, were trade fixtures, 
 that might be removed from the freehold by the tenant, or 
 a purchaser, when placed there by him, if removed before 
 the possession was restored to the owner" {Moore v. Smitk, 
 24 III. R., 512, 515, 517). 
 
 This case is important, not only as hokling that articles 
 of the character of those involved may be regarded as trade 
 fixtures, and removable by the tenant, but also as deciding 
 that a conditional purchaser of real estate under an ordi- 
 nary contract for a deed upon payment of the purchase 
 money, may be regarded as a tenant of the vendor, so long 
 as the contract remains unperformed, and in the mean time 
 erections made by him are to be governed hy the same rules 
 that control the ordinary case of landlord and tenant. This 
 carries the relation of landlord and tenant further than it 
 is sometimes supposed to extend. Certainly, the coivmn- 
 tlonal relation of landlord and tenant does not ordinarily 
 exist between the vendor and vendee of real estate, and 
 strictly speaking., such parties cannot be called landlord 
 and tenant. To be sure, it is a doctrine of the common law 
 that all lands, save those belonging to the king or sovereign, 
 are held of some superior, or lord ; and hence we have the 
 name of landlord, and the person who holds is called a 
 tenant. In this general sense, every man who holds lands.
 
 CASES OF TRADE FIXTURES.- 251 
 
 tliougli he may be the owner in fee-simple, and may owe 
 neither fealty nor service to any one, is said to be a tenant. 
 And when the occupant holds in subordination to the title 
 of another, he is sometimes said to be the tenant, or quasi 
 tenant, of the owner, although there never was any agree- 
 ment betw^een them in relation to the possession. Such is 
 the case where one aliens his land in fee, and still continues 
 in possession ; and when the land is sold on execution, or 
 by virtue of the power of sale in a mortgage. But it is 
 doubtful whether in these cases the occupant of the land 
 could claim the same privilege in respect to fixtures, an- 
 nexed by him to the freehold, as in the ordinary case of 
 landlord and tenant. 
 
 On the other hand, an estate at sufferance is where one 
 comes into possession of land by lawful title, but keeps it 
 af terw^ard without any title at all ; as if a man takes a lease 
 for a year, and after the year is expired, continues to hold 
 the premises without any fresh lease from the owner of the 
 estate. There is no privity of estate between a tenant at 
 sufferance and the owner of the land ; for this tenant only 
 holds by the laches of the owner. And yet, in cases of 
 tenancy at sufferance, doubtless, tlie ordinary rules relating 
 to fixtures, as between landlord and tenant will apply. On 
 the whole, therefore, the position of Judge Walker in Moore 
 V. Smith, may be regarded as good law. 
 
 But to resume the current of the decisions upon the par- 
 ticular subjects under discussion in this chapter : 
 
 The Court of Appeals of Kentucky, in 1868, held, that a 
 frame house and shed erected by a tenant on demised prem- 
 ises, for the purpose of baling and storing hay, were fix- 
 tures, which tlie tenant, as between himself and his land- 
 lord, had tlie right to remove, but that he must avail him- 
 self of his privilege before the expiration of his term, or he 
 abandons the fixtures to his landlord. 
 
 Williams, C. J., said : "Whatever may have been Grout's 
 rights under his deed from Younger as against his vendors, 
 as there was no exception in the deed of the buildings, 
 which, by section 25, chapter 2, Stanton's Revised Statutes, 
 230, is to be construed as includins; the buildino:s. Yet this
 
 252 LAW OF FIXTURES. 
 
 can affect only the right of the parties to the deed, and not 
 the tenant who has made such erections as he may lawfully 
 remove. But as Thomas did not exercise his privilege of 
 removal before the expiration of his term, and made no 
 contract for its renewal or extension, and even waited some 
 months after his landlord, by a most unequivocal act, mani- 
 fested a clear intention not to renew his lease, he had no right 
 to remove, even if it be conceded the building was of the 
 character which the tenant had a clear right to remove ; nor 
 can this right of Grout's to retain the erections be defeated, 
 even by the vague and equivocal statement of the two 
 Youngers, that they told Grout the building was Thomas', 
 was established, instead of being, as it is, discredited by 
 the only two disinterested witnesses present at the only in- 
 terview between Grout and the Youngers ; for if he took the 
 lot subject to Thomas' claim, when Thomas, by his own 
 conduct, lost his privilege. Grout's knowledge that the 
 building was his would no more affect him than it would 
 had he been the original lessor. 
 
 "The original doctrine was, that fixtures were generally 
 regarded as immovable, and, therefore, as belonging to the 
 landlord, though erected -by the tenant, and at his expense ; 
 but this doctrine has been modified, in modern times, to 
 suit the wants and necessities of trade and commerce, 
 and the arts and sciences, until now, perhaps, a majority of 
 fixtures erected by tenants may be removed, if done whilst 
 the dominion over the leased premises still exist, but not 
 afterwards. 
 
 "Whether the modifications have not already been carried 
 to the full extent that a due regard for the rights of the 
 landlord will permit, we can hardly suppose that it will 
 ever be carried to the extent to permit one whose term has 
 expired, either to hold over against the landlord' s will and 
 interest, for the purpose of removal, or permit him, if out 
 of possession, to enter upon the landlord's or his tenant's 
 possession, and disturb them for such purpose" {Thomas 
 V. Crout, 5 Bicslis M., 37, 39-41). 
 
 The only materuxl thing in this case, under the branch of 
 tlie subject now under consideration is, the fact that an
 
 CASES OF TRADE FIXTURES. 253 
 
 ordinary frame house and slied erected by a tenant upon 
 demised j)remises, for the purpose of baling and storing 
 hay, may be regarded as trade fixtures, as between landlord 
 and tenant, and removable as such during the term. It 
 does not expressly appear from tlie report of the case, 
 whether the hay to be baled and stored was for traffic or to 
 be fed out on the x)remises, though the inference would be, 
 that it was for traffic, because it is not customary to bale 
 hay to be fed out, without transportation. Neither is the 
 idea of storing hay usually entertained in respf^ct to hay se- 
 cured in a shed to be fed out. But this would not seem to 
 be so material, for the position seems to be assumed that 
 the original common law doctrine, in respect to fixtures, 
 has been modified in Kentucky^ to meet the wants and 
 necessities of trade and commerce, and the arts and scien- 
 ces, so that a majority of fixtures, erected by tenants, may 
 be removed while the tenant's dominion over the leased 
 premises exists ; and this was substantially affirjned, with- 
 out regard to the precise ol^ject of the tenant in making the 
 erections. It would, doubtless, be held in most of the 
 states, however, that a barn or shed built of wood upon 
 demised premises by the tenant, for the purpose of storing 
 hay to be sold and taken away, is a trade fixture, and re- 
 movable as such, provided the premises were leased to the 
 tenant for that particular business, and the building was 
 not too firmly attached to the freehold. 
 
 The Supreme Court of the State of Iowa, had a case before 
 it, involving the question, whether a building erected by a 
 tenant upon the demised premises for the purpose of trade, 
 consisting of a balloon frame set upon posts extending into 
 the ground, witli a fence fastened to the corners, was a 
 trade fixture or not, and the court was equally divided upon 
 the question ; half of tlie judges being of the opinion that 
 it was, and the other half, that it was not [Comden v. >S'^. 
 John, 16 Iowa R., 590). 
 
 The Supreme Court of Missouri has held, that a tenant 
 may remove a hydraulic pump let into the ground and 
 walled up with solid masonry, and wooden parts of it 
 nailed to the building, wliicli is necessary to his business
 
 254 LAW OF FIXTURES. 
 
 for which lie occupies the building {Finney v. WatJcins, 13 
 Ifo. B., 291). 
 
 In 1873, the Supreme Court of Nebraska disposed of a 
 case involving the question now under consideration. It 
 appeared that tlie owner of a vacant lot of ground in Omaha 
 City, demised the same to a tenant, for the term of five 
 years, at a stipulated rent. The tenant took possession and 
 put on a building, set on blocks, without any cellar or 
 foundation under it, and was so placed on the demised 
 premises for a dwelling-house, and house of trade or busi- 
 ness, and occupied the same in that way, 
 
 Gautt, J., delivered the opinion of the court, and, after 
 examining the authorities upon the subject of trade fixtures, 
 as between landlord and tenant, said: "In the case at bar 
 the demised premises were vacant when demised to the ten- 
 ant, and the tenant put his building on the same and set it 
 on blocks, without a foundation under it. The removal of 
 such a building clearly comes within the rule, that the ten- 
 ant may remove from the freehold all improvements erected 
 by him, the removal of which will not injure the premises, 
 or put them in a worse plight than they were in when he 
 took possession. 
 
 "And it seems clear also, upon principles well founded in 
 reason and public policy, that the rule of law is well estab- 
 lished, that buildings placed upon leased premises by the 
 tenant, to be used for the purpose of trade and business, 
 jare in law deemed personal property., and may be mort- 
 gaged. as chattels, or levied on as personalty, and sold upon 
 execution, and that the purchaser at such sale has the right 
 to enter upon the premises to remove them. * * * And I 
 think, upon principle, the rule with equal force applies to 
 all other fixtures erected by the tenant, which are removable 
 during his term" {Lanphere v. Loioe, 3 Neb. R., 131, 137). 
 
 In this case, the premises let was a vacant lot in a city, 
 and, of course, it was understood by the landlord, that the 
 property was to be occupied by the tenant in some way, 
 and, probably, in the precise way it was made use of. 
 Clearly, therefore, the building erected by the tenant upon 
 the premises, for the purposes, and in the manner indicated,
 
 CASES OF TRADE FIXTURES. 255 
 
 came directly within the principle applied to erections for 
 trade, and was removable by the tenant at the expiration of 
 his term. 
 
 The Supreme Court of California held, in 1859, that a 
 steam-engine and boiler, fastened to a frame of timber, bed- 
 ded in the ground of a quartz ledge, sufficient to make it 
 level, with a roof or shed to protect the machinery, and 
 used for the purpose of working the ledge, were so annexed 
 to the freehold as to become a fixture ; but, that such ma- 
 chinery, when applied to quartz leads, was a trade fixture, 
 removable by the tenant, if he was otherwise entitled to 
 remove it. 
 
 Baldwin, J., delivered the opinion of the court, and 
 among other things, said : "We come to consider the next 
 question, whether the property as we have described it, was 
 a part of the freehold. It must be annexed to the soil. 
 * * * Upon few subjects have there been more numerous 
 or more diverse decisions than upon this question of fix- 
 tures. Though no great difficulty appears at first sight in 
 the definition itself, yet the application to particular facts 
 has vexed the courts and given rise to an endless conflict of 
 decision. * -^ * 
 
 "We think that the principle to be extracted from the 
 modern authorities covers the case at bar : that this appa- 
 ratus was necessar}^ to the working of the ledge ; that it 
 was attached for that purpose permanently to the soil, and 
 its use accessory, if not essential, to the inheritance for its 
 only valuable purpose — the extraction of the gold. Many 
 cases are cited in the books, in which a similar, or not more . 
 intimate and secure, connection with the freehold has been 
 held a sufficient annexation. * * ^ 
 
 "It is observed in the review of the learned editor of the 
 leading cases that, to whatever extent the right to remove 
 trade fixtures be carried, common sense and justice seem to 
 require that it should be bounded b}^ the rule laid down by 
 Lord Hardwicke in Laioton v. Latofon, that the principle 
 thing shall not be destroyed by the accessory. The author- 
 ities seem to be divided as to the right of a farmer to remove 
 fixtures annexed to the soil, and put there for agricultural
 
 256 LAW OF FIXTURES. 
 
 purposes ; but in several cases it is lield that when the ten- 
 ant's business is in the nature of a trade (as in 3 East, which 
 involved the right to a cider mill), the same rule held. But 
 the right, in respect to these fixtures, it seems to be con- 
 ceded, is less broad than the right to trading fixtures. How- 
 ever, tliis makes no difference here, for we consider this sort 
 of property — being movable in its nature — when applied 
 to quartz leads, is really used in trade — the trade of getting 
 out the gold — or as accessory to that business. We can see 
 no distinction in this respect between this sort of property 
 used for this business and the same property used for the 
 purpose of a colliery. 
 
 " Though this property, according to the cases cited, was 
 a fixture, still it was removable by the tenant, if he were 
 otherwise entitled to remove it" {IferriUv. Judd, 14 Cal. 
 B., 59, 64, 65, 67-69). 
 
 It will be observed that the learned court, in this case, 
 recognized the authority of Elwes v. Maio decided by the 
 English Court of King's Bench, and pronounced the steam- 
 engine and boiler in question, to be movable upon the same 
 principles laid down by Lord Hardwicke in Laioton v. Law- 
 ton (3 Atk. H., 12-16), in which it was held that similar 
 property affixed to the leasehold estate by a tenant for life, 
 was personal property and went to the executor for the in- 
 crease of the assets of the deceased tenant. 
 
 A somewhat similar case, in principle, was decided by the 
 Supreme Court of IS^evada, in 1871, wherein it was held that 
 where a steam saw-mill, put upon land for the purpose of 
 sawing up the timber upon it, had its foundation planted in 
 the ground, and the engine, boiler and machinery were at- 
 tached by bolts, belts, shafts and pipes to the framework, 
 which was built upon such foundation ; the boiler, engine 
 and machinery were fixtures. And it was declared, that 
 the fact that there was but a limited supplj'^ of timber on 
 the land upon which the steam-mill was put, and that it was 
 the intention to remove the mill as soon as the timber was 
 sawed, did not render the boiler, engine and machinery, 
 otherwise fixtures, any the less so. 
 
 These fixtures were erected uj^on lands belonging to the
 
 CASES OF TRADE FIXTURES. 257 
 
 public, by occupents, who failed to take steps to acquire 
 the title to the land, and the lands were subsequently sold 
 by the state to other parties, who claimed the fixtures. It 
 was argued in favor of the party who put them upon the 
 land, that such party entered upon the land by permission 
 of the state, and that the relations that existed between the 
 state, and such occupant were those of landlord and tenant, 
 and, as to the tenant, he could claim the articles as trade 
 fixtures. 
 
 On the other side it was insisted that the proposition that 
 the party who erected the fixtures was a tenant of the state, 
 and hence had the right of removal, as trade fixtures, could 
 not be maintained. It was said that the party failed to 
 show any compliance with any law of Nevada which would 
 entitle him to possession of the land for a moment ; that he 
 was a naked trespasser, stripping the state land of its tim- 
 ber. It was further argued that where removal of fixtures 
 is tolerated at all, it is always within the term and solely in 
 the interest of trade, and the relation of landlord and tenant 
 must be shown to exist beyond any question. 
 
 Garber, J., delivered the opinion of the court, and said: 
 "These fixtures were not removable by appellants, either as 
 tenants or by custom. At the time the mill was erected, and 
 for more than a year thereafter, the land described in the 
 complaint was public land of the United States ; and conse- 
 quently, during all that time, the parties erecting and run- 
 ning the mill were naked trespassers. * * * The right of 
 removing trade fixtures has been liberally construed in favor 
 of the tenant ; yet, we believe, never so liberally as to em- 
 brace, not only those erected during the term, but also such 
 as constitute a portion of the land demised. ^ * * Between 
 landlord and tenant this rule was relaxed, to relieve the 
 tenant from the dilemma of submitting, either to the incon- 
 venience of conducting his business with articles capable of 
 use without annexation, or to the injustice of surrendering 
 to his landlord, at the expiration of the term, articles unfit 
 for use unless so fastened and steadied as to become fix- 
 tures. But this relaxation is strictly an exception to the 
 
 33
 
 258 LAW OF FIXTURES. 
 
 general rule, to be extended only to cases within tlie policy 
 and exigency which gave rise to it. 
 
 "The appellants were not placed in the dilemma from 
 which the exception relieved the tenant. All they liad to 
 do was, to avail themselves of their right to acquire the title 
 to the land. Failing in this, they can with as little reason 
 complain of the rigor of the rule of law, as could a vendor, 
 failing to avail himself of his right to disannex before selling, 
 or to except the fixtures in the deed" {Treadway v. Sharon., 
 1 Nex). R., 37, 44, 45). 
 
 In 1828, a case was decided by the Supreme Court of 
 Tennessee, in which the question was, whether a still set 
 upon the lands of the lessor, by the lessee, could be seized 
 under 2^ fieri facias by the sheriff as the property of the les- 
 see and be sold as his. By the Court, Roane and Haj^ward, 
 Judges, it was decided, that, as between a creditor and les- 
 see, the still could certainly be seized under an execution 
 against the lessee ; and it was said, that the decisions in 
 modern times had gone far to consider fixtures, made for 
 the purpose of carrying on a man's trade as not coming 
 under the idea of fixtures becoming a part of the freehold. 
 As between landlord and tenant, it was said, there is the 
 same disposition. And even as between heir and executor, 
 it was added, modern notions are far more liberalized and 
 accommodated to the ordinary purposes of those who carry 
 on business than formerly. Judgment was rendered accord- 
 ingly {Pilloio V. Lorn., 5 HaywarcV s R., 109). 
 
 The report of this case does not show what the character 
 of the still was, which was decided to be the personal prop- 
 erty of the. tenant who set it upon the demised premises, 
 nor the manner in which it was attached to the land. It 
 was probably, however, some apparatus used in the distil- 
 lation of liquors ; and perhaps the building in which the 
 apparatus was oiDerated, was also included. There can bo 
 but little doubt, that in most cases where lands are leased 
 for the |)urpose of erecting thereupon, the necessary build- 
 ings and apparatus to be used as a distillery, such buildings 
 and apparatus, when placed npon the demised premises by 
 the tenant, would be regarded as trade fixtures, or as erec-
 
 CASES OF TRADE FIXTURES. 259 
 
 tions for the purposes of trade or manufactures, and movable 
 by the tenant as such. This decision was made nearly sixty 
 years ago, and the rule in favor of the tenant is even more 
 liberal now than it was when the case of Pillow v. Love 
 was decided. 
 
 CHAPTER XVIII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT FOR PURPOSES OF TRADE AND 
 
 MANUFACTURES EXAMINATION OF THE AMERICAN AUTHORITIES UPON 
 
 THE POINT DECISIONS OF THE FEDERAL COURTS PRINCIPLES EX- 
 TRACTED FROM THE CASES. 
 
 Having examined the decisions of the State courts upon 
 the subject of trade fixtures, as between landlord and tenant, 
 so far as has been practicable from the published reports, it 
 remains to consider tTie decisions of the Federal courts upon 
 the same point, and endeavor to ascertain the doctrine from 
 the cases examined. 
 
 The cases which have been decided by the» Federal courts 
 upon the branch of the law of fixtures now under discus- 
 sion, are very few, although they are important, and are 
 often referred to, not only upon the subject of trade fixtures, 
 but in relation to the general subject of fixtures, as between 
 landlord and tenant. 
 
 In 1806, a case was brought before the Circuit Court of 
 the United States for the District of Columbia, involving the 
 right of a tenant to remove a wooden shed erected by him 
 upon demised premises, during his term." The shed was 
 placed upon posts inserted into the ground to the depth of 
 two feet, and leaned against the wall of a house situated on 
 an adjoining lot not belonging to the landlord. • The tenant 
 removed the shed at the expiration of his term, and the 
 landlord brought a special action on the case against him to 
 recover the damage. 
 
 It was contended for the tenant, that it was a general rule
 
 260 LAW OF FIXTURES. 
 
 that between landlord and tenant, things annexed by the 
 tenant to the freehold or building, and which couki be re- 
 moved without prejudice to the freehold or building, might 
 be lawfully removed by the tenant during his term ; and 
 counsel cited Laioton v. Lawton^ 3 Atlc.^ 14; Fitzlierhert 
 V. Shaio, 1 H. Bl., 258; Penton v. Bobart, 2 Bast, 88; 
 Dean v. AUalley, 3 Msp. Bep., 11 ; and Kx parte Quincy, 
 1 Atk., 477, for authorities. 
 
 On the contrary, the counsel for the landlord contended 
 that the rule was relaxed in only three cases. 1. Where 
 the thing fixed was once a chattel and must be used as such, 
 2. When it is for the benefit of trade. 3. When it is the 
 manifest intention of the parties that it should not be con- 
 sidered as annexed to the freehold. Thus trees may be 
 removed by a gardener or nursery- man for the benefit of 
 trade. He insisted that the cases cited on the other side 
 were exceptions to the general rule of law. 
 
 The court instructed the jury that if the defendant, during 
 Jiis term, brought the old wooden stable, and fixed it on the 
 lot by posts inserted in the ground and leaning against the 
 wall of a house on an adjoining lot, not belonging to the 
 plaintiff, and before the expiration of the term removed the 
 stable, without injury or damage to the soil or to the other 
 buildings of the plaintiff, either by the erecting or continu- 
 ance or removal of the stable ; it was lawful for him to do 
 so. The plaintiff became nonsuit {Krouse v, Boss, 1 
 CrancKs Circuit Court R., 368). 
 
 It would seem, from the care taken to mention it in the 
 report, that the fact that the old hv^n or shed leaned against 
 a building on premises not belonging to the landlord, was a 
 consideration in the decision of the case. It does not ap- 
 pear in what way the shed was attached to the adjoining 
 building ; possibly the upper part of the entire roof was 
 supported by it ; in which case, the facts, certainly, would 
 be of imi)ortance in determining the intent with which the 
 shed was placed upon the demised premises. Obviously, 
 however, tlie shed was a frail building, temporary in its 
 character, and miglit well be regarded personal property, 
 as between landlord and tenant.
 
 CASES OF TRADE FIXTURES. 261 
 
 • In 1829, the Supreme Court of the United States decided 
 an important case, in which the principle of trade fixtures, 
 as between landlord and tenant, was extended to a class of 
 erections, wdiich had before been supposed to be irremovable. 
 The case came before the court on error to the Circuit Court 
 of the county of Washington in the District of Columbia. 
 It appeared that a tenant erected upon a lot of ground in 
 the City of Washington, which he held under a lease, a 
 building, two stories high in front, with a cellar of stone or 
 brick, and a shed of one story; and that the principal 
 building, which had a brick chimney, rested upon this stope 
 or brick foundation. The tenant was a carpenter by trade, 
 and resided in the house from the commencement of his 
 lease, or from the time he erected it, upon obtaining his 
 lease. He erected the building with a view to carry on the 
 business of a dairyman, and for the residence of his family 
 and servants engaged in the business. The cellar, in which 
 was a spring, was made and used exclusively for a milk 
 cellar, and in the upper part of the house w^ere kept, and 
 scalded and washed, the utensils used in the business, and 
 in that part of the house the family resided. It appeared 
 further, that the tenant had his carpenter's tools and two 
 apprentices in the house, and a work-bench out of doors, 
 and that he worked in the house as a carpenter. The house 
 was in a rough, unfinished state, and made partly of old 
 materials. The tenant also built upon the lot a stable for 
 his cows, of plank and timber, fixed upon posts fastened into 
 the ground, and claimed the whole as his property, which 
 he had the right to remove at the expiration of his term. 
 
 On bei^alf of the owner of the freehold, it was claimed 
 that the buildings were irremovable by the tenant,^ and 
 it was insisted that no case could be found, in which a 
 building fixed to the freehold was allowed to be taken away ; 
 that all the adjudged cases went to the extent of permitting 
 instruments and machinery used for the purposes of trade 
 to be carried away, but nothing more ; that the freehold 
 was never to be injured, and must always be left in the con- 
 dition it was in when the lease commenced. 
 
 On the part of the tenant, the point was made, that the
 
 262 LAW OF FIXTURES. 
 
 buildings were erected and used by the tenant for the pur- 
 poses of his trade, and that he had, therefore, a right to 
 remove them under the general law of landlord and tenant. 
 But it was insisted and argued, that if the buildings should 
 be regarded as erections for agricultural purposes, even 
 then, the tenant should have the right to remove them. The 
 case of Elwes v. Maw was referred to, and it was contended 
 that, in the City of Washington, where there was then, and 
 in all probability for a long period would be, a large space 
 upon which no buildings would be placed, the application 
 of^more liberal principles than those found in the English 
 cases was proper and necessary. 
 
 Mr. Justice Story delivered the judgment of the court, and 
 in the course of a learned and elaborate opinion, discussed 
 the general doctrine of fixtures, and reviewed the English 
 decisions upon the subject ; and especially the principal 
 case of Elwes v. Maio (3 East's B., 38), and finally came to 
 the conclusion that the tenant was entitled to the buildings, 
 as being erections for purposes of trade. The distinguished 
 jurist observed : "It has been suggested at the bar, that this 
 exception in favor of trade has never been applied to cases 
 like that before the court, where a large house has been built 
 and used as a family residence. But the question, whether 
 removable or not, does not depend upon tlie form or size of 
 the building, whether it has a brick foundation or not, or is 
 one or two stories high, or has a brick or other chimney. 
 The sole question is, whether it is designed for purposes of 
 trade. A tenant may erect a large as well as small mes- 
 suage, or a soap boilery of one or two stories high, and on 
 whatever foundation he may choose. * * ^ In Elwe§^v. Maw 
 (3 Easfs R., 37), Lord EUenborough expressly stated, that 
 there was no difference between the building covering any 
 fixed engine, utensils, and the latter. The only point is, 
 whether it is accessory to carrying on the trade or not. If 
 bona fide intended for this purpose, it falls within the ex- 
 ception in favor of trade. The case of the Dutch barn, be- 
 fore Lord Kenj'on, is to the same effect. 
 
 "Then as to the residence of the family in the house, this 
 resolves itself into the same consideration. If the house
 
 CASES OF TRADE FIXTURES. 263 
 
 were built principally for a dwelling-house for the family, 
 independently of carrying on the trade, then it would doubt- 
 less be deemed a fixture, falling under the general rule, and 
 immovable. But if the residence of the family were merely 
 an accessory for the more beneficial exercise of the trade, 
 and with a view to superior accommondation in this par- 
 ticular, then it is within the exception. There are many 
 trades, which cannot be carried on well, without the pres- 
 ence of many persons by night as well as by day. It is so 
 in some valuable manufactories. It is not unusual for per- 
 sons employed in a bakery to sleep in the same building. 
 Now, what was the evidence in the present case ? It was, 
 ' that the defendant erected the building before mentioned, 
 with a view to carry on the business of a dairyman, and for 
 the residence of his family and servants employed in that 
 business.' The residence of the family was then auxiliary to 
 the dairy ; it was for the accommodation and beneficial opera- 
 tion of this trade. 
 
 " Surely it cannot be doubted, that in a business of this na- 
 ture, the immediate presence of the family and servants was, 
 or might be of very great utility and importance. The de- 
 fendant was also a carpenter, and carried on his business, as 
 such, in the same building. It is no objection that he car- 
 ried on tv/o trades instead of one. There is not the slight- 
 est evidence of this one being a mere cover or evasion to con- 
 ceal another, which was the principal design ; and, unless 
 we were prepared to say (which we are not) that the mere 
 fact that the house was used for a dwelling-house, as well 
 as for a trade, superseded the exception in favor of the lat- 
 ter, there is no ground to declare that the tenant was not 
 entitled to remove it. At most, it would be deemed only a 
 a mixed case, analogous in principle to those before Lord 
 Chief Baron- Comyns and Lord Hardwicke ; and therefore 
 entitled to the benefit of the exception " ( Van Ness v. Pao- 
 ard, 2 Peters' P., 137, 146-148). 
 
 This is a very important case, and has often been referred 
 to in subsequent cases, and, without perhaps determining 
 absolutel}^ the rule in any, it has in some of them controlled 
 the decision in a very marked manner. Other phases of
 
 264 LAW OF FIXTURES. 
 
 the law of fixtures beside the one under discussion here, 
 were considered by the learned judge who delivered the 
 opinion, which may be referred to hereafter. And one in- 
 teresting item may as well be noted in this place. Judge 
 Story lays down the rule, and the case substantiates it, that 
 it is competent to establish a usage and custom for tenants 
 to make removals of buildings erected by them during their 
 term. The tenant had been allowed to prove in the court 
 below, that a usage and custom existed in the City of Wash- 
 ington to the effect as above stated, and it was declared that 
 there was no objection to such proof ; that every demise be- 
 tween landlord and tenant in respect to matters, in which 
 the parties are silent, may be fairly open to explanation by 
 the general usage and custom of the countr}^ or of the dis- 
 trict where the land lies ; that every person under such cir- 
 cumstances is supposed to be conversant of the custom, and 
 to contract with a local reference to it ; and some familiar 
 cases from the books were referred to as corroborative of the 
 doctrine. And it was further held in the case, that it was 
 competent to establish such a usage and custom by parol 
 testimony. Said the learned judge: "Competent it cer- 
 tainly was, if by competent is meant that it was admissible 
 to go to the jury. Whether it was such as ought to have 
 satisfied their minds on the matter of fact was solely for 
 their consideration, open indeed to such commentary and 
 observation, as the court might think proper in its discretion 
 to lay before them for their aid and guidance." Page 148. 
 It appears that the principal building involved in the case 
 of Van Ness v. Pacard, was built of wood upon a founda- 
 tion of stone or brick, having a brick cliimney, and Judge 
 Story intimates that it was a matter of no importance of 
 what materials the building was constructed, or what were 
 its dimensions, so far as the question of its being movable or 
 not was concerned, for "the sole question is, whether it is 
 designed for purposes of trade." Perhaps this position 
 should be qualified, for buildings might be erected solely 
 for purposes of trade, but were so constructed that they 
 could not be removed from the demised premises without 
 practically destroying them, and rendering their materials
 
 CASES OF TRADE FIXTURES. 265 
 
 comparatively useless. And tlie Supreme Court of the 
 United States has recently declared that a brick structure 
 or structures in Chicago, where they are in the habit of re- 
 moving every conceivable building, did not come within any 
 of the principles upon which fixtures were removable. The 
 learned counsel for the tenant argued that the structure 
 being an erection for trade, it was removable irrespective of 
 the materials of which it was built, and observed : " Since 
 the great case of Blwes v. Maw, given in Smith's Leading 
 Cases, 2 Smith, 228, 6th edition, reported from 3 East, 38, 
 the rigor of the common law has been greatly relaxed, both 
 in this country and in England, and courts of law have 
 adopted the principle, that it is for the benefit of the public 
 to encourage tenants to make improvements in trade, and to 
 do what is advantageous for the estate during the term, with 
 the certainty of their still being benefited by it at the end 
 of the term. We hold that the rule is the same, and that 
 it applies, whether the tenancy be for years or at will. It 
 matters not whether the building is erected upon blocks or 
 upon masonry; whether of wood, stone, or brick. It is 
 the property of the tenant, and he has the right to remove 
 it at the end of the term, and the landlord cannot inter- 
 fere unless the 'tenant damages the freehold. The rule is 
 founded upon a high principle of justice and right, and in 
 this country especially, should be maintained as tending 
 every where to improvements. 
 
 "This general principle has been applied, as the court 
 knows, in a case where vats had been put up for the conven- 
 ience of the trade of the tenant ; also, in a case of a mill and 
 furnace, steam-engines, and copper stills, erected to carry on 
 distilling, though fixed to the building ; also, in a case where 
 a building had been erected on the demised premises for the 
 purposes of trade, and placed upon a foundation of brick 
 masonry in the ground ; also, in a case where a building 
 had been erected upon stone posts set in the ground. Many 
 other cases, equally decisive of the question, can be found 
 in the books, even in the old ones {Beck v. Beboio, 1 Peere 
 Williams, 94; Lawton v. Laioton, 3 Atkyns, 13; Poole's 
 Case, 1 Sa.lkeld, 368; Va7i JYess v. Pacard, 2 Peters', 137; 
 
 34
 
 266 LAW OF FIX TURES. 
 
 Union Banlc v. Emerson, 15 Massachusetts, 159 ; Holmes 
 \. Tremper, 20 Johnson, 29"), 
 
 The court, by Mr. Justice Miller, who delivered the opin- 
 ion, disposed of the argument of the learned counsel and 
 the authorities cited by him, in a very few words. The 
 learned judge said : " If we correctly understand plaintiff's 
 counsel, one of the positions assumed by him in argument 
 is, that the fact that under these circumstances defendant 
 came into the use and possession of the building, erected by 
 the labor and money of plaintiff's assignor, entitled plaintiff 
 to recover the value of that building, without aid from the 
 contract on that subject in the lease, which we will consider 
 hereafter. The authorities cited to support this position re- 
 late to the class of cases in which tenants have been per- 
 mitted to remove fixtures from the premises which they 
 have placed there during the tenancy. 
 
 " Without elaborating the argument, it may be remarked 
 that none of those authorities are applicable, for two reasons: 
 
 "1. The character of the building, in the present case, does 
 not bring it within any of the principles upon which certain 
 erections have been held removable as fixtures. * * '^' The 
 well-settled rule is, that such erections as this become a part 
 of the land as each stone and brick are added to the struc- 
 ture." 
 
 The other reason assigned by the learned judge need not 
 be repeated here, as it has no bearing upon the point now 
 under discussion. It is sufficient that the court regarded 
 the character of the building such, that, upon general prin- 
 ciples it could not be regarded as a movable fixture, what- 
 ever may have been the purposes for which it was erected 
 {KutlerY. Smith, 2 Wallace's R., 491, 495-497). 
 
 The cases which have been collected in the preceding pages, 
 contain substantially all, it is believed, that can be found 
 upon the rights of a tenant to remove fixtures erected for 
 the purposes of trade or manufactures ; and in a majority 
 of the cases, the property in dispute was either a mere uten- 
 sil or instrument of trade, or machinery employed in ti-ade ; 
 or else what might be deemed accessory to such articles, in 
 supporting or protecting them, or as being instrumental to
 
 CASES OF TRADE FIXTURES. 267 
 
 tlieir convenient use. It will have been observed, also, tliat 
 in almost all of tliem, too, the articles, or the parts of which 
 they were composed, were such as, after removal, were ca- 
 pable of being again employed for the same or similar pur- 
 poses. In some instances, however, the tenant's right of 
 removal is carried to the extent of embracing entire build- 
 ings, as well as the annexations thereto, and in some of the 
 dicta and observations that are to be met with in some of 
 the decisions, the exception in favor of trade is found to be 
 laid down in very comprehensive and general terms. The 
 inference to be drawn from the cases is, that the tenant has 
 an indisputable right to remove fixtures which he has an- 
 nexed to the demised premises for the purposes of carrying 
 on his trade, and the reason which induced the courts to 
 relax the strictness of the ancient rule, and to admit the 
 innovation in this particular instance, was, that the commer- 
 cial interests of the country might be advanced, by the en- 
 couragement given to tenants to employ their capital in 
 making improvements for carrying on trade, with the cer- 
 tainty of having the benefits of their expenditure secured 
 to them at the end of their terms ; and sometimes it was 
 said that the benefit of the public might be regarded as the 
 principal object of the law in bestowing this indulgence. 
 
 From a review of the authorities examined, it will appear 
 exceedingly difficult to lay down any general rule, which 
 shall serve as an infallible guide in practice as between land- 
 lord and tenant, with respect to the right of removing an- 
 nexations made for the purposes of trade. At least, if an 
 attempt was made to lay down any such rule, it would be 
 necessary to express it in terms so guarded as not to clash 
 with any of the grounds of decision in the numerous cases 
 referred to. It is thought, however, safe to affirm that 
 tilings which a tenant has fixed to the freehold for the pur- 
 poses of trade or manufacture, may be taken away by him 
 at the expiration of his term, whenever the removal is not 
 contiary to any prevailing practice, and the articles can be 
 removed without causing material injury to the freehold ; 
 and where tlie annexations were, in themselves, of a perfect 
 chattel nature before they were put up, or have in substance
 
 268 LAW OF FIXTURES. 
 
 that character independently of their union with the soil ; 
 with the qualification that the annexations may be taken 
 from the realty without being entirely demolished, or los- 
 ing their essential character in value. This rule, if it may 
 be christened a rule, will be found to be most consistent 
 with the adjudged cases. And some of the authorities de- 
 clare the doctrine beyond a doubt, that a tenant for life, 
 years, or at will or sufferance, may, at the expiration of his 
 estate, remove from the freehold, all such improvements as 
 were erected or placed there by him, the removal of which 
 will not injure the premises, or put them in worse plight 
 than they were in when he took possession. And that as to 
 buildings, even, the tenant may remove all such as are 
 erected by him on the demised premises, in such manner, 
 that they may be removed without injury to the soil, or 
 destruction of the fabrics themselves. 
 
 If an erection, put up in relation to trade, can be removed 
 without violating any one of the conditions mentioned, it is 
 pretty safe to say, that whatever its magnitude, construc- 
 tion, or mode of annexation, It is a fixture which a tenant 
 may legally remove. And it is not inconsistent with many 
 of the decisions, to hold that things may be removable in 
 some instances, where the requisites named are not com- 
 pletely fulfilled. It is designed simply to state, that the 
 rule proposed maybe relied, upon as an^ affirmative prop- 
 osition, and that whenever the circumstances mentioned 
 concur, in that case, the annexation may confidently be 
 pronounced to belong to the tenant. 
 
 Among the things which a tenant may take away from 
 the demised premises, annexed by himself for the purposes 
 of his trade or manufacture, according to the decided cases, 
 the following are examples, which will serve as illustrations 
 of what may be held to be removable, as trade fixtures, as 
 between landlord and tenant : Vessels and utensils of trade, 
 such as furnaces, coppers, brewing vessels, fixed vats, salt- 
 pans, tables, partitions, and the like. Machinery in brew- 
 eries, collieries, mills and mines ; as steam-engines, cider- 
 mills, carving machines, copper stills, and distillery appa- 
 ratus, and the like. Also certain buildings for trade, such
 
 CASES OF TRADE FIXTURES. 269 
 
 as a varnish-house ; at least if they are built on plates laid 
 on brick-work. Likewise sheds or buildings called Dutch 
 barns, formed of upright siding from a foundation of brick- 
 work ; and a house and shed erected for the purpose of 
 baling and storing hay. Also a house two stories high in 
 front, and a shed of one story, resting upon a stone or brick 
 foundation, erected by the tenant with a view to the busi- 
 ness of a dairyman, and for the residence of his family and 
 servants engaged in the business. 
 
 The general rule, which appears to be the result of the 
 cases, according to Chancellor Kent is, that "things which 
 the tenant has affixed to the freehold, for the purposes of 
 trade or manufacture, may be removed, when the removal 
 is not contrary to any prevailing usage, or does not cause 
 any material injury to the estate, and which can be removed 
 without losing their essential character or value as personal 
 chattels. Thus, things set up by a lessee, in relation to his 
 trade, as vats, coppers, tables, and partitions, belonging to a 
 soapboiler, may be removed during the term. The tenant 
 may take away chimney i)ieces, and even wainscot, if init 
 up by himself; or a cider- mill and press erected by him on 
 the land, or a pump erected by him, if removable without 
 material injury to the freehold. So, a building resting on 
 blocks, and not let into the soil, has been held a mere chat- 
 tel. A post windmill, erected by the tenant, and machinery 
 for spinning and carding, though nailed to the floor, and 
 copper stills, and distilling apparatus, and potash kettles, 
 though fixed, or set on arches, are held to be personal 
 property. On the other hand, iron stoves, fixed to the 
 brick work of the chimney of a liouse, have been adjudged 
 to pass with the house, as part of the freehold, in a case 
 where the house was set off on execution to a creditor" (2 
 Kenfs Com., 343, 344). 
 
 Considering the liberality with which the courts have 
 generally been disposed to construe the indulgence in favor 
 of trade, it is probable that the privilege would now be ex- 
 tended to the case of the iron stoves fixed to the chimney 
 as stated by Chancellor Kent. The decision to which the 
 learned chancellor refers as authority that the stoves were
 
 270 LAW OF FIXTURES. 
 
 a part of the freeliold, and not removable by the tenant, 
 was made by the Supreme Judicial Court of Massachusetts, 
 in 1811, and there can be no doubt that such fixtures would 
 be held to be movable at the present day. The same learned 
 court held, in 1835, that a fire-frame fixed in a common 
 fire-place, with brick laid in between the sides of the fire- 
 frame and the jambs of the fire-place, is a fixture which the 
 tenant may remove during his term {Gaffield v. Hapgood, 
 11 PlcJc. B., 192). 
 
 Where substantial and extensive additions are made to 
 the demised premises, by the tenant, although he may have 
 "built them exclusively for the convenience of his trade, 
 some of the cases leave it in doubt, whether the tenant will 
 1be permitted to remove them ; especially whenever the re- 
 moval of the erections would much deteriorate the freehold 
 to which they are attached. If, however, a building is 
 merely an accessory to the principal thing, then, the cases 
 all concur that the tenant will be allowed to remove the ac- 
 cessorial building. 
 
 But it is always a case worthy of consideration, where 
 the question arises as to the right of the tenant to remove 
 •extensive buildings at the termination of his term, which he 
 has erected for the purposes of trade. In such cases, the 
 nature of the construction, and the manner in which the 
 fixture is attached to the freehold, are always subjects of 
 gmve consideration with the court, in determining whether 
 the tenant shall be permitted to remove the structure or 
 not. And the courts seem to be governed in these cases, 
 w^here it is sought to remove substantial and extensive 
 buildings, by the well-received principle that the principal 
 thing shall not be destroyed by taking away the accessory. 
 By reference to the examples afforded by the authorities 
 examined, the tenant may be guided as to his right to re- 
 move the ordinary articles which he puts up in the course 
 of his trade. And in cases of trade erections of a substan- 
 tial nature, the tenant will, as a general thing, have little or 
 no difficulty in determining what his rights are in respect to 
 taking them away, by carefully examining the rules and 
 illustrations given in this "and preceding chapters.
 
 CASES OF AGRICULTURAL FIXTURES. 271 
 
 CHAPTER XIX. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY" A TENANT FOR STRICTLY AGRICULTURAL 
 
 PURPOSES EXAMINATION OF THE GREAT CASE OF ELWES V. MAW 
 
 DECIDED BY THE ENGLISH COURT OF KING's BENCH IN 1803 OTHER 
 
 ENGLISH AUTHORITIES. 
 
 The law with respect to trade fixtures, as between land- 
 lord and tenant, is quite well settled, both in this country 
 and in England. But, whether the same rule should apply 
 in cases of fixtures, which are strictly agricultural, is not so 
 well settled, and perhaps there is not entire harmony in the 
 decisions of the courts upon the subject. Some writers and 
 Judges have insisted that the rule generally recognized in 
 cases of annexations for purposes of trade or manufactures, 
 is not applied in England in cases of strictly agricultural 
 fixtures, while in many of the United States, the rule in 
 both cases is the same. Others contend that, notwithstand- 
 ing, there are opinions to the contrary, different rules are 
 applied in the different cases in England, and that the same 
 is true of the United States. It will appear; however, from 
 the general drift of authority, that erections for agricultural 
 purposes do not receive the same protection in this country 
 or in England, as those which are set up for purposes of 
 trade or manufactures. It will become evident by an ex- 
 amination of the decisions, that the mere circumstance 
 that land has been let for purposes of cultivation, does -not 
 oblige the tenant to leave every erection, which he may make 
 iTpon tlie demised premises, behind, when he surrenders his 
 term ; and it is equally clear that there is a class of fixtures, 
 although erected by the tenant for the more convenient 
 prosecution of his business, which must not be removed by 
 the outgoing tenant, although similar erections, if for pur- 
 poses of trade, might be taken away. There are very sub- 
 stantial reasons why erections for agricultural purposes by 
 a tenant should not receive the same protection, as a rule,
 
 272 LAW OF FIXTURES. 
 
 that the common law gives to fixtures erected for purposes 
 of trade. 
 
 It will be borne in mind, that in old times, by virtue of 
 the relation subsisting between landlord and tenant, every 
 thing put up upon or into the soil by the tenant, imme- 
 diately became part and parcel of the soil, and the tenant 
 had no right to remove or unfix it again. This was the 
 effect of the relation, in which status was every thing and 
 contract had no place. The fixture was, in fact, the land- 
 lord's from the first, and the tenant had neither any prop- 
 erty in it, nor any right to or power over it, in this, the 
 earliest phase of the agricultural relation ; and so long as 
 this phase of the relation continued, there was neither occa- 
 sion nor opportunity for the question of fixtures to spring 
 up as between landlord and tenant. Until such time as the 
 tenant acquired some personal freedom or individual inde- 
 pendence, the question in this aspect could not arise. 
 
 In process of time, the tenant acquired, in England, a certain 
 separate and independent character or capacity ; so much so 
 that he was considered legally competent to contract, and 
 thus the severity of the existing laws of the agricultural re- 
 lation began to be perceived and to be denounced, and as a 
 consequence, measures were adopted to mitigate it. But, 
 although the right of the tenant to take away agricultural 
 erections put up by himself, was occasionally before the 
 courts for adjudication, the first direct authority upon the 
 question, was the great case, decided by the English King's 
 Bench, in 1803. The exceptions in favor of trade fixtures, 
 as between landlord and tenant, had long been recognized, 
 and it Would seem from the arguments of counsel and the 
 judgment of the court, that the inducement for bringing the 
 case referred to forward at the time, was the hope of being 
 able, upon the strength of the admitted liberality of the 
 law in respect to erections for purposes of trade and manu- 
 factures, to extend the rule to the strictly agricultural fix- 
 tures also. • 
 
 The case alluded to has been before referred to, but as it 
 has always been regarded as a leading authority upon this 
 branch of the subject of fixtures, it is proposed to examine
 
 CASES OF AGRICULTURAL FIXTURES. 273 
 
 it at length in this place. The judgment was pronounced 
 by Lord EUenborough, before whom the case appeared sub- 
 stantially as follows : 
 
 The declaration stated that the plaintiff was seised in fee 
 of a certain messuage, with the out-houses, etc., and certain 
 land, etc., in the county of Lincoln ; which premises were 
 in the occupation of the defendant, as tenant thereof to the 
 plaintiff, the reversion belonging to the plaintiff ; and that 
 the defendant intending to injure the plaintiff in his her- 
 editary estate in the premises, whilst the defendant was 
 possessed thereof, wrongfully and without the license, and 
 against the will of the plaintiff", pulled down divers build- 
 ings, parcel of the said premises, in his the defendant's 
 occupation, viz., a beast-house, a carpenter's shop, a wag- 
 on-house, a fuel-house, and a pigeon-house, and a brick 
 wall inclosing the fold yard, and took and carried away the 
 materials, which were the property of the plaintiff as land- 
 lord, and converted them ; by reason whereof the rever- 
 sionary estate of the plaintiff in the premises was injured, 
 etc. The defendant pleaded the general issue. And at the 
 trial a verdict was found for the plaintiff, subject to the 
 opinion of the court on the following case : 
 
 The defendant occupied a farm, consisting of a messuage, 
 barn, stat)les, etc., and lands, under a lease from the plain- 
 tiff for 21 years ; which lease contained a covenant on the 
 part of the tenant to keep and deliver up in repair the said 
 messuage, barns, stable, and out-houses, and other build- 
 ings belonging to the said demised premises. About 15 
 years before the expiration of the lease, the defendant 
 erected upon the said farm, at his own expense, a sub- 
 stantial beast-house, a carpenter's shop, a fuel-house, a 
 cart-house, and pump-house, and fold yard. The buildings 
 were of brick and mortar, and tiled, and the foundations of 
 them were about one foot and a half deep in the ground. 
 The carpenter' s shop was closed in, and the other buildings 
 were open to the front, and supported by brick pillars. The 
 fold yard was of brick and mortar, and its foundation was 
 in the ground. The defendant, previous to the expiration 
 of his lease, pulled down the erections, dug up the founda- 
 
 35
 
 274 LAW OF FIXTURES. 
 
 tions, and carried away the materials, leaving the premises 
 in the same state as when he entered upon them. These 
 erections were necessary and convenient for the occupation 
 of the farm, which could not be well managed without them. 
 Upon these, facts the question for the court to decide was, 
 whether the defendant had a right to take away the erec- 
 tions ; if he had no such right, then the verdict for the 
 plaintiff, which had been found at the Lincoln assize, was 
 to stand. 
 
 The case was twice argued before the court at considerable 
 length. For the plaintiff it was argued, that the removing 
 the buildings in question was waste at common law, and 
 that the case did not fall within any of the exceptions, 
 which had been introduced solely for the benefit of trade in 
 relaxation of the old rule. That rule was, that whatever was 
 once annexed to the freehold could never be removed again 
 without the consent of the owner of the inheritance. The 
 only established exception (which the plaintiff's counsel 
 admitted was as old as the rule itself), was in favor of trade, 
 with respect to articles annexed to the freehold for the pur- 
 poses of carrying on trade and manufactures. None of the 
 cases, it was insisted, had gone the length contended for- in 
 the case at bar, and the very grounds on which exceptions 
 had been made from the general rule excluded thf present 
 case. Erections of the sort in question, it was declared, are 
 not in their nature temporary nor movable, but are calcu- 
 lated solely for the enjoyment of the land ; the expense of 
 erecting them is great, and their value is great on the spot, 
 but of trifling consideration when removed ; the injury of 
 their removal, therefore, is much greater to the landlord 
 than the benefit of the materials when removed are to the 
 tenant. It was furtlier argued, tliat the sole object of such 
 erections is for the purpose of enjoying the produce of the 
 land ; and that the land therefore is the principal, and the 
 buildings the accessory/ to tlie land. This distinguished it 
 essentially from buildings erected for engines or machinery 
 used in trade, when the 'personal cliattel is the principal. 
 
 For the defendant it was contended, that the old rule of 
 law had been graduall}^ relaxed between landlord and ten-
 
 CASES OF AGRICULTURAL FIXTURES. 275 
 
 ant, tliougli not so much between tenant for life and re- 
 mainderman, as between him and executor. The object has 
 been to encourage tenants to lay out their money in the im- 
 provement of the premises, and in making their industry as 
 productive as possible, which is for the benefit of the state 
 as well as the individuals, and applies at least as strongly 
 to tenant in husbandry as in trade. Agriculture, it was 
 contended, in the improved state in which it is carried on, is 
 in itself a trade; it requires a much larger capi'tal than 
 formerly, and the use of more expensive implements and 
 machinery ; and unless the tenant is entitled to take away 
 with him at the end of his term, or have a compensation in 
 value for buildings like those in question, erected in such 
 manner as to be capable of being removed at pleasure and 
 set up on any other farm, he will not be at the expense of 
 erecting them at all. 
 
 Upon the whole, the defendant's counsel contended, that 
 the only line to be drawn from all the books was, that what- 
 ever buildings were erected by a tenant (be the materials 
 what they may, or however placed in or upon the ground), 
 for the immediate purposes of his trade, or for the more 
 advantageous taking or improving the profits oi his farm, 
 he may remove them again, provided he leave the premises 
 on his quitting as he found them. According to this rule, 
 no injury could ensue to the landlord, whose property 
 w^ould, on the contrary, be eventually benefited by the 
 better cultivation of it, while the public would derive an 
 immediate advantage from the encouragement afforded to 
 the capital and industry of the tenant. 
 
 Lord EUenborough, C. J., delivered the opinion of the 
 court, and said: "This was an action on the case in the 
 nature of waste by a landlord the reversioner in fee against 
 his late tenant. * * ^ The general* rule on the subject of 
 fixtures is that Avhich is laid down in the Year Book, 17 
 Edw. 2, p. 518, to the followi«g effect, namely, that when 
 a lessee having annexed any thing to the freehold during 
 his term takes it away, it is waste. But upon this rule cer- 
 tain exceptions have at various times been attempted to be 
 engrafted, in favor of trade. The principal one of such ex-
 
 276 LAW OF FIXTURES. 
 
 ceptions is tlie tenant's right to remove those utensils which 
 he may set up in relation to his trade. * * * But no ad- 
 judged case has yet gone the length of establishing that 
 buildings subservient to purposes of agriculture, as dis- 
 tinguished from those of trade, have been removable by an 
 executor of tenant for life, nor by the tenant liimself who 
 built them during his term. 
 
 "In deciding whether a particular fixed instrument, ma- 
 chine, or even building should be considered as removable 
 by the executor, as between him and the heir, * * ^ the 
 court may be considered as having decided mainly on this 
 ground, that when the fixed instrument, engine, or utensil 
 (and the building covering the same falls within the same 
 principle), was accessory to a matter of a personal nature, 
 that it should be itself considered as personalty. The fire 
 engine, in the cases in 3 Atk. and Adibler, was an accessory 
 to the carrying on the trade of getting and vending coals ; a 
 matter of a personal nature. Lord Hardwicke says in the 
 case in Ambler, ' A colliery is not only an enjoyment of the 
 estate, but in part carrying on a trade.' And in the case 
 in 3 Atk., he says, 'One reason that weighs with me is its 
 being a mixed case, between enjoying the profits of the 
 land, and carrying on a species of trade; and considering 
 it in tJiis light, it comes very near the instances in brew- 
 houses, &c., of furnaces and coppers: Upon the same 
 principle, Lord Ch. B. Comyns may be considered as having 
 decided the case of the cider-mill; i. e., as a mixed case 
 between enjoying the profits of the land and carrying on a 
 species of trade; and as considering the cider-mill as prop- 
 erly an accessory to the trade of making cider. 
 
 "In the case of the salt-pans. Lord Mansfield does not 
 seem to have considered them as accessory to the carrying 
 on of a trade; but as merely the means of enjoying the 
 benefit of the inheritance. He says, ' the salt spring is a 
 naaluable inheritance, but Jto profit arises from it unless 
 there be a salt work; which consists of a building, &c., for 
 the purpose of containing the pans, &c., which are fixed to 
 the ground. The inheritance cannot be enjoyed loithout 
 them. They are accessories necessary to the enjoyment of
 
 CASUS OF AGRICULTURAL FIXTURES. 277 
 
 the 2^ri?icij?al. The oicner erected them for the benefit of 
 the inheritance: Upon this principle he considered them 
 as belonging to the heir, as parcel of the inheritance, for the 
 enjoyment of which they were made, and not as belonging 
 to the executor, as the means or instrument of carrying on 
 a trade. If, however, he had even considered them as be- 
 longing to the executor, as utensils of trade, or as being re- 
 movable by the tenant, on the ground of their being such 
 utensils of trade ; still it would not have affected the ques- 
 tion before the court, which is the right of a tenant for mere 
 agricultural purposes to remove buildings fixed to the free- 
 hold, which were constructed by him for the ordinary pur- 
 poses of husbandry, and connected with no description of 
 trade whatever ; and to which description of buildings no 
 case (except the Nisi Prius case of Dean v. Allalley heiore 
 Lord Kenyon, and which did not undergo the subsequent 
 review of himself and the rest of the court), has yet ex- 
 tended th§ indulgence allowed to tenants in respect to build- 
 ings for the purposes of trade. * * * To hold otherwise, 
 and to extend the rule in favor of tenants in the latitude 
 contended for by the defendant would be, as appears to 
 me, to introduce a dangerous innovation into the relative 
 state of rights and interests holden to subsist between land- 
 lords and tenants. But its danger or probable mischief is 
 not so properly a consideration for a court of law, as 
 whether the adoption of such a doctrine would be an inno- 
 vation at all; and, being of opinion that it wbuld be so, 
 and contrary to the uniform current of lefal authorities 
 upon the subject, we feel ourselves, in conformity to, and 
 in support of those authorities, obliged to pronounce that 
 the defendant had no right to take away the erections stated 
 and described in this case '' {Elwes v. Maw, 3 East's R., 38).* 
 
 * The case of Ehccs x. Maw has always been regarded as a leading case upon the 
 branch of the law of fixtures relating to erections by tenants for strictly agricultural 
 purposes, and the principles to be derived fi-om it, have been repeatedly followed 
 without questioning in England. It may also be affirmed, that the case is considered, 
 by many, as an authority for^P^nerica quite as much as for England ; and conse- 
 quently, it uniformly occupies a prominent place in most discussions in which the 
 general law of fixtures is elaborately considered. No apology is, therefore, offered 
 *or the space devoted to the case in the present and in previous chapters of this work. 
 •
 
 278 LAW OF FIXTURES. 
 
 It will be observed that tliis decision established an un- 
 qualified rule, which excludes agricultural tenants from 
 participating in the advantages possessed by tenants in 
 trade in regard to fixtures ; and as the case was one of great 
 importance, upon which much deliberation was bestowed 
 by a very competent court, it may properly receive more 
 than the ordinary degree of consideration given to a single 
 case. 
 
 Mr. Smith, in his celebrated "Leading Cases," thus 
 speaks of the case of Elwes v, Maio : "The principal case 
 shows that the tenant's privilege with respect to fixtures set 
 up for trading purposes, does not extend to those set up for 
 agricultural ones. Some very sensible' observations on this 
 point are to be found in the work of Mr. Amos, who argues 
 with great force, that the opinion expressed by Lord Ellen- 
 borough in the text, viz., that the doctrine sought to be 
 established by the defendant, ' was contrary to the uniform 
 current of legal authorities,' can hardly be maintained ; and 
 that the rule laid down by his lordship is liable to this fur- 
 ther objection, that it has a tendency to confine the privilege 
 of the tenant within narrower limits than are designated by 
 the policy to which it owes its existence ; and there seems 
 no good reason for conferring it on trade to the exclusion of 
 husbandry, a pursuit equally advantageous to the com- 
 munity, and which is now, like manufactures, often carried 
 on by the aid of valuable machinery. Even if the privilege 
 be confined to trade, still many of the occupations of the 
 agriculturist fere trades, using that word in its extended 
 sense, not in the narrow and technical one which it ex^n^esses 
 in the Bankrupt Act. The opinion that trade ought, with 
 reference to the subject now under discussion, to have this 
 more extended sense, is countenanced by Laioton v. Laicton, 
 (3 AtJc., 13) ; Dudley v. Ward, (1 Amb., 13), in which Lord 
 Hardwicke appears to have considered the privilege in ques- 
 tion as belonging to fixtures b}'' means of which the owner 
 carried on a species of trade by which he rendered the pro- 
 duce of his own land available to his^wn profit. Of a some- 
 wliat similar description are the cases of nurserymen and " 
 gardeners, who may remove trees, shrubs, and other product
 
 CASES OF AGRICULTURAL FIXTURES. 279 
 
 of their ground, planted by them with a view to sale (see 
 Penton v. Bobari, 2 Uast, 91; 7 Taunt, 191; 6 Taunt, 
 316 ; see also WanshorougJi v. 3Iaton, 4 A. & K, 884 ; i2. v. 
 Otley 1 B. & Ad., 116), which ordinary tenants cannot do 
 {Mnpson v. Sade?i, 4 B. & Ad., 656 ; 1 JV. & M., 720). In 
 Pe7Lton V. Robajrt, this privilege was considered to extend 
 to green-houses and other similar erections. 'Shall it be 
 said,' asked Lord Kenyon, C. J., 'that the great gardeners 
 and nurserymen in the neighborhood of this metropohs, 
 who expend thousands of pounds in the erection of green- 
 houses and hot-houses, &c., are obliged to have all those 
 upon the premises, when it is notorious that they are even 
 permitted to remove trees or such as are likely to become 
 such, by the thousand, in the necessary course of their 
 trade « If it were otherwise, the very object of their hold- 
 ing would be defeated' (2 East, 90). Lord Ellenborough, 
 however, in the principal case, disapproved, as will have 
 been seen, of such an extension ; see too BucUand v. But- 
 terfield (2 B. <& B., 58), per Dallas, C. J. 
 
 " Upon the whole, the extent of the tenant's right with re- 
 spect to agricultural fixtures, does not seem, even as yet, 
 quite defined. It is clear that it does not go beyond, and, 
 unless the opinion expressed by Lord Ellenborough in the 
 principal case be modified, it falls considerably short of his 
 rights with respect to trading fixtures" (2 SmlW s Leading 
 Cases, Itli American edition, 190, 191). 
 
 As the observations of Mr. Amos are considered " very 
 sensible" by so distinguished an author as Mr. Smith, and 
 as Mr Amos' work on Fixtures stands high as an authority 
 in England, it will be profitable to give the substance of 
 what he says in respect to the decision in the case of 
 Elioes V. MaiD. He observes : 
 
 "It may, however, be observed of this decision, that it 
 was the first in which any distinction between trading and 
 ao-ricultural erections was made by the courts ; at least m no 
 previous case had it been laid down, that an exception m 
 favor of trade implied a negative rule, to the exclusion of 
 every article not strictly subservient to trade. The decision 
 appears, moreover, to stand opposed to opinions indirectly
 
 280 LAW OF FIXTURES. 
 
 expressed, but of liigli authority, and which had immediate 
 reference to the subject of the profits arising from land. 
 And although it has been adverted to in subsequent judg- 
 ments of the courts with great respect, on account of the 
 important matter it contains, yet it has not been followed 
 by any determination, in which the general principle of 
 public benefit and convenience has received the same 
 restriction." 
 
 The learned author then proceeds to examine the author- 
 ities, upon which much reliance seems to have been placed 
 by Lord EUenborough, to prove that an exception from the 
 general rule of law obtained in early times' sj^ecifically in 
 favor of trade, and argues that those authorities have no 
 such exclusive operations, but, that, on the contrary, the 
 general meaning of the expressions quoted by Lord Ellen- 
 borough, in his opinion, must be greatly narrowed and 
 violated, not to include other erections besides those erected 
 for trade or manufactures. He then observes: "Accord- 
 ing to this view of the authorities antecedent to the case 
 of Elwes V. Maw, it seems difficult to acquiesce in the 
 opinions expressed by Lord EUenborough, that the doctrine 
 sought to be established by the defendant ' was contrary to 
 the uniform current of legal authorities.' The true state of 
 the question (as observed in one part of his Lordship's 
 judgment) appears rather to be, that 'no adjudged case has 
 gone the length of establishing that buildings subservient 
 to purposes of agriculture, as distinguished from those of 
 trade, have been removable by the tenant who built them 
 during his term.' But admitting that no case is to be 
 found among the more ancient authorities in favor of agri- 
 cultural erections, it should be recollected that the mode of 
 agriculture pursued in early times was extremely simple, 
 and that the implements of husbandry then in use were 
 defective and of very little value ; inasmuch as, for a period 
 subsequent to that over which the Year Books extend, the 
 English may rather be considered a pastorial than an agri- 
 cultural nation. 
 
 "But the rule laid down in the case of Elwes v. Maw 
 appears liable to further objection, on account of the narrow
 
 CASES OF AGRICULTURAL FIXTURES. 281 
 
 grounds upon wliicli it rests. It is universally allowed that 
 the privilege in respect of trade is not confined to trade 
 according to the strict meaning and construction of the 
 statutes of bankruptcy. It is not a trading within that 
 statute to work a coal mine ; nor for an occupier of land to 
 manufacture cider from his own fruit for sale ; nor to manu- 
 facture salt for sale from springs on the demised premises. 
 Yet these and similar occupations are held to entitle a 
 tenant to remove utensils and erections as trade fixtures; 
 and it would seem that many branches of husbandry have a 
 strong affinity to trade in this enlarged sense of the expres- 
 sion ; for instance, the dealings of a farmer in stock, wool, 
 and bark, &c., the making of charcoal, growing and prepar- 
 ing flax, or the manufacturing of woofs, which, in some of 
 the counties of England, is a considerable source of the 
 profits of a farm. In this view of the subject, the making 
 of cheese on a farm, or the preparing of grain for market by 
 means of a threshing machine, may, with equal reason, be 
 considered a manufacture or a species of trade, as the 
 making of cider from the produce of an orchard annually 
 renewing." 
 
 It will be observed, that Lord Ellenborough, in his opin- 
 ion, considered the cider-mill as an accessory to a species of 
 trade. The manufacture of cider and perry, is an object of 
 British husbandry, which in all fruit countries is of great 
 importance. In the county of Worcester, where it seems 
 the question as to the cider-mill arose, there was formerly, 
 if not at the present time, upon most of the farms a mill for 
 the purpose of making cider from the fruit growing in the 
 orchards and fields of the farms. The cider is made by the 
 farm tenants for the consumption of their families, and for 
 the purpose of sale. In some instances the cider is sold 
 directly from the mill and press, in the state of expressed 
 juice, to persons who collect it from the different farms, 
 and aftervvai-d manufacture it for market. Under these cir- 
 cumstances Lord Ch. B. Comyns may have well held that 
 the case of the cider-mill was a mixed case between enjoying 
 the 'profits of the land and carrying on a species of trade, 
 as Lord Ellenborough suggests, and the cider-mill might 
 
 36
 
 282 LAW OF FIXTURES. 
 
 properly be regarded as an accessory to the trade of making 
 cider. In this light, Lord Ellenborough was correct, when 
 he argued that the- cider-mill case was not authority for the 
 doctrine that the tenant should have the same privilege to 
 remove strictly agricultural fixtures, that he has in the case 
 of erections for purposes of trade and manufacture. 
 
 Mr. Amos proceeds : "But the strongest objection to the 
 distinction established by this case is, that the principle on 
 which trade fixtures are permitted to be removed, applies 
 with equal reason to agricultural erections. The principle 
 of the trade cases is that of public policy, it being for the 
 benefit of the public to encourage tenants to make useful 
 additions to their premises, and to avail themselves of mod- 
 ern improvements in arts and manufactures. Husbandry, 
 according to present practice, has become a scientific pur- 
 suit ; the increased produce and profits of land depend 
 upon the expenditure of capital, and the exercise of intelli- 
 gence in the improved modes of cultivation ; and according 
 to these improved modes much valuable machinery is em- 
 ployed, which requires to be substantially afiixed to the 
 premises ; and it is obvious that the industry of the farmer 
 will be more productive in proportion to the better disposi- 
 tion of his business, and the facilities he possesses of raising 
 and keeping stock, and storing and preparing his produce. 
 If, therefore, the principle of the indulgence to tenants be 
 deemed of beneficial tendency, as it affects the interests and 
 protects the improvements of the manufacturer, the dis- 
 tinction must be very refined upon which it is thought politic 
 to deny the same advantages to the agricultural tenant. In- 
 deed, Lord Ellenborough seems to have felt the force of this 
 objection ; and it is observable that in one part of his judg- 
 ment, he has rested his argument against agricultural tenants 
 on a more technical ground ; for he says that machinery and 
 erections may be removed when they are accessory to trade, 
 because trade is a matter of 2^ personal nature, and not real 
 or local. But as this is a principle which obviously embraces 
 a variety of claims which have no reference to trade, it would 
 make the case of the agricultural tenant one of still greater 
 hardship, than if the less comprehensive rule of confining
 
 CASES OF AGRICULTURAL FIXTURES. 283 
 
 the exceptions strictly to trading fixtures were insisted 
 upon" {Farrard' s -Ajk^ of Fixtures, 2d American edition, 
 42-i9). • " 
 
 Many of the suggestions of Mr. Amos in his criticisms 
 upon Lord EUenborough' s opinion, were very forcibly pre- 
 sented by the counsel for the defendant upon the argument 
 of the case of Elwes v. Maw, and they were evidently con- 
 sidered by the learned Chief Justice in the disposition of the 
 case. Although Mr. Amos would seem to be of the opinion, 
 that the principles of the case of Elwes v. Maw are question- 
 able, he is careful to disavow any intention to intimate any 
 doubt respecting the validity of the decision as an existing 
 authority of law. 
 
 CHAPTER XX. 
 
 LAW OP FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT FOB STRICTLY AGRICULTURAL 
 
 PURPOSES FURTHER EXAMINATION OF THE CASE OF ELWES V. MAW 
 
 ENGLISH AND IRISH AUTHORITIES. 
 
 In further discussing the law of fixtures as applicable to 
 erections made by tenants for strictly agricultural purposes, 
 some further consideration may be given to the principal 
 case of Elwes v. Maw, decided by the Court of King' s Bench 
 of England in 1803. The criticisms of Mr. Amos upon that 
 case have already been given, from which it appears that the 
 learned author questions the principles upon which the case 
 was decided, while he is careful to disavow an intention to 
 intimate a doubt as to the authority of the decision. His 
 avowed object of submitting the observations which he made 
 upon the case, was, to draw the reader's attention to the 
 particular grounds of the determination, because he thought 
 it might assist him in the practical application of the rule 
 established by the i:^ase, and be of material service in the
 
 284 LAW OF FIXTURES. 
 
 discussion of questions relating to a class of fixtures treated 
 of in another part of his work. Th^rictures of Mr. Amos 
 were submitted fifty years ago, and"ter authors have ex- 
 amined the case in the light of his remarks. 
 
 Mr. Grady, an English writer, who has published a work 
 upon the "Law of Fixtures and Dilapidations," comments 
 at considerable length upon the case of Mtoes v. 3Iaw, and 
 attempts to show that the decision of that case was correct, 
 and that Lord Ellenborough's opinion in the case is not 
 obnoxious to the objections sometimes made to it, and 
 especially, the criticisms of Mr. Amos. Extracts from Mr. 
 Grady's review will give light upon the branch of the sub- 
 ject now under discussion. He says : "It will be recollected 
 that the fixtures which had been removed in the case of 
 Mwes V. Maio was simply ' a beast-house, a carpenter's shop, 
 a wagon-house, a fuel-house, a pigeon-house, and a brick 
 wall inclosing the fold-yard.' 
 
 " First, then, with respect to the older authorities, and that 
 particularly relied on, viz., 20 Hen. VII, 13, as showing that 
 the exception was not then confined to those erections which 
 are made for trade purposes only, it is hoped that that case 
 has been ah'eady answered satisfactorily in the •affirmative. 
 
 ^'- Laioton v. Lawton and Dudley v. Warde, and the cider- 
 mill case, show that Lord Hardwicke and Ch. B. Comyns 
 would have considered the engine and the cider-mill not 
 removable had it not been for the fact that those fixtures 
 were set up for the purposes of a species of trade ; a matter 
 of a personal nature. 
 
 "In the first of these cases Lord Hardwicke says: 'One 
 reason which weighs with me is its being a mixed case 
 between enjoying the profits of the land and carrying on a 
 species of trade ; and considering it in this light, it comes 
 very near the instances in brew houses,' &c. Lord Ellen- 
 borough, in Elwes v. Maio., saj^s : ' Upon the same principle 
 Lord Chief Baron Comyns may be considered as having 
 decided the case of the cider-mill ; that is, of a mixed case 
 between enjoying the profits of the land and carrying on a 
 species of trade, and as considering the cider-mill as prop- 
 erly an accessory to the making of cider ' ; and again, Lord
 
 CASES OF AGRICULTURAL FLXTURES. 285 
 
 Hardwicke, in Dudley v. Warde, said, ' That a colliery is not 
 only an enjoyment of the estate, but in part carrying on a 
 trade. ' 
 
 " The corollary to be drawn from the pains taken hy these 
 learned judges to distinguish these particular erections from 
 Qiiere agricultural ones shows strongly that, had there not 
 been the accessory for the purposes of trade, they would 
 have decided that they were mere agricultural erections, 
 and, in Elioes v. Maw, were not removable by the tenant ; 
 and Lord EUenborough's comments upon these cases, in 
 the course of his judgment in Elwes v. Maw, sliows clearly 
 that if a similar accessory could have been imported into 
 that case, his Lordship would have considered himself 
 bound by it ; and it is manifest he approves of the distinction ; 
 and Lord Mansfield seemed to be of the same opinion, if 
 one may judge from the care he teikes to show, in the case of 
 Lawton v. Salmon, that there was no accessory there of a 
 personal nature. ' The salt spring is a rjaluahle inheritance,^ 
 said his Lordship, ' but no profit arises from it unless there 
 be a salt w^ork, which consists of a building, &c., for the 
 purpose of containing the pans, &c., which are affixed to 
 the ground. Tlie inheritance cannot he enjoyed loithout 
 tliem. They are accessories necessary to the enjoyment of 
 the jprincipal. The oioner erected them for the benefit of 
 the inheritance' And Lord Ellenborough, in his judgment, 
 considers these cases reconcilable on those grounds ; his 
 Lordship observing that Lord Mansfield did not consider the 
 salt-pans as accessory to the carrying on a trade, but as 
 merely the means of enjoying the inheritance. Upon this 
 principle, he considered them belonging to the heir as parcel 
 of the inheritance, to the enjoyment of which they were 
 made, and not as belonging to the executor as the means or 
 instrument of carrying on a trade. 
 
 "From that judgment, and the comments of Lord Ellen- 
 borough upon it, it is clear that the learned judge who 
 delivered the opinion of the court, as well as Lord Ellen- 
 borough, thought that if there had been an accessory of a 
 personal nature the decision would have been the other 
 way. But it is answered, No ; for Lord Mansfield said that
 
 286 LAW OF FIXTURES. 
 
 the pans would have been removable by a tenant. True, so 
 they would ; but this very circumstance would have im- 
 ported that into the case which would alone Justify such a 
 decision, viz., that then it would acpear clear that the salt- 
 pans were erected for the purposes of trade. Then there 
 would have been the necessary accessory of a personal 
 nature, upon the want of which the distinction proceeded. 
 The tenant could not be supposed to erect them for the en- 
 joyment of the inheritance, with which he could have 
 nothing to do qua tenant ; in such case the natural inference 
 would be that the tenant erected them for the purposes of 
 trade ; and in this view of the case, it would not affect the 
 decision in Elwes v. Memo, which it is submitted, has ref- 
 erence only to fixtures erected for merely agricultural pur- 
 poses as distinguished from those of the mixed nature that 
 have Just been commented upon." 
 
 After further commenting upon the authorities to which 
 Lord Ellenborough refers in his opinion, Mr. Grady pro- 
 ceeds: "Therefore, so far as the authorities go, there are 
 none to be met with that go a greater length than in saying, 
 that when buildings are erected for agricultural purposes in 
 connection vv^ith some kind of trade, they shall be removable ; 
 but when the erection is made for agricultural purposes 
 purely, they shall not be removable. This rule may fairly 
 be drawn from the authorities, and what will constitute 
 'mere agricultural buildings must be collected from the de- 
 scription of those mentioned in the case of Elwes v. Maw. 
 
 "Another argument is hinged upon the cases of nursery- 
 men and gardeners having the power to remove trees, green- 
 houses, &c., in support of the extension of the exception in 
 favor of fixtures erected for mere agricultural purposes. 
 These cases, it is apprehended, rest entirely upon custom, 
 or, at all events, upon an implied contract between the 
 landlord and tenant ; for the former is aware, when he lets 
 the land, of the purposes to which it is to be converted, and 
 the law would not permit him to turn round on the tenant 
 when the ground was well stocked and say, 'These are 
 fixtures and you cannot remove them,' for it is only in the 
 absence of any contract that the law of fixtures applies ; but
 
 CASES OF AGRICULTURAL FIXTURES. 287 
 
 even if it were not so, tlie land is planted for tlie purposes of 
 trade, and those cases, therefore, come within Lawton v. 
 Lawtoii and Dudley v. Warde. And Lord Kenyon, in 
 Penton v. Rohai% is said to have extended the rule to 
 green-houses and hot-houses erected by such persons ; and 
 the above view his Lordship takes, for he says, ' if they were 
 not permitted to remove such things, the very object of their 
 holding would he defeated.'' Lord Ellenborough, it is true, 
 disapproves in Elwes v. 3faw of this extension. * * * 
 
 "There is another objection urged against Lord Ellen- 
 borough's judgment, viz., the narrowness of the grounds 
 upon which it rests ; and it is said that it has a tendency to 
 confine the privilege of a tenant within narrower limits than 
 are designated by the policy to which it owes its existence ; 
 that there is no good reason for confining it on trade to the 
 exclusion of husbandry, which is equally advantageous, 
 and which is now, like manufactures, often carried on by 
 the aid of valuable machinery ; that many of the occu- 
 pationa of agriculturists are trades. The answer to this 
 argument is plain and simple, viz., that the case of Elwes v. 
 Maw has no such tendency as that imputed to it ; all Lord 
 Ellenborough has decided is, that a beasthause, a car- 
 penter' s-shop, a fowl-house, a cart-house, a pump-house, 
 and fold-yard are mere agricultural erections, that they are 
 entirely unconnected with trade. * * * A fair way to test 
 this subject is, by supposing a case where a trader, in whose 
 right the exception is well established, had erected such 
 fixtures as those in Elwes v. Maw., on the premises where 
 he carried on his trade, and then ask, would he be per- 
 mitted to remove them \ It is apprehended he would not, 
 so neither, allowing the full benefit of the exception in 
 favor of trade to agriculture, can such huildings be con- 
 sidered as necessary to the trade of a fanner. They are no 
 more necessary to the trade of a farmer than they would be 
 to that of a manufacturer. 
 
 "As to the argument based upon the analogy between 
 agriculture and trade, arising from their common benefit to 
 tlie community, the answer is, that Elwes v. Maw does not 
 deny it, nor is that case any authority for saying that when
 
 288 LAW OF FIXTURES. 
 
 an agricultural tenant lias erected any machinery, or any 
 building for the purpose of carrying on his trade as a 
 farmer, he shall not remove them. But if the buildings be 
 such as in the principal case, and which every farmer must 
 necessarily have, and cannot do without, then, whether he 
 erects them himself, or find them on the farm when he en- 
 ters upon it, he cannot remove them ; such buildings can- 
 not be said to be erected for any. trading purpose, but 
 merely for the occcupation of the premises" {Grady on 
 Fixtures and Dilapidaiions., dd ed., 95-102). 
 
 It will be observed that the effort of Mr. Grady is, chiefly, 
 to vindicate Lord Ellenborough's opinion in the principal 
 case, against the objections made to it by Mr. Amos ; argu- 
 ing, that the decision of the case was strictly correct, and 
 that the reasoning of Lord EUenborough, and his review of 
 the cases, do not necessarily abridge the privileges of agri- 
 cultural tenants in the cases of fixtures of a mixed nature, 
 commented upon b}^ Mr. Amos ; but, on the contrary, that 
 it is manifest from Lord Ellenborough's opinion, that he, 
 himself, approved of the distinction sought to be made, be- 
 tween fixtures of the latter class, and those of a mere agri- 
 cultural nat^ire. It has been considered by several very 
 learned and eminent lawyers, who have paid especial atten- 
 tion to the law of fixtures, that the case of Ehoes v. Maw 
 is conclusive against the privilege of all agricultural tenants 
 to remove any kind of fixtures erected on the farm during 
 the term ; but Mr. Grady contends that, on a careful exami- 
 nation of the case, it will be found to go no such length, nor 
 was it the intention of Lord EUenborough that it should be 
 so considered. His views upon the subject are manifest 
 from the extracts here given from his observations upon 
 the case, and would seem to be tenable. 
 
 Mr. Brown, another English author, in his work upon Fix- 
 tures, a new edition of which has just been issued, com- 
 ments in extenso upon the case of Elwes v. Maio, in which 
 he maintains that the effect of the decision in that case 
 was to deny to strictly agricultural tenants tlie privilege of 
 removing a class of fixtures, which would be extended to 
 tenants in respect to erections made for purposes of trade or
 
 CASES OF AGRICULTURAL FIXTURES. 289 
 
 manufactures, and that, with that understanding this case 
 has been uniformly followed in the jurisprudence of Eng- 
 land, except in those cases where the rule has been fixed by 
 the statute of Parliament. 
 
 After giving a full statement of the case and the salient 
 parts of the opinion of Lord Ellenborough in his own 
 words, Mr. Brown says : " Such having been the decision of 
 the court in Elioes v. 3Iaio, and the endeavor which was then 
 made to bring the law of the early agricultural fixtures into 
 greater conformity with the more general law upon the sub- 
 ject of fixtures failed of its object, and the early rigor of 
 that law survived, in respect to all agricultural erections, 
 whose foundations, (like those in the principal case) are let 
 into the ground. Nor has any subsequent attempt been 
 made, at least in this country, to mitigate that early rigor 
 by judicial decision. But the certainty of the law in this 
 respect has compensated in some measure the rigor of it ; 
 and tenants, if they are fortunate enough to know the law 
 beforehand, can make effectual provision in the manner 
 hereafter mentioned against experiencing any prejudice by 
 reason of its severity. In the meantime, it is well to ex- 
 amine the early law of the strictly agricultural fixtures with 
 somewhat more of detail. 
 
 We have already alluded incidentally in § 9 to a series of 
 cases which in their circumstances are closely analogous to, 
 although not absolutely identical with, the leading case of 
 Elwes V. Maw. There are two typical instances of these 
 analogous cases, viz., the following : In 24 Eliz., in Cooke's 
 case {Moore, 177), one Cooke brought an action of waste 
 against one Humphrey, and for waste assigned {Inter alia) 
 the distraint of two doors with their cheek posts. Hum- 
 phrey pleaded the erection of the said doors and posts, by 
 liimselt' after the commencement of his tenancy, and their 
 renewal at {sciJ. before) the expiration of it, and upon de- 
 murrer the justices held that Humphrey's defense was no 
 plea, Mr. Justice Pirryam stating as follows : "When the les- 
 see takes glass windows or doors which were already in the 
 house at the time of the granting of the lease, such taking is 
 waste ; moreover, if the lessee annexes anything to the 
 
 87
 
 290 LAW OF FIXTURES. 
 
 frank tenement and afterwards takes it, such taking also is 
 waste. Now some doors are a defense to the frank tene- 
 ment as outer doors, while others are less in the nature oj 
 necessities^ for example, the inner doors which separate the 
 apartments within the house. It seems, therefore, that a 
 lessee who erects the posts for outer doors, and slings the 
 doors open upon them, cannot afterward remove the doors 
 during his term ; but it is otherwise with inner doors. 
 
 "Again, in the 41 Eliz., in the case of Warner v. Fleet- 
 loood^ quoted by Lord Coke at the conclusion of his report 
 of Harlakenden^ s case (4 Rep., 64 a), it was resolved per 
 totem curiam that glass annexed to windows by nail, or in 
 other manner by the lessor or by the lessee, could not be re- 
 moved by the lessee, for without the glass it was no perfect 
 house ; and by lease or grant of the house it should pass as 
 parcel thereof, and that the heir should have it, and not the 
 executors ; and it was likewise then resolved that wainscot, 
 were it annexed to the house by the lessor or by the lessee, 
 was parcel of the house ; and that there was no difference 
 in law ' if it be fastened by great nails or by little nails, or 
 by screws, or by irons put through the posts or walls (as 
 have been invented of late time), but if the wainscot is by 
 any of the said ways, or by any other way, fastened to the 
 posts or walls of the house, the lessor cannot remove it, but 
 he is punishable in an action of w^aste, for it is parcel of the 
 house ; and so by the lease or grant of the house (in the 
 same manner as the ceiling or plastering of the house), it 
 shall pass as parcel of it.' 
 
 " Now at first sight the tw^o cases which have been lastly 
 before stated may not appear to have much, if indeed any, 
 analogy to the two cases with which the}^ have been com- 
 pared ; and as well, therefore, to present that analogy in 
 clearer outline, as also and chiefly for the purpose of ex- 
 tracting from the two sets of cases the principle or maxim 
 which lies at the basis of the whole law of fixtures, it is 
 necessary to here bring it out and exhibit the grounds of 
 their resemblance. 
 
 "We have already seen in § 6, how it was tliat by the most 
 natural of all processes the earl}^ agricultural erections in-
 
 CASES OF AGRICULTURAL FIXTURES. 291 
 
 variably became part and parcel of the soil upon whicli or 
 in whicli they were set up. This ready review of the fix- 
 tares with the soil was then ascribed to the circumstance of 
 the practical identity in early times of the farmer or tenant 
 with his landlord, the tenant in fact being the mere agent 
 and representative of his landlord — quoad all the relations 
 — the FEW^ relations which subsisted between them, and 
 which issued from and centered in the land. Trade, in the 
 modern sense of the word, was at that time unknown ; 
 luxury was still more unknown. Therefore, all those early 
 agricultural relations were simply and absolutely agricul- 
 tural, and partook exclusively of the nature of their sub- 
 ject matter, viz., the land. 
 
 " Such having been the state of the early agricultural re- 
 lation, it followed, that the erections and other the improve- 
 ments of the tenant possessed in all cases a close affinity 
 for the land — an affinity which may not unaptly be com- 
 pared to that chemical affinity whicli some substances are 
 found to possess towards others ; and just as these latter sub- 
 stances, instantly they are brought into sufficient proximity 
 with each other, coalesce in the production of a new com- 
 pound, so also the early agricultural erections by reason 
 merely of that their affinity became, instantly they were 
 erected, indissolubly and in a manner chemicall}^ united with 
 the land, and from their union there resulted a new com- 
 pound, to wit, a farm of a better condition than before, or, in 
 other words, ^fundus insUnctus. wherein the Instrumentum, 
 or fixture, or improvement, was swallowed up and merged in 
 the land, and the two were thenceforward inseparable." 
 
 The author also argues, that in the same manner, the 
 doors, windows and wainscoting, in the cases referred to by 
 Lord EUenborough, possessed an analogous affinity for and 
 correspondence with the house to which they were annexed, 
 so as thereby instantly to unite in an indissoluble manner 
 with the house ; and from the considerations presented, he 
 comes to the evolution of the principle or maxim, that 
 having regard in each case to the nature always of the sub- 
 ject-matter, all such additions made to it as partake of its 
 own nature, and wiiich in consequence of that similarity of
 
 292 LAW OF FIXTURE. 
 
 nature are calculated readily to unite with it, are prima 
 facie to be regarded as becoming instantly u})on tlieir union 
 witli it, pai't and parcel of the principal subject-matter, 
 assuming only this one proposition, that they are not of an 
 unnecessary character. This maxim is declared to be the 
 most general form of the principle which underlies the law 
 of the strictly agricultural classes of fixtures ; and for its 
 due application in any given case, it is only necessary to in- 
 quire what is the proper or distinctive character of the par- 
 ticular principal subject-matter, or res princijKilis. This 
 theory, the author gathers from the opinion of Lord EUen^ 
 borough in the case of Elioes v. Maio, and some of the lead- 
 ing authorities referred to in that opinion ; andon tlie whole, 
 Mr. Brown approves of the decision in the principal case, 
 and thinks it very competent authority, both in Enghmd and 
 in America {Brown on Fixtures, 3d ed., §§ 11-16, 18, 32). 
 
 The doctrine enunciated by Lord EUenborough, that in 
 determining whether the erection by a tenant is movable or 
 not, the inquiry may be, whetlier it is accessory to trade, or 
 accessory to the land, has often been criticised by judges 
 and writers ; but, it is believed, that the principle has never 
 been expressly repudiated by judicial decision, and it cer- 
 tainly has been often approved, and cases decided in con- 
 formity to it. Judges have sometimes expressed themselves 
 as dissatisfied with the reasoning upon which the learned 
 Chief Justice rests the distinction between erections for trade 
 and agriculture, but they have generally considered the 
 principle too firmly established to disregard it, and have, 
 therefore, sought to bring their own decisions within the 
 spirit of Lord EUenborough' s opinion. 
 
 The principle which seems to have governed Lord Ellen- 
 borough in the decision of the case of Elwes v. Maw, had 
 been recognized by other learned judges before the time of 
 Lord EUenborough ; and the doctrine is even illustrated in 
 some of the cases, which his LordshijD felt called upon to 
 leconcile with his own opinion. For example, in the case of 
 Lawton v. Salmon, decided by Lord Mansfield, sixty years 
 before the case of Elwes v. Maw, the inheritance consisted 
 of salt-works, and the tixtures which were the subject of
 
 CASES OF AGRICULTURAL FIXTURES. 293 
 
 dispute were tlie salt-pans used in the works, two tilings 
 between wliicli there was a correspondence and affinity ; and 
 Lord Mansfield recognized the importance of the principle of 
 regarding tlie quality of the inheritance as the primary con- 
 sideration in determining the quality of the fixtures, as is 
 evident from the following quotation of his opinion, wherein 
 he says : "The present case is very strong. The salt-spring 
 is a valuable inheritance, but no profit arises from it unless 
 there is a salt- work which consists of a building, etc., for the 
 purpose of containing the pans, etc., which are fixed to the 
 ground. The inheritance cannot be enjoyed without them. 
 They are accessories necessary to the enjoyment and use of 
 the principal. The owner erected them for the benefit of the 
 inheritance ; he could never mean to give them to the 
 executor, and put him to the expense of taking them away, 
 without any advantage to him, who could only have the old 
 materials. On the reason of the thing, therefore, and the 
 intention of the testator, they must go to the heir" {Lawton 
 v. Salmon, 1 Hen. Blade. R., 259, note). Here, the spring 
 itself was the inheritance, to which the salt-pans and the 
 salt-works were accessories. 
 
 The principle was also involved in the cider-mill case, de- 
 cided by Corny ns, C. B., prior to 1743, which may be ex- 
 plained upon the assumption that the inheritance which was 
 the principal thing in that case was not X)urely and simply, 
 or permanently, a cjder manufactory, but was land primarily 
 and mainly, and in fact almost exclusively adapted for and 
 devoted to agricultural purposes. With reference to this 
 case, however, it should be observed, that it does not seem to 
 be any where reported. It was cited by Mr. Wilbraham, in 
 his argument of the case of Lawton v. Lawton (3 Atk. Ji., 
 14), and was there recognized by Lord Hardwicke and sub- 
 sequentl}^ by the same learned judge in Dudley v. Warde 
 {A'tnhl. a., 114) ; and by Lord Kenyon in Dean v. Allallay 
 (7 Esp. N. P. R., 11). 
 
 Lord Brougham, sitting in the English House of Lords, 
 fort}^ years subsequent to the decision of Elioes v. Maw, in- 
 directly approved of the principle laid down in the opinion 
 of Lord Elhmborough, although he seems to have disap-
 
 294 * LAW OF FIXTURES. 
 
 proved, or at least, questioned the soundness of the cider- 
 mill case, cited in Lawion v. Laicion, etc. His Lordship 
 said: "If a cider-mill be fixed to the soil, though it is a 
 manufactory and erected for the purpose of a manufactory, 
 yet it is really solo infixum, it is perfectly immaterial whether 
 it be for the purpose of a manufactory, or of a granery, or 
 of a barn, or of any thing else. It is a fixture on the soil, 
 and it becomes part of the soil. Can any man say, that one 
 of the great brew-houses would belong to the executor, be- 
 cause it was erected for the purpose of a manufacture which 
 is wholly unconnected with the land. * * * It has noth- 
 ing to do with the land, as may be seen by those Avho will 
 take the trouble of looking at any of the brew-houses in 
 London, which are established in places where it would be 
 very difficult to find a blade of grass, muc«li less a crop of 
 barley, of which to make malt. But although it is a manu- 
 factory, * * * it w^ould go unquestionably to the heir" 
 {Fisher v. Dixon, 12 Clark cfc Finnellif s JR., 312). 
 
 This decision is only referred to here, on account of the 
 recognition of the principle under discussion ; the case was 
 one between heir and executor, and it will be considered at 
 length when that branch of the subject is examined. 
 
 But, notwithstanding the English courts have universally 
 adhered to the doctrine laid down in the principal case of 
 Elwes V. Maw, the rigorous principles of the earlier law in 
 respect to fixtures, as between landlord jind tenant, having 
 been successively relaxed and evaded, in the manner herein- 
 before show-n, the judges of later times have extended the 
 relaxations to this extent, that it has not unfrequently been 
 held, that even those fixtures which were exclusively agri- 
 cultural, — not being also barely necessary or completory, 
 — if they are altogether without physical or outward an- 
 nexation to the freehold, whatever the degree of their ma- 
 terial annexations to it, are purely and absolutely chattels. 
 
 For example, in a case decided by the Court of King's 
 Bench, in 1836, which has been hereinbefore referred to un- 
 der another point, it was held that a barn (culled a stavel- 
 barn) consisting of wood, resting on, but not fastened by 
 mortar or otherwise to, caps of blocks of stone (called sta-
 
 CASUS OF AGRICULTURAL FIXTURES. 295 
 
 vels or staddels) fixed into the ground or let into brick-work, 
 the brick-work being built on and let into the ground in 
 those parts where the ground was lowest, for the purpose of 
 making an even ground for the barn to rest upon, was re- 
 movable by the tenant who had erected it, at the expiration 
 of his term. 
 
 On the one side it was argued that the barn was a chattel, 
 inasmuch as it was not affixed to the freehold, either ma- 
 terially or artificially, so as to be not removable without 
 injury to the freehold. It was admitted that the stones and 
 the brick- work could not indeed be removed ; but it was in- 
 sisted that the barn, which was merely a loose fabric of 
 wood, might be taken away, and the fixed stand of brick 
 and stone left uninjured. On the contrary, it was argued 
 on the other side, that* the barn was an agricultural erec- 
 tion, placed upon a permanent foundation let into the 
 ground, and could not be removed without interfering with 
 the freehold ; and that, therefore, upon the authority of 
 Blwes V. MaiD^ it was an irremovable fixture. It was as- 
 sumed that the foundation was a fixture which could not be 
 removed without injuring the freehold, so that the question 
 really was, whether the upper part of a building could be 
 separated from the foundation. To hold that it could, would 
 be, it was argued, to allow a roof, or any part of a building, 
 which is connected with the lower part merely by pressure, 
 to be separable fr^m the rest. Many buildings have the up- 
 per, and lower parts connected merely by gravitation ; and a 
 landlord is not to have a foundation made in his freehold, 
 and then the rest of the building taken away, for which alone 
 the foundation is valuable. " The true principle was thought 
 to be by the counsel, that, if the whole building be erected, 
 one part with a view to the other, it is an entire inseparable 
 structure ; and that, if one part be placed on a lower part, 
 previously existing and belonging to the landlord, the two 
 may be separated. The degree in which the realty is inter- 
 fered wdth cannot determine the question. If, by the nature 
 of the building, the several parts have always constituted a 
 whole, they cannot be separated. 
 
 This latter reasoning of the learned counsel was certainly
 
 296 LAW OF FIXTURES. 
 
 plausible, to say tlie least, but the court held, upon the au- 
 thority of Jiex V. Olley (1 Barn. & Ad., 161), that the barn 
 was not so united to the freehold as to make it a part of it, 
 and therefore not a fixture. Littledale, J., said : " The barn 
 consists of nothing but the timber, and is not attached to 
 the stone or brick- work. * ^ * Thas in removing the barn, 
 he does not disturb the freehold. A tenant mwj require 
 barns of different kinds ; he might take away this building, 
 and substitute, for instance, a fowl-house, keeping always 
 the same foundation in order to insure a level surface" 
 {Wanshrough v. Maioii, 4 Adolph. c& Ellis' 21., 884, 888; 
 S. a, 31 Eng. C. L. R., 386, 388). 
 
 In the case of Wanshrough v. Maton, the judges do 
 not, in their opinions, refer to the case of 'Elwes v. Maio, 
 but rest their decision entirely upon the authority of Rex 
 V. Otley ; saying that a contrary holding would overrule the 
 latter authority. The case of Rex v. Otlej/ was decided by 
 the King's Bench in 1830, \ithere it was held that a lolnd- 
 mill rented along with other property (the latter property 
 being again admittedly real character) was not a tenement 
 within the meaning of the Poor Laws for the purpose of 
 helping the pauper to obtain a settlement under these laws, 
 as it was a mere superstructure of wood resting by its own 
 weight upon a brick foundation, no part of its machinery 
 touching either the ground or the foundation {Rex v. &tley, 
 1 Barn. & Adolph. R., 161 ; S. C, 20 Eng. C. L. R., 368). 
 Only the syllabus of the case is given in the English Comijion 
 Law Reports, so that it is not shown whether the Judge de- 
 ciding it considered the principles laid down in the principal 
 case of Elwes v. Maio or not. But it may be remarked of 
 the case, that its exceptional circumstances were the occa- 
 sion of the question arising at all, and that under ordinary 
 circumstances, therefore, windmills and such like fixtures 
 would have been considered, and were in fact customarily 
 considered, tenements or real estate for all purposes, with the 
 exception, possibly, of conferring a settlement within the 
 meaning of the Poor Laws, and excepting also when they 
 were erected bv a tenant for purposes of trade or manu- 
 factures.
 
 CASES OF AGRICULTURAL FIXTURES. 297 
 
 An important case was decided by the Court of Queen' s 
 Beiicli of England, in 1858, involving the branch of the sub- 
 ject now under discussion, which should be noted. It 
 appeared that a tenant, while in possession under his lease, 
 set up for agricultural purposes, a threshing-machine and 
 steam-boiler. The threshing-machine was fastened to four 
 bolts, fixed in the ground, but was capable of being de- 
 tached from them by unscrewing four nuts at the end of the 
 bolts and removing the shaft of the machine, wliich passed 
 tlirougli the wall of the iiouse, both of which could be done 
 without injury to the freehold. The steam-boiler was set 
 in brick-work which rested on the floor in the corner of the 
 out-house and touched both walls, but was capable of being 
 removed by detaching the upper tier of the brick- work, 
 without injury to itself or the out-house. The court held 
 that the threshing-machine and steam-boiler were not fix- 
 tures, as between landlord and tenant, and that the tenant 
 was entitled to them as removable chattels. 
 
 The learned judge who delivered the opinion of the court, 
 said : "Upon this appeal two questions arise : First, whether 
 the threshing-machine and steam-boiler described in the case 
 sent by the Assistant-Barrister are to be deemed fixtures as 
 between landlord and tenant ? Secondly — assuming them 
 to be such — whether the tenant was entitled to remove them 
 at the expiration of his tenancy ? 
 
 "Taking this second question, in the first instance, I should 
 state that I am led to infer from the contents of the case 
 sent by the Assistant-Barrister, that the threshing-machine 
 was erected for agricultural uses alone, and not at all for 
 trading purposes. But as to the steam-boiler, I am unable 
 to collect whether it was set up for agricultural or domestic 
 purposes. If it were for the latter, I should hold that it 
 was removable by the tenant, even though a fixture, on the 
 principle upon which grates, stoves, ovens, and such like 
 articles of domestic use, may be removed by the tenant, al- 
 though they may have been affixed by him to the soil, or 
 to the structure of the building wherein he has placed them. 
 But considering both the threshing-machine and the steam- 
 boiler as erected for agricultural purposes alone, which 
 
 38
 
 298 LAW OF FIXTURES. 
 
 may probably be the fact, I slionld assume that the case of 
 Elices V. Maw (3 East, 38), appears to liave established the 
 general doctrine, that although lixtures erected for the pur- 
 poses of trade may in many cases be removed by the tenant 
 who constructed them, the same right does not belong to 
 the tenant, at least to the same extent, in reference to erec- 
 tions made by him for agricultural uses alone. However, 
 it is to be observed, that in that case the erections consisted 
 of buildings having their foundations sunk in the soil, and 
 therefore permanently affixed to the freehold, and incapa- 
 ble of being removed by tlie tenant without b(4ng utterly 
 destroyed. Accordingly, if it were necessary for me to de- 
 cide whether the case of Elwes v. Maw were an authority 
 to rule the i)resent, I should have to consider whether re- 
 gard being had to the character of the articles which were 
 removed by the tenant in this case, as well as the limited 
 extent of their connection with the building, the principle 
 upon which huUdings constructed for agricultural purposes 
 were ruled in that case not removable by the tenant, was 
 applicable to the case now before me. However, I do not 
 find it necessary to enter upon the consideration of that 
 matter, as I am of opinion, upon the primarj^ question above 
 mentioned, that the threshing-machine and steam-boiler 
 were not fixtures according to legal intendment, as between 
 landlord and tenant, but were removable chattels, the prop- 
 erty of the tenant, and which he was entitled accordingly 
 to carry away at the expiration of his tenancy" {Sliinner v. 
 Harmon, 3 Irlsli Com. Law B., 243, 246, 247). 
 
 It will be observed that the court, in the Irish case last 
 cited, do not attemj^t to question the doctrine laid down by 
 Lord Ellenborough in Elwes v. Maio, nor intimate an opin- 
 ion that those fixtures which fall strictly within the agricul- 
 tural classes, are removable, as between landlord and tenant. 
 But it was held that the articles in question fell within the 
 character of the barn involved in the case of Wanshrough 
 V. Maion, and were, therefore, never fixtures at all, but 
 purely and absolutelj^ chattels. It was quite evident, how- 
 ever, from the tenor of the ojDinion of the learned judge in 
 SMnner v. Harmon, that he was not disposed to extend the
 
 CASES OF AGRICULTURAL FIXTURES. 299 
 
 case of Elwes v. Ifaio in the least, or apply the principles 
 of that case to any class of fixtures which did not come 
 within the spirit of that decision. 
 
 It miglit be inferred from the observations of the court in 
 these cases of Wan^lrough v. Maton, SJimner v. Harinon, 
 and the like, that the relations of the contending parties, did 
 not enter into the question of fixtures in those particular 
 cases ; that is to say, that it was wholly immaterial what 
 relation the party making the erections sustained to the free- 
 hold, at the time the erections were made ; that under any 
 circumstances of this kind, the erections were never so af- 
 fixed to the realty as to become a part of the freehold. But 
 such would doubtless be a mistaken inference. The ques- 
 tion in most of these' cases arose as between landlord and 
 tenant, and the ruling was that the articles were mere chat- 
 tels belonging to the tenants. Had the erections been made 
 by the landlord, or by the tenants in lieu of others already 
 there, and the question had arisen between the landlord and 
 his grantee, the decision would have been different. 
 
 CHAPTER XXI. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT — DOCTRINE IN 
 RESPECT TO ERECTIONS BY A TENANT FOR STRICTLY AGRICULTURAL 
 PURPOSES — EXAMINATION OF AMERICAN AUTHORITIES UPON THE SUB- 
 JECT PURPORT OF THE CASES. 
 
 Ii^ the American states, it has been strongly questioned by 
 the courts, whether erections for agricultural purposes, ought 
 not, in this country, to receive the same protection in favor 
 of the tenant, as those fixtures made for the purposes of 
 trade, manufactures, or domestic convenience. The great 
 case of Elwes v. Mcvw (3 EasV s B., 38), has oft^n been ex- 
 amined by our courts, and it is generally conceded that the 
 court there decided, that in the case of landlord and ten-
 
 300 LAW OF FIXTURES. 
 
 ant, there had been no relaxation of the general rule in cases 
 of erections, solely for agricultural purposes, however bene- 
 ficial or important they might be as improvements of the 
 estate ; being once annexed to the freehold by the tenant, 
 they become a part of the realty, and could never afterward 
 be removed by the tenant. The distinction has been de- 
 clared, by high authority, to be a nice one between fixtures 
 for the purposes of trade, and fixtures for agricultural pur- 
 poses, at least in those cases where the sale of the produce 
 contributes the principal object of the tenant, and the erec- 
 tions are for the purpose of such a beneficial enJo3nnent of 
 the estate ; and the doctrine upon which the distinction has 
 been placed by the English courts, has sometimes been de- 
 clared to be unsatisfactory by American judges. And yet 
 the American courts have never established a different rijle 
 than that laid down in the case of Mioes v. Maio, nor settled 
 what the true doctrine is or ought to be on the subject. 
 Judges in some of the states, have occasionally asserted that 
 there should be no distinction between annexations for trade 
 and those for the purposes of agriculture ; and in others, 
 they have declared that, in the United States, public policy 
 requires that the same protection which the common law of 
 England extended to things erected for the purposes of trade, 
 should be extended to erections for agricultural purposes. 
 But as a rule, these declarations will generally be found to 
 be obiter dicta., while the decision of the court would turn 
 upon questions independent of these positions. 
 
 Perhaps, the first case in this country in which the com- 
 mon law policy upon this point was questioned, as applicable 
 here, was a case decided by the Supreme Court of the United 
 States, in 1829, which has been hereinbefore referred to, in 
 other connections. Mr. Justice Story delivered the opinion 
 of the court in that case, and reviewed, at considerable 
 length, the opinion of Lord Ellenborough in Elwes v. Maw^ 
 and on the whole, doubted whether the English common law, 
 as expounded in that case, was so applicable to the situation 
 and circumstances of this country, " as to give rise to neces- 
 sary presumption in its favor." Under the circumstances 
 stated by him, he said: "It might, therefore, deserve con-
 
 CASES OF AGRICULTURAL FIXTURES. 301 
 
 sideration, whether, in case the doctrine was not previously 
 adopted in a state by some authoritive practice or adjudica- 
 tion, it ought to be assumed by this court as a part of the 
 juiisprudence of sucli state, upon the mere footing of its 
 existence in the common law." But he was particular to 
 add : "At present it is unnecessary to say more, than that we 
 give no opinion on this question. Tlie case, Avhich has been 
 argued at the bar may well be disposed of without any dis- 
 cussion of it." The case before the court related to a build- 
 ing, erected upon demised premises, by the tenant, with a 
 view to carry on the business of a dairyman, and for the 
 residence of his family and servants engaged in the business. 
 It was contended on the one side that the buikling could not 
 be considered as required for the trade of the tenant, and 
 did not, therefore, belong to the tenant, upon the principles 
 which courts have established in favor of trade. On the 
 other side, the^ converse position was taken ; and in addi- 
 tion, it was argued that the distinction taken by the English 
 courts between fixtures on buildings for agricultural pur- 
 poses and those for trade, could not fairly be sustained, and 
 that the principles which were applied in those cases to 
 trade, might be as well applied to agriculture. But the 
 court held, as has been before shown, that the case came 
 within the exceptions to the general rule in relation to fix- 
 tures, in favor of trade ( Van JVess v. Facard, 2 Peters' R., 
 137, 145). 
 
 It may be affirmed as a rule, that when judges have de- 
 clared that the same privilege of removal should be allowed 
 in cases of erections for agricultural purposes as to those for 
 purposes of trade or manufacture, they have referred to tijis 
 case of Van JSfess v. Pacard for authority. But it will be 
 observed that Mr. Justice Story, who delivered the opinion, 
 goes no further in the direction indicated, than to leave the 
 question an open one; while he expressly declares that the 
 case before the court might well be disposed of without any 
 discussion of it. 
 
 An early case decided by the old Supreme Court of the 
 State of New York, heretofore referred to upon another
 
 302 LAW OF FIXTURES. 
 
 point, has sometimes been supposed to be a case favoring 
 the doctrine that tenants were at liberty to remove erections 
 made by them upon the demised premises for strictly agri- 
 cultural purposes ; but it will be observed by an examina- 
 tion of the case, that the erections in controversy there, 
 were regarded as fixtures for trade or manufactures. The case 
 was decided in 1822, and was an action of replevin for a cider- 
 mill and cider-mill press. The mill and press were erected 
 upon a farm of seventy acres, by a tenant from year to year, 
 for the purpose of making the cider on the farm, during the 
 tenancy. The court held that the erections were not fix- 
 tures, but personal property, belonging to the tenant. 
 
 Spencer, C. J., delivered the opinion of the court, and, 
 among other things, said : "It is admitted, in this case, that 
 the defendant erected the cider-mill and press at her own 
 cost, during her tenancy, for the purpose of making the 
 cider on the farm. I confess, I never could perceive the 
 reason, justice or equity of those old cases, which gave to 
 the landlord such kind of erections as were merely for the 
 use and convenience of the tenant, the removal of which 
 neither defrauds nor does the least injury to the landlord. 
 The rule anciently was rigid ; but I think it has yielded ma- 
 terially to the more just and liberal notions of modern times.. 
 In Lawton v. Lawion (1 Atk..^ 13), the question arose be- 
 tween the tenant for life and a remainderman. * * * Lord 
 Hardwicke, after observing that the rigor of the law was re- 
 laxed upon this subject, pronounced it a mixed case between 
 enjoying the profit of the land, and carrying on a species of 
 trade. He adverted with evident approbation, to a decision 
 of Chief Baron Comyiis, at the assizes at Worcester, in which 
 the subject of discussion was a cider-mill, and the question 
 was between the executor and the heir. In that case, it was 
 decided, that though cider is part of the profits of the real 
 estate, yet it was personal estate, notwithstanding, and 
 should go to the executor. * * * 
 
 In Elwes v. Maw (3 East, 38), the buildings erected b}^ the 
 tenant, and which he removed, were of brick and mortar, 
 and tiled, and the foundations were one foot and a half 
 deep in the ground, and Lord Ellenborough said, that
 
 CASES OF AGRICULTURAL FLXTURES. 303 
 
 these were fixtures, and not removable, as between landlord 
 and tenant. * * * Lord Ellenboroiigli refers to the decision 
 of Chief Baron Comyns, in the case of the cider-mill ; he 
 says, he may have considered it a mixed case, between en- 
 joying the j)rofits of the land, and carrying on a species of 
 trade, and as considering the cider-mill as properly one 
 accessory to the trade of making cider; and I can see no 
 good reason why it may not thus be considered, for cider 
 is an article of trade" {Holmes v. Trejnper, 20 Johns. 
 R., 29-32). 
 
 In this case, it did not appear how the cider-mill and 
 press were annexed to the farm, and the learned Chief Jus- 
 tice did not consider that matter material, for he held that 
 the tenant had an unquestionable light to remove the erec- 
 tions, as personal property, whether the mill was let into 
 the ground or not; although he declared the case very 
 materially different from the case of Elwes v. Maio* 
 
 A case was decided by the present Supreme Court of New 
 York in 1851, in which the judge who delivered the opinion, 
 substantially, laid down the doctrine, that, in this country, 
 the same protection extended to fixtures erected for the 
 purposes of trade, should be extended to erections for agri- 
 cultural purposes ; although the decision may have been 
 put upon the principle that the erections in controversy 
 were fixtures for purposes of trade, or that they were re- 
 movable on the ground of license. The case, as it appeared 
 before the court, was this : In 1828, one Lewis Dubois was 
 the owner of certain premises, which he leased to one Miles 
 J: Fletcher for twenty years. Fletcher occupied a portion 
 of the premises until the lease expired, and a part he un- 
 derlet first to one Wygent, and afterward, to one Mapes. 
 When he was about letting to Wj'-gent, he asked Dubois, 
 in the presence of Wygent, if any building which should be 
 
 * 
 
 *This case is more fully considered in a previous chapter, in which the subject 
 of trade fixtures, as between landlord and tenant, is discussed ; and the most of the 
 Chief Justice's opinion is given in that chapter. The portion of the opinion here 
 given is pertinent to the discussion of the tenant's right to erections for agricul- 
 tural purposes, and it is thought that the convenience of finding it in this connection 
 will compensate for the brief repetition.
 
 304 LAW OF FIXTURES. 
 
 put on might be taken off, to v.iiich Dubois replied, that 
 they might take off anj^ building they put on. Wygent 
 erected a wagon-maker' s shop upon the lot, and afterward 
 removed it. In the course of five or six years, Wygent 
 transferred his lease to Mapes, who surrendered it to, and 
 took a new lease from Fletcher, for the residue of the term. 
 Mapes, shortly after he took the lot, erected thereon a barn 
 and shed. Fletcher also erected a building on his ,part of 
 the lot, which he removed before his lease terminated. 
 
 Soon after Wygent took his lease from Fletcher, Dubois 
 and wife conveyed the whole demised premises to one 
 Conklin, who at the same time conveyed to Mrs. Dubois. 
 Mapes died before the expiration of the lease, leaving the 
 premises in possession of his widow, who entered in the oc- 
 cupation after his death. On the 31st of March, 1848, Mrs. 
 Mapes being still in possession, although the lease expired 
 on the first day of the month, employed one Kelly to take 
 down the building erected by Mapes, constituting a barn 
 and shed, and for taking it away, Mrs. Dubois brought 
 her action to recover the damage. The building removed 
 was a wooden frame building, on a side hill, with a base- 
 ment ; the foundation, at the ends was a high stone wall, 
 laid in mortar ; the front of the basement was frame work ; 
 the frame work of the building extended down into the 
 basement, and the building could not have been removed 
 without being taken down. 
 
 This cause was tried at the circuit before the justice who 
 delivered the opinion of the court at General Term, and the 
 judge decided that the license to remove the buildings 
 erected upon the premises, if actually given, was a justifica- 
 tion for the removal of the building in question, and he sub- 
 mitted it to the jujy, to decide whether the license given by 
 Dubois to remove the buildings, was a particular license to 
 remove such buildings as Fletcher or Wygent might erect, 
 or whether it was a general license to remove any buildings 
 which might be erected by Fletcher, or any of his under- 
 tenants ; and instructed them to find their verdict for the 
 defendant, if they should come to the latter conclusion. 
 The counsel for the plaintiff excepted to the charge. The
 
 CASES OF AGRICULTURAL FIXTURES. 305 
 
 jury found a verdict for the defendants, and th^ plaintiff 
 moved for a new trial, upon a bill of exceptions, at a Gen- 
 eral Term. 
 
 Harris, J., delivered tlie opinion of the court, and, among 
 other things, said: "The position which the plaintiff's 
 counsel advocates, is, that fixtures, though attached to the 
 freehold by the tenant, cannot be removed, even during his 
 term, unless by virtue of some valid agreement. He admits 
 that erections for the purposes of trade may be removed, 
 but insists that such erections constitute an exception, and 
 the only exception, to the general rule. The case of Elwes 
 V. Maw (3 East^ 38), undoubtedly maintains the general 
 doctrine for which the plaintiff' s counsel contends. Lord El- 
 lenborough, in that case, reviewed all the English decisions 
 on the subject from the time of the Year Books, and al- 
 though different judges had, at different periods in that 
 country, entertained different opinions upon the question, 
 down to the very time of that decision, he came to the con- 
 clusion that there was a distinction between annexations to 
 the freehold for the purposes of trade and those made for 
 agricultural purposes ; that, while the tenant, in the one 
 case, had the right to remove what he had annexed, in the 
 other, the annexation having been made, became a part of 
 the realty, and could never afterwards be removed by the 
 tenant. 
 
 "This distinction, although it may not have Jbeen in any 
 single instance broken down by any adjudged case, has not, 
 I am persuaded, been regarded with much favor in this 
 country, if, indeed, it has in England. The foundation 
 upon wdiicli it rests, is narrow and artificial. The general 
 policy which has created exceptions to the general rule, that 
 whatever is affixed to the freehold cannot be removed with- 
 out the consent of the owner of the inheritance, applies as 
 w^ell to erections for agricultural and other purposes, as 
 erections for the purposes of trade." Here follows an ex- 
 amination of the cases of Van Ness v. Pacard (2 Peters'' 
 P., 137) ; Holmes v. Trempe?' (20 Johns. P., 39), and other 
 American authorities, w^ith liberal extracts from the opin- 
 ions of the court in the cases cited. And then the learned
 
 306 LAW OF FIXTURES. 
 
 judge proceeds: "Assuming tbat the building now in 
 question was so annexed to the freehold as to render it a 
 fixture within the legal meaning of the term, it is by no 
 means, clear that it is not removable by the tenant even 
 within tlie rule as stated in Mwes v. Maio. What the ob- 
 ject of erecting this building was, or to what purpose it had 
 been devoted, does not distinctly appear. It is described in 
 the declaration as 'a shed, stable, store-room, and barn.'' 
 It was in the village of Marlborough, adjoining Mapes' 
 tavern. As it was erected by Mapes, a tavern keeper, upon 
 a lot adjoining his own, it may perhaps be inferred that it 
 was nsed as a barn, shed, stable and store-room in connec- 
 tion with the tavern. If that be so, I do not perceive why 
 it is not to be regarded as an erection for the purposes of 
 trade, quite as much as the dairy house in Van Wess v. 
 » Pacard, or the cider -press in Holmes v. Tremper, both of 
 ■ which cases were considered by the very eminent jurists by 
 whom they were decided, as harmonizing with the principle 
 contained in Elwes v. Maio.'''' 
 
 After examining further the leading English authorities 
 npon the particular branch of the subject under considera- 
 tion here, the learned judge proceeds : " But was the build- 
 ing, for the removal of which this action is brought, so 
 annexed to the realty as to make it 2i fixture? The attempt 
 by legal writers to distinguish between erections which are, 
 and those wjiich are not fixtures, has not always been suc- 
 cessful. And judges seem sometimes to have referred the 
 particular erections immediately in question, to one or the 
 other class, as would best subserve their own notions of 
 justice." On this question, the learned judge refers to a 
 number of authorities, both English and American, among 
 which were Rex v. Otley (1 Barn. & Adolph. R., 161) ; 
 Wansbrougli v. Maton (4 Adolph. & Ellis' R., 884) ; and 
 CooJc v. The Champlain Transportation Company (1 
 Denio's R., 91), and then says : 
 
 "Now, if the mill in Rex v. Otley, built as it was npon a 
 brick foundation, and the barn in Wansbrougli v. Maton, 
 erected on a foundation of brick and stone set into the 
 ground, and the machinery in Cook v. The Champlain
 
 CASES OF AGRICULTURAL FIXTURES. 307 
 
 Transportation Company, firmly afiixed to the building, 
 were not fixtures, but remained the personal property of 
 the tenants by whom the erections were made, I am unable 
 to see why the barn in this case, resting as it did upon a 
 stone foundation, might not also have been treated as the 
 personal property of the tenant. It was removed without 
 injury, or, for aught that appears, so much as displacing a 
 particle of the realty. It is not pretended that the plaintiff 
 suffered any injury from the removal, except by being de- 
 prived of the subsequent use of the thing removed. Upon 
 these facts I think the judge at the circuit would have been 
 justified in instructing the jury, as matter of law, that the 
 defendants were entitled to a verdict. 
 
 But let it be assumed once more, as it was upon the trial, 
 that the building was a fixture, and that it could only be 
 removed by virtue of such agreement, valid as against the 
 plaintiff. Was such an agreement established upon the 
 trial ? The verdict of the jury has established the fact that 
 the plaintiff's husband, before the conveyance under which 
 she claims title was executed, agreed that any buildings 
 which Fletcher, his lessee, or any of his under-tenants, 
 might erect upon the demised premises might be removed. 
 But this license was by parol, and, therefore, the plaintiff 
 contends, void within the statute of frauds. I think, how- 
 ever, the statute has no application to such a case. The 
 very authorities cited in support of this position show, it 
 seems to me, that a license like that established in this case 
 is not void." 
 
 After further examination of the question, the learned 
 judge comes to the conclusion that there was a valid license, 
 which justified the removal of the building in controversy, 
 and that the same was not revoked by the conversance of 
 the premises by the licensor. He examines at considerable 
 length the question, whether the right of removal had ex- 
 pired when the removal took place, and decides that the 
 right of removal not having been abandoned by the tenant, 
 the landlord could not maintain the action for the removal, 
 even though it had been wrongful. The opinion finally 
 concludes :
 
 308 LAW OF FIXTURES. 
 
 "Upon the whole, I cannot perceive that there was any 
 error against the plaintiff upon the trial. The building was 
 erected by the tenant for the more prolitable and comfort- 
 able enjoyment of the premises during the tenancy. Neither 
 the erection nor its removal has at all invaded the rights of 
 the owner of the freeliold. The inheritance is as valuable 
 to its owner, as it would have been if the building had never 
 been erected. If the owner is injured, it is only by the 
 want of what the tenant put there for himself, and at his 
 own expense, and not for his landlord. The law, accom- 
 modating itself to the changed condition of society, has so 
 far relaxed the ancient rule, in conformity with the obvious 
 justice of the case, as to allow the tenant, when leaving the 
 premises, to take with him such erections as he may have 
 had occasion to make for his own use or enjoyment, if he 
 can do so without injury to the inheritance. In this case 
 there" was a positive agreement that this might be done. 
 The law would have implied such an agreement had none 
 been expressed. The motion for a new trial should there- 
 fore be denied" {Dubois v. Kelly, 10 Barb. H., 496, 500, 501, 
 603, 504, 506, 507, 511). 
 
 This case has been briefly referred to before, and a single 
 paragraph of the opinion of the judge given there is 
 repeated here. But, as the opinion deals extensively 
 with the question under discussion here, it seemed appro- 
 priate and proper, that a full statement of the facts, and 
 the views of the court, should be given in this place. The 
 case is often referred to as authority for the position, that 
 "in New York, there is no distinction between annexations 
 for trade and those for agricultural purposes." It will be 
 observed, however, that the case was disposed of at the cir- 
 cuit without reference to the rights of agricultural tenants, 
 at all, and hence, it cannot be considered a precedent in fa- 
 vor of the position assumed. It was there put upon the 
 ground that the landlord, by express agreement, had given 
 the tenant the privilege of ]-emoving the erection in ques- 
 tion, and that doctrine was affirmed at general term. Be- 
 sides, it was declared that the building was removable on 
 the ground that it might be regarded as an erection for the
 
 CASES OF AGRICULTURAL FIXTURES. 309 
 
 purposes of trade, and clearly removable as such, within the 
 principles laid down in Elioes v. Maw. The case has sev- 
 eral times been referred to by the Supreme Court, and 
 Court of Appeals, of the State, but in no instance does the 
 opinion of Judge Harris, upon the point under discussion 
 here seem to have been unqualifiedly approved. Undoubt- 
 edly, the case was properly decided, upon the ground the de- 
 cision w^as put at the circuit ; and perhaps, also, the build- 
 ing in controversy may have been removable during the 
 term of the tenancy, on the ground that it was an erection 
 for the purposes of trade. But the facts .fail to show that 
 the building was strictly an agricultural fixture ; so that, 
 however convincing the reasoning of the Judge may be re- 
 garded upon the point, the case is far from a precedent in 
 favor of the doctrine, that erections for agricultural pur- 
 poses are held to be entitled to the same protection in this 
 country, as between landlord and tenant, as is extended to 
 fixtures for purposes of trade or manufactures. The case 
 turned entirely on the landlord's license to remove the 
 building, and all that Judge Harris says about the tenant's 
 general right to remove fixtures, is, in reality, obiter, and 
 impertinent to the decision. 
 
 Another case, which has been examined at considerable 
 length in a former chapter, upon another point, first de- 
 cided by the Supreme Court, and subsequently affirmed by 
 the Court of Appeals, of the State of New York, is also 
 sometimes referred to as authority for the doctrine, that 
 the privilege extended to tenants in respect to trade fix- 
 tures, are extended to those in respect to erections for 
 strictly agricultural purposes. Bat that case turned upon 
 the fact that the building in controversy there, was held to 
 fall within the reason of the rule conferring upon tenants 
 the right of removing buildings erected for the purposes of 
 trade and manufactures. The building in question was a 
 ball-room, erected by an innkeeper, upon demised prem- 
 ises, and the Court of Appeals, declared that the keeper of 
 an inn or hotel, in some sense exercises a trade, and that, 
 therefore, the ball-room erected by him, was an erection 
 for purposes of trade. Comstock, J., said: "Adopting
 
 310 LAW OF FIXTURES. 
 
 that conclusion, as I do with some hesitation, it is decisive 
 of the question." And Grover, J., said: "The distinction 
 between erections for trade and agriculture rests upon arti- 
 ficial reasoning not very satisfactory, but is perhaps too 
 firmly established to be disregarded. The building in ques- 
 tion is more nearly allied to the former than the latter class, 
 and should be treated as an erection for the purpose of 
 trade" [Ombony v. Jones, 19 ISf. Y. B., 234, 241, 243). 
 
 This case was decided by the Court of Appeals in 1859, 
 and so far from it being an authority in favor of the doctrine 
 supposed, it is quite the reverse. One of the judges lays it 
 down expressly, that the distinction between annexations 
 for trade and those for agricultural purposes, is too firmly 
 established in this country to be disregarded. 
 
 Judge Harris, in his opinion in Dubois v. Kelly (10 Barh. 
 H., 502), in support of his statement that the exception to 
 the general rule in respect to fixtures, "applies as well to 
 erections for agricultural and other purposes, as to erections 
 for the purposes of trade," refers to a case decided by the 
 Supreme Judicial Court of Massachusetts, in 1826, as au- 
 thority. The case cited was this : The action was trespass 
 for entering the plaintiff's close and carrying away a pad- 
 lock and some boards. 
 
 The plaintiff was the owner and in the actual possession 
 of the close, and the defendant entered therein and carried 
 away the padlock, which was hanging upon a nail on the 
 plaintiff's corn-house, and some boards which had been 
 fitted and actually used in the corn-house for the purpose 
 of putting up corn in bins, but had never been fastened to 
 the building by nails, screws, or pins. The defendant, at 
 the time when the close was conveyed to the plaintiff, was 
 in the occupation of it as a tenant at will of the former 
 owner, and during his tenancy he had procured the padlock 
 and used it in the ordinary manner to secure the corn-house, 
 and he had also procured and fitted the boards as before 
 mentioned. The plaintiff, after the close was conveyed to 
 him, entered thereon and determined the tenancy of the 
 defendant, giving him liberty to carry away his own chat- 
 tels then on the close, and the defendant carried away the
 
 CASES OF AGRICULTURAL FIXTURES. oil 
 
 padlock and boards, claiming them as liis own. The plain- 
 tiff contended that the padlock and boards were fixtures or 
 appurtenances to the real estate, and that they passed to 
 him by the conversance of the close with the appurte- 
 nances ; but the judge directed the jury otherwise, and a 
 verdict being returned in favor of the defendant, the plain- 
 tiff filed exceptions to such direction. 
 
 By the court, it was said : " There seems to be no doubt, 
 that according to the later decisions in England, a tenant 
 for life, years, or for will, may at the expiration of his 
 estate remove from the freehold all such improvements as 
 were erected or placed there by him, the removal of which 
 will not injure the premises or put dbhem in a worse plight 
 than they were in when he took possession. 
 
 "The articles sued for in this action are of this descrip- 
 tion. A padlock can in no sense be called a fixture, for it 
 can be taken away without injuring the building. If put 
 there by the landlord, or by the tenant in lieu of one' found 
 there, it would be the landlord's property, though not a 
 fixture. The same thing may be said of the boards used in 
 the bins. They were loose, and movable without any injury 
 to the freehold" ( WhiUng v. Brastow, 4 Pick. i2., 310, 311). 
 
 A fixture has sometimes been defined to be "personal 
 estate attached to the freehold, which may be removed 
 against the will of the owner of the land," and the padlock 
 and the boards, under the circumstances of the case of 
 Whiting V. Bi'astow, would seem to come within this defi- 
 nition. They were, in fact, mere chattels ; although, had 
 they been put on the premises by the landlord or by the 
 tenant in lieu of others already used by former tenants for 
 the purpose, they would have been the property of the 
 landlord ; although even in that case they would not have 
 been fixtures properly so called. 
 
 It appears from the case, however, that the consideration 
 that the articles in question were really possessed of an 
 inherently agricultural character, was either forgotten or 
 purposely disregarded ; so that really the case cannot be 
 regarded as a ]3i'ecedent one way or the other upon the 
 point now under consideration. It is merely an authority
 
 312 LAW OF FIXTURES. 
 
 for the principle that such annexations are simply and 
 purely and absolutely chattels, irrespective of the puri)oses 
 for which they were used by the tenant. 
 
 The Supreme Court of Vermont lately held, that posts 
 and boards on a farm will be regarded as personal property, 
 if there is nothing to show that they are kept for the pur- 
 pose of fencing, so as to convert them into realty. And 
 that an outgoing tenant has a right to take away hop j)oles, 
 which he has j)laced in the soil for a temporarj^ use and 
 with the intent to remove them, as against both the land- 
 lord and the landlord's grantee ; and that such right, as 
 against the grantee would not be affected b}^ an agreement 
 between the landlord ^nd tenant that the latter should have 
 half of wiiat the farm sold for above a certain sum. 
 
 Upon the point under discussion here, the court said : 
 "The case of Elwes v. Maio (3 East, 38), denying to erec- 
 tions for agricultural purposes the liberal rule which had 
 been applied to buildings made for the benefit of the trade, 
 has often been questioned in this country (2 Pet., 144 ; Le- 
 land V. GusseU, 17 Vi., 410, 411; 17 Picl\, 192; 16 Conn., 
 382 ; 20 Johns., 28). But we deem it needless to review the 
 authorities on the point, for the articles here annexed to 
 the soil were so placed by the tenant, for a mere temporary 
 use and with the intent to remove them, and would be held 
 removable as between landlord and tenant both by Ameri- 
 can and English decisions" {Wing v. Gray, 36 Yt. R., 261, 
 267, 268). 
 
 In the case of Leland v. Gussett (17 Vt. R., 403, 410, 411), 
 referred to in Wing v. Gray, supra, the court observed : 
 "It is true that the rule of the common law has been re- 
 laxed in favor of tenants in oases arising between landlord 
 and tenant, and between the executor of the tenant for life 
 and the remainderman, so far as to permit them to retain 
 the property and remove the buildings, erected for the i3ur- 
 pose of trade ; and perhaps in this country the observations 
 of the court in the case of Van JVass v. Pacard (2 Peters, 
 146), would extend this exception to buildings erected for 
 agricultural purposes by the tenant." 
 
 In the case in Massachusetts referred to, all that was said
 
 CASES OF AGRICULTURAL FIXTURES. 313 
 
 bearing on the question, is: "The law upon this subject 
 was very much discussed in Mwes v. Maw (3 Uast, 38), b}^ 
 the court and bar ; and such annexations made with regard 
 to trade, were recognized, but such as were made in regard 
 to agricultural improvements were still left to the operation 
 of the old law ; with what correctness of inference, it is not 
 necessary in the case now under consideration to decide. 
 For tills case is clear of all difficulty, and is decided in favor 
 of the defendant for the reasons before suggested" {Oaffield 
 V. Hapgood, 17 Picli. R., 192, 195). 
 
 It was declared in the opinion of Rice, Judge, in the de- 
 cision of a case by the Supreme Court of Alabama, that, in 
 the United States, public policy requires (and the adjudi- 
 cated cases have decided) that the same protection which 
 the common law of England afforded to fixtures erected for 
 the purposes of trade, should be extended to erections for 
 agricultural purposes. But the doctrine of the case, in 
 which the sentiment was advanced, simply is, that, as be- 
 tween vendor and vendee, the stationary machinery, by 
 which turning-lathes or other portable machines, which are 
 of equal value every where, are impelled, if erected on the 
 land by the vendor, during his ownership, for his own use, 
 for the purpose of either trade or agriculture, and fixed in 
 or to the ground, or to some substance which has already 
 become a part of the freehold, are immovable fixtures, which 
 pass to tlie vendor under the deed of the land {Harkness 
 V. Sears, 26 Ala. R., 493). 
 
 This case was, undoubtedly, properly decided, but if the 
 fixtures in question had been placed upon demised premises 
 by a tenant, they would have been removable during the 
 term. What is said in the opinion in respect to agricul- 
 tural erections, is entirely ohiter, and yet it is tlie opinion 
 of a very respectable j udge. 
 
 In 1871, a case was decided by the Supreme Court of 
 Mississippi, which was a contest between mortgagees and 
 vendees of a tenant in respect to a steam saw-mill and 
 steam-engine erected upon a plantation by a tenant, the 
 mortgagor and vendor. Under the circumstances of the 
 case, a decree was entered in favor of the vendee of the 
 
 40
 
 314 LAW OF FIXTURES. 
 
 tenant, which was affirmed by the Supreme Court ; and in 
 the course of the opinion, wliich was delivered by Simrall, 
 J., tlie question of agricultural fixtures was briefly referred 
 to. The judge said : "Are the mill, engine, etc., fixtures to 
 the freehold 1 There is a verj^ full discussion of the law of 
 fixtures in Va7i Ness v. Pacard (2 Petef s, 147). In that case, 
 the defendant erected a dwelling-house two stories high, a 
 cellar of three, and a brick foundation, and a brick cliim- 
 ney — the brick chimney set into the ground. This was all 
 done with a view to carry on the business of a dairyman. 
 The defendant was tenant for years. It was conceded that 
 the rule of the common law is, that whatever is annexed to 
 the freehold, becomes part of it, and cannot be removed, 
 except by the owner of the inheritance. But there were 
 always exceptions in favor of trade and manufactures, and 
 the latitude was broad in favor of the tenant against the 
 landlord, but strict in favor of the heir against the executor 
 or administrator. 
 
 "The principle is now firmly established that fixtures 
 erected for the purposes of manufacturing or for a trade, 
 are in favor of the tenant, personalty, and he may remove 
 them. 
 
 " The English courts seem to have made no relaxation in 
 favor of erections for agricultural uses. {Elwes v. Maw., 3 
 Easts Hep., 38). But it is otherwise in the United States. 
 In the case quoted from 2 Peters, the buildings were held to 
 be personalty. There has been a considerable modification 
 of the old rule, that the erections must not be attached to 
 the freehold, so as to be incapable of removal without 
 some disturbance of the soil'' {PerJclns v. Swank, 43 Miss. 
 R., 349, 361, 362). 
 
 In 1830, the Supreme Court of North Carolina had a case 
 before it involving the question of agricultural fixtures, but 
 did not pass upon it, because thetestimony was uncertain as 
 to the facts. But Ruffin, J., said: "The general rule is, 
 that any erection, even by the tenant, for the better enjoy- 
 ment of the land, becomes part of the land ; but if it be 
 purely for the exercise of a trade, or for the mixed purpose 
 of trade and agriculture, it belongs to the tenant, and may
 
 CASES OF AGRICULTURAL FIXTURES. 315 
 
 be removed during the term, or after its expiration ; tliongU 
 in the latter case, the tenant will be guilty of a trespass in 
 entering the land for that purpose, and in that respect 
 only" {Pemherton v. King, 2 Dev. M., 376-378). 
 
 Here it is very evident that the learned court entertained 
 the same view in respect to strictly agricultural erections, 
 as was expressed by Lord Ellenborough in the leading case 
 of EliGes V. Maio, and the same opinion is impliedly ap- 
 proved by the Supreme Court of California, in the decision 
 of a case in 1859, in which it was held that a steam-engine 
 and boiler erected in a quartz ledge to be used in the work- 
 ing of the ledge was personal property, as betw^een landlord 
 and tenant, and removable by the tenant. Baldwin, J., in 
 his opinion, said : "To whatever extent the right to remove 
 trade fixtures maj^ be carried, common sense and justice 
 seems to require, that it should be bounded by the rule laid 
 down by Lord Hardwicke in Lawton v. Lawton, that the 
 principal thing shall not be destroyed by the accessory. 
 The authorities seem to be divided as to the right of a 
 farmer to remove fixtures annexed to the soil, and put there 
 for agricultural purposes ; but in several cases it is held that 
 where the tenant's business is in the nature of a trade (as in 
 3 East, which involved the right to a cider-mill), the same 
 rule held" {Merritt v. Judd, 14 Cal. R., 59, 69). The court 
 in this case seem to regard the question in respect to strictly 
 agricultural fixtures, as between landlord and tenant, as not 
 fully settled by the authorities in this country. 
 
 On the whole, it may be affirmed that it would not be safe 
 to conclude from the adjudications, that by the policy of 
 this country, the same privilege is afforded to tenants in re- 
 spect to the removal of strictly agricultural erections from 
 the demised premises, as is extended to those for purposes of 
 trade or manufacture. It is not at all certain, but that the 
 rigor of the early law still survives in respect of all those 
 strictly agricultural erections, and the necessary completion 
 thereof, which would have fallen in old times within the 
 scope of the ancient law, and that the doctrine, as a rule, is 
 still recognized in this country. Says one American author : 
 "This privilege, however, has not generally been extended
 
 3lB LAW OF FIXTURES. 
 
 to the case of buildings, out houses, &c., erected for agri- 
 cultural pur:^ses ; though it is difficult to perceive why 
 such fixtures should stand upon a less favorable footing 
 than trade fixtures, when the relative importance of the two 
 arts to the community is considered. The industry of the 
 farmer will, of course, be more productive in proportion to 
 the improved condition of his buildings, and his advantages 
 for rearing stock and storing produce ; and it seems but a 
 narrow policy which refuses to the agricultural tenant the 
 same protection that is extended to the improvements of 
 the manufacturer" {Taylof s Landlord and Tenant, § 548). 
 
 This reasoning is plausible and in some respects true. 
 But, it is nevertheless a fact, that there are principles upon 
 which trade fixtures should be permitted to be removed by 
 the tenant, which do not apply with equal force in case of 
 the permanent erections made by the agricultural tenant 
 upon the farm.. Usually, the ordinary fixtures for the pur- 
 poses of trade or manufactures, are more expensive and ex- 
 tensive than those which may be required for a short term 
 upon a farm. Again, the value of the use of a farm, de- 
 pends much upon its condition and improvements, and if 
 expenditures by way of fixtures are necessary, that fact 
 will be taken into the account in fixing the price of the rent. 
 And in addition, it may be suggested, that agricultural fix- 
 tures, as a rule, are peculiarly fitted for the place where \\\^j 
 are put, and are of comparatively small value to be taken 
 away. While erections for the purposes of trade, are gen- 
 erally useful to the tenant in any other location where he 
 may carry on his trade, and might be of little value to the 
 incoming tenant, especially if he was of a different trade. 
 
 Under all the circumstances, therefore, the tenant's only 
 safety in putting up strictly agricultural erections or build- 
 ings, that are to be actually let into the soil, or any of the 
 necessary completions thereof, is, to enter into such stipula- 
 tions or into such an agreement with his landlord at the 
 commencement of his tenancy regarding the costs of the 
 erections, or regarding the subsequent removal of his fix- 
 tures or otherwise, as his own practical wisdom may sug- 
 gest ; or to obtain from the landlord some indication or ex-
 
 CASES OF A MIXED NATURE. 317 
 
 pression of his consent to the fixtures being erected or at- 
 tached. In this way he will secure himself against disap- 
 pointment or trouble, and in no other way will he have a 
 safe guarantee, that he will be permitted to remove from the 
 demised premises the erections which he may affix to the 
 realty during his term. 
 
 CHAPTER XXII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS BY A TENANT OF A MIXED CHARACTER, 
 WHICH ARE SET UP FOR THE PURPOSES OF TRADE COMBINED WITH 
 
 OTHER OBJECTS PRINCIPLES SETTLED BY THE AUTHORITIES IN THIS 
 
 REGARD. 
 
 It has been shown in preceding chapters, that a rule in 
 favor of what are known as trade fixtures, as between land- 
 lord and tenant, has prevailed in law from very early times, 
 insomuch that aU erections made by tenants upon demised 
 premises for purposes of trade or mannfactures, such ten- 
 ants have the privilege of removing and taking away at, or 
 before the expiration of the term. That is to say, the ten- 
 ant may exercise this privilege, provided the erection is so 
 attached to the realty, as that it can be severed and re- 
 moved without essential injury to the freehold, and without 
 effectually destroying the erection itself. It also appears, 
 that the weight of authority is to the effect, that purely 
 agricultural erections affixed to the freehold, are not remov- 
 able by tlie tenant, but remain the property of the landlord. 
 That is to say, this is the rule fairly to be drawn from the 
 authorities, unless there may be something in a given case, 
 to make it an exception. 
 
 But there is another class of fixtures which can be called 
 neither trade fixtures nor fixtures for strictly agricultural 
 purposes, and yet may be regarded as fixtures combining 
 the characteristics of one or the other with some other ob-
 
 318 LA W OF FIXTURES. 
 
 ject. Allusion has been made to tins class of fixtures in 
 some of the cases examined in preceding chapters, but the 
 subject is of sufiicient importance to justify a few pages in 
 its separate consideration. Little else, however, will be at- 
 tempted, than to group together the principles of the cases, 
 some of which have already been examined, and point out 
 the features by which they are distinguished from the other 
 classes. 
 
 It will be recollected, that in the great case of Blices v. 
 3faw (3 Uast's R., 38), Lord Ellenborough observed, that 
 the case of buildings for trade had been always put and 
 recognized as a known, allowed, exception from the general 
 rule which obtains as to the other buildings ; and the cir- 
 cumstances of its being so treated and considered, he 
 argued, established the general existence of the general 
 rule to which it was considered as an exception ; namelj^, 
 the general rule with respect to erections made for any other 
 objects than for the purpose of trade. But he expressly 
 recognizes the validity of several authorities, which he re- 
 fers to, in which instruments or utensils that have been set 
 up in relation to trade in part, and in some measure for a 
 purpose unconnected with trade, have been held to be re- 
 movable. 
 
 The decisions to which allusion was made, were, more 
 particularly, those of Lord Hardwicke, respecting the fire 
 engines or steam-engines in collieries, in the case of Law- 
 ton V. Laioton (3 Atk. H., 13), and in the case of Dudley v. 
 Warde {Amb. B., 113) ; and the case before Chief Baron 
 Comyns, respecting the cider-mill, mentioned by Lord 
 Hardwicke, in the discussion of the case of Lawton v. 
 Laioton. In the working of a colliery, the enjoj^ment of 
 the estate is distinctly recognized, but, at the same time, it 
 was regarded as in part carrying on a trade. And in the 
 case in Atkyns, Lord Hardwicke says : "One reason that 
 weighs with me is its being a mixed case, between enjoying 
 the profits of the land, and carrying on a species of trade." 
 Tliat is to say. Lord Hardwicke seems to have considered 
 that the getting and vending the coals so far partook of the 
 nature of a trade, that the engines emploj-ed in the col-
 
 CASES OF A MIXED NATURE. 319 
 
 lieries might be deemed trading erections ; and upon the 
 same principle, he thinks Lord Ch, B. Comyns may be 
 considered as having decided the case of the cider-mill ; 
 that is as a mixed case between enjoying the profits of the 
 land and carrying on a species of trade. For it was said, 
 that althougli the mill was put up in part for the enjoy- 
 ment of the real estate, yet, as the making of cider was a 
 species of trade, the mill might be considered to fall within 
 the general exception of trade fixtures. 
 
 In the old Supreme Court of the State of New York, 
 Spencer, Chief Justice, adverted, wdtli evident approbation, 
 to the decision of Chief Baron Comyns in the cider-mill 
 case, and the construction put upon it by Lord Ellenbo- 
 rough, and expressed the opinion himself, that the case 
 might, with good reason, be considered "a mixed case, be- 
 tween enjoying the profits of the land, and carrying on a 
 species of trade, and as considering the cider-mill as prop- 
 erly an accessory to the trade of making cider," because 
 "cider is an article of trade." And, apparently, upon this 
 principle, it was held in the case, that a cider- mill and press, 
 erected by a tenant, holding from year to year, at his own 
 expense, and for his own use, in making the cider on the 
 farm, remained the property of the tenant, and removable 
 by him at the expiration of the tenancy {Holmes v. Trem- 
 per, 20 Johns, i?., 29, 32). 
 
 The same principle was recognized by Lord Mansfield in de- 
 ciding the case of Lawton v. Salmon (1 H. Bl. B., 260), in no- 
 tis, where it was held, that certain vessels used in salt-works, 
 called salt-pans, as between the executor and heir, belonged 
 to the realty and must go to the heir. It was declared 
 that the articles were accessories necessary to the enjoyment 
 and use of the inheritance, which was the principal ; that 
 the owner erected them for the benefit of the inheritance, 
 and could not have meant to give them to the executor. 
 But it was expressly declared, that it would have been a 
 different question, had the salt springs been let to a tenant, 
 who had been to the expense of erecting the works ; for in 
 that case the salt-pans would have been removrvble by the 
 tenant.
 
 320 LAW OF FIXTURES. 
 
 These decisions point out a class of trade fixtures of a 
 peculiar description, called by Lord Hardwdcke, Lord Ellen- 
 borough and others, mixed cases, between enjoying the 
 profits of land, and carrying on a species of trade, and in 
 tliis respect they are distinguished from those fixtures that 
 are subservient to trades, which have no relation to the 
 profits of the demised land. 
 
 They may ver}'^ appropriately be called mixed agricul- 
 tural fixtures, distinguished from the purely agricultural 
 ones, which have already been stated and criticised ; and 
 such as the buildings let into the ground, and the necessary 
 completions to buildings also hereinbefore referred to. 
 They seem, however, to be not altogether different from 
 those cases of furnaces, engines, and the like, quoted froni 
 the early English reports ; for this latter class of fixtures 
 were the effects, as they were also the indications of the 
 rise of modern wealth, being not indispensable to the bare 
 or necessary cultivation of the ground or other the 
 business of a farm ; but being rather conveniences or utili- 
 ties superadded to the early original list of necessities ; and 
 having had their origin under a milder law, they were pro- 
 tected from the operation of the older law by the equita- 
 ble considerations which more modern manners supplied. 
 These considerations have conteracted and defeated the 
 operations of the older and stricter law of purely agricul- 
 tural fixtures, and have in fact assimilated in all, or nearly 
 all, respects the law of the so-called mixed agricultural to 
 the law of the so-called trade fixtures proper. 
 
 In order to bring a case within the principle of these mixed 
 cases, the subject-matter of the tenant's occupation must be 
 obtained from the demised land itself ; it will not be sufficient 
 that the material is manufactured on the demised premises, 
 or worked up there for market, if such material is brought 
 from a distance, or from other lands than those demised to 
 the tenant. This doctrine is illustrated in the case of the 
 lime-burner in TJiresher v. East London Waterworks Com- 
 pany (2 Barn. & Cress. R., 608). And in determining 
 whetlier the erections in controversy are removable or not 
 within the principle of the cases referred to, it is essential
 
 CASES OF A MIXED NATURE. 321 
 
 to inquire into the proportion in which the profits of land 
 are combined with the objects of trade. 
 
 It may be affirmed as a general proposition, that ques- 
 tions between landlord and tenant, respecting the right to 
 fixtures of the description now under consideration, have 
 been determined by the authority of the adjudication of 
 Chief Baron Comyns before mentioned, in the cider-mill 
 case, and by the rules laid down by Lord Hardwicke in the 
 cases of Lawton v. Lawton, and Lord Dudley v. Lord 
 Warde, as explained by Lord Ellenborough in the great 
 case of Mwes v. 3faw, the statement of which has been 
 hereinbefore fully given. And it may be observed as a 
 general remark, that whenever the consideration of trade 
 prevails to the same extent as it appears to have done in 
 those cases, an erection may be treated as lawfully remov- 
 able by the tenant ; and it will seldom be safe to deviate 
 from the strict analogy of those cases. 
 
 Ill the case of Lawton v. Salmon (1 H. Blac. R., 260), in 
 notis, it was ruled, that the connection of the salt-pans with 
 the realty was too strong to allow them to come within the 
 exception in favor of trade. And yet it cannot be truly 
 affirmed that in this case trade was not in some degree, con- 
 cerned in the employment of the salt-pans; and that the 
 getting and preparing the salt for market did not partake 
 of the nature of a manufacture. But the salt-pans were not 
 regarded as accessory to the carrying on a trade, because 
 the principal source of expectation of advantage was the 
 profits of the land, to which the matter of trade bore a very 
 small proportion. It should be observed, however, that 
 Lawton v. Salmon was a case between heir and executor ; 
 and Lord Mansfield expressly stated that the case would 
 have borne a different interpretation as between landlord 
 and tenant. His language is : "It would have been a dif- 
 ferent question, if the springs had been let, and the tenant 
 had been at the expense of erecting these salt-works." 
 
 As examples of fixtures coming within the principles of 
 the cases referred to, in which the enjoyment of the profits 
 of the land may be combined wdth trade, mention may be 
 made of instances where machines and erections are made 
 
 41
 
 322 LAW OF FIXTURES. 
 
 and used by a tenant for procuring or preparing minerals, 
 lime, alum, pottery and brick earth ; where the tenant culti- 
 vates the demised land la raising gi-ain for the purpose of 
 converting it into malt in his own kilns for sale ; where the 
 tenant grows corn on the demised premises and grinds it into 
 flour for sale in his occupation as a miller ; or where the 
 tenant, following the trade of a butcher, erects a beast- 
 hoQse and a fold-yard on the demised land, for the use of 
 cattle which he grazes upon the premises, or fattens on the 
 produce of the land demised. So a distiller might grow his 
 own grain ; a weaver of linen his own flax upon the demised 
 land. These, and the like instances, have been suggested, 
 as mixed cases, giving rise to many questions between land- 
 lord and tenant which would involve the points now under 
 consideration. 
 
 Reference may also be made to the leading American case 
 of Van Ness v, Pacard (2 Peters' P.^ 137), where a carpen- 
 ter by trade leased a parcel of land at a yearly rent and 
 with an option to purchase the reseivation in fee, and 
 erected thereon a two story building with a view to carry on 
 the business of a dairyman. The Supreme Court of the 
 United States said, that the structure was removable by the 
 tenant, on the ground that it was a case wherein agriculture 
 was combined with a species of trade, Story, J., observing: 
 "The defendant was a carpenter it is true, but it is no ob- 
 jection to the application of the rule, tliat he added a second 
 trade, that of dairyman, to his regular business. At the 
 most, the case would become one of those mixed cases rep- 
 resented by the cider-mill case before Comj'ns, C. B.. and 
 the fire-engine case (La.ictoa v. La.wtori) before Lord Hard- 
 wicke.*' 
 
 It was held by the English Court of Common Pleas, at an 
 early day, that a man burning brick from clay got from the 
 land was not a trade, under the bankrupt laws. But on ex- 
 amining the case it will be found not to militate against the 
 piincix^le here contended for. Bayley, J., said : "The second 
 question is, whether the commission was invalid. The ob- 
 jection is, that the bankrupt was not a trader, and we are of 
 opinion that he was not.
 
 CASES OF A MIXED NATURE. 323 
 
 "It appears from his own statement that he purchased a 
 piece of hmd near Chiuiteuham, live acres, for £2,400, and 
 that the hind was intended for the making of bricks upon it, 
 and no doubt, sellmg those bricks. He purchased in fee, 
 and though he had no convej'ance of the legal estate, he had 
 a good equitable title, there being an agreement in writing 
 and by having been let into possession ; and this places him 
 on the same footing as if he had been owner in fee. It 
 cannot be intended^ that he bought for the sole purpose of 
 makincr bricks, for the price was much too L^rge. though in 
 our judirment that wouhi make no difference. He there 
 made and sold bricks, and the question is, did this make 
 him a trader \ 
 
 "Tliis is a question Jw;/*^ positici\ and depends entirely 
 upon tlie construction of the bankrupt statutes. The first, 
 3-1 and 35 Hen. 8, c. 4. * * * The second statute. 13 Eliz. 
 ^, - * * * The hist provides that all persons that 'use 
 the trade of merchandise by way of bargaining, exchange, 
 bartery, chevizance, or otherwise in gross or by retail, or 
 selliag his, her, or their trade of living by buying and 
 selling, upon committing acts of bankruptcy, shall be ac- 
 counted and adjudged bankrupts.' The buying and selling 
 contemplated by this act, construing the words with refer- 
 ence to the context, and to the preamble of the first statute, 
 is the buying and selling of goods ; and in order to consti- 
 tute such buying and selling, there must be a buying of 
 ixoods and a selling of goods. 
 
 •-ruder these acts of Parliament, a series of cases ending 
 with E.r parte GaUimore ^2 Jiose, 424\ established the rule, 
 that if a person made bricks on his own estate, and sell them 
 as a mode of enjoying the profits of real estate, he is no 
 trader, and it makes no difference whether he is a fiveholder 
 or tenant ; if he uses this business to make a profit of the 
 soil, which he has as his own, whatever his interest in that 
 soil' be, he does not make profit, or in the language of the 
 statute, * seek his living by buying and selling :' and, there- 
 foiv. he is not liable to the bankrupt laws in that character. 
 But where brick-making is carried on substantially and in- 
 dopendentlv as a trade^he would be liable : that is. if a man
 
 324 LAW OF FIXTURES. 
 
 buy tlie brick earth as a chattel (and, perhaps, if he bought 
 the brick only to be consumed by liimsell", it might be con- 
 sidered as the purchase of a chattel), and, purchasing the 
 other necessary materials, sells the brick made with tiiat 
 earth, he is a trader ; for he is a person making his living 
 by buying and selling goods. Under the old acts of Parlia- 
 ment, therefore, the plaintiff would not have been a trader, 
 nor is he under the new act of Parliament, 6 G. 4, c. 16, as a 
 person ' seeking his living by buying and selling,' Bat this 
 statute has additional words, including those 'who seek their 
 living by the workmanship of goods or commodities ;' but 
 the case of Ex x>cii'te Burgess (2 Glyn. & /., 183), has decided 
 that they do not include a person making bricks on his own 
 estate ; these words appear to have been introduced to meet 
 the case of persons who do not buy and sell, and yet have 
 other men's goods entrusted to them (so as to bring them 
 within the principles of the bankrupt laws), such as bleachers 
 and fullers, lace-makers, and stocking-makers, who work for 
 others, and the like ; but do not include those who use 
 workmanship on goods, as apart of the profits of land, such 
 as farmers making cheese or cider, alum makers, &c. ; and 
 we concur with the judgment of the present Lord Chancellor 
 in that case, and, therefore, are of opinion that the plaintiff 
 was not a trader" {Heane v. Rogers, 9 Barn. & Cress. 
 B., 577 ;S. C. 17 E/ig. C. L. R., 449, 453, 454). 
 
 It will be observed, that the case last cited arose under 
 the English bankrupt statutes, and turned entirely upon the 
 construction given to those acts. Had the case been one be- 
 tween landlord and tenant, under similar facts as to the use 
 made by .the tenant of the demised premises, it would, 
 doubtless, have been held to be a case, in which the enjoy- 
 ment of the profits of land were combined with trade, and 
 the fixtures of the tenant, therefore, removable by him at the 
 termination of his tenancy. 
 
 The general point whether a person erecting or otherwise 
 acquiring brick-ground, for the purpose of making bricks 
 for general sale, be a trader within the English bankrupt 
 laws was much discussed in the case of Ex parte Harrison 
 (1 Rev. Ch. Cases, 173), wherein it appeared that a brick-
 
 CASES OF A MIXED NATURE. 325 
 
 worker took earth from the waste, and made a compensation 
 on that account to his landlord, and the Jury found him to 
 be a trader under the bankrupt act, and Lor I Winslow re- 
 fused a new trial. But, as a general rule, it has been held, 
 that, unless the person was engaged in buying and selling, 
 he did not come within the provisions of the bankruptcy acts 
 relating to traders. For example, a burner of his own 
 chalk or rock into lime, the smelter from his own mines of 
 iron or lead ore into pigs, or the manufacturer of his own 
 rock into alum, has been held to have merely carried his 
 own soil to market in some way manufactured, and is not 
 therefore a trader within the purview of the bankrupt laws. 
 In a word, in the several cases of the lime-burner, the smel- 
 ter of ore, and the maker of alum, although the surface of 
 the earth might produce some profit, yet the selling the soil 
 under the surface, or parts of such soil, in a state essen- 
 tially altered by various processes of manufacture, has 
 been held not to alter the character of the land owner, nor 
 to convert him into a person who can be properly said to 
 carry on the trade of merchandise ; and it is the creditors of 
 this latter class of traders, which it is the professed object 
 of the bankrupt laws to protect. But by the late act of 
 Parliament, brick-makers, lime-burners, millers, etc., are 
 now deemed traders within the bankrupt laws (5 & 6 Yict. 
 eh. 122, § 10). And as between landlord and tenant, brick- 
 makers, lime-burners, and the like, may be brought within 
 the principle of the mixed cases wherein agriculture is com- 
 bined with a species of trade ; or rather in which the enjoy- 
 ment of the profits of land may be combined with trade, so 
 that they may be permitted to remove the erections which 
 they placed upon the demised premises for the purposes of 
 their business. 
 
 Another class of cases may be guggested, in which the 
 right of removal of the fixtures by the tenant is enjoyed 
 upon the principle of the rule now under consideration. 
 And that is, where a machine or utensil is employed some- 
 times for the purpose of trade, and at other times for a pur- 
 pose wholly unconnected with trade ; and where it may be 
 uncertain whether the object of the erection is the trade, to
 
 326 LAW OF FIXTURES. 
 
 wliicli a right of removal attaches, or the other employment, 
 to which such a right does not attach. To tliis class, the 
 casQ decided by the Supreme Court of tlie United States, in 
 which it appeared that the building in controversy was used 
 for the business of a dairyman, and also as a residence iojy 
 his family, would properly belong. The building so far as 
 it was erected for the purposes of trade, was removable, but 
 so far as it was used for the residence of the family of the 
 tenant, the right of removal did not attach. But the court 
 held that the residence of the family in the house was merely 
 accessory to the trade carried on in it, and consequently the 
 building was treated as a trade fixture and removable. 
 
 In cases of this description, the important question must 
 inevitably be, as to which of the two purposes the erection in 
 dispute is more usually appropriated ; and in examining this 
 question, it will alwaj^s be necessary to consider what has 
 been the primary object of the erection ; and whether in 
 making it the intention of trade predominated over the other 
 purpose with which it is combined. With this view an ex- 
 amination of the decisions in cases of bankruptcy, will fre- 
 quently be useful ; when the fact to be determined is, 
 whether the dealing of a person is in the way of merchan- 
 dise, which is to be deemed his principal occupation ; or is 
 merely incidental to a pursuit not within the scope of the 
 bankrupt laws. The doctrine in respect to bankruptcy cases, 
 in this regard, will be given in subsequent chapters, and 
 so far as the same is applicable to questions discussed in this 
 chapter, an examination of the cases there considered may 
 be useful. At the same time, it should be borne in mind 
 that the word trade, as used in the. mixed cases treated in 
 this chapter, is used in its more extended sense, and not in 
 the narrow and technical one which it expresses in the 
 Bankruptcy Acts.
 
 CASES OF A MIXED NATURE. 327 
 
 CHAPTER XXIII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ANNEXATIONS Br TENANTS OF A MIXED CHARACTER, AT- 
 TACHED TO THE LAND FOR THE PURPOSES OF TRADE COMBINED WITH 
 OTHER OBJECTS —=- RULE AS APPLIED TO GARDENERS AND NURSERYMEN. 
 
 There is another class of cases of a description somewhat 
 similar to the mixed cases discussed in the X)receding chap- 
 ter ; namely, the cases of gardeners and nurserymen. The 
 rights of tenants of nursery and garden grounds depend 
 upon the same principles which are involved in those cases 
 in which the tenant carries on a species of trade by which he 
 renders the produce of the demised lands available to his 
 own profit. 
 
 It is now well settled that gardeners and nurserymen may 
 remove trees, shrubs, and other produce of their demised 
 grounds, planted by them for the express purpose of sale ; 
 and this right is put upon the ground that they are carry- 
 ing on a species of trade. That is to say, the liberty which 
 is accorded to the nurseryman or gardener to uproot and to 
 remove the trees and plants of his nursery or garden, al- 
 though these are physically and visibly united with the soil, 
 is generally put, by the best authority, upon the principle 
 that the business is a species of trade, and that the privi- 
 lege is accorded in favor of trade. 
 
 Mr. Grady, however, expresses the opinion, that these 
 cases of nurserymen and gardeners rest entirel}^ upon cus- 
 tom, or at all events, upon an implied contract between 
 landlord and tenant ; for it is assumed that the landlord, 
 when he lets the land, knows of the purpose to which it 
 is to be converted ; and hence, it is argued, tlie law would 
 not permit him to turn round on the tenant when the ground 
 is well stocked and say, "These are fixtures and you can- 
 not remove them" {Grady on Fixtures, 100). This rea- 
 soning is plausible and may be adojDted, with equal pro- 
 priety, in the cases of trade fixtures in general. But the
 
 328 LAW OF FIXTURES. 
 
 privilege is generally accorded to nurserymen and garden- 
 ers, on tlie ground that they plant the demised land for the 
 purposes of trade, and the case, therefore, is brought within 
 the principle that obtains in cases of trade fixtures. 
 
 The privilege under consideration, in the case of Penton 
 \. Robart (2 EasVs B.., 91), was declared to embrace green- 
 houses and other similar erections. " Shall it be said," asked 
 Lord Kenyon, C. J., "that the great gardeners and nursery- 
 men in the neighborhood of this metropolis, who expend 
 thousands of pounds in the erection of greenhouses and hot- 
 houses, &c., are obliged to leave all these things upon the 
 premises, when it is notorious that they are even permitted 
 to remove trees or such as are likely to become such, by the 
 thousand, in the necessary course of their trade ? If it were 
 otherwise, the very object of their holding would be de- 
 feated." It would appear, however, that Lord Ellenbo- 
 rough, in the principal case of Elioes v. Maio (3 East's 
 JR., 38), disapproved of such an extension ; his precise lan- 
 guage is: "Lord Kenyon indeed there laid stress on the 
 instances of gardeners and nurserymen in the neighborhood 
 of the metropolis erecting greenhouses, &c., which he con- 
 sidered that they would be at liberty to remove. Whether 
 that be done under particular agreements or not does not 
 appear; but supposing the law would imply an exception 
 in favor of tenants of that description, it would only be upon 
 the ground of considering them as carrying on a species of 
 trade ; the very nature of their occupation and of the let- 
 ting being to enable them to disannex even trees from the 
 land." Again, further on, he says: "And though Lord 
 Kenyon, after putting the case upon the ground of the lean- 
 ing which obtains in modern times in favor of the interests 
 of trade ; upon which ground it may be properly supported ; 
 goes further, and extends the indulgence of the law to the 
 erection of greenhouses and hot- houses by nurserymen, and 
 indeed by implication to buildings by all other tenants of 
 land ; there certainly exists no decided case, and I believe 
 no recognized opinion or practice on either side of West- 
 minster Hall, to warrant such extension." 
 
 The case of Elioes v. MaiD was twice argued before the
 
 CASES OF A MIXED NATURE. 329 
 
 Court of King's Beiicli, as was suggested in a previous chap- 
 ter, and on the first argument, it seems, Lewrance, J., inti- 
 mated, that if ground were let expressly for nursery ground, 
 it might be considered as implied in the terms of the con- 
 tract, that it was to be used for taking up young trees, &c., 
 as is usual in such cases. But he expressed a wish to be in- 
 formed of the usual terms of the lease under which such 
 grounds were held in the neighborhood of the metropolis. 
 
 This particular dictum of Lord Kenyon was also ques- 
 tioned by Dallas, C. J., in the English Common Pleas, 
 in 1820, when he says: "Passing over all that relates to 
 trade and agriculture as not connected with the present 
 subject, it will be only necessary to advert, as bearing upon 
 it, to the doctrine of Lord Kenyon, in 2 Bast, 88, referred 
 to at the bar. The case itself was that of a building for the 
 purpose of trade, and standing, therefore, upon a different 
 ground from the present, but it has been cited for the dlc- 
 twm of Lord Kenyon, which seems to treat greenhouses 
 and hot-houses erected by great gardeners and nurserymen 
 as not to be considered as annexed to the freehold. Even 
 if the law were so, which it is not necessary to examine, 
 still, for obvious reasons, such a case would not be similar 
 to the present; but in Elmes v. Maio, speaking of this 
 dictum Lord Ellenborough says, there exists no decided 
 case, and, I believe, no recognized opinion or practice on 
 either side of Westminster Hall to warrant such an exten- 
 sion" {Buckland v. Butter field, 2 Broderip & Bingham's 
 R., 54, 57). But the doctrine that gardeners and nursery- 
 men may remove trees, shrubs, and other produce of the 
 ground, planted by them with a view to sale, remains un- 
 questioned. 
 
 It was held in one case before the English Court of Com- 
 mon Pleas, that fruit trees, although they were in full bear- 
 ing, yet if planted by a nurseryman in the way of his trade, 
 might be removed by him at the expiration of his term ; 
 provided they might fairly be considered as nursery trees, 
 and were not of larger growth than could be dealt with by 
 him in his trade as a nurseryman {Wardell v. Uslier, 3 
 ScoWs Neio R., 508). 
 
 42
 
 330 LAW OF FIXTURES. 
 
 It was ruled, however, at JYisi Prius, by Lord Ellen- 
 borough, that a tenant of garden ground could not plough up 
 straicberry beds in full bearing at the conclusion of his term, 
 although he had purchased them of a preceding tenant, and 
 although it was proved to be the general practice to ap- 
 praise and pay for those plants as between outgoing and 
 incoming tenants. But his Lordship observed : "The ques- 
 tion here was, whether the thing complained of had been 
 wrongfully and unjustly done, to the prejudice of the plain- 
 tiff. The taking up strawberry roots was not necessarily an 
 injury to the inheritance for which an action would lie ; but 
 if the defendant in this instance ploughed up the beds be- 
 fore they were exhausted, and without having any reason- 
 able object in view, he had certainly prejudiced the plaintiff's 
 reversionary estate, and it could scarcely be doubted that he 
 did so wrongfully and maliciously" {Wether ell v. Howell, 
 1 CamphelV s Nisi Prius Cases, 227). Had the plants in 
 this case been removed by the tenant for sale, in his ordi- 
 nary occupation, he would probably have been justified in 
 the act of removal. 
 
 But where "a mere private individual, or a person who 
 occupies land as a farmer, and does not profess to be a 
 nurseryman or gardener, raises young fruit trees on the 
 demised land, for the purpose of planting in his gardens or 
 orchards, it has been held that he was not entitled to sell or 
 remove them at the end of his term. It appeared in the 
 case in which the doctrine was laid down by the English 
 Court of Common Pleas, that the premises on wliicli the 
 trees were grown, were in Devonshire, where almost every 
 farm consists in greater or less part of orchards, and where 
 it is usual for the farmers to be their own nurserymen, and 
 to raise trees for the purpose of keeping up the orchards. 
 The trees in question were young standard apple-trees, 
 which had been planted by the tenant during the term in a 
 nursery, parcel of the farm. Some trees had been occa- 
 sionally removed out from them, to fill up vacancies in the 
 orchards, and some the tenant had sold, without question 
 made, and his counsel contended he had a right to do so ; 
 but he was interrupted by Heath, J., who said: "Not un-
 
 CASES OF A MIXED NATURE. 331 
 
 less the tenant were a nurseryman, and made it his trade" 
 {Wyndliam v. Way, 4 TauntoiH s R., 316). 
 
 The case last cited was decided in 1812, but the same 
 court made a decision to the same effect in 1833 ; holding 
 that a tenant, not being a gardener, is not at liberty to take 
 away a border or edging of lox planted by himself, unless 
 by special agreement with the landlord ; and the doctrine 
 was extended even to flowers planted in the ground. 
 
 Parke, J., said: "There is no authority for saying that 
 an ordinary tenant may take up growing trees without a 
 special agreement for that purpose." The counsel asked: 
 "Could not a tenant remove flowers which he had planted 
 in the grounds?" Littledale, J., answered: "No." Den- 
 man, C. J., observed: "A border of box is a thing in- 
 tended to be permanent." And Parke, J., remarked : "It 
 might as well be contended that a tenant could take up 
 hedges" {Empson v. Sodeii, 4 Barn. c& Adolph. R., 655; 
 S. a, 24 miff. C. L. R., 132.) 
 
 In respect to hot-houses, forcing-pits, greenhouses, and 
 other similar erections put up by nurserymen and gardeners 
 at their own expense, the courts have not been entirely har- 
 monious, as to whether they may be removed by the tenants 
 at the end of their terms or not ; although there would seem 
 to be no good reason why such erections should not be per- 
 mitted to be removed, as well as trees in a nursery ; at least 
 on the principle of trade. Lord Kenyon, in the case of 
 Peiiton V. Robart (2 Easf s R., 91), expressly declared 
 that such fixtures might be removed. But Lord Kenyon' s 
 opinion upon this subject was subsequently disapproved by 
 Lord EUenborough, in the case of Elwes v. Maio (3 Easfs 
 R., 38), and the authority of Penton v. Robart, in some 
 others of its aspects, seems to have been shaken. In addi- 
 tion to the doubt thrown upon the opinion of Lord Kenyon 
 respecting hot-houses, and the like, Lord Brougham, in his 
 elaborate judgment in the case of Fisher v. Dixon (12 El. 
 & F. R., 312), disapproves of the decision of the case, and 
 the doctrines therein promulgated by Lord Kenyon. 
 
 But however much the authority of the decision of Lord 
 Kenyon of the case of Penton v. Robart, may be supposed
 
 332 LAW OF FIXTURE^. 
 
 to be impeaclied by subsequent cases, tlie doctrine in respect 
 to the right of nurserymen and gardeners to remove hot- 
 houses, greenhouses, and the like, is recognized by modern 
 authorities. The subject underwent an elaborate examina- 
 tion by the Court of Sessions of Scothnid, in tlie year 1861, 
 when it was held that greenhouses, forcing-pits, and hot- 
 bed frames, erected by nursery-gardeners for the purposes 
 of their trade, may, in so far as not consisting of brick-work, 
 be removed by them at the expiration of their lease. 
 
 The case was an appeal from the Sheriff's Court for the 
 county of Lanarkshire, wherein it appeared that the appel- 
 lants (the defendants in the court below) were seedsmen and 
 fruiterers in Glasgow, and as such had obtained a sub-lease 
 of the gardens of Kippock House, of which the plaintiff 
 below and respondent above ^w^as tenant, and as such was 
 also lessor of the gardens. The action w^as originally 
 brought to restrain the appellants from removing or other- 
 wise interfering with certain plant-houses, greenhouses, and 
 other erections 'of a like character, all of which had been 
 put up by the appellants on the jDremises demised. The 
 erections in question were composed partly of brick-work 
 and partly of glass and framework, — that is to say, the 
 foundations were sunk in the ground to the depth of about 
 six inches ; the walls were of the height of three or four feet, 
 and they, together with the Hues and chimneys, were all 
 built of brick ; on the other hand, the roofs and upper parts 
 of the sides were composed of glass and framework, and 
 were made to rest on, without being fastened to, wall-plates 
 laid on the bricks and attached thereto by mortar. 
 
 It was contended on behalf of the appellant that the 
 Scotch law expressed in the maxim '''omne quod inaediji- 
 catur solo, solo cedit,''^ was subject to the same mitigation 
 in favor of trade as the corresponding maxim in the English 
 law is subject to ; and the English cases of Penton v. Ro- 
 'bart{2 Easfs i?., 88), and Dean v. Allalley {^EasfsR., 11), 
 were cited as authorities showing the precise relaxation of 
 the English law in cases analogous to the case then befoie 
 the court. 
 
 For the respondent, on the other hand, it was contended
 
 CASES OF GARBENERS AND NURSERYMEN. 333 
 
 that the Scotcli law had never submitted to any such relaxa- 
 tions as those referred to. The unanimous opinion of the 
 Court of Sessions (First Division), consisting at the time of 
 tlie Lord President M'Neil (afterward Lord Colonsay), and 
 Lords Ivory, Curriehill, and Deas, was in favor of the re- 
 movability of the erections and fixtures in question other 
 than those parts thereof which were of brick and let into 
 the ground. 
 
 The Lord President said : "The original law as to what 
 was to be considered as fixture or as removable in ques- 
 tions as between heir and executor w^as very decidedly 
 favorable to the rights of the heir. Questions of the 
 same kind have arisen between parties in the relation of 
 life-renter and fiar, of limitable and personal creditor, 
 and of landlord and tenant."* The leaning of the law 
 regarding the rights of one party or the other has not been 
 the same in all cases coming under these different classes ; 
 but without going into details, it may be stated generally 
 that the law in a case between landlord and tenant is less 
 rigid in favor of the landlord, and is more in favor of the 
 tenant than in the other classes of cases to which I have re- 
 ferred. The reasons for that distinction are strongly put 
 by Lord Kenyon in the cases cited. As new branches of 
 trade arise, new uses of land also arise; and as veritable 
 subjects may become part of the property of a trading com- 
 pany, so they may be applied to uses wiiicli are intended to 
 be of a more or less permanent character. The law, in re- 
 spect of questions arising out of such occupation, must ac- 
 cordingly adapt itself, in virtue of the expansive power it 
 possesses, to the changes which take place in the course of 
 time. 
 
 Applying these view^s to the present case, I am of opinion 
 
 * Aa the Lord President uses a couple of terms which are not common on this 
 side of the Atlantic, it may be useful to give their definitions or meaning. The 
 term " life-renter and fiar " means " tenant for life and remainderman or rever- 
 sioner ; " and the terms " heritable and personal creditor " means creditors on the one 
 hand who have recourse to the realtj', and creditors on the other hand whose only 
 remedy is in the personalty.
 
 334 LAW OF FIXTURES. 
 
 that the rights of the tenant sliould prevail ; and I think in 
 the present case there are important elements for arriving 
 at that decision. First there is the purpose for which the 
 structures in question were made ; there is, also, the tem- 
 porary character of the tenant's rights, coupled with the 
 costliness of the erections. They were erected at the ex- 
 pense of a company established as a trading company for 
 the sale of fruits, &c., and for the use of that company in 
 carrying on their business. The company held the business 
 for the temporary period of five years ; moreover, the ar- 
 ticles in dispute were made after two of those five years 
 were elapsed." 
 
 His Lordship then proceeded to add, that, if the company 
 had not (as they had) waived the question of right to re- 
 move the brick foundations even, he should have had some 
 hesitation in saying that they had not a good right to re- 
 move them also, on the ground as well of their trade as of 
 the reasonable expectation of a landlord who lets to gar- 
 dener-tenants {Syme v. Harmy, 24 Scotch Session Cases., 
 202). 
 
 But since the case last cited was decided, Vice-Chancellor 
 Wood, in the English Court of Chancery, held that green- 
 houses built in a garden, and constructed of wooden frames 
 fixed with mortar to foundation walls of brick-work, 
 were fixtures and not removable by the occupier w^ho built 
 them. 
 
 The learned Vice- Chancellor also held, that a boiler built 
 into the masonry of a greenhouse was irremovable ; but he 
 held, that the pipes of a fixed heating apparatus, which 
 were connected with the boiler by screws, were removable 
 {Jenkins v. Gething, 2 Johnson & Hemming' s H., 520). 
 
 If the heating apparatus, in the last case cited, w^as irre- 
 movable, as between landlord and tenant, it is doubtful 
 whether the pipes connected with it would be removable, 
 for they might fairly be considered as a part of the fixed 
 apparatus, in which case the tenant's privilege would be the 
 same to both the apparatus and the pipes. If one was ir- 
 removable, the whole w^ould be so, and vice versa.
 
 CASES OF GARDENERS AND NURSERYMEN. 335 
 
 The doctrine of the English cases in respect to the rights 
 of nurserymen and gardeners to remove trees, shrubs and 
 the like from the demised premises, is fully recognized by 
 the American courts. In a case decided by the Supreme 
 Court of the State of JN'ew York, at Special Term, in 1849, 
 it was held, that where lands were let for the purpose of 
 nurturing trees and plants, in the absence of any agreement 
 to the contrary, the tenant had a right, as against the land- 
 lord, to cultivate the trees until they were prei)ared for 
 transplanting, and then, from time to time to remove them, 
 as his business required. Other questions were involved in 
 the case, but the decision is explicit upon this point. 
 
 Harris, J., in his opinion, said : "There can be no doubt, 
 I think, that as between the partnership and Wilcomb, the 
 trees and shrubs, composing the nursery, are to be regarded 
 as personal chattels. The consent of Wilcomb that the 
 partnership should occupy the land, for the purpose of its 
 business, implied a license to remove the property planted 
 there when the proper period of removal should arrive. 
 The relation of landlord and tenant was created by the per- 
 mission to occupy the land. The ancient rule, that what- 
 ever was attached to the freehold by the tenant became a 
 part of the freeliold, and could not afterwards be removed 
 by him, has gradually been relaxed in favor of the tenant, 
 until now, I tmderstand the general rule to be, that any 
 one, who has a temporary interest in the land, and who 
 makes additions to it or improvements upon it for the pur- 
 pose of the better use or enjoyment of it, while such tem- 
 porary interest continues, may, at any time before his right 
 of enjoyment expires, rightfully remove such additions and 
 improvements. * * * 
 
 "The only difficulty in applying this rule to the case of a 
 nursery planted by a tenant, is in determining when the 
 right of removal ceases. Usually the temporary interest 
 of the tenant, in the land he occupies, is limited by a term 
 of years, or the termination of some specified life. But in 
 the case of a letting for the purpose of nurturing trees and 
 plants until they are ready to be transplanted, I tliink, in 
 the absence of any express agreement, the interest of the
 
 336 LAW OF FIXTURES. 
 
 tenant in tlie land, for the purpose contemplated by the 
 parties, should be held to continue until the purpose is ac- 
 complished {Miller v. Baker, 1 Mete, 27 ; Penton v. Robarts, 
 2 East, 88; Wyndham v. Way, 4: Taunt, 316; Grady's 
 Law of Fixtures, 51 Law Library, 80). 
 
 "Thus far the case presents but little difiiculty. The right 
 of the partnership, as against Wilcomb, to cultivate the trees 
 they had planted, until they were prepared for transporta- 
 tion, and then, from time to time, to remove them, as their 
 business required, seems to me unquestionable" King v. 
 Wilcomb, 7 Barb. R., 263, 265, 267). 
 
 The doctrine was also distinctly recognized in a case de- 
 cided by the same court, in 1868, that, where land is rented 
 for a nursery, the tenant has the privilege of removing the 
 trees planted at any time before he quits possession, on the 
 termination of his lease, although in the particular case 
 before the court, the fact was found that the tenancy had 
 expired, and the grantee of the landlord had actual posses- 
 sion of the demised premises, before the tenant attempted 
 to remove the trees in controversy, and therefore, it was held 
 that the tenant had lost his right to remove them, and they 
 belonged to the freehold {Brooks v. Oalster, 51 Barb R., 196). 
 
 The Supreme Judicial Court of Massachusetts decided, in 
 1840, that trees and shrubs, in land demised to be used as a 
 nursery garden, are personal chattels, as between the lessor 
 and the lessee and his assigns, and may be severed and 
 removed. 
 
 Dewey, J., delivered the opinion of the court, and, upon 
 this point, said: "The question whether the fruit trees, 
 shrubs, and plants, rooted in the soil of the nursery garden, 
 can be properly denominated personal chattels, and as such 
 be embraced in the present action, is attended with more 
 difficulty. Questions as to what is personal estate and what 
 appertains to the realty have more usually arisen in cases of 
 conHicting claims between the heir and the executor or ad- 
 ministrator, or between landlord and tenant, and there have 
 been not unfrequently cases of much nicety in properly ap- 
 plying the principles of law. As respects the cases between 
 landlord and tenant, the leaning of the courts in modern
 
 CASUS OF GARDENERS AND NURSERYMEN. 337 
 
 times lias been to give a rather liberal construction in favor 
 of the right of the tenant to remove property placed by him 
 upon the land. 
 
 "Taking the question restricted to the case before us, it 
 seems to us that the plaintiff is entitled to retain his verdict 
 for the entire damages found by the jury, as well for the 
 plants and trees rooted in the soil, as for the green house 
 and pot plants. The plaintiff acquired by his bill of sale 
 the interest of Senior, and what were his rights, as to this 
 species of property ? He was in the occupation of the land, 
 in the soil of which these trees and plants were growing, as 
 a nursery garden, by the consent of the owner of the land, 
 and occupying the land for this special object. The permis- 
 sion to occupy the land for a nursery garden was necessarily 
 a permission to cultivate these productions for the purpose 
 of sale and transfer, at pleasure, to other places. The pro- 
 ducts of this garden may, therefore, as regards the interest 
 of Senior, be well considered to be articles of trade and sale, 
 and the right to remove them would be unquestionable. * * * 
 In the case of Penton v. Robarts (2 East, 88), where the 
 immediate question was the right of the tenant to take down 
 and remove certain buildings erected by him on the demised 
 premises. Lord Kenyon, in delivering his opinion, seems to 
 countenance the view we have taken of this subject. * * * In 
 Wyndham v. Way (6 Taunt, 316). Heath, J., suggests the 
 same view as to the right of a tenant, who is a nurseryman 
 by trade, to remove fruit trees. Indeed this right, I suppose, 
 can hardly be questioned" {Miller v. Baker, 1 Met. H , 
 27, 31, 33). 
 
 And the doctrine was also recognized by the Supreme 
 Court of Errors of Connecticut, in a case decided in 1863, 
 although the decision was against the right to remove the 
 trees and shrubs in controversy, because the question arose 
 between mortgagor and mortgagee. Hinman, C. J., ob- 
 served: "As between landlord and tenant many things 
 which pass under the general name of fixtures will, for the 
 encouragement of trade, be permitted to be removed by the 
 tenant during his term, which, as between heir and executor, 
 vendor and vendee, or mortgagor and mortgagee, would be 
 
 43
 
 338 LAW OF FIXTURES. 
 
 considered as parcel of the realt}^ and would therefore 
 belong to tlie heir or vendee or mortgagee. And, as between 
 landlord and tenant, it may be true of trees in a nursery- 
 garden, especially where land is let to a nursery gardener 
 to be used for the purposes of his trade, that they would be 
 treated as personal chattels, removable by the tenant during 
 his term. But admitting that this is so, it is an exception 
 to the general rule. Trees and shrubs are generally as much 
 a part of the realty as the soil itself, whether growing upon 
 it naturally, or planted and cultivated by the hand of man. 
 It is therefore incumbent upon the party claiming that they 
 are personal chattels, which do not pass with the transfer of 
 the land, to show that such was not the intention of the 
 parties" {Ifcqyles v. lllllon, 31 Conn, i?., 598, 600). 
 
 The decision in Ilaples v. Millon is in accord with a de- 
 cision of the Supreme Court of low^a, in a case wherein it was 
 held, that nursery trees planted by a mortgagor after the 
 execution of the mortgage, became a part of the realty, and 
 pass as such to the purchaser at a sale ui)on the foreclosure 
 of the mortgage {Price v, Brayton.^ 19 Iowa R., 309). But 
 this does not militate against the general holding of the 
 courts in respect to the same things as between landlord 
 and tenant. 
 
 Cases sometimes occur which are so near the dividing line 
 as to present practical difficulties in determining which side 
 they should be placed. One of this class was decided by 
 the Court of Queen's Bench of England, in 1857, which w^as 
 an ecclesiastical case, but may, nevertheless, be referred to 
 for the valuable dicta which it contains upon the point now 
 under discussion, as well as upon the subject of fixtures 
 generally. 
 
 It appeared that a deceased rector had, during his life- 
 time, erected in the rectory garden, on a spot entirely de- 
 tached from the parsonage house, two hot-houses respec- 
 tively 52 and 47 feet in length, by 14 in width, consisting of 
 low brick walls, upon w^hich mortar was spread ; imbedded 
 into this mortar were wooden frames and glass w^ork, the 
 glass work sliding up and down upon pullies and not fixed. 
 Within a reasonable time after the death of the rector, his
 
 CASES OF GARDENERS AND NURSERYMEN. 339 
 
 executors went on to the premises, and removed tlie materials 
 of the hot-houses, and the one who succeeded the deceased 
 rector retook the materials, and the executors brought their 
 action for the conversion. 
 
 The plaintiff's counsel insisted that the incumbent of a 
 rectory is not like a tenant for life, for the fee simple is in 
 abeyance. To sustain this position, reference was made to 
 Huniley v. Russell (13, Q. B., 688). In the case at bar, he 
 contended that a hot-house was erected simply for the pur- 
 pose of luxury, and was therefore governed by a different 
 principle than though it was something that was useful. 
 Upon this point, he cited Wise v. Metcalf {10 Barn. & Cress. 
 R., 299). 
 
 For the defendant it was contended that the hot-houses 
 were permanent buildings fixed to the ground ; that the 
 wall clearly passed with the rectory, and the frame work of 
 the hot-houses was so fixed to the w^all that it could not be 
 taken away without altering the whole structure. It was 
 insisted by the counsel, that prima facie this was a build- 
 ing beneficial to the rectory, and which passed to the in- 
 cumbent. 
 
 The court held, under the circumstances of the case, that 
 the hot-houses were removable, and might have been taken 
 away in the lifetime of the deceased rector. 
 
 Lord Campbell, C. J., said: "Messrs. Amos and Ferard, 
 in their excellent book on the Law of Fixtures, say it may, 
 they conceive, be kiid down that tlie incumbent or his execu- 
 tor will in general be entitled to fixtures of the same descrip- 
 tion as those which formed part of the personal estate of a 
 deceased tenant for life. It may be worth observing, that 
 there is this distinction between an incumbent and an ordi- 
 nary tenant for life ; the former has at no time any rever- 
 sion to any present interest or rights ; whereas, when the 
 latter affixes any thing to the freehold, or in any way 
 meddles with it, he annexes to, or meddles with that in 
 which some other person or persons has or have, at the mo- 
 ment, an existing interest, whicli may be increased or dimin- 
 ished in valu^ by what he does, and which the law will 
 protect. ^ * * There seems a reason for enlarging the rule
 
 340 LAV/ OF FIXTURES. 
 
 as between an executor and successor, where the subject- 
 matter in dispute is not of a kind that can be considered as 
 inalienably attached to the benefice, lor in such a case there 
 would be no ground even for the interference of the ordi- 
 nary. * * * Had this chattel been merely screwed, or had it 
 been as a telescope in an observatory strongly screwed, as 
 such instruments commonly are, to what is part of the build- 
 ing itself, we think no question could have been raised ; and 
 this seems to us to present no substantial diit'erence from an 
 observatory" {Martin v. Hoe, 5 Weekly Reporter, 263, 
 264 ; >S'. a, 7 BRis & Black. B., 237 ; >Sf. C, 26 LaioJ., 129). 
 Notwithstanding the distinction which Lord Campbell 
 suggests between an incumbent of a rectory and an ordinary 
 tenant for life, the case of Martin v. Boe may be regarded 
 as a precedent in cases under consideration here. It is 
 true, that the incumbent of a rectory is not precisely in the 
 situation of a particular tenant, because there is no person 
 who has the inheritance in reversion ; but, the fee simple of 
 the glebe being in abeyance, the incumbent is in truth but 
 tenant for life. And it may, therefore, be laid down, as a 
 rule, that an incumbent or his executor will be entitled to 
 fixtures of the same description, as those which form part 
 of the personal estate of a deceased tenant for life. So that 
 if the executor of the incumbent was permitted to remove 
 the hot-houses in controversy in Martin v. Boe, certainly 
 a tenant would have the same right in respect to similar 
 erections made by him, at the expiration of his term. 
 
 CHAPTER XXIV. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO MANURE RULE RELATING TO FENCES. 
 
 Perhaps it will be as well in this place as in any other, to 
 notice the doctrine, as between landlord and tenant, in re-
 
 CASES OF FARM MANURE. 341 
 
 spect to tlie removal of manure from the demised premises, 
 by the tenant. The distinctions recognized between purely 
 agricultural and other tenants, are especially marked and 
 emphatic in the case of manure. 
 
 It is laid down in some of the books, that manure in heaps, 
 before it is spread upon the land, is a personal chattel. It 
 further appears that, by the ancient practice, it was common 
 to insert a covenant in the lease of a farm, to leave the ma- 
 nure of the last year upon the x^remises. The inference 
 from this would naturally be, that the article belongs to the 
 tenant, and that without a covenant in the lease, under 
 which the premises were held, he might remove it. This, 
 however, depends upon circumstances, which it is necessary 
 to consider. 
 
 When a farm is leased for agriGioltural purposes, and ma- 
 nure is made upon the land in the ordinary course of farm- 
 ing, good husbandry, which without any stipulation therefor 
 is implied by law, would require the manure to be left upon 
 the demised premises. In a case before the English court 
 at Nisi Prius, in 1785, the judge, in his charge to the jury, 
 said that it was a matter of law to determine what was 
 using the land in a husband-like manner, and expressed the 
 opinion that under a covenant so to work a farm, the tenant 
 ought to use on the land all the manure there, except that 
 when his time was out, he might carry away such corn and 
 straw as he had not used there, and was not obliged to bring 
 back the manure arising therefrom {Watson v. Walsh, 1 
 Mp. JV. P. P., 131). 
 
 It has been thought, however, that the doctrine of Watson 
 V. WalsJi, should be taken with some qualification ; that is 
 to say, it has been suggested that the practice and usage 
 of the neighboring country, and even in relation to a par- 
 ticular farm, should enter into the decision of the question, 
 and some of the decisions of the courts will justify the sug- 
 gestion. 
 
 In 1819, a case was decided by the English Court of King's 
 Bench, in which the doctrine was expressly recognized. 
 The action involved the rights of the parties to foldage : 
 and it was held that, by the custom of the country, the out-
 
 342 LAW OF FIXTURES. 
 
 going tenant was entitled to an allowance for foldage from 
 the incoming tenant, unless the custom was excluded by 
 the terms of the lease, under which the premises were held. 
 Bayley, J., said: "The custom of the country applies to 
 those cases only where the specilic terms are unknown ; and 
 it is founded upon this principle, that justice requires that 
 a party should quit upon the same terms as he entered. If, 
 therefore, the party, when he entered upon the farm, paid 
 for a way-going crop, or for foldage, manure, fallowing, or 
 tillage, then if the lease be wholly silent as to the terms upon 
 which he is to quit, the custom of the country may be in- 
 troduced, and he may be entitled to receive for a way-going 
 crop, foldage, &c. Upon this ground Senior v. Armltage 
 was determined." 
 
 And Best, J., said: "I had at first some doubt in this 
 case, but, on looking at the whole deed, I think it was in- 
 tended by the parties, that it should contain all the terms 
 of quitting, and that the custom of the country should not 
 prevail. In Wigglesworth v. DalUson., there were no suffi- 
 cient circumstances to exclude the custom ; and unless it 
 appears that there is nothing to exclude it, the agreement 
 must regulate the rights of the parties" {Walsh v. Plum- 
 mer, 2 Barn. & Aid. R., 746, 750-752). 
 
 This would seem to be reasonable, because the parties to 
 the lease are supposed to enter into the engagement with 
 reference to the practice and usage in the neighborhood, 
 where there is no express stipulation upon the subject in the 
 the demise. What may be good husbandry in respect to 
 one particular, soil, climate, &c., may not be so in respect to 
 another. Hence the inquiry should be, as to the practice 
 and usage in that part of the country where the land lies. 
 
 In a case decided by the English Court of Common Pleas 
 in 1815, Lord Chief Justice Gibbs observed : " The doctrine 
 which I have often heard Mr. J. Buller lay down is, that 
 every tenant, where there is no particular agreement dis- 
 pensing wdth that engagement, is bound to cultivate his farm 
 in a husband-like manner, and to consume the produce on 
 it : this is an engagement which arises out of the letting, 
 and which the tenant cannot dispense with, unless by special
 
 CASES OF FARM MANURE. 343 
 
 agreement" {Broion v. Crump, 1 MarshalVs B., 567 ; S. C, 
 4 JEJng. C. L. R., 348, 349). 
 
 With reference to this remark of Lord Chief Justice Gibbs, 
 Nelson, J., in a case before the old Supreme Court of the 
 State of New York, decided in 1836, said: "Without car- 
 Ty'xng the doctrine to this extent, we ma}^, I think, safel}^ 
 sa3% npon authority, that where a farm is let for agricultural 
 purposes, no stipulation or custom in the case, the manure 
 does not belong to the tenant, but to the farm ; and the ten- 
 ant has no more right to dispose of it to others, or remove 
 it privately from the premises, than he has to dispose of or 
 remove a fixture" {Mlddlehrook v. CoriDln, 15 Weiid. R., 
 169, 171). 
 
 The same doctrine was recognized by the same court, in 
 1841, although the question arose in a controversy between 
 vendor and vendee. Cowen, J., said : "With regard to the 
 manure, we have held that even as between landlord and 
 tenant, it belongs to the former ; in other words, it belongs 
 to the farm whereon it is made. This is in respect to the 
 benefit of the farm, and the common course of husbandry. 
 The manure makes a part of the freehold" {Goodrich v. 
 Jones, 2 HllVs R., 142, 144). 
 
 And the same doctrine Avas reaffirmed by the Supreme 
 Court of the State of New York, in 1854, in a case in wdiich 
 the court passed upon the right of property in the straw 
 raised by a tenant upon land which he cultivated upon shares. 
 
 Mullett, J., delivered the opinion of the court, and, upon 
 this point, said: "The plaintiff, at the trial and on the 
 argument of the appeal, claimed all the straw as his, and 
 demanded judgment against the defendant for carrying away 
 and converting one-half of it, of the value of $20. The 
 plaintiff's claim to the whole of the straw is founded on the 
 assumption that, by the practice of good husbandry, the 
 straw of wheat is spread upon the land where it grew, to 
 repair the soil and is therefore to be considered in law as 
 manure. In the case of JSIkldlebroo'k v. Corioin, decided in 
 1836, Mr. Justice Nelson, giving the opinion (15 Wend., 169), 
 the court held that where a farm is taken by a tenant for 
 agricultural purposes, the manure made upon it belongs to
 
 344 LAW OF FIXTURES. 
 
 tlie farm, and not to the tenant, and at the expiration of his 
 term the tenant has no right to remove or dispose of it. 
 This was a case between landlord and tenant, and related to 
 the manure produced by twenty cows, a pair of working 
 oxen, and other cattle, put on the farm by the landlord, and 
 which were sold by the tenant to the defendant, and taken 
 from the barn-yard, on the farm, shortly before the expira- 
 tion of the tenant's term. In the case of Goodrich v. Jones, 
 decided in 1841, Cowen, J., delivering the opinion (2 Hill, 
 142), it was held that manure lying in a barn-yard, on a 
 farm, at the time of the conveyance, though laid up in heaps, 
 passed by the conveyance of the farai to th'e purchaser. * * * 
 The correctness of these decisions is not doubted, but it is 
 denied that wheat straw is embraced by the term manure, 
 as used in those cases ; or that it is shown to be so uniformly 
 used by farmers to enrich their land, as to constitute a res- 
 ervation of it for that purpose an implied stipulation on 
 the part of the landlord who lets his land for agricultural 
 purposes. Admitting that the defendant was under an im- 
 plied engagement to use the plaintiff's land according to 
 good husbandry, there was no proof that good husbandry 
 in that section of country or neighborhood required the 
 straw to be used upon the land as manure. ^ -^ * Besides, 
 straw is valuable for other purposes besides manure, and is 
 frequently the subject of sale, as personal property. Upon 
 the whole I think the straw is a part of the crop, and be- 
 longs to those who own the crop ; unless this principle is 
 controlled by some stipulation or custom to the contrary, 
 and none was shown in this case" {Fohes v. ShattucTc, 22 
 Barh. B., 568, 573, 574). 
 
 The rule in respect to the right of the landlord to the 
 manure made on his farm by the tenant, in the ordinary 
 course of husbandry, was also distinctly laid down in a case 
 decided by the Supreme Judicial Court of Massachusetts in 
 1838. 
 
 The action was in trespass de bonis asportatis, the plain- 
 tiff charging the defendant with breaking his close and car- 
 ]ying away a quantity of manure. It appeared that the 
 farm from which the manure was taken by the defendant,
 
 CASES OF FARM MANURE. 345 
 
 was formerly owned by one Blake, and was conveyed by 
 him to the plaintiff ; that at the time of the conveyance, one 
 Nason was tenant of the farm, under a parol lease from 
 Blake, which had some five months still to run ; that a part 
 of the manure in question had accumulated at one end of 
 the barn, having been thrown from the stable where Nason' s 
 cattle had been fed ; that the other part had accumulated in 
 the barn-yard, being composed of hay and other products 
 of the farm, and of loam and other earth therefrom carried 
 by Nason into the barn-yard ; that Nason had removed this 
 part of the manure from the barn-yard to the side of a con- 
 tiguous highw^ay in the autumn or winter preceding the ter- 
 mination of his lease, the fee of which highway was in the 
 landlord ; that the manure in question was sold to the de- 
 fendant by Nason, and removed from the demised premises 
 before the expiration of the term. 
 
 The court decided that the defendant was liable for carry- 
 ing away the manure, and laid down the rule, that an out- 
 going tenant at will of a farm, has no right, in the absence 
 of any express stipulation, to remove the manure made on 
 the farm in the ordinary course of husbandry, and consist- 
 ing of the collections from the stable and barn-yard, or of 
 composts formed by the admixture of these with other sub- 
 stances taken from the farm ; and if he sell such manure to 
 be removed, and the vendor have notice of the title of the 
 landlord, the sale vests no property in the vendor, and tres- 
 pass will lie against him at the suit of the landlord, for 
 taking the manure. And it was declared, that the tenant 
 at will of a farm has a qualified possession of the manure 
 made thereon in the ordinary course of husbandry for the 
 purpose of using it on the farm ; but that, if he sells it, the 
 right of possession vests in the lessor, and the lessee may 
 maintain trespass de bonis asportatls against the vendor for 
 removing it. 
 
 Shaw, C. J., drew up the opinion of the court, and upon 
 this point, said: "The court are of opinion, that manure 
 made on a farm, occupied by a tenant at will or for years, 
 in the ordinary course of husbandry, consisting of the col- 
 lections from the stable and barn-yard, or of composts 
 
 U
 
 346 LAW OF FlXTUFx-ES. 
 
 formed by an admixture of these with soil or other sub- 
 stances, is, by usage, practice and the general understand- 
 ing, so attached to, and connected with the realty, that, in 
 the absence of any express stipulation on the subject, an 
 outgoing tenant has no right to remove the manure thus col- 
 lected, or sell it to be removed, and that such removal is a 
 tort, for which the landlord may have redress ; and such 
 sale will vest no property in the vendor'' {Daniels v. Fond, 
 21 Pick, a., 367, 371, 372). 
 
 The same doctrine was reiterated by the same distin- 
 guished court in 1859, in a case in which Hoar, J., delivered 
 the opinion of the court, and said: "Manure, made in the 
 course of husbandry upon a farm, is so attached to and con- 
 nected with the realty, that, in the absence of any express 
 stipulation to the contrary, it passes as appurtenant to it. 
 This has been so decided as between landlord and tenant. 
 * * * The reason of the rule is, that it is for the benefit of 
 agriculture, that manure, which is usually produced from 
 the droppings of cattle or swine fed upon the products of 
 the farm, and composted with earth or vegetable matter 
 taken from the soil, and the frequent application of which 
 to the ground is so essential to its successful cultivation, 
 should be retained for use upon the land. Such unques- 
 tionably is the general usage and understanding, and a dif- 
 ferent rule would give lise to many difficult and embarrassing 
 questions" {P'ay v. 3Iuzzj/, 13 Gray's JL, 53, 55, 56). 
 
 The Supreme Court of Maine laid down the same doctrine, 
 in an early case, wherein Mellor, C. J., declared that the 
 claim of the tenant to remove the manure made upon the 
 premises, '^even if made byJiis oion cattle and with 7iis own 
 fodder, had no foundation in justice or reason, and such a 
 claim the laws of the land cannot tolerate" {Lassell v. 
 Jiead, 6 3Iaine P., 222). 
 
 So also, the Supreme Court of New Hampshire has held, 
 that manure made by a tenant upon a leased farm, in the 
 ordinary course of husbandry, is the property of the lessor, 
 and belongs to the farm, as an incident necessary for its im- 
 provement and cultivation ; and that the tenant has no right 
 to remove it fi-om the premises, or apply it to any otliei' use.
 
 CASES OF FARM MANURE. 347 
 
 And further, that if he do so, trover may be maintained for 
 its conversion (Plummer v. Flummer, 30 N. H. B., 558). 
 And in a later case, the same distinguished court recognized 
 the same doctrine, and held that the sale and removal by a 
 tenant at will of manure, manufactured by him in due course 
 of husbandry on the premises during his occupancy, is, at 
 law voluntary waste ; and is ground for an action of trespass 
 quare clausum /regit by the landlord {Perry v. Carr, 44 
 N. H. R., 118). 
 
 And the same general doctrine was laid downi in a well 
 considered case before the Supreme Court of Pennsylvania 
 in 1851. The case came before the Supreme Court by an 
 appeal from the judgment of the Court of Common Pleas of 
 Philadelphia county. 
 
 The action in the inferior court was brought to recover 
 damages for carrying off a quantity of manure from a piece 
 of land containing about twenty acres, which had been leased 
 by the plaintiff to the defendant in the court below. The 
 defendant kept cows for a dairy, and they were pastured 
 on the place. There were a few acres for pasture and some 
 for hay, and the defendant also purchased some hay. The 
 defendant removed the manure which was in heaps in the 
 barn-yard just before his tenancy expired, and the plaintiff 
 brought his action for the value of it. 
 
 The judge charged the jury as follows : 
 
 "If the jury believe the defendant was the tenant of the 
 plaintiff, and he rented the land of him for farming pur- 
 poses, and the manure was made upon the land in the ordi- 
 nary course of farming., and was heaped up in the yard, 
 and the defendant, about the time his lease was to expire, 
 took the manure now the subject of controversy, and hauled 
 it aw^ay without the consent of the plaintiff, when there was 
 no authority given by the lease for him so to do, this action 
 can be sustained, and the plaintiff will be entitled to recover 
 the value of the manure that was in this manner taken and 
 carried aw^ay. In the case of Barrington v. Justice, de- 
 cided by this court in 1845, we held that manure made on a 
 farm occupied by a tenant at will or for years, in the ordi- 
 naiy course of husbandry, consisting of the alluvials from
 
 348 LAW OF FIXTURES. 
 
 the stables and barn-yard, or of compost formed by an ad- 
 mixture of these with the soil or other substances, is by 
 usage, practice, and the general understanding, so attached 
 to and connected witli tlie realty, that, in the absence of 
 any express stipulation on the subject, an outgoing tenant 
 lias no right to remove the manure thus attached, or to sell 
 it to be removed, and that the removal is a tort for which 
 the landlord may have redress ; and we shall continue to 
 hold this, to be law until the court of last resort shall de- 
 termine otherwise. 
 
 "This decision is based on the cases of Kittridge v. 
 Rhoads (3 N. H. Reports, 508) ; Lassell v. Read (6 Greenl. 
 Reports, 222) ; Daniels v. Pond (21 Rlclcering, 369) ; Par- 
 sons V. Campbell (11 Conn. Rep., 525) ; Middlebrook v, 
 Cowen (15 Wend., 169). If, therefore, the jury should 
 believe this defendant took the manure thus made, the 
 present action can be sustained, and the plaintiff is entitled 
 to a verdict for the value of the manure taken." 
 
 The counsel for the defendant before verdict excepted to 
 the charge of the court ; and error was assigned to the 
 charge before the Supreme Court; but the latter court 
 affirmed the ruling of the court below. 
 
 Lewis, J., delivered the opinion, and said: "It ax)peara 
 by the record, that two questions of importance to the agri- 
 cultural interests of the country have been decided by the 
 Court of Common Pleas ; and we therefore proceed to in- 
 quire whether any error has been committed in their solution. 
 
 "The court instructed thewjury that if they believed ' that 
 the def..?ndant was the tenant of the plaintiff, and rented the 
 land of him for farming purposes, and the manure was 
 made upon the land in the ordinary course of farming, and 
 was heaped uj) in the yard, and the defendant, about the 
 time his lease was to expire, took the manure (now the sub- 
 ject of controversy) and hauled it away without the consent 
 of the plaintiff, when there was no authority given by the 
 lease for him to do so, this action can be sustained, and the 
 plaintiff will be entitled to recover the value of the manure 
 that was in this manner removed and carried away.' 
 
 "It is implied from the letting of a farm for agricultural
 
 CASES OF FARM MANURE. 349 
 
 purposes that the tenant will cultivate the land according to 
 the rules of good husbandry. Tills is as much a part of the 
 contiact as that lie shall deliver up possession at the end of 
 the term, or that he sliall do no waste. If the manure which 
 is made by the feeding and bedding of his stock on the 
 premises, according to the usual course of husbandrj^, is to 
 be disposed of and carried to another farm, it only creates 
 a necessity for the purchase of other fertilizing materials, 
 to keep the land in good order for the production of crops. 
 This must be done at the expense of money in the purchase, 
 and time and labor in hauling it from a distance. If every 
 tenant were to adopt the practice of selling the manure, much 
 time and labor would be unnecessarily expended in trans- 
 porting it from place to place ; when, for all general pur- 
 poses, the interests of landlord and tenant would be much 
 better promoted by the application of the manure to the 
 farm on which it was made. But a large proportion of farms 
 are owned by widows and orphan children, and are neces- 
 BRYily in the occupancy of tenants from year to year. Those, 
 which should be under the peculiar protection of the law, 
 would be most exposed to impoverishment, 
 
 "Tenants for short or uncertain periods, under the tempta- 
 tions of a rule of law which encourages land husbandry, 
 would be led into practices (each in self protection), which 
 no one would adopt in regard to his own land. Such a ten- 
 ant would feel no interest whatever in preserving the fer- 
 tility of the soil for the benefit of those who might succeed 
 him. He would be pl'ompted by the incentive of interest to 
 strip the land of every thing which the law permitted him to 
 carry off. Tlie practice would become general, and the re- 
 sult would be that all the farms in the commonwealth un- 
 der cultivation by tenants for years, would be impoverished ; 
 the tenants themselves receiving no adequate remuneration 
 for their labor, the landlords no rents for their farms. It is 
 manifest that such a course of husbandry would be injurious 
 to the public interests, and ruinous alike to landlords and 
 tenants. 
 
 "The justice of this view of the question has been recog-
 
 350 LAW OF FIXTURES. 
 
 nized by enlightened jurists in England and other states of 
 this Union.-' 
 
 After examining briefly the authorities, the learned judge 
 discusses another point in the case, which is important, and 
 which is pertinent to the subject under discussion in this 
 chapter. He says: ''One of the witnesses, however, testi- 
 fied that the tenant ' boug/it some hay' — the witness did not 
 know how much — 'and so?Jie grain to feed his horses and 
 cows. He fed the horses on the grain that was bought.' 
 Upon this evidence the court was requested to instruct the 
 jury 'that if the defendant spread upon the place, or left be- 
 hind him, as much manure as the farm would reasonably 
 produce itself, the excess belongs to him and not to the land- 
 lord.' This instruction the court refused to give, because 
 there was no evidence of the facts thus supposed to exist. 
 In this the court was perfectly correct. Nothing can more 
 justly impair confidence in the administration of justice, 
 than the practice of encouraging, or even permitting, a jury 
 to find facts of which there is no evidence. To ask a jury 
 to separate the manure which was made on the premises, 
 and assign one portion to the tenant upon the ground that 
 his horses and cows had eaten ' some hay'' and '■some grain'' 
 not raised on the premises, witliout specifying how much 
 of either, or showing how much of the grain, hay and straw, 
 raised on the farm, had been supplied to them for litter and 
 food, would be asking a verdict without evidence. ' ^ome ' 
 is a term too uncertain in its signification to sustain a ver- 
 dict for any definite amount. It may mean a single ounce, 
 or two thousand tons — a single quart, or twenty thousand 
 bushels. 
 
 "But where a farm is let for agricultural purposes, the 
 tenant cannot justify the removal of any portion of the 
 manure made on the premises, by occasionally employing 
 his teams in business not connected with the cultivation of 
 the soil, and supplying them in part with hay and grain pur- 
 chased from others, so long as the manure thus made is com- 
 mingled with that made from the produce of the farm. It 
 is probable that in such a case, the land would lose as much 
 during the absence of the teams on the road, as it would
 
 CASES OF FARM MANURE. 351 
 
 gain by tlie foreign admixture. Be that as it may, it is cer- 
 tain that the tenant, by his own acts, has rendered it im- 
 possible to ascertain the extent of his rights. And the 
 doctrine of confusion of goods properly applies to his claim " 
 {Lewis V. Jones, 17 Penn. R., 262, 264-267). 
 
 This is an important case, both on account of the learning 
 and sound reasoning of the opinion delivered, and the points 
 and principles settled. The doctrine is well settled and sus- 
 tained, that an outgoing tenant in agriculture is not en- 
 titled to the manure made on the farm during his tenancy, 
 even thongh lying in heaps in the farm-yard when he re- 
 moves it, and though it were made by his own cattle and 
 from his own fodder ; and the latter proposition is put 
 upon grounds that are both reasonable and convenient. 
 
 On the contrary, it has been held in the State of New Jer- 
 sey, that manure lying on the ground may be taken away, 
 by the tenant, unless it has been spread, the court declaring 
 that until the manure is spread upon the ground, it is per- 
 sonal property. The decision goes to the extent of holding 
 that this is the rule as between vendor and vendee. 
 
 Hains, J., said : " The question thus presented is, whether, 
 by the deed of conveyance of a tract of land without any 
 clause of reservation, the title to the manure lying in and 
 around the barn-yard, which had accumulated, passed to the 
 grantee. 
 
 " By an ordinary deed of conveyance of land nothing passes 
 to the grantee but the real estate and its appurtenances, and 
 whatsoever is so attached or affixed to it, that it cannot be 
 removed without injury to the freehold. Hence the ques- 
 tion arises, wdiether manure so lying in a barn-yard is part 
 of the real estate, or an appurtenant to it, or so attached to 
 the freehold that it passes with it by virtue of the deed of 
 conveyance, 
 
 "The question is not to be determined by the rules of law 
 regulating fixtures, for the property in question is in no re- 
 spect a fixture, an article of a personal nature affixed to the 
 freehold, and which cannot be removed without injury to it, 
 nor is it claimed as such. It is claimed as a part of the
 
 352 LAW OF FIXTURES. 
 
 freehold itself, an appurtenant to it, and whicli for the sake 
 of agriculture and good husbandr}^ should not be removed. 
 
 "But, as between the grantor and grantee, I can discover 
 no reason, nor can I find an}^ satisfactory authority for such 
 claim. Manure in the yard is as much personal property 
 as the animals and the litter from which it is produced, as 
 much so as the grain in the barn or the stacks of hay in the 
 meadow. And it is not material whether it lies up in heaps 
 or scattered around the yard : whether as thrown from the 
 doors or windows of the stable, or where it accumulated 
 from the dropping of the cattle. But when it is spread upon 
 the land, and appropriated to it for fertilizing purposes, then, 
 and not until then, does it become a part of the freehold. 
 Posts and rails, designed for the farm, are personal property 
 so long as the}^ remained in piles or otherwise unappro- 
 .priated ; but as soon as they are converted into fence they 
 become a part of the freehold affixed to it, so as to have 
 the character of 23ersonalty. 
 
 "As well might the timber, stones, and other materials 
 brought together for the construction of a building be re- 
 garded as a part of the farm before the building is erected, 
 as the manure before it is applied " {Buckman v. Ouiwatery 
 28 iV. J. i?., 581-583). 
 
 And a similar doctrine was once laid down in North Caro- 
 lina, where it was held that a tenant who is about to remove 
 has a right, where there is no covenant or custom to the con- 
 trary, to take with him all the manure made by him on the 
 farm ; but it was said, if he leaves it when he quits the farm, 
 the manure ceases to be his {SinitJiwlck v. Ellison, 2 Ire- 
 delVs R., 326). 
 
 Mr. Williams, the English author, in his work on execu- 
 tors, laj's down the rule, "that dung in a heap is a chattel, 
 and goes to the executor ; but if it lies scattered on the 
 ground, so that it cannot well be gathered up without gather- 
 ing a part of the soil with it, then it is parcel of the free- 
 hold- ' (1 Williams on Executors, 511). And Toller, another 
 English author, upon the same subject, says: "Manure in 
 a heap before it is spread on the land is a personal chattel " 
 {Toller on Executors and Administrators, 150).
 
 CASES OF FARM MANURE. 353 
 
 But this is all contrary to the general rule in respect to 
 Ktrictly agricultural lands, and, in the absence of special 
 circumstances, custom or stipulation, can hardly be regarded 
 as tlie correct doctrine. 
 
 The Court of Appeals of Maryland decided in 1865, that 
 it is settled by the general current of American as well as 
 English authorities, that a tenant under a farming lease or 
 contract has no right to remove from the premises so occu- 
 pied, without an express stipulation to that effect, any 
 manure made in whole or in part from the produce of the 
 land. 
 
 Cochran, J., said: "In such a case, the manure is not 
 regarded as a product of the land to which the tenant is 
 exclusively entitled, but as verdure or compost resulting 
 from the consumption or decay of those products, required 
 by the land to repair the waste to which it has been sub- 
 jected in producing the crops consumed ; and it is for that 
 reason that the law holds the manure in such a case to be 
 an accession to the land which the tenant cannot remove" 
 {Gallagher v. SMplej/, 24 Md. R., 418, 427, 428). 
 
 And Aldis, J., in a case decided by the Supreme Court of 
 Vermont in 1863, inferentially recognizes the same doctrine. 
 He said: "The cases cited from our reports (2 D. CMp.^ 
 108, and 19 Vt, 879) only show that manure left on a farm 
 in the barn-yard or stables passes by a deed of the farm, 
 and that the tenant, who has fed out upon a farm the hay 
 cut on it, cannot remove the manure" {Wing v. Gray, 36 
 VL li., 261, 267). 
 
 The general rule, then is, that, as between landlord and 
 tenant, manure belongs to the land upon which it is made, 
 and the tenant has no right to carry it away. But this rule 
 may be changed by express agreement of the parties, or by 
 the well established practice and custom of the country or 
 neighborhood where the demised premises lie. This doctrine 
 is clearly to be gathered from the authorities. 
 
 In a case decided by the Supreme Judicial Court of Mas- 
 pachusetts in 1872, Colt, J., in his opinion, said: "It was 
 said in Fay v. 3Iuzzy (13 Gray, 53), that manure made 
 
 45
 
 354 LAW OF FIXTURES. 
 
 in the course of husbandly upon a farm is so attached to 
 and connected with the realty that, in the absence of any 
 express stipuhition to the contrary, it passes as appurtenant 
 to it. This rule is applied in whatever situation or condi- 
 tion the material is before it is finally expended upon the 
 soil. It is till then an incident of the real estate of such 
 peculiar character that, while it remains only constructively 
 annexed, it will be personal property if the parties interested 
 agree so to treat it" {Siro?ig v. Do?jle, 110 3Iass. R., 92, 93). 
 
 The same distinguished court decided in 1873, that ma- 
 nure so made or held as to be personal property of an out- 
 going tenant does not necessarily become real estate by 
 being left upon the premises after the expiration of the 
 tenancy. 
 
 The proof tended to show that there was an understanding 
 between the landlord and tenant, that the latter should have 
 the manure which should be made upon the demised prem- 
 ises, which premises consisted of a dwelling-house, a barn, 
 and a garden of something over a quarter of an acre. The 
 counsel for the landlord, at ISUsl Prius requested the court 
 to rule, that "if the manure could have been treated as 
 personalty, so that the tenant might have had the right to 
 remove it during his tenancy, yet after he had left the prem- 
 ises voluntarily and left the manure without any license 
 from the landlord to return and remove it, the manure 
 would attach to the realty, and it w^ould not be a conversion 
 of it to use it on the soil." 
 
 The judge refused to rule as requested, and gave other 
 instructions to the jury, which were not excepted to. The 
 tenant plaintiff got a verdict, and the defendant landlord 
 alleged exceptions. 
 
 Gray, C. J., said: "The only exception before us is to 
 the refusal to give the instruction requested. But that in- 
 struction may well have been refused by the presiding judge 
 as tending to confuse and mislead the jury by giving them 
 to understand that manure, which by force of an agreement 
 of the parties interested, or because it was not made in the 
 usual course of husband r}^ was personal property, would 
 necessarily become real estate at the termination of the
 
 CASUS OF FARM MANURE. 355 
 
 plaintiff's tenancy" {Fletclier v. Herring^ 112 Mass. R., 
 382, 384). 
 
 This doctrine is also plainly inferrible from the dicta in 
 the cases, to the effect, that the manure made upon a farm 
 leased for agricultural purposes, belongs to tlie farm, on 
 the principles of good husbandry, implied by law, in the 
 absence of any stipulation to the contrary, and that tlio 
 practice and usage of the neighboring country, and even in 
 relation to a particular farm, will enter into the decision of 
 the question. This is substantially the language of the 
 judges in several of the cases, and is well sustained by rea- 
 son and the authorities. 
 
 It will be observed that in all of the cases considered, in 
 which the doctrine is declared, that the manure goes with 
 the land, as between landlord and tenant, the rule is con- 
 fined to farms which are let for agricultural purposes, and 
 the reason of the rule is, that the manure is made from the 
 produce of the farm, and, to allow the tenant to remove it, 
 would tend to impoverish the farm. This reason does not 
 apply in cases where the manure is made exclusively from 
 produce obtained from sources otherwise than from the 
 demised premises, or where the demised premises are not 
 agricultural lands. It is, therefore, held that the rule does 
 not apply to manure made in a livery stable, or in any man- 
 ner not connected with agriculture, or in the course of 
 husbandry. 
 
 In the case before the Supreme Court of Maine, in which 
 the court held that the manure belonged to the lessor, 
 Mellen, C. J., said: "We do not mean to be understood 
 by this opinion, as extending the principles, on which it is 
 founded, to the case of tenants of livery stables in towns, 
 and perhaps some other estates, having no connection with 
 the pursuit of agriculture ; other principles may be appli- 
 cable in such circumstances" {Lassell v. Reed, 6 Maine 
 R., 222). 
 
 Also in the case, before referred to, decided by the 
 Supreme Court of New Hampshire, it was declared, that 
 wlien the manure is made in livery stables, or in buildings 
 unconnected with agricultural property, it belongs to the
 
 356 LAW OF FIXTURES. 
 
 tenant, unless there be a contract to the contrary {Plummer 
 V. Plummer, 30 N. H. R., 558). 
 
 And so also in one of tlie cases before referred to, decided 
 by the Supreme Judicial Court of Massachusetts, in which 
 the rule was declared, that manure made on a farm by a 
 tenant at will or for years, belonged to the farm. Shaw, 
 C. J., said : " The rule here adopted will not be considered 
 as ai)plying to manure made in a livery stable, or in any 
 manner not connected with agriculture or in a course of 
 husbandry" {Daniels v. Pond, 21 Pick. P., 367, 372). 
 
 The rule of law, therefore, may be safely declared, that 
 manure made upon a farm, or gathered in therefrom, and 
 produced mainly by the feeding and depasturing sheep, 
 cattle and horses, on its succulent vegetables and grasses, or 
 other products of the farm, in the absence of any stipula- 
 tion or custom to the contrary, belongs to the farm, and 
 cannot be legally removed therefrom by the tenant. But 
 if the manure were not produced directly or indirectly from 
 the land, and were, in no sense, the produce of agricultural 
 demised premises ; such as accumulates in livery stables, 
 and the like, it is no part of the realty, and may be removed 
 by the tenant, at the close of his term. 
 
 The rule in respect to manure, as between landlord and 
 tenant, will apply, to a limited extent, to fences placed upon 
 demised premises for the benefit of the tenant. As a gen- 
 eral proposition it may be affirmed that fences built upon 
 land are a part of the realty, whoever may have placed them 
 upon the premises, the owner of the soil or a tenant of the 
 owner. Rails or other fencing materials are not in their 
 nature real propert3% but they become so when formed into 
 a fence and attached to the soil. This is the rule, but, as 
 between landlord and tenant, the rule may be changed by 
 the agreement of the parties, and in some cases, perhaps, 
 by the custom of the country. And it has been expressly 
 held that rails built into a fence by a tenant, under an agree- 
 ment that he may remove them from the land, are, as 
 between such tenant and the owner of the soil, personal prop- 
 erty {MoU V. Palmer, 1 iV. T. P., 564). Prima facie, fences 
 belong to the land on which they are built, but, like build-
 
 CASES OF ORNAMENTAL FIXTURES. 357 
 
 ings, and the like, as between landlord and tenant, circum- 
 stances may exist, so as to render them movable by the 
 tenant. 
 
 CHAPTER XXV. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS PUT UP FOR ORNAMENT OR CONVENIENCE 
 
 EXAMINATION OF AUTHORITIES UPON THE SUBJECT. 
 
 There is another class of fixtures of a different descrip- 
 tion from those treated in the preceding chapters, and yet, 
 in many respects, governed by similar principles. They 
 consist of things which a tenant has affixed to the demised 
 premises for the purpose of ornament or convenience. With 
 respect to fixtures put up for purposes of ornament or con- 
 venience, there seems to be considerable obscurity in the 
 early decisions, and the distinctions upon which many of 
 them proceed would not be tenable, at the present day. At 
 least, some of the old cases decided under this head, have 
 been thought to have gone to an extreme limit in allowing 
 the ornamental character of the thing to outweigh the essen- 
 tial character of the annexation. Obviously, in this class 
 of fixtures, the character of the thing affixed occupies the 
 prominent place, under the head of the purpose of annex- 
 ation. 
 
 In examining the question as to what things set up for 
 ornament or convenience, the tenant has a right to removej 
 there are two prominent elements which present themselves 
 for consideration, namely, the mode and ptcrpose of annex- 
 ation, and sometimes the one, and sometimes the other, will 
 determine the tenant's right. Each case must depend, in a 
 great measure, upon its own peculiar facts, and it may be 
 suggested, also, that it may be requisite to ascertain whether 
 there be any custom or prevailing usage, as well as to ascer- 
 tain the nature and construction of the article, its mode of
 
 358 LAW OF FIXTURES. 
 
 annexation, and the effect of its removal. These will all 
 prove useful and safe criteria in practice, where there is any 
 doubt, or where a case arises without pi-evious precedent. 
 
 Lord Coke, in treating of the liability of the tenant on 
 account of waste, lays down the rule in favor of the rever- 
 sioner in unqualified terms. He says: "If glass windows 
 (though glazed by the tenant himself) be broken down or 
 carried away, it is waste ; for the glass is part of the house. 
 And so it is of wainscot, benches, doors, windows, furnaces 
 and the like, annexed or affixed to the house, either by him 
 in reversion, or the tenant" {Co^e on Lit, 53 a). And the 
 same rule is laid down in an earlj^ case reported by Sir Ed- 
 ward Coke, where it was said that wainscotting will pass to 
 the heir, and that it makes "no difference in law if it be 
 fastened by great nails or little nails, or by screws or iron 
 put through the post or walls, * * * and so by the lease or 
 grant of the house (in the same manner as the ceiling and 
 plastering of the house), it shall pass as parcel of it" {Her- 
 lakenden^ s Case, 4 Coke' s i?., 64 a). 
 
 Subsequently, in 1704, Lord Holt declared the opinion 
 that a tenant was to be allowed to take away erections put 
 up for the purposes of trade, but he expressly denied the 
 tenant's right to remove annexations made for other pur- 
 poses. This was in the celebrated soapboiler's case, and 
 Lord Holt assigned as a reason for the distinction, that there 
 was a difference between what the soapboiler did to carry 
 on his trade, and what he did to complete his house, as 
 hearths and chimney-pieces, which, he held to be reasonable 
 {Poole's Case, 1 Salk. Ji., 368). 
 
 There had been, however, a decision in the English Chan- 
 cery, almost immediately before Lord Holt expressed this 
 opinion, in which the strictness of the old rule of law had 
 been departed from, in a case in which tlie consideration of 
 trade w^as not involved, and under circumstances where the 
 rule is supposed to be even more rigid than between land- 
 lord and tenant. In the case referred to, which was decided 
 in 1701, Lord Keeper Wright held, that a furnace, though 
 fixed to tlie freehold, and purchased with the house, and 
 also lianfjiurjs nailed to the walls, should be accounted as
 
 CASES OF ORNAMENTAL FIXTURES. 359 
 
 personalty, and should go to the executor of the deceased 
 owner of an estate as against the heir — a determination 
 stated to have been contrary to HerlakendeiiJ s Case reported 
 by Lord Coke {Squler v. Mayer, 2 Freem. R., 249). 
 
 Although the case of Squier v. Mayer, was one between 
 the executor and the heir of the deceased owner of the in- 
 heritance, it may be regarded as an authority in favor of a 
 tenant, for the reason, that a tenant is entitled to at least as 
 much liberality in respect to his annexations, as against his 
 landlord that an executor enjoj^s against the heir. It fol- 
 lows, therefore, that, according to this decision, the furnace 
 and hangings are things which a tenant may remove, pro- 
 vided he himself affixed them to the demised premises. 
 
 But in a later case before the same court that decided the 
 case of Squier v. Mayer, Lord Keeper Wright expressed 
 the' opinion: "That although pictures and glasses were, 
 generally speaking, part of the personal estate, yet, if put 
 np instead of wainscot, or where otherwise wainscot would 
 have been put up, they shall go to the heir. The house 
 ought not to come to the heir maimed and disfigured {Her- 
 lakenden's Case, Co. Rep., pt. 4, p. 64). Wainscot put up 
 with screws shall remain with the freehold" {Cam v. Cam, 
 2 Vern. R., 508). 
 
 The case of Cave v. Cave was deceided in 1705, while the 
 case of Squier v. Mayer was decided in 1701, but the latter 
 case was very much strengthened by another case in Chan- 
 cery decided in 1706, in which the right of the tenant to take 
 away articles in no way connected with trade was expressly 
 recognized by the court. A bill was filed for the specific 
 performance of certain articles of agreement against the de- 
 fendant, who was the executor of the covenantor, and devi- 
 see in trust of a messuage. ' The testator had covenanted to 
 grant to the plaintiff all the pictures upon the staircase, 
 over the doors, and chimney-pieces, and all (kings fixed to 
 the freehold of the messuage. After the death of the testa- 
 tor, the defendant took away the pictures upon the stair- 
 case, &c., and likewise the pier glasses, hangings, and 
 chimney-glasses. It was alleged for the plaintiff, that all 
 those wrre as wainscot, and fixed to t\\Q freehold, being fas-
 
 360 LAW OF FIXTURES. 
 
 tened thereto with nails and screws, and no wainscot under 
 them ; and as they would have gone to the heir and not to 
 the executor, so a foriiori would they go to the plaintiff ; 
 and especially the covenant being to grant to the plaintiff all 
 tilings fixed to the freehold. In support of this doctrine, 
 the case of Ca'De v. Ca^e, was cited. But Lord Keeper 
 Cooper, before whom the case was tried, was of a different 
 opinion, as to all but the pictures on the staircase, and over 
 the doors and chimney-pieces ; saying, " that hangings and 
 looking-glasses were only matters of ornament and furni- 
 ture ; and not to be taken as part of the house or freehold ; 
 but removable by the lessee of the house '^ {Beck v, Mehow, 
 1 P. Wms. R., 94). This case has been much questioned, 
 although the doctrine of the case is doubtless correct as be- 
 tween landlord and tenant. 
 
 In a case decided by the English Chancery in 1751, which 
 involved the title to a furnace erected in a colliery by a ten- 
 ant for life or in tail. Lord Hard wi eke remarked, "that 
 chimney-pieces are removable by the tenant, as between 
 him and the landlord, if he erected them ; but this does not 
 hold between heir and executor" {Dudley v. Warde, 1 
 Amh. R., 113). 
 
 And in a case adjudged at common law ten years previ- 
 ous, in 1741, in trover by an executor against the heir, Lee, 
 C. J., held, at Nisi Prius, that hangings, tapestry and iron 
 backs to chimneys belonged to the executor, and not to the 
 lie'ir {iTarvey v. Harvey, 2 Strangers R., 1141). It should 
 be remarked of this case, however, that it does not appear 
 from the imperfect report made of it, whether the principal 
 building was leasehold or otherwise, nor in what manner 
 the fixtures in question were put up, or whether they were 
 not in fact in the nature of duplicates not yet put in use, 
 any one of which circumstances would have an important 
 bearing upon the case. But however that may be, the in- 
 ference from the determination is, that articles of this descrip- 
 tion would be removable by a tenant against his landlord. 
 
 In a leading case, and accepted as such both in England 
 and in this country, decided by tlie English Chancery in 
 1743, Lord Ilardwicke observed: " Now in the old cases
 
 CASES OF ORNAMENTAL FIXTURES. * 361 
 
 the decisions go a great way upon the annexation to the free- 
 hold, and so long ago as Henry the Seventh's time the 
 courts of law construed even a copper and furnaces to be 
 part of the freehold ; but since that time the courts have re- 
 laxed this strict construction of the law, and have done so 
 for the general encouragement of tenants for life to do what 
 is advantageous to the estate during their term." 
 
 His Lordship proceeds to illustrate this statement by 
 showing instances of relaxation of the old rule of law, and 
 answers the two objections raised by the remainderman, 
 namely, that you shall not destroy the principal thing by 
 taking away the accessory, and that it must be deemed part 
 of the estate because it cannot subsist without it, by observ- 
 ing, " that the first maxim does not apply, for the walls are 
 not the principal thing, as they are only sheds to prevent 
 an injury that might otherwise happen to it ;" and as to the 
 second objection, " that collieries formerly might have been 
 enjoyed before the invention of engines ; and therefore this 
 is only a question of magis ei minis, whether it is more or 
 less convenient for the colliery." 
 
 And the Lord Chancellor continues : "There is no doubt 
 but that the case would be very clear between landlord and 
 tenant. It is true the old rules of law have been relaxed 
 chiefly between landlord and tenant, but not so frequently be- 
 tween ancestor and heir-at-law, as tenant for life and re- 
 mainderman. But even in these cases, it does admit the 
 consideration of public convenience for determining the 
 question." And in another part of his opinion, his Lordship 
 observes, "what would have been held to be waste in 
 Henry the Seventh's time, as removing wainscot fixed only by 
 screws, and marble chimney-pieces, is now allowed to be 
 done" {Laioton v. Lawton, 3 Atk. B., 12-16). 
 
 And in a later case before the same distinguished court, 
 decided in 1750, Lord Hardwicke says, "during the term 
 a tenant may take away chimney-pieces and even wainscot." 
 And further he adds: "Several sorts of things are often 
 fixed to the freehold, and yet may be taken away, as beds 
 fastened to the ceiling with ropes ; nay, frequently nailed ; 
 
 46
 
 362 * LAW OF FIXTURES. 
 
 and yet no doubt but they may be removed" {Bx parte 
 Quincy, 1 At^. li., 15). 
 
 In the last case cited the articles in controversy were the 
 utensils in a brew-house, and our data of the case are scanty, 
 and the circumstances appear to have been conplex. It may 
 be that the particular utensils which were in dispute were 
 (as beyond question they had been treated as being) of a 
 purely chattel character, although indeed it may also be 
 (and but for that treatment of them it would have rather ap- 
 peared) that they were fixtures of that sort which are a de- 
 feasible interest in land. But the opinion of Lord Hardwicke 
 in the case would seem to indicate that in his view, the ex- 
 ceptions engrafted upon the old rule of law, obtained not 
 merely in respect to trade fixtures, but in respect of erections 
 made for the general improvement of the estate. 
 
 In the salt-pans case before Lord Mansfield hereinbefore 
 referred to, the same doctrine was laid down. His Lord- 
 ship observed : "All the old cases, some of which are in the 
 Year Books and Brooke's Abridgment, agree, that whatever 
 is connected with the freehold, as wainscot, furnaces, pic- 
 tures fixed to the wainscot, even though put up by the ten- 
 ant, belong to the heir. But there has been a relaxation of 
 the strict rule in that species of cases, for the benefit of 
 trade, between landlord and tenant, that many things may 
 now be taken away which could not be formerly, such as 
 erections for carrying on any trade, marble chimney-pieces 
 and the like, when put up by the tenant. This is no injury to 
 the landlord, for the tenant leaves the premises in the same 
 state in which he found them, and the tenant is benefited" 
 {Lawton v. Salmon, 1 H. Black, i?., 260, in notis). 
 
 So in a case decided by the English Court of Common 
 Pleas in 1816, Gibbs, C. J., mentions "wainscots screwed to 
 the wall, curtain grates, and the like," as fixtures which a 
 tenant may move daring his term. The learned Chief Justice 
 says : "I was struck by one proposition of the Solicitor-Gen- 
 eral that those would pass to the executor ; because the 
 line is drawn the strictest, as Lord Ellenborough, C. J., ob- 
 serves, in Elioes v. Maw (^3 East, 3S), between lieir and execu- 
 tor : and whatever is fixed cannot ]>^ removed. And, it is to
 
 CASES OF ORNAMENTAL FIXTURES. * 363 
 
 be recollected, tliat the right between landlord and tenant 
 does not altogether depend upon this principle, that the 
 articles, continue in the state of chattels; many of these 
 articles though originally goods and chattels cease to be 
 goods and chattels by becoming part of the freehold ; and 
 though it is in his power to reduce to the state of goods and 
 chattels again by severing them during his term, yet until 
 they are severed they are a part of the freehold, as loain- 
 scots screwed to the wall, trees in a nursery ground, wliich 
 when severed are chattels, but standing, are part of the 
 freehold, certain grates, and the' like. And unless the lessee 
 uses during the term his continuing privilege to sever them, 
 he cannot afterwards do it" {Lee v. Risden, 7 Taunt H., 
 188 ; .S'. a, 2 mig. C. L. R., 69, 70). 
 
 So also in a case decided by the English Court of King s 
 Bench in 1823, it was agreed that stoves, cooking coppers, 
 mash- tubs, water-tubs, and blinds, were removable as be- 
 tw^een landlord and tenant, on the ground that they were 
 fixtures set up for the convenience of the tenant. Nothing 
 was said in the case as to the mode of annexation of the 
 articles ; but it must be presumed from the nature of the dis- 
 pute, that they were in some way affixed to the freehold. 
 The case simply shows that at the trial before Abbot, C. J., 
 at the Westminster sittings, the Lord Chief Justice thought 
 some of the articles involved in the action were immoveable 
 fixtures, but that others of them, namely, "the stoves, 
 cooking-coppers, mash-tubs, and blinds were removable as 
 between landlord and tenant;" and the court in banc 
 agreed to that proposition, although the judgment was ad- 
 verse to the direction at Msi Frius, for other reasons 
 {Colegrace v. Bias Santos, 2 Barn. & Cress. B., 7Q; S. C, 9 
 
 Eng. C. L.B.,'SO, 31). .... , -o ^ - 
 
 In the great case decided by the Court of King s Bench m 
 1803 to which reference has been so often made in preceding 
 pao4. Lord Ellenborough says: "However, in process of 
 time, the rule in favor of the right in the tenant to remove 
 utensils set up in relation to trade became fully established ; 
 and accordingly we find Lord Holt in Poole's Case {Sail'., 
 368), laying down (in the instance of a soapboik'r, an under-
 
 364 LAW OF FIXTURES. 
 
 tenant, whose vats, coppers, &c., fixed, had been taken in 
 execution, and on which account the first lessee had brought 
 an action against the sheriff), that during the term the soap- 
 boiler might well remove the vats he set up in relation to 
 trade ; and that he might do it b}^ the common law, and 
 not by virtue of any special custom, in favor of trade, and 
 to encourage industry ; but that after the term they became 
 a gift in law to him in reversion and not removable. He 
 adds, that there was a difference between what the soap- 
 boiler did to carry on his trade, and what he did to com- 
 plete his house, as Jiearths' and cliimney-ioieces., which he 
 held, not removable. The indulgence in favor of the tenant 
 for years during the term has been since carried still further, 
 and he has been allowed to carry away matters of ornament, 
 as ornamental marble chimney -pieces., pier glasses., hang- 
 ings, wainscot fixed only hy screws, and the like" {Elwes 
 V. Maio, 3 East jR., 38, 53). 
 
 Lord EUenborough here evidently considers that the 
 authorities, which he cites in his opinion, have established 
 a distinct class of cases, in extension of the privilege before 
 enjoyed by the tenant in respect of trade fixtures. And 
 his Lordship seems to have entertained the opinion that the 
 rule as to trade fixtiires applied also to those set up for 
 ornament and convenience. 
 
 With respect to the instance of marble chimney-pieces 
 mentioned in the cases considered, it was expressly held, at 
 JVisi Prius, in a case decided in 1836, in the English Court 
 of King's Bench, that an outgoing tenant may remove such 
 a fixture, which is of an ornamental nature, put up by 
 himself during his tenancy, but not a chimney-piece which 
 is not ornamental. Patterson, J., said: " With respect to 
 the chimney-piece, the only question is, whether it was an 
 ornamental chimney-piece or not \ It has been laid down by 
 Lord Chief Justice Dallas, that a tenant may remove orna- 
 mental cliimne3^-pieces, which have been put up by him 
 during the tenanc}^ ; therefore, if you think that this was an 
 ornamental chimney-piece, the defendant had a right to re- 
 move it" {Leach v. Thomas, 7 Car. & Payne's M., 327; 
 8. C, 32 Eng. C. L. P., 627, 528).
 
 CASES OF ORNAMENTAL FIXTURES. 365 
 
 The case to wliicli Patterson, J., refers, was decided by the 
 English Court of Common Pleas in 1820, and it deserves 
 particular notice, because, while it expressly recognizes the 
 principles upon which all the decisions upon this branch of 
 the law, hereinbefore referred to, depend, it limits and de- 
 lines the extent of the privilege which those cases have in- 
 troduced in favor of tenants. It was an action on the case 
 in the nature of waste, by a tenant for life, against the 
 assignees of his lessee from year to year, who had become 
 bankrupt. The bankrupt was the son of the plaintiff, and 
 had also a remainder for life in the premises after his 
 death. At Buckingham Lent assizes, 1820, before Graham, 
 Baron, the case proved was, that the defendants had taken 
 away from the premises let to the bankrupt a conservatory 
 and a pinery. The conservatory, which had been purchased 
 by the bankrupt, and brought from a distance, was by her 
 erected on a brick foundation fifteen inches deep ; upon that 
 was bedded a sill, over which was frame work covered with 
 slate ; the frame work was eiglit or nine feet high at the 
 end, and about two in front. This conservatory was at- 
 tached to the dwelling-house by eight cantilivers let nine 
 inches into the wall, which cantilivers supported the rafters 
 of the conservatory. Resting on the cantilivers was a bal- 
 cony with iron rails. The conservatory was constructed 
 with sliding glasses, paved with Portland stone, and con- 
 nected with the parlor chimney by a flue. Two windows 
 were opened from the dwelling-house into the conservatory, 
 one out of the dining-room, another out of the library. A 
 folding door was also opened into the balcony ; so that 
 when the conservatory was pulled down, that side of the 
 house to which it had been attached, became exposed to 
 the weather. Surveyors who were called, stated that the 
 house was worth £50 a year less after the conservatory and 
 pinery had been removed. The learned judge haviiig stated 
 his opinion, that the plaintiff ought to recover at least for 
 the pinery, and probably for the ccaiservatory, the jury, 
 estimating the plaintiff's life at six years' purchase, gave a 
 verdict for her, £300 damages. The counsel for the defen- 
 dant obtained a rule nisi for a new trial, on the ground that
 
 366 LAW OF FIXTURES. 
 
 this conservatory, tliough affixed to the freehold, was a 
 matter of ornament, not beneficial to the premises, but law- 
 fully removable by the tenant, and that at all events the 
 damages were excessive. The counsel for the plaintiff 
 showed cause against the rule. 
 
 After due consideration, Dallas, C. J., delivered the judg- 
 ment of the court, in doing which, he said: "This was an 
 action on the case, tried before Graham, B., at the last 
 Aylesbury assizes. The question in the cause, as far as re- 
 lates to the motion now before us, was, whether a con- 
 servatory affixed to the house in the manner specified in the 
 report was so affixed as to be an annexation to the freehold 
 and to make the removal of it waste ? In Elioes v. 3Iaw 
 will be found all that can relate to this case and to all cases 
 of a similar description. It is not necessary to go into the 
 distinctions there pointed out as they relate to different 
 classes of persons, or to the subject-matter itself of the in- 
 quiry. Nothing will, here, depend on the relation in which 
 the parties stood to each other, or the distinction between 
 trade and agriculture ; for this is merely the case of an 
 ornamental building constructed by the party for his plea- 
 sure, and the question of annexation arises on the facts re- 
 ported to us ; and I say the facts reported, because every 
 case of this sort must depend on its special and j)eculiar 
 circumstances. On the one hand it is clear, that many 
 things of an ornamental nature may be in a degree affixed, 
 and yet, during the term, may be removed ; and, on the 
 other hand it is equally clear, that there may be that sort of 
 fixing or annexation, which, tliough the building or thing 
 annexed may have been merely for ornament, will yet make 
 the removal of it waste. The general rule is, that when a 
 lessor, having annexed a personal chattel to the freehold dur- 
 ing his term, afterwards takes it away, it is w^aste. In the 
 progress of time this rule has been relaxed, and many ex- 
 ceptions have been grafted upon it. One has been in favor 
 of matters of ornament, as ornamental chimney-pieces, pier- 
 glasses, hangings, wainscot fixed only by screws, and the 
 like. Of all these it is to be observed, that they are excep- 
 tions onl}', and, therefore, though to be fairly considered,
 
 CASES OF ORNAMENTAL FIXTURES. 367 
 
 not to be extended ; and with respect to one subject in par- 
 ticular, namely, wainscots. Loid Hardwicke treats it as a 
 very strong case. Passing over all that relates to trade and 
 agriculture as not connecting with the present subject, it 
 will be only necessary to advert, as bearing upon it, to the 
 doctrine of Lord Kenyon, in 2 JSast, 88, referred to at the 
 bar. The case itself was that of a building for the purpose 
 of trade, and standing, therefore, upon a different ground 
 from the present, but it has been cited for the dictum of 
 Lord Kenyon, which seems to treat greenhouses and hot- 
 houses erected by great gardeners and nurserymen as not to 
 be considered as annexed to the freehold. Even if the law 
 were so, which it is not necessary to examine, still, for ob- 
 vious reasons, such a case would not be similar to the pres- 
 ent ; but in Elwes v. Maw, speaking of this dictum, Lord 
 Ellenborough says, there exists no decided case on either 
 side of Westminster Hall to warrant such an extension. 
 Allowing, then, that matters of ornament may or may not be 
 removable, and that whether they are so or not must depend 
 on the particular case, we are of opinion that no case has 
 extended the right to remove nearly so far as it would be 
 extended, if such right were to be establised in the present 
 instance under the facts of the report, to which it will be 
 sufficient to refer ; and therefore, we agree with the learned 
 judge, in thinking that the building in question must be 
 considered as annexed to the freehold, and the removal of 
 it consequently waste" {BucJdand v. Butter field, 2 Brod. 
 &Blng. ^.,54; 8. C, 6 Eng. G. L. R., 17-19). 
 
 Another case decided by tlie same court in 1830, involved 
 the principles now under consideration. In that case a 
 tenant from year to year had, during the term, erected a 
 pump at his own expense, on the demised piemises. The 
 pump passed through the brick flooring into the well be- 
 beath, and was attached to a stout upright plank, which 
 rested on the ground at one end, and was fixed to the wall 
 by an ii-on bolt or pin with a nut and screw on the other 
 side. In withdrawing the pump, four or five of the floor 
 bricks were displaced, but the iron bolt was left as before in 
 the wall. The tenant claimed the article as a removable fix-
 
 3G8 LAW OF FIXTURES. 
 
 ture and took it away. The landlord bronglit his action for 
 injury to the reversion, and the learned Baron, before whom 
 the case was tried, was of the opinion that the pump was 
 parcel of the freehold, inasmuch as it could not have been 
 the subject of larcen}^ at common law, and under his direc- 
 tion the jury found a verdict for the plaintiff, with leave for 
 the defendant to move to enter a nonsuit. 
 
 The defendant accordingly obtained a rule nisi, and upon 
 the case being argued, the court held that the pump was re- 
 movable as a tenant's fixture. 
 
 Tindal, C. J., said : "The pump as it has been described to 
 have been fixed in this case, appears to me to fall within the 
 class of removable fixtures. The rule has always been more 
 relaxed as between landlord and tenant, than as between 
 persons standing in other relations. It has been holden 
 that stoves are removable during the term; grates, orna- 
 mental chimney-pieces, wainscots fastened with screws, 
 coppers, and various other articles: and the circumstance 
 that, upon a change of occupiers, articles of this sort are 
 usually allowed by landlords to be paid for by the incom- 
 ing to the outgoing tenant, is confirmatory of this view of 
 the question. 
 
 " Looking at the facts of this case; considering that the 
 article in dispute w^as one of domestic convenience ; that it 
 was slightly fixed ; was erected by the tenant ; could be 
 moved entire ; and that the question is between the tenant 
 and his landlord ; I think the rule should be made absolute." 
 . And Bosanquet, J., said : "But considering that this is a 
 case between landlord and tenant; that the pumjD was 
 erected by the tenant ; that it is an article of domestic use ; 
 and can be removed entire ; I think the verdict ought to be 
 set aside" {Ch-ymes v. Bow^ren, 6 Bi?ig. R., 437 \ 8. C, 19 
 Eng. C. L. R., 123-125). 
 
 And a case decided by the English Court of King's Bench 
 in 1835, may also be referred to as a case in which the same 
 doctrine is recognized. The question in the case was, 
 whether a wooden cornice fixed to the room of a house by 
 a tenant during his tenancy, was removable by him or not. 
 At the trial before Coleridge, J., the learned judge directed
 
 CASES OF ORNAMENTAL FIXTURES. _ 369 
 
 the jury to say whether the cornice was merely a matter of 
 ornament, lixed during the tenancy, capable of removal 
 without doing substantial injury to the freehold, and so 
 removed in fact during the tenancy; and he instructed 
 the jury that, in that case, their verdict should be for the 
 defendant. Evidence had been given as to the manner in 
 which the cornice was fixed to and removed from the house, 
 and as to its being ornamental or not. 
 
 The jury found. a verdict for the plaintiff, and the defen- 
 dant moved before the court in banc, for a new trial on the 
 ground of misdirection by the judge on the point as to the 
 character of the fixture. 
 
 But the court held that the direction was correct. Little- 
 dale, J., said: " It was right to direct the jury to inquire 
 whether the cornice was ornamental, whether it was capable 
 of being removed, and whether it was removed during the 
 tenancy. It was also correct that they should inquire 
 whether it was removable without injury, and was so 
 removed in fact. The jury were not in fact told that, if in- 
 jury was in fact done, the cornice was not removable." 
 
 Patterson, J., said : " It seems to me also, as to the direc- 
 tion, that the fact of the removal without injury was sug- 
 gested to the jury only as a test of the way in which the 
 cornice was fixed ; and it formed a very good test" {Avery 
 V. Cheslyn, 3 Adolph. cfc Ellis' B., 75 ; S. C, 5 iVet). & 
 Man. R., 370; 8. C, S7 Mig. C. L. JR., 52, 58). 
 
 CHAPTER XXVI. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT — DOCTRINE IN 
 
 RESPECT TO ERECTIONS PUT UP FOR ORNAMENT OR CONTENIENCE 
 
 EXAMINATION OF FURTHER AUTHORITIES UPON THE SUBJECT. 
 
 It^ order to complete the determinations upon the subject 
 of the rights of tenants in things which they have affixed to 
 the demised premises for the purpose of ornament or con- 
 venience, it is necessary to refer to and examine a consider- 
 
 47
 
 370 LAW OF FIXTURES. 
 
 able number of cases, in continuation of the series examined 
 in the preceding chapter. 
 
 In 1818 a case was tried before the English King's Bench, 
 at JVisi Prius, in which it appeared that a tenant had cov- 
 enanted to repair, and keep in repair, the premises leased 
 to him, and all erections, buildings, and improvements 
 which might be erected thereon during the term, and yield 
 up the same in good and sufficient repair ; and that during 
 the term he had erected a verandah upon the demised prem- 
 ises, the lower part of which was attached to posts which 
 were fixed in the ground. The action was on the covenant, 
 and the breach alleged, was the removal of the verandah by 
 the tenant. 
 
 Abbott, J., before whom the cause was tried, was of the 
 opinion that the removal fell within the terms of the cov- 
 enant, and that the tenant could not remove any part of it 
 {Penry v. Brown, 2 Stark. P., 403; S. C, 3 PJng. C. L. 
 P., 403). 
 
 It will be observed, that the decision of this case, was 
 upon the ground that the building came within the terms of 
 the particular covenant in the tenant's lease; so that the 
 case can hardly be considered as an authority against the 
 removability of such a structure as between landlord and 
 tenant. The most that can be said of it is, that it is a case 
 in which the right of removing jDroperty of the description 
 referred to, was only incidentally noticed. 
 
 A case was decided before the same court in 1825, in 
 which certain fixtures demised to the tenant along with his 
 tenement were held to be parcel of the demise or of the ten- 
 ement for the purpose of entitling the tenant to a settlement 
 where he paid rates in respect of the same ; but Bay ley, J., 
 expressly declared that stoves and grates fixed into the 
 chimney -places witli brick- work by the tenant ; and also a 
 cupboard standing on t'/:e ground supjDorted by holdfasts, 
 placed upon the demised premises by the tenant, were re- 
 movable fixtures, by the tenant during his term {Pex v. 
 The lahahitants of St. Dunstan in Kent, 4 Barn. & Cress. 
 P., 686). And it was, inferentially, held in a case decided 
 by the same court in 1822, that set pots, ovens and ranges, if
 
 CASES OF ORNAMENTAL FIXTURES. 371 
 
 erected by the tenant upon demised premises, would be re- 
 movable, although the case was one in which the fixtures 
 were attached to a house belonging to the freehold of the 
 person who annexed them, and consequently were held in 
 such case not removable ( Winn v. Ingleby, 5 Barn. & Aid. 
 i?., 625 ; 8. a, 7 Eng. C. L. R., 214). 
 
 And in a case decided by the same court in 1830, it is 
 clearly to be inferred that bells hung by a tenant and an- 
 nexed to a house occupied by him under a lease from year 
 to year, were removable, if taken away before the expira- 
 tion of the tenancy. But the tenant did not take them 
 away during his term, and it was therefore held that he lost 
 the right to remove them. Lord Tenterden, C. J., delivered 
 the opinion of the court, and after examining a number of 
 authorities upon the subject of fixtures, said: "According 
 to these authorties, then, the property in fixtures, which 
 ■ would be in the tenant if he removed them during the term, 
 vests in the landlord on the determination of the term" 
 {Lyde v. Russell, 1 Barn. & Adolph. R., 394; >S'. C, 20 
 J3ng. C L. R., 408). 
 
 A case was decided before the same court in 1834, in 
 which the distinction between "fixtures," and "fixed fur- 
 niture," was discussed, and it was held that looking-glasses 
 standing on chimney-pieces and fastened by nails on each 
 side to the wall, a book-case standing in a recess which it 
 did not fit, upon brackets which were fixed to the wall, 
 but to which it was not attached, and fastened above by a 
 screw to the wall, in order to prevent it from falling, were 
 "fixed furniture," within the meaning of that term in the 
 bequest of a will. But there can be no reasonable doubt 
 that such articles fixed in the manner described, by the ten- 
 ant, at his own expense, and for his own use, upon demised 
 premises, would be held to be movable by the tenant {Birc/i 
 V. Dawson, 2 AdolpJi. & Mils' R.,37', S. C, 29 Bng. C. L. 
 R., 89). 
 
 And in a case decided by the Court of Queen's Bench in 
 1841, the doctrine was conceded that kitchen ranges, stoves, 
 coppeis and grates, fixed upon demised premises by tenants 
 at their own expense, and for their use and convenience and
 
 372 LAW OF FIXTURES. 
 
 annexed to the freehold in the ordinary manner, are tenants' 
 fixtures, which the tenant may sever from the realty and 
 take away during his term {Darhy v. Harris, 1 AdolpTi. & 
 Ellis' B., JV. S., 895 ■ S. C, 41 Mng. C. L. R., 828). , 
 
 There is not, apparentl}^ entire harmony in the opinions 
 of Lords Holt, Hardwicke, and Mansfield, ujoon the subject 
 now under consideration, and these apparently conflicting 
 oj^nions have been explained, and attempted to be recon- 
 ciled, in a late case before the English Court of Exchequer 
 Chamber, where a question arose as to the construction of 
 a covenant to deliver up the premises, with all fixtures and 
 articles in the nature of fixtures belonging thereto. The 
 case has been referred to in another place, but the opinion 
 of the court is so pertinent here, a liberal quotation may 
 properly be inserted. Mr. Justice Coleridge delivered 
 the judgment of the court, and, upon the point now under 
 discussion, said: "Now there are certainly not wanting 
 some authorities to show that chimney-pieces, whether 
 marble or not, may be removed during the term by the 
 tenant. In Ex parte Qulncy, Lord Hardwicke says, ' Dur- 
 ing the term a tenant may take away chimney-pieces and 
 even wainscot,' which is a very strong case ; and again in 
 Lawton v. Laioton, he says, ' What w^ould have been held 
 to have been waste in Henry the Seventh's time, as^rem.ov- 
 ing wainscot fixed only by screws, and marble chimney- 
 pieces, is now allowed to be done.' Lord Holt some years 
 before, in Poole's Case, had denied that hearths and chim- 
 ney-pieces put up by a' tenant to complete his house 
 were removable by him. In Lawton v. Salmon, Lord Mans- 
 field includes, amongst things which may be removed, 
 marble chimney-pieces and the like, when put up by the 
 tenant, adding what is significant, 'This is no injury to 
 the landlord, for the tenant leaves the premises in the same 
 state in which he found them, and the tenant is benefited.' 
 Down to this authority we do not find the condition of 
 ornament expressly introduced, but in Elwes v. Maw, Lord 
 Ellenborough, treating the gradual change of the law in this 
 matter, says, 'That the indulgence in favor of the tenant 
 for years during the term had been carried further since
 
 CASES OF ORNAMENTAL FIXTURES. 373 
 
 Lord Holt's time, and lie Las been allowed to carry away 
 matters of ornament, as ornamental mantel-pieces, pier- 
 glasses, liangings, wainscot fixed only by screws, and the 
 like.' Later again, in Bmkland v. Butter field, Dallas, 
 C. J., in delivering the opinion of the Common Pleas, makes 
 the right to remove fixtures of this sort depend essentially 
 upon their being of an ornamental nature. He states the 
 general rule of law, and says, ' In the progress of time this 
 rule has been relaxed, and many exceptions have been en- 
 grafted upon it. One has been in favor of matters of orna- 
 ment, as ornamental chimney-pieces, pier-glasses, hangings, 
 wainscot fixed by screws only, and the like.' In Leacli 
 V. Thomas, my brother Pattison at Nisi Prius acted on 
 this, and told the jury that, if they thought the chimnej^- 
 piece then in question was an ornamental chimney-piece, 
 the defendant, a tenant from year to year, who had erected 
 it during the tenancy, 'had a right to remove it.' It does 
 not appear to us at all difficult to reconcile the difference 
 which may appear in these authorities, nor to extract the 
 principles which is to be gathered from them, considering 
 that the law has been regularly and gradually relaxing its 
 rule as to the removability by tenants of fixtures erected by 
 them. The difference between Lord Holt and Lord Hard- 
 wicke is explained by the difference of time — Lord Holt 
 was speaking of the rule unrelaxed, and when Lord Hard- 
 wicke spoke of chimney-pieces being removable generally, 
 without any qualification as to their material or ornamenta- 
 tion, it cannot be supposed that he intended to lay down 
 the rule more broadly than he did in a later case, when he 
 spoke in more qualified terms of marble chimney-pieces, or 
 than Lord Mansfield, when he used the same qualified terms 
 still later. Nor, on the other hand, would it be reasonable 
 to suppose that the latter intended to limit it to marble 
 chimney-pieces merely as such, without reference to the 
 expense and artistic skill employed upon them, and both, 
 no doubt, had in their minds the same principle which the 
 late case expressly brings forward, that of their being orna- 
 mental. In all these cases, no doubt, the same principle 
 was intended to be laid down which is more formally and
 
 374 LAW OF FIXTURES. 
 
 precisely stated by Dallas, C. J. It is a matter of common 
 knowledge that, a century ago, marble chimney-pieces of 
 ordinary grain and plain workmanship were by no means so 
 commonly used in middle-rate houses as Jiow, while chim- 
 ney-pieces of foreign marbles and workmanship, highly 
 sculptured, and of much expense, were objects much es- 
 teemed, and often erected in houses of a higher description. 
 When these had been substituted by the tenant for a chim- 
 ney-piece of wood or stone, it was but a reasonable relaxa- 
 tion of the strict rule of law to allow the removal during the 
 term. Of chimney-pieces such as these, it seems to us that 
 Lord Hardwicke and Lord Mansfield intended to speak. 
 And when Lord Ellenborough goes more into detail by his 
 classing them under matters of ornament, and with pier- 
 glasses, hangings, and wainscot fixed only by screws, and 
 the like, he marks distinctly both the principle and the 
 limit of the relaxation. Indeed, it would be very unreason- 
 able to hold that a chimney-piece of the plainest workman- 
 ship and most moderate expense, however affixed, might 
 be removed merely because it was a polished limestone, and, 
 therefore, denominated marble, but that one of granite or 
 freestone, however wrought, and at whatever expense, or of 
 wood, however skilfully carved, might not" {Bishop v. 
 Elliott, 11 Exch. R., 120). 
 
 The doctrine of this case, so far as it is pertinent to the 
 subject under discussion here, seems to be, that a tenant for 
 years may, during the term, remove a chimney-piece of an 
 ornamental character, put up by himself, at his own ex- 
 pense, but that he has no such right with respect to a plain 
 chimney-piece, merely because it is of marble. That is to 
 say, the chimney-piece must be of an ornamental character, 
 in order to be removable by the tenant. 
 
 It is true, as was suggested by Mr. Justice Coleridge, that 
 the rule in respect to the tenant' s fixtures was, from time to 
 time, relaxed, and that the diflference between the opinions 
 of former judges, upon the subject, could be explained by 
 the difference of time. But it would seem that modern 
 decisions have rather restricted than enlarged the limits to 
 which the cases have been carried, in holding that the orna-
 
 CASES OF ORNAMENTAL FIXTURES. 375 
 
 mental character of the tiling should be the governing 
 principle rather than the nature of the annexation. The prin- 
 ciple that that only can be removed, the removal of v^hicli 
 would not cause substantial injury to the freehold, has been 
 latterly applied to these cases, and that certainly has the 
 effect to restrict rather than enlarge the limits to which the 
 doctrine is carried. 
 
 A case decided by the English Chancery in 1866, goes far 
 to show that modern decisions may not be governed by the 
 old authorities upon the subject under discussion, and tends 
 strongly in favor of the fixed character of articles attached 
 to the realty like wainscoting, and occupying a similar posi- 
 tion with respect to the general design of the room. The 
 case was not an ordinary case between landlord and tenant, 
 but the reasoning of the Master of the Rolls is of a general 
 character, and is applicable to cases of similar annexations 
 by tenants. The facts of the case were as follows : A testa- 
 tor, who was a tenant for life of settled estates, on which he 
 had erected, fitted up, and furnished a mansion-house (an 
 old one having fallen into decay), bequeathed all the 
 tapestry, marbles, statues, pictures, with their frames and 
 glasses, which should be in or about the house at the time 
 of his death, and of which he had power to dispose, to be 
 enjoyed as heirlooms by the persons who, under the limi- 
 tations in his will, would be entitled to liis.own estates 
 thereby devised in strict settlement, being the same as those 
 entitled to the settled estates, subject to a condition, with a 
 shifting clause in case the condition was followed. After 
 the testator's death a certain party became tenant for life of 
 both the settled and devised estates, and on his death the 
 settled estates devolved on another certain party ; but (as 
 the condition was not fultilled) still another i)arty became 
 entitled to the devised estates and to the heirlooms under 
 the shifting clause in the testator's will. The question 
 arose, as between the two parties last mentioned, which of 
 the articles passed under the will. 
 
 Sir Roundell Palmer, since Lord Chancellor, and now 
 Lord Selborne, was one of the counsel in the case, and with 
 respect to the right of the executor of a tenant for life, as
 
 376 LAW OF FIXTURES. 
 
 against the remainderman, to fixtures set up for ornament 
 or convenience, quoted the statement in Williams on Execu- 
 tors, 6th ed., p. 701, that though "not a single case is to be 
 found in the books relating expressly to this subject, never- 
 theless, ui^on the ground that the law is more favorable in 
 this respect to the executor of tenant for life, than to the 
 executor of tenant in fee, it is clear a fortiori, that all cases 
 which support the right of the latter to hangings, pier- 
 glasses, tapestry, pictures, &c., are express authorities in 
 favor of the rights of the former." 
 
 Lord Selborne thus argued : "The authorities show that, 
 when chattels of that kind can be removed without material 
 injury, then the right of the executor of the tenant for life 
 will prevail as against the heir of the tenant in fee. As be- 
 tween a tenant for life and remainderman, joii cannot 
 presume an intention on the part of a tenant for life to 
 dedicate such chattels for the benefit of the inheritance 
 when he has given them by his will, and they are separable 
 from the freehold without occasioning special damage. When 
 a tenant for life puts up furniture or ornaments, and does 
 not deal with his interest wrongfully, he cannot be taken 
 to have been acting for the benefit of the estate." He then 
 examined authorities upon the question, which are noted in 
 this and preceding chapters, and added: "Applying these 
 principles to the tapestry, and to the pictures in panels, we 
 submit that they are not fixtures, and pass under the testa- 
 tor s will. The old cases between the executor and the heir, 
 where the court leans in favor of the heir, have no application 
 to questions between a tenant for life, who is absolute owner 
 of the chattels, and a remainderman. The tapestry was 
 never a part of the house, and a picture, whether painted on 
 canvas or not, is not a fixture because it is placed in a panel. 
 There is no authority for saying that they belong to the re- 
 mainderman, and as the tenant for life could not have been 
 restrained by this court from removing them in his lifetime, 
 he call dispose of them by his will. The same observations 
 appi}^ to the frames filled with satin, and to the glasses, 
 which are shown by the evidence to be easily removable. 
 "The marble vases, the kneeling figures, the lions, and the
 
 CASES OF ORNAMENTAL FIXTURES. 377 
 
 stone garden seats, all stand by tlieir own weight, and can- 
 not be said to be fixtures." 
 
 Mr.Mellish, on the contrary, in his argument, said : "The 
 case has been argued as if it were an ordinary question be- 
 tween a tenant for life and remainderman as to the rights 
 to fixtures. But the case is wholly different. There was on 
 this estate an old manor-house, in place of which the testa- 
 tor erected on the estate a liouse on another site, on a 
 much larger scale, and allowed the old house, for which he 
 was impeachable for waste, to go into ruin. The new house, 
 with every thing in it, must be taken to be in substitution 
 for the old one. * ^ * When a tenant for life builds a 
 house in substitution for another, the articles of furniture 
 or ornament placed in it are not to be regarded in the same 
 light as those which are placed by a tenant for life in a 
 house in addition to those already there. When a tenant 
 for life, or a tenant for years, brings in his own ornamental 
 fixtures, which can be removed, leaving the house substan- 
 tially the same as before, then undoubtedly they belong to 
 him. But supposing there were in this case any tapestry 
 which had descended to the tenant for life, as part of the 
 inheritance, and he chose to remove it, and to substitute 
 other tapestry much more valuable, then he would have 
 no right to remove it, as it would be presumed that he 
 intended it in substitution for that which was part of the 
 inheritance. In like manner the whole of the new manor- 
 house, with every thing it contains, must be taken to be in 
 substitution for the former one. 
 
 "As to the articles themselves, the lions, the vases, and 
 the stone garden seats, form part of the original design of 
 the house, and are therefore irremovable. Those articles 
 which, however fixed, formed part of the building, belong 
 to the same class." 
 
 Some of these positions of the learned counsel for the 
 defendant, tenant in tail, would seem to be sound ; that is 
 to say, his legal positions were tenable, but his argument 
 that because the tenant for life might have been liable for 
 waste for allowing the old house to fall down, he must be 
 
 48
 
 378 LAW OF FIXTURES. 
 
 held to have substituted the new house for the old one, was 
 not sanctioned by the court. 
 
 Lord Romilly, M. E,., said: "Assuming that the heir in 
 tail could have obtained an injunction to restrain Gregory 
 Gregory from committing permissive "waste by allowing the 
 old house to fall into decay, it is clear that the substitution 
 of a new house in another place would be no answer to any 
 such injunction, and it is also clear that no such exchange 
 as that of one house for another could be made so as to bind 
 persons in sucession." His Lordship then states the aspects 
 of the case which have tended to embarrass him, and pro- 
 ceeded : "It is clear that the testator could not have dis- 
 posed of paper affixed to the walls, nor if he had used silk 
 instead of paper for lining the walls, could he, in my 
 opinion, have removed the silk. So, if the testator had 
 covered the walls of the house with panelling, lie could not, 
 in my opinion, have removed the panelling, and have left 
 the walls bare. If he caused them to be painted in fresco, 
 he could not have removed the paintings, and I think if he 
 had caused the panels to be painted he could not have re- 
 moved the painting any more than if he had put in panels 
 already painted, and lixed them close to the wall. In all 
 these cases I tliiiik they must be considered to be fixtures 
 not removable by the tenant for life." 
 
 In respect to the internal fittings up of the new man- 
 sion, his Lordship said: ."Both the painting and the tapes- 
 tries could be removed unquestionably in this sense, that 
 they could be taken down, and the space left or tilled 
 with satin, and so likewise the satin in the frames could be 
 taken down, and the gaps replaced with paper, in the same 
 manner as the tapestry might be repkiced with satin ; 
 whereas the paper, being stuck close to the wall, could not 
 be removed ; but in my opinion, in all these cases, whether 
 it is the paper, or the satin, or the panels, or the tapestry, 
 they are all part of the wall itself, and they are fixtures not 
 to be removed. In all these cases the question is not whether 
 ■ the thing itself is easily removable, but whetlier it is essen- 
 tiall}^ a part of tlie building itself from wliich it is proposed 
 to romove it, as in the familiar instance of the grinding-
 
 CASES OF ORNAMENTAL FIXTURES. 379 
 
 stone of a floiir-mill, wliicli is easily removable, but wliicli 
 is nevertheless a part of the mill itself, and goes to the heir, 
 and not to the legal personal representative. The chimney- 
 glass, and the ornamental frame, and the oil-painting sur- 
 mounting it, appear to me to be no part of the house itself, 
 or of the wall itself, but to be merely ornaments attached to 
 it which the testator might have removed. The carved and 
 gilt frames tilled with blue and white satin, as I understand 
 the evidence, fall exactly in the same category as the tapes- 
 try, and are, in fact, instead of what is usually paper, a 
 covering of the walls, and form part of the walls themselves. 
 " With respect to the carved kneeling figures on the stair- 
 case in the great hall, they appear to me to come within the 
 category of articles that cannot be removed. I think it does 
 not depend on whether any cement is used for fixing these 
 articles, or whether they rest by their own weight, but upon 
 this — whether they are strictly and properly part of the 
 architectural design for the hall and staircase itself, and put 
 in there as such, as distinguished from mere ornaments to 
 be afterwards added. There may be mansions in England 
 on which statues may be placed in order to complete the 
 architectural design as distinguished from mere ornament ; 
 and when they are so placed, as, for instance, they are in 
 the cathedral of Milan, I should consider that they could 
 not properly be removed, although they were fixed without 
 cement or without brackets, and stand by their own weight 
 alone. In such a case they resemble the stone of a mill, 
 which is part of the mill itself, and goes to the heir-at-law. 
 I admit that the distinction between such statues as are 
 added by way of ornament, and such as belong to an archi- 
 tectural design, and f6rm part of the design itself, is ex- 
 tremely thin, and that in many cases it would be difficult to 
 distinguish them, unless it were done in an arbitrary manner, 
 so closely might one run into the other. But I am un- 
 able to suggest any other mode by which the true construc- 
 tion can be defined more accurately than that which I have 
 already stated. Accordingly evidence must in every case 
 determine whether the article falls within or without the
 
 380 -^^^ OF FIXTURES. 
 
 line" {D'ETjncourtw Gregory, 15 W. i?., 186 \ 8. C, L. R.,^ 
 Equity Cases, 382, 387-391, 394-397 -,8.0., 36 L. J. Oh., 107). 
 
 This case Avill justify all the space that is occupied with 
 it. The case is important of itself, was argued by some of 
 the most distinguished lawyers of England, and was de- 
 cided by a very able Judge. It will be observed that the 
 reasoning of the learned Master of the Rolls, as well as of 
 the case itself, turns strongly in favor of the fixed character 
 of articles attached like wainscoting, and occupying a similar 
 position with respect to the general design of the room ; and 
 the doctrine is clearly enunciated that such fixtures, though 
 put up by a tenant for years, are not to be removed. The 
 distinction taken between articles of an ornamental nature 
 and those that belong to an architectural design, is interest- 
 ing, and commends itself to the judgment of every discrimi- 
 nating lawj^er. But it must not be forgotten that the house 
 in this case had been erected by the person who placed the 
 fixtures in it ; a fact which it seems reasonable to take into 
 account when the question of design is considered ; and 
 such a consideration will often determine the character of 
 the article, whether it is removable or not. 
 
 Lord Selborne's position was that certain of the articles in 
 question were not fixtures at all ; but clearly, his position 
 Avas based upon the circumstances of the case. If a con- 
 sideration of the purposes for which the thing is attached 
 to the tenement is wholly excluded, then it might be laid 
 down that if a thing is fixed, no matter by how slight a con- 
 nection, that an act of unfastening is necessarj^ as distinct 
 from the act of removal, and before the act of removal can 
 be commenced, the thing so annexed is a fixture. If, how- 
 ever, the mode of annexation is not So solid as to preclude 
 an inquiry as to its purpose, then the motive and use of the 
 thing annexed, compared with the motive and use of that 
 to which it is annexed, may prevent the thing from coming 
 within the class of permanent fixtures and cause it still to re- 
 main a movable chattel, or a tenant's fixture removable 
 during the term. And this doctrine is peculiar!}^ appli- 
 cable to the class of annexations under discussion.
 
 CASES OF ORNAMENTAL FIXTURES. 3gl 
 
 CHAPTER XXVII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO ERECTIONS PUT UP FOR ORNAMENT OR CONVENIENCE 
 
 EXAMINATION OF FURTHER AUTHORITIES UPON THE SUBJECT EX- 
 TENT OF THE EXCEPTIONS IN FAVOR OF THIS SPECIES OF PROPERTY, 
 
 The doctrine of the American authorities upon the sub- 
 ject of erections put up for ornament or convenience, as be- 
 tween landlord and tenant, is about the same as that of the 
 English cases ; and in the absence of local custom, or statu- 
 tory regulation, the decisions of each country is recognized 
 as binding authority in the other. 
 
 A case came before the Supreme Court of Maine, in 1840, 
 in which it appeared that a tenant for a lixed term, was in 
 the occupation of the demised premises, under a lease which 
 provided that the lessee might make any alterations in the 
 premises daring his occupancy which should not lessen the 
 value of the property, nor occasion expenses. The tenant 
 placed a furnace in the house ; thereby causing material al- 
 terations, and the removal of the article would injure the 
 house. The tenant neglected to remove the furnace during 
 his term, but afterward came to the premises for the pur- 
 pose of taking it away, and the lessor refused to permit him 
 to enter upon the premises and remove it ; whereupon the 
 tenant brought his action of trover against the landlord for 
 the alleged conversion. The court held that the action 
 could not be Sustained, and the decision was put upon the 
 ground that it was too late for the removal of the furnace 
 after the termination of the tenancy. Weston, C. J., said: 
 " The subject matter of this suit was a fixture, the construc- 
 tion of which having occasioned a material change of the 
 house, in many parts of its interior arrangements, it would 
 be going far to hold it removable, even between landlord and 
 tenant. Such removal is not allowed, where it may cause 
 any material injury to the estate. * ^' * But the furnace had 
 ceased to be a personal chattel, and had become a part of
 
 382 LAW OF FIXTURES. 
 
 the freehold." His honor, however, in the course of his 
 opinion, shows that the tenant, during his term, might have 
 again altered the house, and put it in its original condition, 
 and then he would have been permitted to take the furnace 
 away {Stockioell v. Marks, 17 Maine R., 455). 
 
 In 1835, the Supreme Judicial Court of Massachusetts, 
 held, in a case hereinbefore referred to on another point, 
 that a fire-frame fixed in a common fire-place, with brick 
 laid in between the sides of the fire-frame and jambs of the 
 fire-place, was a fixture, which a tenant who placed it there 
 for his own use and convenience might remove at the expi- 
 ration of his term. 
 
 Putnam, J., in giving the o})inion of the court, on this 
 point, said: "But the law has accommodated itself to the 
 existing advanced state of society ; and tlie tenant may, 
 during the term, take away chimney-pieces, and even wain- 
 scot, if put up by hhnself ; Co. Litt., uhl sup. {Hargr. note 
 5) ; which, as the law stood before and at the time of Lord 
 Coke, he could not have been permitted to do. 
 
 "The reason of the relaxation of the rule, is found in the 
 public policy and convenience, which permit the tenant to 
 make the most profitable and comfortable use of the prem- 
 ises demised, that can be obtained consistently with the 
 rights of the owner of the freehold. The inheritance is not 
 to be prejudiced ' ' {Gaffield v. Hapgood, 17 Pick. R. , 192, 195). 
 
 The same court in 1855, held that a cistern and sinks at- 
 tached to a tenement by the lessee for his use in keeping a 
 hotel, and gas-pipes fixed to the building for a similar use, 
 were removable by the tenant during liis term, on the ground 
 that they were of a mixed nature, combining the qualities 
 of both domestic and trade fixtures. 
 
 Bigelow, J., delivered the opinion of the court, and, after 
 stating that the fixtures which a tenant is allowed to disan- 
 nex and take aAvay, are comprehended within two classes, 
 or are of a mixed nature, falling partly within and par- 
 taking of the nature of both ; and that one of these classes 
 embraces those which are put up for ornament or the more 
 convenient use of the premises, and are called "domestic 
 fixtures," said: "The application of these rules and prin-
 
 CASES OF ORNAMENTAL FIXTURES. 383 
 
 ciples to the case at bar is decisive of the nature and char- 
 acter of the articles which were removed from the demised 
 premises by the tenants. ^ ^ * They were designed by the 
 tenants to be used in carrying on the business for which the 
 premises were occupied, and they were also adapted for the 
 more easy and comfortable use and enjoyment of the build- 
 ing. They were useful and convenient, rather than essential 
 and permanent additions to the premises. At the time of 
 the demise, the house was supplied with water and fur- 
 nished with light by other means. The pipes were not 
 necessary therefore to the complete enjoyment of the prem- 
 ises. They were only added to subserve the domestic 
 purposes to which they were applied, and to render the 
 premises more suitable for the particular use to which they 
 were appropriated" {Wall v. Hmds, 4 Gray's ^, 256 
 271, 272). 
 
 But the same court held in a case decided in 1867, that a 
 lead-pipe laid in the ground from a dwelling by the lessee 
 to a main water-pipe, for the purpose of bringing water into 
 the house for the use of the tenant, was a fixture appur- 
 nant to the house, and could not be legally dug up and re- 
 moved. The pipe furnished the only supply of water to 
 the house, and passed from the demised premises, though 
 leased of a third person, to a highway, where it connected 
 with a branch leading from the main pipe of the water res- 
 ervoir. The court regarded tlie case unlike any that had 
 been previously reported ; but on the whole the pipe was 
 held to be a part of the house and could not be taken away 
 {PMlbric/i V. Moing, 97 Ifass. R., 137). 
 
 The Supreme Couit of Vermont, in a recent case, in which 
 it was held that window-blinds and double windows, pur- 
 chased for a dwelling-house, but were attached to the build- 
 ing, or were fitted for their places, were not fixtures belong- 
 ing to the house ; recognized the doctrine, in express lan- 
 guage, that chimney-pieces, hangings, glasses, window- 
 blinds, and the like^put up by tenants on the demised prem- 
 ises, for their own use and convenience, may be removed at 
 the end of the term {Peck v. Baiclielder, 40 Vi. P., 233). 
 And the Court of Appeals of the State of New York
 
 384 LAW OF FIXTURES. 
 
 recognized the same doctrine, in a case decided in 1857, in 
 which it was held that a stone statue of Washington, weigh- 
 ing about three tons, and a sun-dial, constructed on a block 
 of similar stone, weighing two hundred pounds, appro- 
 priately located in tlie same grounds with the statue, and 
 both erected as an ornament to the grounds where they 
 were placed, were, by the rule prevailing between grantor 
 and grantee, fixtures attached to the realty ; but it is clear 
 from the decision, that, as between landlord and tenant, the 
 court would have held the articles removable. 
 
 Parker, J., who delivered the prevailing opinion of th6 
 court, said: "In deciding whether the property in contro- 
 versy was real or personal, it is not to be considered as if it 
 were a question arising between landlord and tenant, but it 
 is governed by the rules applicable between grantor and 
 grantee" {S/iedeJcer v. Warring, 12 N. Y. jR., 170, 174). 
 
 The Supreme Court of New Hampshire has held, that 
 windows placed in a dwelling-house are fixtures, and pass 
 with the estate ; and that a tenant who has procured them 
 and suffered them to remain on his leaving the premises, 
 cannot subsequently enter to remove them {The State v. 
 Ulliot, 11 ]\\ H. 11., 540). It does not follow from the de- 
 cision in this case, that the court would not have held the 
 windows removable, as between the landlord and his tenant, 
 provided the tenant had taken them away at or before the 
 expiration of his term. AVhether they were removable or 
 not, as between landlord and tenant, would depend upon 
 circumstances. If the house was destitute of windows when 
 the tenant took his lease, and the openings were filled for 
 his own use and convenience, he would doubtless have the 
 right to take them away at the end of his term. But if 
 there were windows in the house when he took possession, 
 and they were displaced by others by the tenant, he prob- 
 ably would have to leave the latter, or others in their place, 
 when he surrendered the house to the landlord. 
 
 On the whole, it may be affirmed, that as a general rule, 
 the privilege of a tenant in respect to additions to the freehold 
 made by him for ornament, domestic use, or convenience, 
 is the same as that which prevails, as between landlord and
 
 CASES OF ORNAMENTAL FIXTURES. 385 
 
 tenant, in respect to fixtures erected for the benefit of 
 trade or manufactures ; although the right of removal by 
 the tenant of the former class of annexations is placed upon 
 different grounds from those which prevail in cases of the 
 latter. But, as a rule, any fixture made by a tenant for his 
 own comfort, convenience or pleasure, may be removed by 
 him during his term, provided the same can be removed 
 without serious injury to the realtj^, the same as in cases of 
 fixtures for the purposes of trade or manufactures. 
 
 It may be observed, however, that the decisions upon this 
 subject, for the most part, lay stress upon the circumstance 
 of the erection being put up for the purpose of ornament. 
 In one of the cases examined, it is said, that hangings and 
 looking-glasses are removable, because only matters of orna- 
 ment and furniture. In two or three of the cases the judges 
 speak of marble chimney-pieces being removable. Lord 
 Ellenborough still more pointedly says, that the tenant is 
 allowed to remove matters of ornament, as ornamental 
 marble chimney-pieces, pier-glasses, «&c. And Chief Justice 
 Dallas makes use of the same expression, and states that 
 the exception has been in favor of matters of ornament, 
 as ornamental marble chimney-pieces, pier-glasses and the 
 like. 
 
 From the authorities, therefore, considered in this view, a 
 rule has been deduced, that a tenant is entitled to take away 
 from the demised premises certain things which he has 
 affixed, at his own expense, for the purpose of ornament 
 and furniture. And the principle on which this rule is 
 founded, appears to be, that as annexations of this nature 
 must generally be designed for temporary purposes only, it 
 would greatly incommode tenants in the enjoyment of their 
 estates, if, by every slight attachment to the freehold, the 
 property should immediately be changed, and pass over to 
 the reversi6ner. Hence, it is obvious that the tenant's right 
 of removal in respect to this class of annexations, depends 
 upon very different grounds from those which prevail in the 
 case of fixtures put up for trade and manufactures. 
 
 But, on recurring to the facts of the cases examined, it 
 appears that some of the articles decided to be removable 
 
 49
 
 386 LAW OF FIXTURES. 
 
 by a tenant, are not matters of mere ornament and decora- 
 tion. They consist rather of instruments and utensils fixed 
 up for purposes of general utility or common domestic con- 
 mnience. It is notorious also in practice, that a great va- 
 riety of articles are considered to belong to the tenant, and 
 as such are taken away or valued to the incoming tenant, 
 which cannot be said to have been put up with a view to 
 ornament ; neither are they in an}^ way connected with 
 trade. Although, therefore, articles of this description are 
 not strictly referable -to the head of ornamental fixtures, yet 
 it is now generall}^ understood that ih^j fall within the 
 same principle, and may be removed by the tenant at the 
 end of his term. The American cases, especially, have ex- 
 tended the principle to articles put up by the tenant for do- 
 mestic pur})Oses, or to render the demised premises more 
 suitable for the use to which they are appropriated. And 
 this ground of exception is also distinctly recognized in 
 some of the English cases cited ; as, for example, in the 
 instance of the pump erected by the tenant. In this case, 
 it is true, the decisions of the Lord Chief Justice, and the 
 other judges who gave opinions, proceeded to all appear- 
 ance upon considerations suggested by the mode or measure 
 of the annexation; and yet, Tindal, C. J., observed "that 
 the article was one of domestic convenience, was slightly 
 fixed, erected by the tenant, and might be removed entire" 
 {Grymes v. Bower en, 6 Bing. R., 437, S. C, 19 Eng. 0. L. i?., 
 123). It has been very properly suggested, that, perhaps, in 
 these cases, the personal nature of the property is the 
 principal ground upon which it is protected ; and it will be 
 observed, that the species of annexations described in the de- 
 cisions are in general utensils and machinery which are per- 
 fect chattels in themselves, and are for the most part such 
 as serve as substitutes for mere movable furniture. In 
 some of the works on Wills, esioeciallj^, many of the ar- 
 ticles embraced in the decisions, are esteemed mere chat- 
 tels, and expressly mentioned as being comprehended under 
 the term household stuff, and passing under a general 
 legacy of household stuff {Vide Swiuhurne on Wills, part 
 7, § 10).
 
 CASES OF ORNAMENTAL FIXTURES. 387 
 
 But it is important to inquire how far the exception in 
 favor of fixtures put up by a tenant for ornament or con- 
 venience may be extended, and ascertain whether the tenant 
 is subject to any greater restriction in the exercise of the 
 privilege in articles of this description, than he is in respect 
 of the class of fixtures which are denominated "trade fix- 
 tures," or annexations by the tenant for purposes of 
 trade or manufactures. The rule as to trade fixtures ap- 
 plies to those which are put up for ornament or convenience ; 
 but the question is, as to whether the rule will be extended 
 as far in the one case as in the other. This question has 
 been critically examined by Messrs. Amos & Ferard, in 
 their work upon fixtures, and the substance of their sugges- 
 tions upon this particular topic may properly be used here. 
 
 On referring to the cases (say these authors) with a view 
 to this inquiry, it will be found, that although an article ap- 
 pears to be such that, its object alone considered, it would 
 fall within the description of things that are removable as 
 matters of ornament or convenience, there may, notwith- 
 standing, be certain particulars connected with its erection, 
 which will entirely prevent the exercise of the tenant's 
 rights. For, in the class of fixtures described as fixtures 
 for ornament or convenience, the operation of a principle is 
 found, which, in the trade cases, is hardly adverted to in 
 any of the judicial decisions. And this relates to the mode 
 of annexation of the article. 
 
 In one of Lord Hardwicke's decisions, the right of re- 
 moving the wainscot is stated with a qualification of its 
 being fixed only with screws. In a subsequent case. Lord 
 Hardwicke states its removability without this qualifica- 
 tion. In Mwes v. Maw, Lord Ellenborough, alluding to 
 the same article, again introduces the mention of the screws ; 
 and this is repeated by Gibbs, Ch. J., in Lee v. Risdon; 
 and again in the judgment of the court in BucJcland v. 
 Butterfield, heretofore examined in full. In the last men- 
 tioned case, Ch. J. Dallas says: "There maybe that sort 
 of fixing or annexation which, though the building or thing 
 annexed may have been solely for ornament, will jQi make 
 the removal of it waste ;'' and upon this ground, viz. : that
 
 388 LAW OF FIXTURES. 
 
 it was so annexed as to be permanently incorporated with 
 the principal building, it was determined that the conserva- 
 tory (the construction of which has been particularly de- 
 scribed in a previous page) could not be taken away. 
 
 In respect to the right to remove wainscoting, Messrs. 
 Amos & Ferard say in a note : "It must be admitted, that 
 the removal of wainscot is a very strong case ; that is, if 
 the dictum of Lord Hardwicke is to be understood as re- 
 ferring to the ordinary wainscot of a house as now erected. 
 Wainscot is one of the things which Lord Coke expressly 
 points out as not removable by a tenant; and in Cro. Eliz., 
 374, Anderson, Ch, J., lays down the same rule. In the 
 earlier cases it was said, that a lessee could not take down 
 partitions that he had fixed to the freehold (10 H. VII, 2 ; 
 Ilooi'e, 178). Lord Hardwicke does not state upon what 
 authority he founded his opinion in respect of this article, 
 but there probably may have been a decision on the subject 
 which has not been reported. It would be important to 
 know the time when such a decision took place ; as it 
 might be the means of ascertaining the particular descrip- 
 tion of wainscot which was held removable, by inquiring 
 into the state of refinement in domestic economy at that 
 particular period. For if it was only that kind of covering for 
 walls described in Beck v. Reboio, and other cases, which 
 consisted of paper or tapestry, put up with hooks or screws 
 in lieu of wainscot (as was the practice in former times), it 
 was obvious it would be no authority for the removal of 
 the wainscot of a modern house. This was, no doubt, the 
 kind of erection referred to by Doddridge, J., in Roll. Rep., 
 216, where he says, that wainscot may as well be removed 
 as arras hangings. In all questions of this sort it is par- 
 ticularly necessary to consider the decisions with reference 
 to the degree of improvement in modern manners, as com- 
 pared with those of earlier times. In Henry the Seventh's 
 time, it was said that glass should not be considered to be- 
 long to the heir as parcel of the house, because it was not 
 necessary to the house, which loas perfect without it. So 
 in Cooke'' s Case (24 Eliz.), the court took a difference be- 
 tween removing outer-doors and inner-doors ; saying, that
 
 CASES OF ORNAMENTAL FIXTURES. 389 
 
 the latter miglit be removable, as being less necessary to 
 the house. In Grymes v. Boioeren, both Tiiidal, Ch. J., 
 and Parke, J., appear to recognize the removal of wain- 
 scot as sanctioned by the authorities. But if, on any fu- 
 ture occasion, a question should directly arise as to the 
 right of taking down wainscot, it is highly probable that 
 tlie court would not be disposed to favor a removal which 
 would so materially injure and disfigure the dwelling-house, 
 and at the same time produce so little benefit to the tenant" 
 {Ferard's Laio of Fixtures, 65, note b.). 
 
 The instances put of chimney-pieces is scarcely less • 
 strong than that of wainscot. Lord Hardwicke first intro- 
 duced the mention of them, but he does not state under 
 what circumstances their removal would be justifiable. 
 And although this opinion in respect of this article has been 
 followed in most of the judgments ; yet it may be pre- 
 sumed that, independently of their ornamental nature, the 
 construction and method of annexation to the house could 
 not have been altogether disregarded ; also, as a general 
 authority, it would seem to carry the tenant's right of re- 
 moval very far indeed. 
 
 In respect to this species of fixtures, Messrs. Amos & 
 Ferard say : "It may be questioned whether a general and 
 unqualified right to take down chimney-pieces, would be 
 sanctioned by the courts in the present day. Lord Holt 
 selects the particular instances of hearths and chimney- 
 pieces to denote the kind of additions which a tenant can- 
 not remove {Poole's Case, 1 Salh., 368). The right of taking 
 away such articles, on the ground, not unfrequently urged, 
 of the great value, and the expense incurred by the tenant 
 in erecting them, cannot be supported upon any authority. 
 Under the ancient rule of law, a tenant was liable to waste, 
 if he pulled down the shelves, closets, presses, wardrobes, 
 dressers, &c., belonging to the house" {Ferard' s Law of 
 Fixtures, 66, note b). 
 
 But in these cases, the quality of the articles and the 
 mode by which they are affixed to the building, must enter 
 largely into the question, as to whether they may be re- 
 moved by tlie tenant or not. Tlie autliorities upon the
 
 390 LAW OF FIXTURES. 
 
 degree of annexation, short of that which took place in the 
 conservatory case, and more intimate than a connection with 
 screws, nails or bolts, by which the tenant's privilege ni ay 
 be defeated, are not very illustrative. In some instances a 
 single screw has been held to constitute the article a fixture ; 
 while in others, the fact that the article could be conven- 
 iently removed by simpl}^ taking out a screw, has been de- 
 clared to render the fixture removable. The determination 
 of the cases of this description, must, therefore, be subject 
 to more or less uncertainty, and must depend greatly upon 
 the circumstances surrounding each case presented for ad- 
 judication. 
 
 Besides the mode of annexation, it may be observed that 
 there is a further circumstance to which the courts have had 
 regard in the discussion of these questions, and which may 
 be regarded as proper ground of decision in respect of orna- 
 mental fixtures. And that is, as to whether the annexation 
 may be regarded a permanent improvement or not. Upon 
 this ground, Graham, B., at Nisi Prius, held that the 
 pinery, in the case of Buckland v. Bidterfield, was not re- 
 movable. And Mr. Justice Parke explains the decision in 
 that case, on the same grounds as resting on the fact that 
 the conservatory was deeply fixed in the soil and formed 
 part of the house to which it was attached. The pinery in 
 the case, according to the report in 4 B. Moore^ 440, was 
 erected in the garden, on a brick wall, four feet high, and, 
 under the circumstances, was deemed a permanent improve- 
 ment, and not removable. And this is conformable to the 
 opinion expressed by Lord Kenyon in a previous case. In 
 Dean v. AUalley his Lordship is reported to have said that 
 "If a tenant will build upon premises demised to him, a 
 substantial addition to the house, or add to its magnifi- 
 cence, he must leave his additions, at the expiration of his 
 term, for the benefit of his landlord." This may be sus- 
 tained upon the principles discussed by Lord Hardwicke in 
 connection with the legal maxims, that the principal thing 
 shall not be destroyed by taking away the accessory ; or 
 possibly upon the doctrine of the maxim itself. 
 
 It is proper to notice still another circumstance, which
 
 CASES OF ORNAMENTAL FIXTURES. 391 
 
 was mentioned by Lord Mansfield as a ground for permit- 
 ting tlie removal of ornamental fixtures ; winch is that the 
 premises are left in tlie sa?)ie state in which the tenant finds 
 them, and that there is no injury to the landlord {Lawton 
 V. Salmon, 1 H. Black. R., 260, in notis). This principle 
 does not seem always to be adverted to, or at least insisted 
 upon, in all of the more modern decisions ; although in the 
 old cases, where it was decided that the lessee might remove 
 furnaces, and the like, fixed to the floor and not to the walls 
 of a house, the reason assigned was that the house would 
 not be impaired, and, therefore, no waste. Lord Mansfield, 
 in making the remark alluded to, appears to apply it to 
 trading, as well as to ornamental erections. But in many 
 of the trade cases, it would be impossible to say that no in- 
 jury would occur to the landlord, or his estate, by the act 
 of removing the fixtures ; although in none of the cases 
 decided in favor of the tenant, does it appear that any con- 
 siderable damage was occasioned to the freehold ; that is to 
 say, when there was no special circumstances of agreement 
 or usage. The term "no waste," used by Lord Mansfield 
 was, of course, to be understood in a liberal sense. Some 
 trivial injury would happen to the premises by the removal 
 of the fixtures, in almost every conceivable case. But this 
 seems to be disregarded, even in actions of waste. In one 
 case in the English Common Pleas decided in 1800, the jury 
 gave a verdict against the tenant for only one farthing dam- 
 age, and the court allowed the defendant to enter up judg- 
 ment for himself. Lord Eldon, C. J., said: "I confess, 
 that when this application was first made, I was not aware, 
 that under the circumstances of the case the defendant was 
 entitled to demand judgment ; but my Brother Heath has 
 satisfied me that the application is supported by the current 
 of authorities. I do not indeed see precisely on what ground 
 those decisions have proceeded ; though I can easily con- 
 ceive many cases in which it might be extremely unconsci- 
 entious for a plaintiff to take advantage of his judgment, 
 when such small damages have been recovered as in this 
 case. As, if the owner of land suffers his tenant to lay out 
 money upon the premises and (hen bring an action of waste
 
 392 LAW OF FIXTURES. 
 
 to recover possession when the land may have been im- 
 proved to ten times the original value" {T7ie Governors, 
 ■&G., of Harrow School v. Alderton, 2 Bosanquet & Puller's 
 B., 86, 87). 
 
 When an article is removable under the law of fixtures, 
 and it appears that the freehold will unavoidably be dam- 
 aged by the severance of the property, such damage might 
 properly be regarded as the subject of compensation to the 
 landlord by the tenant. And it appears to have been gen- 
 erally understood in practice, that as well when trading as 
 when ornamental fixtures are taken down, the tenant is 
 liable to repair the injury the premises may sustain by the 
 act of removal ; that is to say, unless there are circum- 
 stances in the lease by which it may be implied that such 
 damage might be incurred. And the rule is quite general, 
 that when a fixture is put up in substitution for an article 
 which was attached to the premises at the time of the de- 
 mise, the tenant, on taking down his own fixtures, must 
 restore the former article, or replace it by another erection 
 of a similar description ( Vide Sunderland v. Neioton^ 3 
 Simons' R., 450 ; Martyr v. Bradley^ 9 Bing. R., 24 ; S. C, 
 23 jS}ig. a L. R., 249). 
 
 Some important rules upon these jDoints are furnished in 
 a case decided by the English Court of Exchequer in 1844 ; 
 in which there were covenants expressly referring to fix- 
 tures ; and the observations of the court appear to apply 
 equally to all ordinary cases of removal. The lessee was 
 bound to repair, and yield up in repair "the furnaces, fire- 
 engine, ironworks, dwelling-houses, and all other erections, 
 buildings, improvements, and alterations, except the iron- 
 work castings, railways, wimsays, gins, machines, and the 
 movable implements and materials, used in or about the 
 said furnaces, fire-engine, ironworks and premises." The 
 court held, that in taking away certain large fixed ma- 
 chinery and apparatus, decided to be removable under the 
 lease, the lessee might disturb such brickwork as was neces- 
 sary to remove it, and that he was not bound to restore it 
 to a perfect state, as if the articles it was intended to sup- 
 port or cover were still there ; that it was sufficient for the
 
 CASES OF ORNAMENTAL FIXTURES. 393 
 
 tenant to exercise his riglit to remove what the lease gave 
 him authority to take ; and in doing so dispkice the brick- 
 work, and to leave it in such a state as would be most use- 
 ful and beneficial to the lessors, or to those who might next 
 take the premises. But it was declared, that, at the same 
 time, in the exercise of this right, the lessee was bound to 
 do as little damage as possible ; and was liable for any un- 
 necessary disturbance of the 'brick-work, or any wanton 
 damage to the premises ; or in case he left them in such a 
 state as not to be conveniently applicable for similar pur- 
 poses by the lessee or another tenant {Foley v. Addenbro/ce, 
 13 3fees. & Welsh. JR., 174). 
 
 Of course, it is not to be inferred that a tenant may take 
 away an article set up by him upon the demised premises, 
 merely because the premises will not be impaired by remov- 
 ing it. In the great case of Elwes v. Maw, it was stated as 
 a fact in the case, that the premises were left in the same 
 state as when the tenant entered upon them ; and yet, this 
 was not thought a ground for the removal of the erections. 
 Neither is it in itself a ground for the removal of an erec- 
 tion, that the premises are capable of being reinstated in 
 their original condition. By the act of annexation to the 
 freehold, the thing itself becomes a part of the reversionary 
 interest ; and the law has regard to the reversioner's inter- 
 est, not only as it existed at the time of the demise, but also 
 in its improved state, and as increased in value by any addi- 
 tions made by the tenant. So that when the tenant is 
 permitted to take away such annexations, it is from con- 
 siderations which take them out of the general rule ; or 
 rather which make the case an exception to the general rule 
 of law. 
 
 It has been heretofore stated that the question of fixtures, 
 must be determined, in a great degree by the circumstances 
 and facts of each particular case. This statement is pecu- 
 liarly applicable in respect to fixtures put up for ornament 
 or convenience. The tenant's right, in respect to tliis class 
 of fixtures, depends, in a peculiar manner, on the facts of 
 the case. And the important circumstances to be regarded 
 in these cases, are first, the onode of annexal ion -of tlie arti- 
 
 50
 
 394 LAW OF FIXTURES. 
 
 cle, and the extent to wMcli it is united with tlie premises. 
 Secondly, its nature and construction ; as whether it has 
 been put up for a temporary purpose, or b}^ way of a jper- 
 Tnanent and substantial improvement. And, thirdly, the 
 effect its removal will have upon the freehold of the rever- 
 sioner. And with respect to this latter circumstance, it has 
 heretofore been stated as a rule applicable to all cases, that 
 if the removal of any article will occasion considerable 
 prejudice to the freehold, as by damaging the substance or 
 fabric of the house, &c., a tenant will not be entitled to take 
 it away. Lastly, it may be observed, that if there is any 
 custom or prevailing usage, such as that of valuing to in- 
 coming tenants, &c., this may be considered, in the absence 
 of decision, as a safe and useful criterion in practice. The 
 privilege of the tenant in removing fixtures on the ground 
 of ornament or convenience, is more limited than that in 
 respect to trade fixtures, although the rule in the latter 
 cases applies to those of the former. The privilege of the' 
 tenant in respect to fixtures for ornament and convenience, 
 is regarded as an indulgence which is an exception only, 
 and, though to be fairly considered, is not to be extended. 
 
 Of the class of fixtures which may be removed by the 
 tenant when put up by him at his own expense for tl^ 
 ornament and furniture of his house, the following are ex- 
 amples as found in the cases ; hangings, tapestry, and pier- 
 glasses, nailed to the walls or panels of a house ; and even, 
 as it is said, when they are put up in lieu of wainscot ; mar- 
 ble, or other ornamental chimney-pieces ; wooden cornices ; 
 marble slabs ; window-blinds ; Avainscot fixed to the walls 
 by screws, and the like. But articles of this description can 
 be removed only when they are so attached to the premises, 
 as not to have become part of the substance and fabric of 
 the house. ISTor will the tenant be permitted to take away 
 erections which may be considered as permanent additions 
 and improvements to the estate. 
 
 With respect to the class of fixtures put up by the tenant 
 for ordinary use and convenience, and which may be re- 
 moved by him at the close of his term, the following articles 
 maj^ be mentioned as instances recognized bv the author-
 
 CASES OF GAS-FIXTVRES. 395 
 
 ities ; grates, ranges and stoves fixed in brick-work ; iron 
 backs to chimneys; beds fastend to the ceiling; book- 
 cases; bells; fixed tables; furnaces, coppers ; pumps; iron 
 fences and hurdles ; mash- tubs, and water- tubs fixed ; coffee- 
 mills, malt-mills; jacks; cupboards fixed with hold fasts; 
 clock cases ; iron ovens, and the like. All these have been 
 held to be removable. But with respect to these fixtures, 
 it is to be observed, that they, also, must be so afl[ixed and 
 connected with the premises as to occasion but little damage 
 in their removal ; otherwise the tenant will not be allowed 
 to take them away. 
 
 CHAPTER XXYin. 
 
 LAW OP FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO APPARATUS FOR LIGHTING BUILDINGS BY GAS — RULE IN 
 
 RESPECT TO WATER-PIPES EXAMINATION OF THE AUTHORITIES UPON 
 
 THIS CLASS OF FIXTURES. 
 
 Upon similar principles governing in cases of fixtures set 
 up by the tenant in a demised building for the purposes of 
 ornament or domestic use, a tenant is allowed to take away 
 the ordinary apparatus which he may erect during his term, 
 for the purpose of lighting the premises by means of gas, and 
 commonly called "gas-fixtures." The adjustment of these 
 fixtures is ordinarily in such a way as not to make them an 
 annexation to the freehold as part of the realty. 
 
 Lamps, chandeliers, candlesticks, candelabra, sconces, 
 and the various contrivances for lighting houses by means 
 of candles, oil, or other fluids, have never been considered 
 as irremovable fixtures, and as forming a part of the free- 
 hold, even, as between vendor and vendee — much less as 
 between lessor and lessee. There is said to be no trace of 
 a contrary doctrine in the English decisions, and none can 
 be found in the decisions of this country. The ordinary
 
 396 
 
 LAW OF FIXTURES. 
 
 apparatus for lighting has never been classed among fix- 
 tures which cannot be taken away by the tenant. 
 
 But it has sometimes been supposed that the introduction 
 of carburetted hydrogen gas may have changed the charac- 
 ter of the apparatus, because it must be connected with the 
 pipes through which the gaseous fluid is brought into the 
 building. If such were the case, as has been well said, it 
 would establish two different rules in relation to the same 
 subject, depending entirely upon the medium used to pro- 
 
 duce light 
 
 Buildings which are liglited with gas, are usually supplied 
 ■ by gas-works, established in most of the cities, and large 
 towns and villages of the country, all of which have been 
 established witliin the last fifty years. The gas is intro- 
 duced by large pipes leading fi-om the woi-ks thi-ougli tlie 
 streets of the town, known as "street main," into which the 
 fluid is forced. Connected with the street main are pipes 
 extending into the building, and thence carried up tlirough 
 the walls and ceilings of the house, with openings at the 
 points where it is intended to attach fixtures, for the pur- 
 pose of lighting tlie rooms and entries. These are called 
 "gas-fittings," and from the manner in which they are 
 usually attached, may be regarded as permanent annexa- 
 tions, and part of the realty. At the openings in the pipes 
 are attached chandeliers, and other substitutes for the oil- 
 lamps and candles formerly in use, and are called "gas- 
 fixtures." These fixtures are screwed. on to the pipes and 
 cemented, only to prevent the escape of the gas ; and may 
 l5e removed at pleasure, with little or no diflficulty, and with- 
 out injury to the fittings or the freehold. The chandeliers, 
 lamps and candlesticks for the burning of tallow and oil, 
 have always been considered as personal chattels ; and there 
 is really but little to distinguish this new apparatus from 
 them. Clearly, therefore, as between landlord and tenant, 
 gas-fixtures, set up by the tenant, upon demised premises; 
 continue to be the property of the tenant and may be re- 
 moved at the expiration of the term. 
 
 In addition to the ordinary gas-fixtures, gas-stoves have 
 been largely us^d for bath and other rooms, which are
 
 CASES OF GAS-FIXTURES. 397 
 
 necessarily connected with the gas-pipes in the same way of 
 the ordinary burners. But these liave never been thought 
 to be fixtures attached to the realty, which it would be 
 waste by the tenant to remove. And it has been considered 
 more simple to regard all these gas-fixtures, whether stoves, 
 chandeliers, hall and entry lamps, drop-lights, or table- 
 lamps, as governed by the same rules as the articles for 
 which they are substituted, and therefore removable by the 
 tenant. This is in harmony with a case decided by the Su- 
 preme Court of Pennsylvania in 1859 {Vaughn v. Halde- 
 man^ 33 Penn. Rep.., 522). 
 
 But few decisions on this branch of the subject are to be 
 found in the judicial reports, because the period fs so brief 
 during which gas as a means of light has been employed. 
 
 The Superior Court of the city of New York decided, in 
 1852, that gas-fixtures and sitting-stools, when placed by a 
 tenant in a shop or store, although fastened to the building, 
 are not fixtures, as between the tenant and his landlord. 
 And the court went further, and decided that such fixtures 
 are the personal property of the tenant, and may be re- 
 moved by him not only during the term but after its ex- 
 piration. 
 
 Bosworth, J., delivered the opinion of the court, and ob- 
 served : "This action is brought to recover the value of 
 certain 'gas fixtures' and of 'seventy stools.' 
 
 "Such articles, when placed by a tenant in a demised build- 
 ing during his term, are his property. If not removed by 
 him during his term, they do not, for that reason, cease to 
 be his property. He may remove them after his term ex- 
 pires without subjecting himself to any damages for such 
 removal, even though he be liable to an action of trespass 
 for an entry on the demised premises. He may mortgage 
 them during his term by a personal mortgage, and they may 
 be levied upon by an execution issued on a judgment re- 
 covered against him" {Lawrence v. Kemp, 1 Duef s ^., 363, 
 365, 366). 
 
 In 1863, an action was decided by the Court of Common 
 Pleas of thecit}^ of New York, in which the doctrine was re- 
 cognized that ordinary gas-fixtures set up by a tenant upon
 
 398 L^'^ OF FIXTURES. 
 
 demised premises are the personal property of tlie tenant, al- 
 though the case turned upon the question as to the tenant's 
 right of action against a person who removed the fixtures from 
 the demised premises while the tenant was in actual posses- 
 sion, without making a demand of the wrongdoer that they be 
 returned. The court held that no demand was necessary in 
 such a case ; and the gas-fixtures were treated as other ten- 
 ant's fixtures which must be recovered, if at all, during the 
 tenancy, or at the least, while the tenant continues in pos- 
 session of the demised premises. 
 
 Brady, J., delivered the opinion of the court, and, after 
 stating the rule in reference to the right of the tenant to re- 
 move fixrtures, said: "The question on the evidence was 
 whether the defendant took the fixtures during the pos- 
 session by the plaintiff. If he did, then he was liable in 
 damages. The right of the plaintiff to remove during pos- 
 session cannot well be doubted, and the violation of that 
 right must subject the wrongdoer to an action" {Beards- 
 ley V. 87ierman, 1 Daly's R., 325, 326). 
 
 The case last cited does not go to the extent of holding 
 that gas-fixtures are not subject to the rules prevailing in 
 respect to tenant's fixtures, although it is by no means in- 
 ferrible from the decision, that the court did not regard 
 such fixtures as personal property, in which .the tenant has 
 the same rights as in his ordinary goods and chattels. 
 
 But in 1865, the same court decided a case, in which it 
 was held that the adjustment of gas-fixtures to a gas-pipe 
 is not such an annexation to the freehold as to make them a 
 part of the realty and subject to the operation of a grant 
 thereof. That is to say, the doctrine is held that such fix- 
 tures are personal property as between vendor and vendee 
 of the realty to which they are attached. Much more, 
 therefore, they would be held to be goods and chattels, as 
 between landlord and tenant. 
 
 Brady, J., in his opinion, said : "The removal of gas-fix- 
 tures is analogous to the removal of a stove temporarily at- 
 tached to the floor and to the chimney, by means of the 
 pipe, and which would not pass by conveyance as part of 
 the property {Freelandw Soutliworih, 24:We?id., 191).
 
 CASES OF GAS-FIXTURES. 399 
 
 "The adjustment of the bracket or chandelier to the gas- 
 pipe is not such an actual annexation to the freehold as is 
 contemplated by law. The fixture itself, though employed 
 for a useful purpose, and often highly ornamental, is not 
 indispensable to the enjoyment of the realty. It forms no 
 part of the soil by annexation, actual contact, or other- 
 wise. It is not fastened to the wall, and it can be removed 
 without injury either to the wall, freehold, or pipe to which 
 it is attached. In addition to this, it may be said with pro- 
 priety that it has become by usage and general concession, 
 as much an article of furniture as a mirror or carpet, al- 
 though not so universally owned" {Shaw v. Lenke, 1 Dah/s 
 B., 487, 488). 
 
 Tlie same court, however, decided in 1873, that by no ar- 
 bitrary rule could it be said that gas- fixtures were personal 
 property, and would not pass by a deed of the realty to 
 the vendor. On the contrary, it was held that the inten- 
 tion of the owner, evidenced by according acts, would be 
 sufficient to so appropriate and convert them into fixtures 
 annexed to the freehold, that they might pass by deed to 
 the grantor. And the court explains the decision in the 
 case of Shaw v. Lenlce, as holding simply, that, as between 
 grantor and grantee, the mere conveyance did not ex pro- 
 pria mgore grant "gas-fixtures" as fixtures, under, the 
 legal import of the term, and as part of the realty. 
 
 Robinson, J., in his opinion, said: "The case of SJiaw v. 
 Lenke, supra, must be followed, so far as it controls the 
 questions presented in this case, but it does not assume to 
 prevent the introduction of parol testimony to annex inci- 
 dents to the grant, and show that these gas-fixtures had 
 legally hecome 'fixtures' intended by the owner ' ad inte- 
 grandum domum,' with a view to render the dwelling-house 
 complete for the purposes of its occupancy and full enjoy- 
 ment as a residence (1 Greenl. Bv., § 294 ; 1 Wasli. Real 
 Prop., 17). 
 
 " In the consideration of the question, whether certain ar- 
 ticles, which in their nature are mere chattels, have become 
 part of the freehold, by mere attachment and ordinary use 
 therewith, for the general purposes to which it is adapted
 
 400 LAW OF FIXTURES. 
 
 and employed {Laioton v. Salmon, 1 H. BL, 251), the mere 
 intention of the owner, evidenced by according acts, is suf- 
 ficient to so appropriate and convert personal chattels into^^- 
 tures annexed to the freehold, that they would pass by his 
 deed to his grantee" {Funl<: v. Brigaldi, 4 Dal]/ s R., 359- 
 361). 
 
 From the decision in Funk v. Brigaldi, it would appear 
 as between vendor and vendee, gas-fixtures may or may 
 not be removable as chattels, according to the circumstances 
 of each case. But there can be no doubt, from the reason- 
 ing of the judge who gave the opinion, that, as between 
 landlord and tenant, such articles ordinarily would be re- 
 movable by the tenant at any time before the expiration of 
 his term. 
 
 The Supreme Judicial Court of Massachusetts decided in 
 1871, that gas-fixtures, bought by a tenant to use in his busi- 
 ness upon the demised premises, and screwed upon gas- 
 pipes fastened to the ceiling, are not fixtures, and that an 
 action of tort in the nature of trover will lie for their con- 
 version by the landlord. 
 
 Morton, J., gave an opinion, in which he said : "We are 
 of opinion that some of the articles claimed in the plaintiff' s 
 writ are personal chattels, for the conversion of which an 
 action of tort may, upon facts proved at the trial, be main- 
 tained. The glass case, the case of drawers, the mirror and 
 the gas-fixtures, though fastened to the walls, were not an- 
 nexed to the realty so as to become part of it. They are in 
 the nature of furniture, and the fact that they were fast- 
 ened ,to the walls, for safety or convenience, does not de- 
 prive* them of their character as personal chattels, and 
 make them a part of the realty. * * * The nature of the 
 articles, the circumstances under which they were placed in 
 the building, the mode of their connection, and the relation 
 which they bear to the use of the freehold, are not such as 
 to give them the character of fixtures or additions to the 
 real estate." 
 
 A new trial was granted on the opinion of Mr. Justice 
 Morton, and another appeal was taken to the court in banc, 
 on the frround that the court below refused to rule that the
 
 CASES OF GAS-FIXTURES. 401 
 
 counters involved in the case were fixtures so attached to the 
 building that the tenant had no right to remove them ; and 
 that trover would not lie to recover their value, upon the facts 
 of the case. It was held that, as the counters were put in by 
 the tenant for the use of his business, and not for the pur- 
 pose of improving the inheritance, they were removable by 
 him during the term. But, the court decided that the 
 action would not lie for their conversion, and the ruling 
 upon that point was reversed. No question seems to have 
 been made as to the gas-fixtures upon the second trial, and 
 there is no doubt of their being removable by the tenant 
 {Guthrie v. Jones, 108 Mass. R., 191, 193, 1^4, 196). 
 
 It has been held in the State of New Jersey, that gas- 
 fixtures, such as a gasometer and an apparatus for generat- 
 ing gas, as between landlord and tenant, are removable 
 property, and may be removed by the latter ; but that, as 
 between grantor and grantee, they are permanent fixtures, 
 attached to the realty, and, as such, will pass to the grantee 
 of the freehold {Hays v. Doane, 3 8tockt. H., 84). 
 
 In 1856, a case was decided by the Court of Appeals of 
 South Carolina, wherein it appeared, that, on the sale for 
 the foreclosure of a mortgage, the purchaser came into 
 possession of a house, containing certain gas chandeliers 
 and a pendant gas-burner, which were attached by screws 
 to a small pipe, conveying gas, and which could be re- 
 moved or detached without the escape of gas, or injury to 
 the pipe or building. A few days after the sale of the 
 ]|buse and lot, the sheriff, under executions against the 
 mortgagor, removed and sold the gas chandelier and pen- 
 dant hall gas-burner ; and the court held unanimously, that 
 the articles were not fixtures which passed to the purchaser 
 of the real estate by the conveyance of the freehold {3Ion- 
 tague v. Dent, 10 liichardson'' s Laio R., 135). 
 
 The Supreme Court of Missouri has also held, that, as 
 between vendor and vendee, gas-fixtures, chandeliers, can- 
 di-labra, sconces, and other contrivances for lighting houses, 
 are not so attached to the realty as to pass to the grantee as 
 part thereof {Rogers v. Croio, 40 Mo. R., 91). 
 
 Of course, all of these authorities, expressly or impliedly, 
 
 51
 
 402 LAW OF FIXTURES. 
 
 recognize the doctrine, tliat gas-fixtures put up by the 
 tenant upon tlie demised premises, at liis own expense, and 
 for his own use and convenience, belong to the tenant, and 
 may be taken away by him at the close of the term. The 
 Supreme Judicial Court of Massachusetts decided a case 
 in accordance with the general doctrine in 1855, in wdiich it 
 was held that gas'pipes put up by the lessee of a building 
 leased for a hotel and boarding-house, passing from the 
 cellar through the floors and partitions, and kept in place 
 in the rooms by metal bands, were removable by the tenant 
 during the term, though some of the gas-pipes pass tlirough 
 wooden ornaments of tlie ceiling, which are cut away for 
 their removal ( Wall v. Hinds, 4 Gray' s i?., 256). Here the 
 doctrine is carried farther than in some of the other cases ; 
 and it is doubtful whether the gas-pipes in question, would 
 be held to be removable, as between grantor and grantee ; 
 although obviously so as between landlord and tenant. 
 
 Ordinary gas-fittings or gas-fixtures in the rooms and 
 halls of a building, and having nothing peculiar in their 
 fixing, are, to a considerable degree, like ordinary lamps, 
 and are constantly in practice held as removable, and 
 altered according to the taste of the party. But, in respect 
 to gas-brackets and the like, being frequently of stucco, or 
 partly so, and forming part of the architectural design of 
 the rooms, they may be regarded as permanent fixtures, or 
 not, according to the circumstances of the case. Gas-pipes 
 laid in the ground are generally considered fixtures belong- 
 ing to the realty {Gas Company v. Hunter, 2 R. I. Ji., 151^. 
 
 Water-fixtures, of a similar nature of gas-fixtures, are 
 removable as between landlord and tenant, or otherwise, 
 the same as in cases of the latter ; although as a general 
 thing, the erections for the use of water in a building are 
 more likely to be permanent fixtures, and attached to the 
 realty than fixtures set up for the use of gas. The Supreme 
 Judicial Court of Massachusetts, in the case last referred to 
 from the reports of that State, decided that a cistern and 
 sinks, thougli fastened by nails, or set into the fioor by cut- 
 ting away the boards, and water-pipes fastened to the wall by 
 hooks, and passing through holes cut for the purpose in the
 
 CASES OF WATER FIXTURES. 403 
 
 floors and partitions, if put by the lessee into a building 
 leased for a hotel and boarding-house, may be removed by 
 the tenant, during the term {Wall v. Hinds, 4 Gray's H 
 256). 
 
 The same distinguished court held in 1871, that a water- 
 pipe laid in the ground by a tenant of demised premises 
 through which water was brought for use in the house 
 upon the premises, and by the tenant sold to the owner of 
 the realty, as between such owner and his grantee, was a 
 fixture appurtenant to the house and passed by Ms con- 
 veyance. 
 
 Hoar, J., delivered the opinion of the court, and, upon 
 this point, said: "The defendant owned the whole pipe, 
 from the sink in the house which he sold to the plaintiff, to 
 its junction with the branch in the highway. He under- 
 took to cut it off where it left the plaintiff's land, and 
 claims that only that part of it which was within the prem- 
 ises conveyed passed to the plaintiff by deed of conveyance. 
 But we can see no just ground for this claim. The pipe 
 was put in by his tenant, and afterwards purchased from 
 the tenant by him, as one entire thing. It was designed 
 for the use of the plaintiff's house, and for no other pur- 
 pose. If it extended into the land of a third person, and into 
 the highway, it does not appear that the owner of that land 
 objects to its continuance, or authorized or required the 
 defendant to remove it. We are, therefore, of oi^inion that 
 the whole of it, at the time of his conveyance to the plain- 
 tiff, was a fixture annexed to the house, and passed by the 
 deed. He had no more right to cut off a piece of the pipe, 
 because it ran into another's land, than he would have had 
 to cut off a piece of a spout which projected over the ad- 
 joining premises. If the owner of that land objected to its 
 continuance, the plaintiff would be obliged to draw her pipe 
 in ;• but until objection was made, or if she could obtain a 
 license for it to continue, she could let it remain as her pre- 
 decessor had done. 
 
 " We suppose it is a common thing in cities, for the owner 
 of a house to connect it by a pipe with the pipes in the 
 street belonging to a water company, and that such a pipe
 
 404 LAW OP FIXTURES. 
 
 would pass by the sale of the house, altliough the owner 
 of the house did not own the soil of the street. So in case 
 of a drain pipe connected with a common sewer ; on a sale 
 .of the house the vendor could not take it away" {Phil- 
 bric/c V. Ewing, 97 3Iass. H., 133, 135, 136). 
 
 With respect to both water-fixtures and gas-fittings, if a 
 landlord demises a building with them in at an entire rent, 
 they would, of course, belong to him at the expiration of 
 the term. But if he lets the building unfurnished with 
 these conveniences, in a city or town, where they may be 
 required at the time of the demise, and the fenant, for the 
 enjoyment of his occupation, fixes them in the building, in 
 such a way that they may be detached without serious in- 
 jury to the realty, the tenant may remove them during the 
 term. As a rule, however, gas-pipes and water-pipes under 
 ground, or in the walls and floors of the building, may not 
 be removed, because they are peculiarly adapted to the 
 house in which they are fixed, and cannot be easily de- 
 tached without injury to the fabric of the building, and 
 would be of comparatively little value when taken away. 
 
 CHAPTER XXIX. 
 
 LAW OF* FIXTURES AS BETWEEN LANDLORD AND TENANT EXAMINA- 
 TION OF SOME CASES NOT FALLING WITHIN THE CLASSES HEREIN- 
 BEFORE CONSIDERED CASES MISCELLANEOUSLY STATED. 
 
 There are a few cases of fixtures which have arisen between 
 landlord and tenant, not falling directly within either of 
 the classes hereinbefore considered, but, nevertheless im- 
 portant to note, in order that the examination may be com- 
 plete ; and they may also serve as precedents or illustrations 
 in other cases occurring in practice. Those cases will be 
 considered in this chapter, without reference to chronolo- 
 gical order, or the principles supposed to be enunciated by 
 them.
 
 CASES OF MISCELLANEOUS FIXTURES. 405 
 
 ^ In 1857 the Supreme Court of the State of New York de- 
 cided a case, which has not been reported, except by a note 
 in one of the digests, wherein it appeared, that a landlord 
 lent to his tenant a window to be put into a temporary par- 
 tition of the demised premises, and to be returned to the 
 landlord, on demand. The tenant put the window into the. 
 partition, and before the expiration of the term, sold the 
 fixtures to the next tenant, excepting, however, the window, 
 and the last tenant claimed the window. The court held, 
 that the window was the property of the landlord, and that 
 he could maintain trover for it {Loverldge v. Schultz, Gen- 
 eral Term, June, 1857, 2 Clinton's Digest, 1415). 
 
 The Supreme Court of Vermont, in a case hereinbefore re- 
 ferred to, held that posts and boards on a farm will be re- 
 garded as personal property, if there is nothing to show 
 that they are kept for the purpose of fencing, so as to con- 
 vert them into realty, and that an outgoing tenant has the 
 right to take such articles away at the expiration of his 
 term ( Wing v. Gray, 36 Vt. M., 261). 
 
 The Superior Court of the city of New York held in 1867, 
 that a vault built under a street adjacent to the demised 
 premises in New York, by the lessee, as an appurtenance 
 of a house erected by him, did not belong to the owner of 
 the premises upon the termination of the lease, particularly 
 as such a vault was not shown to be a necessary or custom- 
 ary addition to buildings such as that erected by the lessee. 
 The vault in question was upon grounds separated from the 
 adjoining premises by a sunken area, although the entrance 
 to the vault was opposite to a door in a building upon such 
 premises below the level of the street, by which a passage 
 was made to the vault across such area. The court held 
 that the fee of the land over which public streets are laid 
 out and used in the city of New York, belongs to the city 
 corporation, and tliat, as between the landlord and tenant of 
 the adjacent premises, such a vault is the property of the 
 tenant, and that, if it is of any value, when sold in connec- 
 tion with the house, the owner of the demised premises 
 should not be permitted to oust the lessee from his posses- 
 sion, without ])':iyinent of that value.
 
 406 LAW OF FIXTURES. 
 
 It was claimed by the counsel for the landlord, that the 
 vault, like any other fixtures, or permanent iinprovemeiits 
 attached to the I'reeliold by a tenant, reverted to the land- 
 lord without any obligation on his part to pay for the 
 same. But the court did not concur in this view. 
 . Robertson, Ch. J., in his opinion, said: ."Nor was this 
 vault in any way annexed to the plaintiff's buildings. They 
 were, in fact, separated by that part of the street, which 
 constitutes what is called ' an area.' It is true, the en- 
 trance into the vault was opposite a door in the building, so 
 as to make a direct passage to it, but it might as well have 
 been a passage to a vault opposite adjoining buildings. 
 There is nothing to make such a vault an api)endage to a 
 house in front of which it was, except the fact of so front- 
 ing it, * * * The arbitrators were, for the same reason, 
 right in excluding such vault from the buildings valued by 
 them under the covenant in the lease. 
 
 " I do not think the practice of the corporation in confin- 
 ing their pursuits to build vaults to the owner or occupant 
 of, or other person representing the premises back of it, as 
 proposed to be proved on the trial, could make it in law an 
 appurtenance to the building, whose tenants sold it. Id 
 the defendant obtained an advantage by virtue of his posi- 
 tion as lessee, which would benefit the enjoyment of the 
 land, and if retained by him after the lease ended,* might 
 prejudice such sale, he may possibly be bound in equity to 
 transfer it. In such case the plaintiff claiming equity 
 would be bound to do so by contributing a proportionate 
 part of the expense of obtaining such benefit, including the 
 fee for the license, and the cost of building the vault, be- 
 cause he cannot claim it as being affixed to the soil of his 
 land or an appurtenance thereof. No offer to do so is 
 made in this action, and it is not framed for such relief." 
 
 Barbour, J., said: "The mere fact that the vault was 
 built and used as an appurtenance of the house erected by 
 the defendant, gives the plaintiff no right to the possession 
 of such vault upon the termination of the lease. A tenant 
 under a lease, wiio is also the owner or possessor under a 
 license from a third party, of a building adjoining the prem-
 
 CASES OF MISCELLANEOUS FIXTURES. 407 
 
 ises leased by him, and wliich building he connects and 
 uses during his term with the premises so leased, as an ad- 
 dition to the latter, does not thereby subject himself to be 
 divested of his ownership or possession at the expiration of 
 his lease. Rights of possession and ownership are not thus 
 acquired or lost. Such a case was never heard of ; although 
 formerly, as now, men have taken leases of adjacent build- 
 ings from different landlords, and for convenience or busi- 
 ness purposes, have connected them by doorways, and used 
 the one as an appurtenance of the other, or have hired a 
 house of one man, and a garden, as appurtenant to it, from 
 another" {Coster v. Peters, 5 Robertson's R., 192, 203-206). 
 A new trial was had in the case, when it appeared that 
 the demised premises adjoining the street under which the 
 vault was built, were held by the lessor and those under 
 whom he claimed, under a deed bounding the same on the 
 line of the street, and that undisturbed possession had been 
 had under the conveyance for over twenty years. " It fur- 
 ther appeared in evidence that the vault was actually built 
 as a part of the house upon the demised premises, the wall 
 of the house being one wall of the vault. 
 
 McCunn, J., before whom tlie trial was had, held that the 
 proof as to the title and construction of the vault, so far 
 varied the case from tliat which was presented to the gen- 
 eral te^m, as to require him to instruct the juiy that the 
 landlord was entitled to the vault as a part of the building 
 erected on his land. 
 
 The judge said : "I hold that without any show of writ- 
 ten title on t]ie part of the owners of this easement or right, 
 other than tliat which has in this case been proven to be 
 acquired by the plaintiff, to wit, the uninterrupted posses- 
 sion for over twenty years ; this alone was enough, in the 
 absence of a superior title, to enable the plaintiff to recover ; 
 and, moreover, I will state that, upon proof of this title to 
 the land in front of this highway, in the absence of a better 
 title, the right of the plaintiff to the property or easement 
 is presumed ; in other words, upon proof of title every thing 
 which is collateral to the title will be intended without 
 proof. Therefore I tliink tlie phiintiff herein should re-
 
 408 LAW OF FIXTURES. 
 
 cover. It is also made clear, on tins trial, that tlie vault is 
 a part of the premises, the inside wall of the vault being the 
 outside wall of the house, and being part of the fee" {Cos- 
 ter V. Peters, 7 Robertson's JR., 620, 622). 
 
 It seems to have been conceded that the vault, constructed 
 as it was in the case of Coster v. Peters, would have be- 
 longed to the landlord, provided he owned the fee of the 
 ground occupied by the street, under which it was erected. 
 This concession makes the case an important precedent ; for, 
 as a rule, a person holding lands bounded upon a liighway 
 is held prima facie to own to the center of the road ; that 
 is to say, the presumption is that the soil of the road, with 
 every thing under it, usque ad medium jilum vice, belongs 
 to the adjoining owner. So that as a general rule, a vault 
 built by a tenant under the highway adjoining the demised 
 premises, under the conditions existing in the case last cited 
 would, doubtless, belong to the realty, and could not be 
 removed by the tenant. 
 
 In 1874, the Supreme Court of Errors of Connecticut de- 
 cided an interesting case which may be noted here. It ap- 
 peared that the tenant had leased a store in the city of 
 Bridgeport, and when the lease had about two years to run 
 the store burned down, leaving a vacant lot. The landlord 
 offered the tenant fifty dollars to surrender his lease, but he 
 declined, saying that he was about to erect another byilding 
 on the land, that he knew that it would belong to the land- 
 lord, that he did not intend to remove the same at the ex- 
 piration of his lease, and that the rent which he should 
 receive during the term would pay the cost of construction. 
 The building was one story high; built of brick, with glass 
 front, and stood jon the foundation walls of the burned 
 building, except the "rear, which was an unbroken brick w^all 
 from the cellar bottom. 
 
 It was claimed that the building was a trade fixture which 
 might lawfully be removed by the tenant. But the court 
 considered it to be a part of the freehold. 
 
 Carpenter, J., delivered the opinion, and said: "In this 
 case it is apparent that both parties intended that the build- 
 ing, at the termination of the lease, should belong to the
 
 CASES OF MISCELLANEOUS FLXTURES. 409 
 
 owner of the land. This is evident, in the first place, from 
 the materials used, and the manner of construction. It was 
 attached to the freehold in the same manner that buildings 
 ordinarily are which are designed to be permanent. This, 
 although not conclusive, is an important consideration. In 
 the next place, the interview between the parties at the 
 time very clearly shows that neither party expected or in- 
 tended that the building should be removed. In view of 
 all the circumstances we think the court below was clearly 
 right in holding that the building was a part of the realty" 
 {Llnahan v. Barr, 41 Cojin. B., 471, 473). 
 
 A case was decided by the Supreme Court of New Jersey 
 in 1855, settling an interesting question in respect to fix- 
 tures, as between landlord and tenant. The court held that 
 a thing attached to land may be a fixture, or a chattel per- 
 sonal, according to the agreement of the parties in relation 
 to it, and that, when the question is between landlord and 
 tenant, if the article is of the character which the law usu- 
 ally denominates a fixture, the onus would be on the tenant 
 to show the agreement to the contrary {Brearley v. Cox, 4 
 Zabrlskie's R., 287). 
 
 It has sometimes been held that a person in possession of 
 land under a contract of purchase, has the same privilege 
 in respect to the removal of fixtures, on his failure to per- 
 form his contract, as exists between landlord and tenant. 
 But the Supreme Judicial Court of Massachusetts laid down 
 a different doctrine in deciding a case in 1867. In the case 
 referred to, the court held, that fixtures added to real estate 
 by one who is in possession thereof under a bond for a deed, 
 without paying rent, may or may not be removable by him, 
 after breach of the bond; and that the right to remove such 
 fixtures must be determined by the rule which prevails as 
 between vendor and purchaser, and not that which prevails 
 as between landlord and tenant. It was accordingly de- 
 cided in the case, that a trip-hammer firmly attached to a 
 block set in the ground ; the blower of a forge ; a force- 
 pump and its pipes, for raising water on the premises ; and 
 shafting fastened to the building by screws and bolts, could 
 not, under such circumstances, be removed after bieach of
 
 410 LAW OF FIXTURES. 
 
 the bond. But the court held, that a steam-engine and 
 boiler, which are portable and can be removed without re- 
 moving brick- work ; a planing macliine and anvils not fast- 
 ened to the buildings ; vises fastened to a work-bench 
 merely by screws and bolts ; a grindstone on a movable 
 frame, and an emery machine fastened to the floor w^tli 
 bolts, and both capable of removal without displacing or 
 materially injuring any part of the building or land, and of 
 being used elsewhere as well as on the premises, may be 
 removed after breach of the bond. 
 
 Gray, J., delivered the ox)inion of the court, and said : 
 "The articles which the defendant contends were fixtures, 
 annexed to the freehold, and therefore not to be accounted 
 for as personal property of the partnership, were put by the 
 plaintiff into a building erected by Gerr}^, the owner of the 
 land, of which the plaintiff was in possession under a bond 
 from Gerry to convey it to him upon the payment of a price 
 therein stipulated. The plaintiff had not the same right to 
 remove fixtures annexed by him to the land so occupied by 
 him, without paying rent to the owner, under a contract for 
 its purchase, as an ordinary tenant w^ould have against his 
 landlord. -^ * * His rights in this respect were no greater 
 than those of a vendor or mortgagor against his vendee or 
 mortgagee. A mortgage passes even trade fixtures, annexed 
 to the freehold by the mortgagor, for the more convenient 
 use and improvement of the premises, whether before or 
 after the mortgage. * * * In ascertaining what are fixtures, 
 regard is to be had to the object, the effect, and the mode 
 of annexation. 
 
 "The trip-hammer, firmly attached to a block set in the 
 ground, the blower of the forge, the force-pump and its 
 pipes for raising water on the premises, and the shafting 
 fastened to the building by screws and bolts, having been 
 annexed by the plaintiff to the freehold, and specially 
 adapted to be used in connection therewith, became part of 
 it, and could not be severed again without the consent of the 
 owner of the land {Winslow v. Merchants' Ins. Co., above 
 cited; Richardson v. Coj)eland, 6 Gray, 536; The Queen 
 V. Lee, Law Hep., 1 Q. B., 241).
 
 . CASES OF MISCELANEOUS FIXTURES. 411 
 
 "But, under the circumstances stated in the master' s re- 
 port, the engine and boiler, which are expressly found to 
 have been 'portable and in their own frames,' the planing- 
 machine, and the anvils, all of which simply rested on the 
 floor or ground, without being fastened to the land ; together 
 with the forge tools and bench tools, the stock of iron and 
 steel, the vises merely affixed by screws to the work-bench ; 
 the grindstone in 'a movable frame, and the emery machine, 
 both of inconsiderable size, more connected with the engine 
 and boiler which were not fixtures than with any of the 
 articles which were, and capable of removal without dis- 
 placing or materially injuring any part of the building or 
 land, and of being used elsewhere as well as on the premises ; 
 never lost the character of chattels, and must be accounted 
 for as assets of the partnership" {McLaugliUn v. Nasi, 14 
 Allen's B., 136, 138, 139). 
 
 Another case decided by the same court in 1869, may be 
 referred to here. It appeared that the owner of a messuage 
 demised it to a tenant for the winter at a certain yearly rent, 
 payable quarterly, and soon after the end of the three 
 months wrote to his tenant that he could not allow him to 
 remain only for a short time on sufferance, to leave at a 
 day's notice. The grantor of the landlord, while owner of 
 the premises, put up in the house several marble slabs, laid 
 upon but not fastened to brackets screwed into the walls ; 
 and also placed in the cupola of the barn a bell, hung on an 
 axle resting upon a wooden frame, which was placed on the 
 platform of the cupola and secured to it by cleats fastened 
 by nails. He conveyed the premises but remained in posses- 
 sion as tenant of his grantee, under the arrangement before 
 stated, and on leaving the premises, he claimed the slabs 
 and bell as personal property, and took them away. The 
 court held that the grantor tenant might remove the marble 
 slabs, but not the bell. 
 
 Morton, J., said: "Upon the facts reported by the audi- 
 tor, we are of opinion that these slabs were not so annexed 
 to the real estate as to become part of it. They were not 
 attached to the wall, and could be removed without injury 
 to the house or to themselves. They formed part of the
 
 412 LAW OF FIXTURES. 
 
 furniture of the rooms, useful and convenient, but not essen- 
 tial to the enjoyment and use of the house, and not perma- 
 nently incorporated with the freehold so as to become a 
 part of it. * * * But we are of opinion that the bell was 
 a fixture w^hich the vendor could not lawfully remove. The 
 mode in w^hich it was attached, and its long use in connec- 
 tion with the barn, lead to the conclusion that it was in- 
 tended to be, and was, permanently annexed to the barn, as 
 an incident and appurtenance thereof" ( Weston v. Weston, 
 102 JIci^s. B., 514, 518, 519). 
 
 This was a case ostensibly between landlord and tenant ; 
 but the rights of the parties, in respect to the fixtures, were 
 really determined as between vendor and vendee ; so that 
 the case may, in fact, be regarded as a precedent when the 
 question arises only between parties sustaining the relations 
 of vendor and vendee to each other, or relations in w^hicli 
 similar rules are applied. • 
 
 A case may be referred to here which was decided by the 
 Supreme Court of Pennsylvania. The action was brought 
 in the inferior court to recover for the conversion of 890 
 yards of iron rails. It appeared that the plaintiff and de- 
 fendants leased adjoining coal-lands to the same lessees ; a 
 tunnel was made through the plaintiff's land to reach de- 
 fendants' ; on which w^as the outlet of the slope ; rails were 
 laid by lessors on the track in the tunnel. The lessees' 
 leasehold interest in the defendants' land w^as levied on, 
 Avith the appurtenances, consisting of a brake, &c., '"and 
 railroads in and about and connected with said mines." 
 The rails had been removed from the track, and tlie plain- 
 tiff claimed that they had been delivered to him for rent, 
 and brought his action of trover to recover their value. 
 
 On the trial the judge charged the jury, among other 
 things, as follows : "A colliery is an improvement for man- 
 ufacturing purposes, and a tenant may erect fixtures like a 
 raih'oad in a mine, and remove them again from the land 
 during his term. When the fixtures are sold as the prop- 
 erty of the tenants, and bid in by third parties, such third 
 persons may remove the fixtures if the purchaser goes into 
 possession of the fixtures as is claimed by tlie defendants in
 
 CASES OF MISCELANEOVS FIXTURES. 413 
 
 this case without removing it, but does remove it before he 
 is lawfully ejected, and before the expiration of the lease, 
 the purchaser's title is good if he acquired a title by the 
 sale under which he claims." 
 
 The ruling and charge of the court below were sustained 
 by the court above, and the doctrine was held applicable to 
 the case at bar. 
 
 Mercur, J., delivered the opinion in the appellate court, 
 and, upon this point, said: "The rails were laid to facilitate 
 the working of the mines, under the tenancy. The tenant 
 had the right to remove them during the term" {Haffner v. 
 Lewis, 73 Penn. i?., 302, 308, 310). 
 
 The Court of Appeals and Court of Errors of South Caro- 
 lina held in 1860, that a permanent dwelling-house, built on 
 the land of another, but in the usual way, and occupied for 
 nearly thirty years, free of rent, although resting on blocks, 
 is a fixture, and cannot be removed by the tenant {Reid v. 
 Kirk, 12 Michardsoii' s Law M., 54). 
 
 In 1859, the Supreme Court of Missouri held that a con- 
 tract between a landlord and tenant, authorizing the latter 
 to put up additional sheds and other temporary buildings 
 for warehouses, and to remove tliem when his term expired, 
 will not authorize the removal of erections, so connected 
 with the buildings already upon the leased premises, that 
 they cannot be separated without material injury to the 
 landlord's property. The idea would seem to be, that ordi- 
 nary erections put up by the tenant for the more convenient 
 use of the demised premises, may be removed by him at the 
 expiration of his term, provided such erections can be so 
 removed witliout material injury to the realty, and that the 
 agreement between landlord and tenant to the effect men- 
 tioned, does not extend the privilege of the tenant beyond 
 the ordinary rule {Poioell v. McAshan, 28 Mo. R., 70). 
 
 The Supreme Court of Indiana held, in 1857, that a pump, 
 placed in a well by a tenant, may be removed by him at the 
 expiration of his term. And the court farther declared, 
 that fixtures, left by the tenant at the expiration of his 
 term, will be presumed to have been abandoned, but that 
 the presumption may be rebutted by proof of an oral agree-
 
 414 LAW OF FIXTURES. 
 
 ment, by which he was to have the right of removal at a 
 subsequent day {McCracken v. Hall, 7 Ind. R., 30). 
 
 In 1861, the Supreme Court of Illinois decided a case, 
 wherein it appeared that a vendor went into possession of 
 the premises, under an agreement for the sale of the same, 
 which provided for a forfeiture in case of a default to per- 
 form the conditions of the contract, and the vendee in that 
 event to be a tenant at will of the vendor. The vendee, be- 
 fore forfeiture of the contract, annexed to the land certain 
 distillery fixtures, such as pipes, stills and the like, which 
 were regarded as trade fixtures, as between landlord and 
 tenant. Tlie court held that the vendee who put up the 
 fixtures should be deemed the tenant of the vendor, and 
 that he might remove the erections on his failure to perform 
 the conditions of his contract ; and that an assignee of such 
 vendee was substituted to his rights ; and could remove the 
 fixtures at any time during the continuance of the term 
 {Moore v. Smith, 24 III. R., 512). 
 
 In a case decided by the Supreme Court of Wisconsin in 
 1862, it appeared that the lessee of land, by the custom of 
 the neighborhood, had a right to remove buildings and the 
 lilie, erected by him during the term. His lease contained 
 covenants for payment of rent and against under-letting, 
 with provision that for breach the lessee should forfeit all 
 right and title in the lease and premises, and the lessee 
 might re-enter. The lessor alleged non-payment of rent 
 and assignment of the lease. The lessee had erected fix- 
 tures of a chattel nature upon the demised premises, which 
 were not strictly for purposes of ornament, domestic use, 
 or carrying on trade. The questions before the court were, 
 first, whether a tenant of demised premises may remove fix- 
 tures, of a chattel nature, erected thereon, being for other 
 purposes than of ornament, domestic use, or carrying on 
 trade ; and second, whether the lessee, or those holding 
 under him, on non-payment of rent would have the right of 
 removing such fixtures. 
 
 In respect to the first question, the court were not clearly 
 decided, but, on the whole, concluded that the tenant might 
 remove the fixtures in question ; and, as to the second ques-
 
 CASES OF MISCELANEOUS FIXTURES. 415 
 
 tion, tlie court held, that until the lessor was repossessed 
 •of the premises by legal proceedings, the term had not ex- 
 pired, and the lessee, or those claiming under him, being in 
 possession, still retained their rights of removal {Keogh v. 
 Baniell, 12 Wis. R., 163). 
 
 In 1873, the Supreme Court of Nebraska decided a case 
 in which the doctrine was declared, that fixtures erected by 
 a tenant during his term, the removal of which will not in- 
 jure the demised premises, or put them in a worse plight 
 than they were before, are in law deemed personal prop- 
 erty, and may be mortgaged as chattels, or levied on as per- 
 sonalty, and sold upon execution, and the purchaser at 
 such sale has the right to enter upon the premises to remove 
 them. And it was held, that a building put on the leased 
 premises, and set on blocks, without cellar or foundation, 
 was such a fixture. It appeared in the case, that such a 
 building was put up by a tenant of the demised premises 
 under a lease, one of whose conditions was that unpaid rent 
 should be a lien upon improvements and buildings which 
 might be ^Dlaced upon the premises, and the tenant's build- 
 ing without foundation was mortgaged by him as a chat- 
 tel. The court held, that the mortgagees secured by their 
 mortgage a lien upon the building, and a superior equity 
 to any claim of the lessor under the provisions of the law 
 {LampJiere v. Loioe, 3 Neb. i?., 131). 
 
 In 1867, the Supreme Court of Tennessee decided a case 
 in which it appeared, tliat a sutler built a wooden house 
 upon land on which his regiment was encamped; and it 
 was held that the house became a part of the freehold, and 
 could not be removed by the builder against the will of the 
 •owner of the realt}^ {Childress v. Wr Iglit, 2 ColdweW s R., 
 350). 
 
 In 1863, a case was decided by the English Exchequer 
 Chamber, on appeal from the Court of Exchequer, wherein 
 it appeared, that a tenant was let into possession of certain 
 premises, which he was to fit up for musical performances 
 upon the terms contained in a draft lease, which provided 
 that he should at all times during the term keep sufficient 
 and suitable fixtures and movable furniture and effects on
 
 416 LAW OF FIXTURES. 
 
 the premises for that purpose, and that none of such 
 movable furniture and effects should be removed therefrom, 
 except for the" purpose of repair or of being replaced by 
 others ; and also that, in case the term should be deter- 
 mined by effluxion of time, but in no other, it should be 
 lawful for the lessee, within twenty-one days after the ex- 
 piration of the term, but not during any other period, to 
 remove such fixtures, if any, as he might have affixed to 
 the premises, unless the landlord should elect to purchase 
 the same. It was also provided that if the lessee became 
 bankrupt or insolvent, or if any distress or writ of extent 
 or execution should be lawfully levied or executed by 
 seizure on the said premises, it should be lawful for the 
 lessor to re-enter and repossess the premises as in his 
 former estate, and to seize and retain for his own use all 
 fixtures whatsover, tenant's or trade fixtures. The lessee 
 annexed to the premises certain fixtures suitable for the 
 purposes mentioned, and which a jury found were tenant's 
 fixtures. These fixtures were seized by a sheriff under a 
 writ of fieri facias issued upon a judgment recovered by a 
 creditor against the lessee ; whereupon the lessor claimed 
 them. The Exchequer Chamber held, that by the terms of 
 the agreement the lessee had renounced the ordinary rights 
 of a tenant to disannex tenant's fixtures during the term, and 
 consequently the sheriff had no power to take them in execu- 
 tion. The Court of Exchequer had decided to the contrary, 
 holding that the rights of the tenant in respect to the re- 
 moval of his fixtures were not affected by the terms of the 
 agreement, and that the fixtures were subject to a levy and 
 sale under an execution against the lessee. But the Ex- 
 chequer Chamber reversed the judgment of the Court of- 
 Exchequer, holding as before stated {Dumergue v. liumsey, 
 2 Hurlstone & Coltman' s R., 111). 
 
 Some of the cases examined in this chapter have been 
 hereinbefore briefly referred to upon different points, but it 
 was thought that they deserved a more extended considera- 
 tion ; and hence they have been grouped together in this 
 place.
 
 TIME OF REMOVING FIXTURES. 417 
 
 CHAPTER XXX. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE 
 
 IN RESPECT TO THE TIME FOR THE REMOVAL OF ANNEXATIONS 
 
 MADE BY THE TENANT RULE WHEN THE TENANT KNOWS WHEN 
 
 THE TENANCY EXPIRES RULE WHEN THE LEASE IS TERMINATED 
 
 BY FORFEITURE AND THE LIKE EXAMINATION OF THE ENGLISH 
 
 AUTHORITIES UPON THE SUBJECT. 
 
 The next subject of inquiry in respect to the law of fix- 
 tures as between landlord a^pd tenant, is naturally as to the 
 time within which the tenant is permitted to take away his 
 fixtures from the demised premises occupied by him ; and 
 this with reference to the continuance and termination of 
 the tenancy. The law has prescribed certain rules by which 
 tenants are to be governed with regard to the time for the 
 removal of their fixtures, and it is important that the rules 
 be understood. 
 
 In considering this subject the general proposition may 
 be laid down, that the tenant is required to use his privi- 
 lege in removing such fixtures as belong to him, during 
 the continuance of his term. Jervis, C. J., in a case de- 
 cided by the English Common Pleas in the year 1852, laid 
 down the general law in this respect as follows: "The 
 courts have taken three separate views of the rule : 1st, 
 That fixtures go at the expiration of the term to the land- 
 lord, unless they have been removed during the term ; 
 2ndly, As in Penion v. Bobart {2 ^ast, 88), that the ten- 
 ant may remove the fixtures even after the expiration of 
 the term, if he still remains in possession of the premises ; 
 and, 3rdly, That this after-right of removal is subject to 
 this further qualification, viz., that the tenant continues to 
 hold the premises under a right still to consider himself as 
 tenant" {Heap v. Barton, 12 Co7n. Bencli R., 274, 280, 281 ; 
 8. C, 74: Eng. C. L. B., 273, 279). 
 
 But the doctrine that the tenant must exercise his right 
 to remove his fixtures during the continuance of his term, 
 
 53
 
 418 • LAW OF FIXTURES. 
 
 is recognized in all the cases from tlie earliest times in the 
 history of the law upon that subject. The court, in the 
 Tear Book., 20 Hen. VII, 113, speaking of the furnaces set 
 up by the lessee for years, in question in that case, say : 
 ''''During his term he may remove them ; but if he permit 
 them to remain fixed to the soil after the end of his term, 
 then they belong to the lessor." And in Poole' s Case (1 
 Salk., 368), Lord Holt observed, that during the term the 
 soajoboiler might well remove the vats ; but, after the term, 
 they became a gift in law to heirs in reversion, and are not 
 removable. 
 
 The doctrine was expressly recognized and approved by 
 Lord Tenterden, C. J., in 183Q, in a case decided by the 
 English Court of King's Bench, wherein his Lordship 
 remarked : "According to these authorities, then, the prop- 
 erty in fixtures which would be- in the tenant, if he re- 
 moved them during the term, vests in the landlord on the 
 determination of the term" {Lyde v. Russell, 1 Barn. & 
 Adolph. B., 394, 395 -,8.0., 20 IJng. C. L. R., 407-409). 
 
 The case of Lyde v. Russell has been before cited, and, 
 as may be recollected, was an action of trover for bells, 
 pulls, cranks, wires, &c., hung by a yearly tenant at his 
 own expense. After the tenant had quit, the landlord took 
 down the bells and refused to deliver them to the tenant un- 
 less he would pay £6 which he claimed for rent. The ten- 
 ant was held not entitled to recover, and in deciding it. 
 Lord Tenterden used the language quoted. Of the decision, 
 Mr. Smith observes : "This case, with which, although the 
 judgment is not long, Lord Tenterden is said to have taken 
 great pains, goes a step further than any prior decision, for 
 it shows that on the tenant's quitting the land, the prop- 
 erty of fixtures vests so completely in the. landlord, that 
 even though they are subsequently severed and made chat- 
 tels, the tenant's right to them does not revive. It seems 
 to have been admitted that the bells were fixtures for do- 
 mestic convenience, which the tenant might have removed 
 during his term" (2 Smit7i' s Leading Cases, 1th Am. ed., 
 196). 
 
 It may be observed, that in the very first case which es-
 
 TIME OF REMOVING FIXTURES. 419 
 
 tablislied the tenant' s right to remove fixtures under any 
 circumstances, a limitation to the time during which that 
 right enures was pointed out. In the case referred to from 
 the Year Books, the rule is laid down in the words qnoted ; 
 and the same rule with respect to time is laid down in sev- 
 eral subsequent, eai-ly cases. In Penton v. Rohart (2 
 East's a., 88), decided by the English King's Bench in 
 1801, this rule is somewhat enlarged, for, in that case it was 
 decided that a tenant who had remained in possession after 
 the expiration of his term had a right to take away fixtures 
 which he might have removed during his term. "Here," 
 says Lord Kenyon, " the defendant did no more than he had a 
 right to do ; he was, in fact, still in possession of the premises 
 at the time the things were taken away, and therefore there 
 is no pretence that he had abandoned his right to them.'' 
 
 Lawrence, J., said : "It is admitted, now,' that the defen- 
 dant had a right to take these things away during the term • 
 and all that he admits upon this record against himself, by 
 suffering judgment to go by default as to the breaking and 
 entering, is, that he was a trespasser in coming npon the 
 land, but not a trespasser de bonis asportatis ; as to so 
 much, therefore, he is entitled to judgment." The words 
 of Lord Kenyon, perhaps, cast some light on the principle 
 which governs this subject. 
 
 It will be remembered that the words of Lord Holt in 
 Poole's Case, are: "After the term they become a gift in 
 law to heirs in the reversion, and are not removable." It 
 would seem, therefore, that the landlord's right to the fix- 
 tures depends npon a presumption of law that a tenant, 
 quitting the demised premises at the expiration of the term' 
 and leaving them behind him, intended to bestow such fix- 
 tures on his landlord, to whom they became a gift in law ; 
 ^nd this, like some other legal presumptions, is perhaps not 
 capable of being rebutted ; but Penton v. Robart may be 
 thought to show -that the presumption of gift, arises not 
 immediately on the expiration of the term, but on the ten- 
 ant's quitting the premises, leaving the fixtures behind 
 him. In the report of the case at Nisi Prius (4 Esp., 33), 
 it appears that Lord Kenyon says : " When a tenant has by
 
 420 LAW OF FIXTURES. 
 
 law a right to cany away any erections or other things on 
 the premises which he had qnitted, the inclination of my 
 mind is, that he has the right to come on the premises for 
 the purpose of taking them away." This seems to assume 
 that a tenant who has quit the demised premises may still 
 retain a right to the possession of the fixtures, which is the 
 very point in dispute. 
 
 In considering the case of Penton v. Rohart, Mr. Amos 
 observes: "Upon examination of this case, it is conceived 
 that it will not be found to introduce any modification or 
 extension of the general rule which can be applied to or- 
 dinary cases. An impression, however, seems to have pre- 
 vailed, that the privilege of tlie tenant has been generally 
 enlarged by this decision. And it has been thought to es- 
 tablish, that a tenant does not in any case relinquish his 
 property in fixtures by omitting to remove them during the 
 term, but may insist on taking them away after the expira- 
 tion of his tenancy, and after he has given up possession of 
 the premises ; and even although his entry on land for that 
 purpose may be in itself tortious. 
 
 "But the principle on which the decision proceeds, does 
 not seem to warrant this proposition. For the only rule 
 which can be deducible from the case of Penton v. Robart, 
 admitting it to be a valid authority, is, that a tenant may 
 sometimes, and under certain circumstances, retain his right 
 in taking away his fixtures, although his interest in the 
 land has expired ; that is to say, when he has not quitted 
 the premises, and still continues in absolute possession of 
 the property. 
 
 "The decision in question depends essentially upon two 
 points ; the fact of the continued possession, and the state 
 of the record. It has been seen tljat the reason why, in 
 common cases, a tenant cannot insist upon his privilege if 
 he has neglected to use it during the term is, that the law 
 presumes that he meant to leave the imsevered property for 
 tlie benefit of his landlord. But, in Penton v. Bohart, the 
 tenant had never quitted ]30Ssession ; and consequently, as 
 he showed no intention of abandoning his right to the prop- 
 erty, the presumption of a gift to the landlord did not arise.
 
 TIME OF REMOVING FIXTURES. 421 
 
 The tenant, however, did not contend that he had a right of 
 remaining or coming upon the premises for the purpose of 
 removing the building ; he disclaimed that altogether ; and, 
 suffering judgment by default, he admitted that he was a 
 trespasser upon the land. All that he insisted upon was, 
 that the materials of the varnish house were still his prop- 
 erty, because there had been no dereliction of them ; that 
 he had therefore a right to reduce them again to a chattel 
 state, and to retain them when severed ; and that he could 
 not be a trespasser {de bonis asportaUs) for taking his 
 goods. 
 
 "It may, however, be observed that, according to the state 
 of the facts, the case might perhaps admit of another ex- 
 planation. For it seems that the only thing the defendant 
 took away was the wooden superstructure. This super- 
 structure was merely placed upon a wooden plate, laid on 
 brick- work. The erection, therefore, might be deemed (like 
 the barn resting upon blocks or pattens) not a fixture, but 
 a, mere chattel. In this point of view, the simple question 
 for determination would have been (as in WansbrougJi 
 V. Maton, post) whether the personal chattel in dispute was 
 the defendant's or not; and the result of the whole case 
 would, upon the pleadings, have been the same as it now 
 stands. 
 
 "It is, indeed, observable, that some of Lord Kenyon's ex- 
 pressions seem to favor this solution of the case. And if it 
 should be thought the decision pi'oceeded upon this ground, 
 then it is evident that it forms no kind of authority that a 
 tenant may, under any circumstances whatever, claim a 
 right, after the expiration of his term, to remove articles 
 which are strictly affixed. 
 
 " J3ut the former explanation of the case appears to be the 
 true one. And, in this view of it, it is evident that the gen- 
 eral principle as to the removal being made, in ordinary 
 cases, within the term, is altogether untouched" {Ferard's 
 Law of Fixtures, 2d Am. ed., 1^-11). 
 
 But, according to the report of the case of Penton v. 
 Rohart at Nisi Prius, the inclination of Lord Kenyon's 
 view certainly seems to be, that a tenant had a right to
 
 422 LAW OF FIXTURES. 
 
 come upon the premises after the term was expired, for the 
 purpose of taking away a fixture which he might liave re- 
 moved during the term. Indeed, his Lordships language 
 is expressly to that effect, and the extension of the tenant's 
 right allowed in the case is designedly qualified by the ex- 
 pressions of courts in subsequent cases, although, occasion- 
 ally, it will be found that the extended view of Lord Ken- 
 yon has been adopted in modern decisions. As a rule, 
 however, it will be found that the authorities subsequent to 
 the case of Penton v. Robart, concur in establishing that 
 the rule laid down in the earlier decisions is the correct rule 
 of law upon the subject. 
 
 In Lee v. Risden (7 Taunt, 191), referred to on other 
 points, Gibbs, C. J., describes the tenant's interest in fix- 
 tures as existing only during the continuance of his estate. 
 And he says : "Although it is in his power to reduce them 
 to the state of goods and chattels again, by severing them 
 during the term, yet, until they are severed, they are parts 
 of the freehold ; and unless the lessee uses during the term 
 his continuing privilege to sever them, he cannot afterwards 
 do it." 
 
 In a case decided by the English Court of Exchequer in 
 1840, Mr. Baron Alderson, in giving Judgment, said : " The 
 rule to be collected from the several cases decided on this 
 subject seems to be this, that the tenant's right to remove 
 fixtures continues during his original term, and during such 
 further period of possession by him as he holds the prem- 
 ises under a right still to consider himself as tenant. In 
 the present case this boiler was removed after the entry for 
 a forfeiture, and at a time after the assignees had ceased to 
 have any right to consider themselves as tenants. And fur- 
 ther, even if they had the right, in a case where the entry 
 determining the tenancy is the act of a third person, to con- 
 sider themselves entitled to a reasonable time for removing 
 the fixture, the jury have found that they did avail them- 
 selves of that privilege" {Weston v. Woodcocl^ 7 3£ees. & 
 Welsh. R., 14). 
 
 It will be observed from the opinion of Alderson, B., in 
 Weston V. Woodmcli: last cited, that tlie rule under consider-
 
 TIME OF REMOVING FIXTURES. 423 
 
 ation applies equally to the cases where the tenant, by any 
 act of his own (as by forfeiture or condition broken), puts 
 an end to the term, as where it expires by effluxion of time. 
 It should be stated, perhaps, that in the case of Weston 
 V. Woodcoc/c, it appeared, that a tenant took a lease of a 
 cotton factory, in which there was a proviso that the lease 
 should be forfeited by the bankruptcy of the lessee. During 
 the term, the lessee erected a steam-engine boiler on the 
 premises, and subsequently became bankrupt; his as- 
 signees entered and took possession, after which the lessor 
 entered for the forfeiture; afterward the assignees, who 
 still continued in possession, removed and sold the boilers. 
 It was held, on the opinion of Alderson, B., that the right 
 of the tenant to remove the fixtures continued only during 
 the original term, and during such further period of posses- 
 sion by him as he held the premises under a right still to 
 consider himself as a tenant ; and that such right ceased 
 after the entry for the forfeiture ; so that the assignees were 
 then no longer in a condition to consider themselves ten- 
 ants. 
 
 ^ The case of Weston v. WoodcocJi was intended to be de- 
 cided, not only in conformity with the general rule, upon 
 the subject, but also upon the authority of a case decided, 
 also in the Court of Exchequer in 1837, wherein it appeared, 
 that a tenant took a lease of a colliery, and during the term 
 erected steam-engines thereon. Afterward, in 1827, he as- 
 signed the colliery to trustees, in trust to secure the pay- 
 ment of an annuity, and to permit him to enjoy them until 
 default, &c. In June, 1829, the landlord took possession 
 of the colliery and fixtures under a clause of re-entry for 
 forfeiture ; and, in November of the same year, the engines 
 were seized under a Jleri facias at the suit of an execution 
 creditor of the tenant. The trustees brought an action 
 against the sheriff to recover the engines, &c. It was held 
 that the right of the tenant to remove the fixtures ceased in 
 June, 1829 ; and, having been left aflixed to the freehold 
 after the expiration of the term, the trustees, who had only 
 the same right of removal as the tenant under whom they
 
 424: LAW OF FIXTURE S. 
 
 claimed, could not themselves remove them after that period 
 {MinsJiall v. Lloyd, 2 Mees. & Welsh, i?., 450). 
 
 In 1838, Parke, B., in giving judgment in a case in the 
 Court of Exchequer, speaks of the case of Minshall v. 
 Lloyd decided by him, as follows: "I gave my opinion in 
 that case not as my mere impression at the time, but after 
 much consideration of this point — that the principle of law 
 is, that whatsoever is planted in the soil belongs to the soil — 
 quidquid plantaiitr solo, solo cedit; that the tenant has the 
 right to remove fixtures of this nature during Ms term, or 
 during what may (for this purpose) be called an excrescence 
 on the term" {Mackintosh v. Trotter, 3 Mees. & Welsh. 
 B., 184). 
 
 A case was decided by the English Court of Common 
 Pleas in 1858, wherein it appeared, that a tenant remained 
 upon the demised premises for some days after the expira- 
 tion of his term. He then left the premises, and a new ten- 
 ant was let into possession, after which the outgoing tenant 
 attempted to re-enter, to remove some fixtures. The court 
 was of opinion that he had no right to do so. 
 
 Willes, J., delivered the Judgment of the court, and ob- 
 served: "The law as to the limit within which a tenant is 
 allowed to sever from the freehold the fixtures, which are 
 usually called 'tenant's fixtures,' is by no means clearly 
 settled. According to the older authorities the role was, 
 that he must sever them during the term. But in Penton v. 
 Rohart (2 East, 88), it appears to have been considered that 
 the severance might be made even after the expiration of the 
 tenant' s interest, if he has not quitted possession. However, 
 in Weston v. Woodcoclc {7 M. & W. , 14), the rule was laid 
 down that the tenant's right continues only during his origi- 
 nal term, and, ' such further period of possession by him as 
 he holds the premises under a right still to consider liimself 
 as tenant.' It is perhaps not easy to understand fully what 
 is the exact meaning of this rule, and whether or not it justi- 
 fies a tenant who has remained in possession after the end of 
 his term, and so become a tenant at sufferance, in severing 
 the fixtures during the time he continues in possession as 
 such tenant. But the rule, whatever its exact meaning may
 
 TIME OF REMOVING FIXTURES. 425 
 
 be, is plainly inconsistent with the argument relied on by 
 the counsel for the plaintiff in the present case, viz., that 
 the right of the tenant continues till he has evinced an in- 
 tention to abandon his right to the fixtures ; and that con- 
 sequently the verdict of the jury, which has negatived any 
 such intention, is conclusive in his favor. But it is unneces- 
 sary to consider the import of the rule with reference to the 
 right of a tenant at sufferance during the continuance of 
 such tenancy, because in the present case the landlord had 
 re-entered, and thereby put an end to the tenancy, before 
 the plaintiff attempted to enforce his right. He cannot, 
 therefore, sustain any claim for damages in respect of the 
 defendant's having prevented him from severing the fix- 
 tures ; for at that time the plaintiff had ceased to be a ten- 
 ant of any kind, or to hold the premises under any right 
 still to consider himself as such" {Leader v. Homeioood, 5 
 Co?7i. Bench R., N. S., 546, 653, 554; S. C, 94 Ung. C. L. 
 H., 544, 552, 553). 
 
 Assuming that, according to the case of Penton v. Rohart, 
 the right to fixtures would not be abandoned, and the pre- 
 sumption of a gift 'to the landlord is not to be inferred as 
 long as the possession is retained, a question might arise 
 whether the tenant's right would be preserved if, by some 
 formal act or declaration, he expressly signified his inten- 
 tion not to abandon the fixtures at the end of the term. It 
 has been observed, that the presumption which arises on a 
 tenant's abandoning possession is, perhaps.^ not capable of 
 being rebutted. Still it has never been unqualifiedly deter- 
 mined what might be the effect of a formal declaration on 
 quitting, that he did not intend to give his fixtures to the 
 landlord. Or, for example, if the tenant were to accom- 
 pany the delivery of possession of the premises, with a 
 protestation that he does so without prejudice to his right 
 of taking away his fixtures at a future time, and does not 
 intend to give them to the landlord. A case was decided by 
 the English Court of King's Bench in 1818, involving the 
 right to certain jibs put up by a tenant, which he held until 
 the expiration of the term, when he delivered up possession 
 of the pieniises to his landloid, as the case states, "without 
 
 54
 
 426 LAW OF FIXTURES. 
 
 prejudice to liis riglit to remove these jibs and other tenant's 
 fixtures. " But the fact of the qualified surrender of posses- 
 sion does not seem to have been noticed in the judgment of 
 the court, except indirectly in this passage of the opinion 
 by Abbott, C. J.: "On the other hand, if the jibs are to be 
 considered as annexed to and parcel of the freehold, then 
 admitting that the plaintiffs might have removed them 
 during the terra, as being erections for the benefit of trade, 
 yet they could not after the term, maintain trover for them ; 
 because the action of trover is maintainable in respect of 
 personal chattels only" {Davis v. Jones, 2 Barn. & Aid. 
 JR., 165, 167). 
 
 The question has also been raised as to what would be the 
 effect of a recognition of the tenant's right to liis fixtures 
 after the expiration of the term ; that is to say, whether 
 such recognition might hot have the effect of revesting the 
 property in the tenant. On these points, nothing satisfac- 
 tory is to be collected from the authorities, although it is 
 probable, from the case of Dams v. Jones, and the reason- 
 ing of the judges in other cases, that such proceedings 
 would be held by the courts to be inoperative ; at least they 
 cannot safely be relied on in practice. 
 
 Fixtures annexed to the freehold are prima facie the 
 property of the owner of tlie soil. In aid of the tenant, and 
 in favor of trade, an exception is engrafted upon that rule, 
 enabling him to sever the fixtures, and so regain his prop- 
 erty in them ; if he does not avail himself of tlie right, the 
 fixtures belong to the person to whom the freeliold belongs. 
 This has been fully discussed in preceding pages, and the 
 principle may aid in coming to correct conclusions upon the 
 point now under examination. As a rule, the tenant must 
 avail himself of his privilege to remove his fixtures while in 
 possession of the demised premises ; and the true rule prob- 
 ably is, that the tenant's right of removal continues while 
 lie remains in possession of the demised premises in continu- 
 ation of the same holding under the lessor. When the 
 lessor re-enters lawfully, he enters upon the full and indis- 
 putable possession of that which, subject to the privilege of 
 the tenant, has been his property during tlie whole terra. It
 
 TIME OF REMOVING FIXTURES. 427 
 
 does not follow that the tenant is required to remove his fix- 
 tures in all cases before his term has fully expired. He may 
 remove them notwithstanding the expiration of his term, if 
 he remains in possession of the premises under the lessor ; 
 but the possesssion must be held under a right still to be 
 considered the tenant of the lessor. In all the earlier Eng- 
 lish authorities, the right of removal was expressly limited 
 to the actual term of the demise ; but the more' recent 
 authorities settle the doctrine, that the right of the tenant 
 to remove fixtures exists during the period during which he 
 might be considered as tenant. 
 
 It has sometimes been affirmed that the rule requiring the 
 tenant to remove his fixtures during his term, applies as 
 well to cases where the term is ended by reason of forfeit- 
 ure, as by affluxion of time. This statement, however, 
 must be received with qualification. It is now generally 
 held, that in cases where the tenancy is terminated by for- 
 feiture, the tenant has a reasonable time to remove his prop- 
 erty from the demised premises after due notice that the 
 landlord designs to re-enter. 
 
 A case in point upon this question was decided by the 
 English Court of Common Pleas in 1870, wherein it ap- 
 peared that the plaintiff was a dealer in old timber, and 
 had become a weekly tenant to defendant's father, of a 
 house and warehouse, with liberty to stack timber upon a 
 wharf which adjoined the warehouse, and with liberty and 
 full time to remove the timber at the end of the tenancy. 
 The defendant gave the plaintiff a week's notice to quit, 
 and immediately after the expiration of the week, without 
 giving either the plaintiff liberty or time to remove the tim- 
 ber, shut up the only entrance to the premises, so as to pre- 
 vent the plaintiff either selling or removing the timber and 
 goods. Under these circumstances, the jury found a ver- 
 dict for the plaintiff for £100 ; and on rule for a new trial 
 that verdict was substantially affirmed. 
 
 Bovill, C. J., in his opinion, said : " It appears from Co. 
 Litt., § 69, that the law will sometimes annex to a tenancy 
 a riglit for a tenant to remain in possession of the land after 
 the determination of his tenancy for the purpose of remov-
 
 428 LAW OF FIXTURES. 
 
 ing his goods ; and it is difficult to see therefore why the 
 parties should not be able to annex such a condition to the 
 tenancy by agreement. 
 
 "In Stansjield v. 3fayor of Portsmouth (6 W. R.,2m ; 4 C. 
 B., N. 8., 120), it was held that the assignees of a tenant could 
 remove his goods, both fixtures and chattels, within a reason- 
 able time after the tenancy had been determined by forfeiture. 
 * * -^ Although the tenancy was in that case by deed, and 
 the decision turned partly upon its terms, the law annexed 
 a similar condition to tenancies created without a deed." 
 
 Willes, J., said: "If a letting had been by deed, there 
 w^ould have been no doubt about the defendant being bound, 
 because the statute of Henry VIII would have passed the 
 obligation of the contract to him as assignee of the rever- 
 sion ; and it has been, established, and was laid down very 
 clearly in Buckworth v. Simpson (1 C. M. & R. 834), that 
 stipulations pass to successors in the case of yearly tenan- 
 cies also, when rent has been paid either by the successor of 
 the tenant to the landlord or by the tenant to the successor 
 of the landlord, and received without objection — that a 
 jury, in fact, may infer from such payment, and from the 
 fact of notice to quit not being given, a consent to go on, on 
 the same terms as before ; and a conventional law is thus 
 made equivalent to that of Henry VIII in the case of leases 
 under seal. In this case the defendant w^as therefore in the 
 same position as the landlord would have been. The only 
 question therefore is, whether such a stipulation could ope- 
 rate as an enlargement of the term ; and I think it could. I 
 do not mean that it would operate as an extension for all 
 purposes, but only so far as to give to the tenant a control 
 over the premises, and a right to remove his goods, and 
 do all things necessary for that purpose. 
 
 "With reference to the license to stack timber upon the 
 wharf, there may be more difficulty. Here the question is 
 whether the tenant has a reasonable right after the revoca- 
 tion of the license to take away his goods. I am clear he 
 has. The rule of law is, that a simple license, in order 
 to be binding on the licensor, must be under seal ; but if it 
 is not, the licensee is not a trespasser until the licensor re-
 
 TIME OF REMOVING FIXTURES. 429 
 
 vokes the license. Under a parol license the licensee has a 
 right to a reasonable time to go off the land after the license 
 is withdrawn before he can be forcibly thrust off it ; and 
 he could bring an action if he were thrust off before such 
 reasonable time had elapsed. That was Lord Cranworth's 
 opinion in Wood v. LeadMUer (13 M. & W. 838.) * * * I 
 think, therefore, that the license (which was probably lim- 
 ited to stacking for the use of the trade carried on in the 
 warehouse), if revocable, was so only on the terms of the 
 plaintiff having time to remove his goods. I think also 
 that, in the present case, there was evidence for the jury 
 that the license had in fact been renewed by the defendant 
 after the death of his father " {Cornish v. Stubbs, 18 W. H., 
 547; 8. a, L. B., 5 C. P., 334). 
 
 The principle enunciated in Cornish v. Stubbs was again 
 applied under circumstances of still greater peculiarity in a 
 very recent case decided in 1875, by the English Court of 
 Exchequer, which, on account of its importance, will be 
 fully considered. 
 
 The material facts of the case were as follows : A lessee 
 of business premises having become insolvent, the trustee 
 in liquidation put up the fixtures for sale by auction, under 
 conditions which required them to be "cleared" by the 
 purchaser in two days from the sale. The plaintiff bought 
 the fixtures ; but with the knowledge of the trustee, allowed 
 them to remain on the premises whilst he was treating with 
 the landlord for a new lease. This negotiation fell through, 
 and the trustee surrendered the premises to the landlord, 
 who re-let them, the fixtures still remaining affixed. About 
 a fortnight afterward, the plaintiff, learning of the surren- 
 dei", applied to the landlord for the fixtures. The contro- 
 versy was between the plaintiff and a person claiming title 
 through the new tenant. 
 
 The court held that the plaintiff, under the circumstances, 
 had not lost his right by delay or laches, and that he was 
 entitled to the fixtures. 
 
 Cleasby, B., said : "On the evidence we must take it that 
 all the articles were of such a nature as the tenant had a 
 right to remove. The question is, how far that right has
 
 430 LAW OF FIXTURES. 
 
 been lost by reason of the neglect of the plaintiff as against 
 the landlord to remove them within a reasonable time." 
 
 The learned Baron here stated what took j^lace, and then 
 proceeded: "The real question between the parties is the 
 title to these articles ; and it is quite plain that the surren- 
 der did not forfeit the right whiph the vendee of the pi-op- 
 erty had acquired. The general maxim is laid down in Co. 
 Lilt. (338 5) : ' Having regard to the parties to the surren- 
 der, the estate is absolutely drowned. * * * But having re- 
 gard to strangers, who were not parties or privies thereunto, 
 lest by a voluntary surrender they may receive prejudice 
 touching any right or interest they had before the surren- 
 der, the estate surrendered both in consideration of law or 
 continuance.' Therefore, though the term was surrendered, 
 yet the plaintiff's right was not affected ; the defendant 
 came into possession of the premises with chattels upon 
 them, which were subject to the right of a third person. 
 The case of London and Westminster Loan and Discount 
 Co. V. Brake (6 C. B., N. S., 798 ; 28 L. J., C. P., 297), is an 
 authority which applies to the present case, and we could 
 not decide on the ground taken by Mr. Philbrick without 
 in effect overruling that decision." 
 
 Pollock, B., said: "I am of the same oi3inion. The first 
 question is whether the goods were fixtures wiiich the 
 tenant was entitled to remove, which is a question partly of 
 fact and partly of law ; we bave power to draw inferences, 
 and, looking at the character of the articles, I am of opinion 
 that they were such. The second question is as to the effect 
 of the note sent to the landlord by the ti-ustee ; and I have 
 come to the conclusion that, though it was not a disclaimer, 
 yet being consented to and acted upon, it w^as noted as evi- 
 dence of a surrender by operation of law. Thirdl}^, assum- 
 ing there was a surrender by operation of law, what were 
 the rights of the plaintiff ? Now^ the right of a tenant has 
 long been considered as more than a bare right to remove. 
 * * * The tenant has, therefore, an interest in the fixtures 
 which may well be the subject of an assignment. * * * But 
 Mr. Philbrick argued that the plaintiff had either aban- 
 doned this right or been deprived of it by laches. To
 
 TIME OF REMOVING FIXTURES. 431 
 
 determine this, we must look at the whole circumstances of 
 the case ; and I am of opinion that the ])laintiff did all that 
 a reasonable num could be expected to do " {Saint v. Pilley 
 10 Exch. R., 137, 139, 140 ; 8. C, 12 Eng. i?., Moak^s ed \ 
 577, 579, 580). 
 
 It was decided in the English Court of Chancery in 1869, 
 that, in the absence of special contract tenants' fixtures 
 cannot be removed after the termination of the lease, and 
 that this rule applies whether the lease determines by 
 effluxion of time or by re-entry or forfeiture. 
 
 The question in the case arose between landlord and ten- 
 ant, and the facts are sufficiently stated in the opinion of 
 the court. 
 
 Sir R. Malins, V. C, decided the case, and said : "Under 
 the lease of February, 1865, a house was demised by the 
 plaintiff to John Vaughn for a term of years which, accord- 
 ing to its directions, has not yet expired ; but that lease con- 
 tained a covenant or proviso that if the tenant did certain 
 acts, amongst which was making an assignment for the 
 benefit of his creditors, the landlord sliould have a right to 
 re-enter ; that is, in fact, the same thing as a forfeiture at 
 the option of the landlord, not of course absolute, but at 
 the landlord's option, so that the lease was in that way 
 voidable, not void, on the happening of any of the specified 
 events. On the 2d of Marcli, 1869, Vaughn made an assign- 
 ment for the benefit of his creditors, which, without doubt, 
 amounted to an act of bankruptcy, and was a forfeiture of 
 the lease upon the re-entry of the landlord. The fact did 
 not become known to the plaintiff until the 11th of March, 
 and on the 12th, the deed having been registered under the 
 act of Parliament, he gave notice to Vaughn tliat he in- 
 tended to treat the lease as forfeited, but he did not enter 
 until the 14th, and on that day, having a right to detei-mine 
 the lease, he did so by entering, reverting the estate in him- 
 self. Vaughn cai-ried on the business of a bookseller, and 
 there were certain fixtures in the house admitted on both 
 sides to be tenant's fixtures, that is, things which, although 
 fastened to the freehold in a certain sense, the tenant had 
 still a right to remove during the continuance of the ten-
 
 432 LAW OF FIXTURES. 
 
 ancy or lease. If, therefore, the lease was not forfeited, tlie 
 tenant would still liave that right, because the law is clear 
 that when fixtures are put in by the tenant he has a right 
 at any time during the continuance of the lease to remove 
 . them ; but it is equally clear that if he omits during the 
 lease to do so, after its expiration it is too late for him to 
 remove the fixtures without the consent of the landlord, I 
 was surprised to hear it argued that there were any doubts 
 on this point, after Lyde v. Russell (1 B. & Ad., 394), de- 
 cided by the Court of Queen's Bench. That was a case of 
 bells, which were affixed to the freehold, but which the 
 tenant had an unquestionable right to remove during the 
 tenancy, and the plaintiff having fixed them in his house 
 allowed his tenancy to expire, and the landlord afterwards 
 severed them from the house. The tenant then brought an 
 action of trover for them, and the question was, whether he 
 was entitled to recover them, and Lord Tenterden and the 
 court then held that the property in the fixtures, which 
 would have been in the tenant during the term, was vested 
 in the landlord after its determination, and the plaintiff 
 failed in the action. A great many cases have been cited, 
 most of which are collected in WoodfalV s Landlord and 
 Tenant (page 585), where it is laid down that when a lease 
 expires by lapse or forfeiture by the act of the tenant (the 
 right being the same in either case), if the tenant does not 
 remove the fixtures during the continuance of the lease, or 
 during the period whilst he remains in lawful possession, it 
 is too late for him to do so after the landlord has entered 
 for forfeiture. On the other side two cases were relied upon, 
 Stansfield v. Mayor of Portsmouth (4 C. B., iV". S., 120), and 
 Sumner v. Bromlloio (34 L. /., Q. B., 130), both of which 
 proceed upon the footing of there being a covenant that 
 certain things sliould remain and certain things be removed. 
 If those cases liad been applicable to the present, I should 
 have held, in accordance with them, that the tenant must 
 have a reasonable time after the expiration by forfeiture or 
 otherwise of the lease ; but all that they decide is, that 
 when there is an express contract that a tenant shall have 
 a right to remove fixtures, that does not mean that the
 
 TIME OF REMOVING- FIXTUERS. 433 
 
 moment the term ends or is forfeited, he loses his right, but 
 that he must have a reasonable time after the lease deter- 
 mines. These cases, therefore, do not vary the old law on 
 the important principle involved in this case, nor do I think 
 that it has been varied. Although I was told that the rule 
 had been greatly relaxed, I do not find it so, but only that 
 where there is an express contract between the parties the 
 court Avill put a reasonable construction upon it, and allow 
 a tenant a reasonable time ; in the absence of such contract 
 there is no such right" {PugTi v. Aston, L. B., 8 Equity 
 Cases, 626, 628-680). 
 
 CHAPTER XXXI. 
 
 LAW OP FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO THE TIME FOR THE REMOVAL OF ANNEXATIONS MADE 
 BY THE TENANT RULE WHEN THE TERMOR KNOWS WHEN THE TEN- 
 ANCY EXPIRES RULE WHEN THE LEASE IS TERMINATED BY FORFEIT- 
 URE AND THE LIKE EXAMINATION OF THE AMERICAN AUTHORITIES 
 
 UPON THE SUBJECT. 
 
 « 
 
 The authorities upon the subject under consideration re- 
 ferred to in the preceding chapter, are all from the English 
 courts, from which it appears that unless the tenant protects 
 himself by a contract giving him a right to take away his 
 fixtures from the demised premises after the expiration of 
 the term, either by lapse of time or his own act, he cannot 
 do so, and they are regarded in law as abandoned to the use 
 of the landlord. It remains now to examine the American 
 decisions upon the subject, and ascertain if there is any 
 difference in the rule in this regard in the two countries. 
 
 And here it may be affirmed, that the American courts 
 have generally recognized the English cases as authority 
 upon the question of the time within which a tenant's fix- 
 tures must be taken away in order that the tenant may re- 
 tain his property in them ; and in accordance with what was 
 
 5Q
 
 434 LAW OF FIXTURES. 
 
 understood to be tlie doctrine of the English authorities, the 
 courts of this country have expressly declared that if the 
 tenant's fixtures are not removed during the term, and the 
 tenant quits the demised premises, and the landlord takes 
 possession, the fixtures become a part of the freehold, and 
 the party who was the tenant cannot legally take them 
 away afterward. This seems clearly the rule as it is admin- 
 istered here, but it will be more satisfactory to give the 
 doctrine of the cases themselves. 
 
 In a case decided by the Supreme Court of the State of 
 New York in 1849, Harris, J., said: "The ancient rule, 
 that whatever was attached to the freehold by the tenant 
 becomes a part of the freehold, and could not afterwards be 
 removed by him, has gradually been relaxed in favor of the 
 tenant, until now, I understand the general rule to be, that 
 any one, who has a temporary interest in land, and who 
 makes additions to it or improvements upon it, for the pur- 
 pose of the better use or enjoyment of it, while such tempo- 
 rary interest continues, may, at any time before Ills riglit 
 of enjoyment expires^ rightfully remove such additions and 
 improvements. If he omits to sever the addition or im- 
 provement until his right of enjoyment ceases, such omis- 
 sion is deemed to be an abandonment of his right, and there- 
 after the.addition or improvement he has made becomes, to 
 all intents, a part of the inheritance, and the tenant, as well 
 as any other person who severs it, becomes a trespasser. I 
 think this may now be stated to be the general rule in re- 
 spect to fixtures which a tenant attaches to the freehold" 
 {King V. Wilcoinb, 7 Barl. R., 263, 266). 
 
 Whatever may be said with respect to the doctrine of 
 King v. Wilcomb as to the annexations that a tenant or 
 other person may be permitted to take away as tenant's 
 fixtures, the rule there laid down in regard to the time 
 within which such fixtures must be removed by the tenant, 
 is doubtless the true one. The general rule undoubtedly is, 
 that the tenant must remove his fixtures before he quits 
 possession on the termination of his lease. And when a 
 tenant quits possession without removing a fixture, he is
 
 TIME OF REMOVING FIXTURES. 435 
 
 understood to make a dedication of it to the landlord ; and 
 this is the doctrine here as well as in England. 
 
 The doctrine was clearly recognized by Sutherland, J., in 
 giving the opinion of the old Supreme Court of the State of 
 New York in a case decided in 1826, when he said : "The 
 old rule, that whatever was attached to the freehold, became 
 part of it and could not be taken away, has been very much 
 relaxed by modern determinations, as between landlord and 
 tenant. Thus, it was held by Lord Hardwicke, in Ex parte 
 Quincy (1 Atk., 477), that a tenant, during the term, may 
 take away chimney-pieces, and even wainscot, if put up by 
 himself." The case involved the right of the tenant to cer- 
 tain copper stills, or kettles, steam-tubs, coolers, and a 
 worm ; and after examining a number of authorities upon 
 the subject, principally English, the judge adds: "These 
 cases very conclusively establish, that the tenant in the case 
 now under consideration, had a right at any time during 
 7iis term to remove the articles in question from the demised 
 premises" {Reynolds v. Sktder, 5 Cow. Ji., 323, 327, 328). 
 
 In a case decided by the same distinguished court in 1822, 
 which involved the right of a tenant to remove from the de- 
 mised premises, a cider-mill and press, Spencer, C. J., ob- 
 serves : "The plaintiff's counsel supposes that the tenant 
 could not remove this mill after the end of the term. It is 
 true, that if she entered upon the plaintiff's possession, and 
 took away the mill, she would be a trespasser on the soil, 
 and answerable for breaking the close; but leaving the 
 mill there, if it belonged to her, would not work any change 
 of the property ; and in this action, the trespass for enter- 
 ing on the premises is not in question ; and when it is said 
 that the removal must be within the term, or else he will be 
 a trespasser, it means onl}^ a trespasser as regards the 
 entry" {Holmes v. Trem^per, 20 Johns. B., 29, 32, 33). 
 
 It may be very properly inferred from the observations of 
 Spencer, C. J., above quoted, that a tenant did not lose his 
 right to his fixtures by leaving them attached to the demised 
 premises at the close of his term. And the Supreme Court 
 of Vermont, at an early day, enunciated the doctrine, that, 
 as between landlord and tenant, any erections made by the
 
 436 LAW OF FIXTVRES. 
 
 latter, which he has a right to remove, must be removed by 
 him previous to the expiration of his term, or at least 
 within a reasonable time after {Preston v. Briggs, 16 Vt. 
 R., 124). And in some other cases, judges have intimated, 
 upon the authority of Lord Kenyon, in Penton v. Rohart 
 (2 EasV s R., 88), that the tenant may remove his fixtures 
 within a reasonable time after tlie close of his term, and 
 that wlien he enters the demised premises alter the expira- 
 tion of his term to remove such fixtures, he is only a tres- 
 passer as to the entry ; but this is not in accordance with 
 the American authorities; especially as held in ordinary 
 cases when the term of the demise is of certain duration, 
 and the tenant has actually surrendered possession to the 
 landlord. 
 
 In a case decided by the New York City Common Pleas 
 in 1863, involving the right of the tenant to certain gas- 
 fixtures, Brady, J., said: "When the term of the plain- 
 tiff expired does not appear, but it seems from her evidence, 
 though on that subject it is in conflict with the defendant's 
 testimony, she had not yielded possession when the fix- 
 tures were taken away. The justice, ignoring the question ■ 
 presented on these facts, decided in favor of the defendant, 
 on the ground that no demand had been made of him for 
 the fixtures. This question was not in issue and was not 
 material. The rule in reference to the right of the tenant to 
 remove fixtures, and which necessarily formed the basis of 
 the investigation in this case, has been stated to be that 
 things annexed to the freehold, if removable at all, must be 
 moved before tlie expiration of the tenancy ; * * * and it 
 is founded on the supposed abandonment of the fixtures 
 when left on the premises ; * * * or that- they became a 
 gift in law to him in reversion, and are not removable {See 
 Holt in 1 Salk., 368, supra). 
 
 The rule, however, is not as broadly stated in England or 
 in this State. The tenant may remove the fixtures after the 
 term has expired, and during his possession" {Beardsley v. 
 Sherman, 1 Daly's R., 325, 326). 
 
 But the law upon the point under consideration was ably 
 and learnedly considered by Allen, J., in the Court of Ap-
 
 TIME OF REMOVING FIXTURES. 437 
 
 peals of N'ew York, in a case decided in 1871, and the doc- 
 trine of the authorities very clearly stated. The learned 
 judge said : "The rule is, that whatever fixtures the tenant 
 has a right to remove must be removed before his term ex- 
 pires, except when the time at which the term will end is 
 uncertain, depending upon a contingency, and it may be 
 determined unexpectedly to the tenant, in which case he 
 may be entitled to a reasonable time for removing jfixtures 
 after the expiration of the tenancy. * * ^ The rule may 
 be subject to the further qualification, that the right to 
 remove the fixtures is not lost to the tenant so long as his 
 possession as tenant continues ; and the claim of the plain- 
 tiff is, that this qualification includes and saves the right of 
 a tenant continuing in possession under a new lease. The 
 right of the tenant to remove is a privilege conceded to him 
 for reasons of public policy, and may be waived by him, 
 and will be regarded as abandoned by any acts inconsistent 
 with a claim to the buildings as distinct from the land, and 
 upon abandonment of the right by the tenant, fixtures 
 erected by him immediately become the property of the 
 landlord as a part of the land. A surrender of the prem- 
 ises, after the expiration of the lease, is such an abandon- 
 ment as vests the title in the landlord. 
 
 "In reason and principle the acceptance of a lease of the 
 premises, including the buildings, without any reservation 
 of right, or mention of any claim to the buildings and fix- 
 tures, and occupation under the new letting, are equivalent 
 to a surrender of the possession to the landlord at the expi- 
 ration of the first term. The tenant is in under a new ten- 
 ancy, and not under the old ; and the rights which existed 
 under the former tenancy, and which were not claimed or 
 exercised, are abandoned as effectually as if the tenant had 
 actually removed from the premises, and after an interval 
 of time, shorter or longer, had taken another lease and re- 
 turned to the premises. A lease of lands carries with it the 
 buildings and fixtures on the premises, and the tenant, ac- 
 cepting a lease of the premises without excepting the build- 
 ings, takes a lease of the lands witli the buildings and fixtures, 
 and acknowledges the title of the landlord to both, and is
 
 438 LAW OF FIXTURES. 
 
 estopped from controverting it. * * * Elementary writers 
 are very well agreed that, when a tenant continues in pos- 
 session under a new lease or agreement, his right to remove 
 fixtures is determined, and he is in the same situation as 
 if the landlord, being seized of the land with tlie fixtures, 
 had demised both to him. * * * And it would seem that 
 the position is warranted by authority. -^ * * The general 
 form of expressing the right of the tenant to remove fixtures, 
 is that they must be removed within the term ; that is, the 
 term during which they were erected, and unless the les- 
 see uses, during the lease, the privilege to sever them, he 
 cannot afterwards do it. * * * But it may be done so long 
 as the possession continues, although the term may have 
 ended, if there has been no new agreement" {Loughran v. 
 Boss, 45 JY. Y. i?., 792, 794-796). 
 
 A case was decided by the City Court of Brooklyn, in 
 1864, in which the judge seems to have entertained some- 
 what different views from some of those expressed in Lough- 
 ran V. Jioss. 
 
 Reynolds, J., said: "The testimony in this case shows 
 that the shed in question was erected by the defendant as 
 tenant for the purpose of his trade during the term which 
 expired May 1st, 1864. It was, substantially, a wooden 
 awning in front of the building which stood upon the de- 
 mised premises, and might be removed without affecting 
 such building. But the natural interpretation of the an- 
 swer is, that the shed was erected during a former term 
 which expired May 1st, 1855, and as the defendant upon the 
 trial elected to stand upon the answer as it is, instead of sub- 
 mitting to terms for an amendment, the question presented 
 is whether a tenant, who erects a structure which he might 
 remove during his term, or at the expiration thereof, loses 
 such right of removal by taking during his original term a 
 new lease which contains no provision as to the erection 
 already made, and continuing in possession under such new 
 lease. 
 
 As the new lease was intended merely to provide for a 
 further occu]Dancy of the premises, and that for the same 
 purposes, I see not why it was necessarj^ for the tenant to
 
 TIME OF REMOVING FIXTURES. 439 
 
 reserve in it any rights in regard to a thing which was his, 
 and which it must have been nnderstood he was to continue 
 to use as his own during his new term. He hired for a 
 second time his landlord's premises; but how can that be 
 said to be also a hiring of property, upon those premises, 
 which belonged to himself, and which, as yet, he had a right 
 to use upon those premises under a lease still in force? 
 What need was there of any agreement as to what he then 
 had a right to remove, and an equal right to continue to use 
 upon the premises as long as he secured the right to the oc- 
 cupancy of such premises ? 
 
 ' ' To hold that the acceptance of the second lease by the 
 tenant implies the surrender of his claim to property stand- 
 ing upon the premises, so that he cannot remove it now, 
 would be to hold that after such lease he could not have 
 removed it even during the first term, a position which I 
 think cannot be successfully maintained. It will be ob- 
 served that in this case there is no presumption of the 
 abandonment of fixtures, as in the case of a tenant quitting 
 the premises, leaving the fixtures behind him. My conclu- 
 sion is that the defendant had a right to remove the shed in 
 question at the expiration of his last term, and that this ac- 
 tion cannot therefore be maintained" {Devin v. Dougherty^ 
 27 HoiD. Pr. R., 455, 461, 462). 
 
 The reasoning of the judge in the case last cited is plaus- 
 ible, but does not reach to the depth of the jH-inciples on 
 which the question is to be determined in such cases, as ap- 
 pears by the opinion of the distinguished judge who pro- 
 nounced the judgment of the court in LougJiran v. Ross, 
 (45 JSf. Y. R., 792) ; and the case of Bevin v. Dougherty 
 may be regarded as substantially overruled by the Court of 
 Appeals. 
 
 In a case decided by the Supreme Judicial Court of Massa- 
 chusetts in 1835, involving the right of a tenant to remove 
 from the demised premises a fire-frame in a common fire- 
 place, Putnam, J., in delivering the opinion of the court, 
 observed: "The fiie-frame was without doubt personal 
 property before it was fixed to the freehold. But after- 
 wards it became a part of the house, and would have passed
 
 440 LAW OF FIXTURES. 
 
 hy a deed of tlie house as a door or window of tlie house 
 would have passed, provided there were no exception in the 
 deed to the contrary. But although it is to be considered 
 as a fixture, yet the lessee during the conUnuance of his 
 lease might have removed it {Laicton v. Laioton, 3 Atk., 16, 
 in notis). But he must remove it during the term. He 
 cannot lawfully do it afterwards. In Lee v. Rlsdon (7 
 Taunt, 188), Gibbs, C. J., says, unless the lessee uses the 
 privilege of severing fixtures during the term, he cannot 
 afterwards do it; adding, 'and it never was heard of that 
 trover could be afterw^ards brought, 
 
 "While it remained fixed to the freehold, it is clear that if 
 one had unfixed and taken it away at one time, it would not 
 have been felony, but a trespass. The case of Penton v. 
 Robart (2 East, 88), might seem to recognize the right of the 
 tenant to remove a fixture after the expiration of the terra. 
 * * * If the fixture should not be removed during the term, 
 and the tenant should quit, and the landlord take pos- 
 session afterwards, the law is very clear, that the fixture 
 becomes a part of the freehold, and that the party who was 
 tenant cannot legally take it away afterwards" {Gaffield v, 
 Hapgood, 17 Pick. H., 192, 194). 
 
 And in a case decided by the same distinguished court in 
 1864, Gray, J., observed : "Fixtures annexed to real estate 
 become part of it. * * * If annexed by a tenant for pur- 
 poses of trade, or some otlier immediate or temporary uses, 
 or for ornament, he may indeed, while remaining in pos- 
 session, remove them from the land, and thus change their 
 character back again from realty to personalty ; but if, with- 
 out having done so, he voluntarily quits the premises at the 
 expiration of his term, without any special agreement with 
 his landlord, neither he nor his vendee can afterwards claim 
 them against the owner of the land" {Bliss v. Whitney, 9 
 Allen's R.,114:,\15). 
 
 The doctrine that the tenant must take away his fixtures 
 from the demised premises during his term, and if he 
 sufl'ers them to remain on his leaving the premises, he 
 cannot subsequently enter to remove them, has been ex- 
 pressly recognized by the Supreme Courts of Maine, and
 
 TIME OF REMOVING FIXTURES. 441 
 
 New Hampshire, the same as in Massachusetts and New 
 York ( Vide Stockwell v. Marks, 18 Maine M., 455 ; The State 
 V. Elliot, 11 N. H. B., 540). The Supreme Court of Maine, 
 in 1869, expressly decided that the right of the tenant to re- 
 move fixtures must be exercised during his term or before 
 he surrenders possession, and that such right is not acquired 
 by a subsequent tenant {Dlngley v. Buffum, 57 Maine 
 Ji., 381). 
 
 The principle was declared by the Supreme Court of 
 Errors of Connecticut, in 1844, that a tenant for years has 
 a right to remove, during the continuance of the term, but 
 not afterward, a building erected by him on the leased prem- 
 ises, for the purpose of carrying on his trade. This iDropo- 
 sition was stated to the jury on the trial at Nisi Prius, and 
 the court in banc, declared that no complaint was made that 
 it was not in accordance with the law. It appeared in the 
 case that the tenant for years, during the term, erected a 
 building, partly on the land of his lessor, and partly on the 
 adjoining land of a stranger, and the building so remained 
 after the expiration of the lease. The court held, that, al- 
 though the adjoining owner had a right to remove that part 
 of such building which rested on his own land, he had no 
 right to remove that part which was affixed to the freehold 
 of the landlord of the tenant who erected the building {Beers 
 V. St. John, 16 Conn. li., 322, 329). 
 
 The Supreme Judicial Court of Massachusetts held in 
 1842, that a lessee who erects on the demised premises a 
 building which he has a right to remove, renounces that 
 right by surrendering his leasehold interest to tlie lessor 
 without reservation ; and that the right is not waived by his 
 subsequently taking another lease of the same premises, 
 from the same lessor. 
 
 Shaw, C. J., said: "Daniel Spaulding was the owner of 
 the soil. He leased the mill and mill privilege, with a small 
 tract of land, to Danolds, for an indefinite time, during 
 which Danolds erected the house, and afterwards, for a 
 valuable consideration, surrendered his lease ; for although' 
 the words are that he 'reconveyed' the premises to his les- 
 sor, by a lease similar to that under which he held them, 
 
 m
 
 442 LAW OF FIXTURES. 
 
 the legal effect was a surrender of the lease and a merger 
 of the term. The convej'ance, by a lessee for years of hi,s 
 leasehold interest to the lessor and owner in fee, is, in leo-al 
 operation, a surrender. The term for years merges in the 
 lesser estate, which thus becomes absolute {Cruise's Digest, 
 tit 8, c. 2, §§ 23, 30). By this surrender, the house erected 
 by the tenant, and conveyed without reservation, became per- 
 manently annexed to the freehold, as effectually as if it had 
 been built by the owner of the soil. When he made a new 
 lease, it was a demise of the whole estate, including the 
 building; and although, through mesne assignment, the 
 same term came to Danolds, it gave him no right in the 
 building, as personal property ; nor did it waive a right 
 which he once might have had, and which he had legally 
 parted with" {Shepard v. Spaulding, 4 3fet. H., 416, 418). 
 
 The rules laid down in the case last cited are important. 
 In the first place, it settles the doctrine that a tenant who 
 surrenders his lease to the lessor, without reservation, sur- 
 . renders also his riglit to such fixtures as are on the demised 
 premises at the time he yields possession to the lessor, and, 
 in the second place, the case settles the doctrine upon true 
 principles, that a tenant, accepting a new lease of the de- 
 mised premises with his fixtures annexed, without excep- 
 tion or qualification, cannot afterward be heard to question 
 his landlord's title to the fixtures, any more than to the soil 
 itself. This is in accord with the doctrine of Lour/Jiran v. 
 Jioss (45 iV: Y. M., 792), hereinbefore referred to, and is in 
 harmony with well recognized principles applicable between 
 landlord and tenant. 
 
 ^ In the year 1861, the Supreme Court of Pennsylvania de- 
 cided a case, in which Woodward, J., laid down the general 
 rule, saying: "That a tenant who erects fixtures for the 
 benefit of his trade or business may remove them from the 
 demised premises, is an established doctrine of the law, but 
 with this qualification — ^>^ai( tJie removal be made during 
 the terrii. After the term they become inseparable from the 
 freehold, and can neither be removed by the tenant nor re- 
 covered by him as personal chattels by an action of trover, 
 or for goods sold and delivered {Wltite v. Arndt, 1 Wh.,
 
 TIME OF REMOVING FIXTURES. 443 
 
 94, and the cases cited in the argument. If a tenant remain 
 iji possession after the expiration of liis term, and performs 
 all the conditions of the lease, it amounts to a renewal of 
 the lease from year to year, and I take it he would be en- 
 titled to remove fixtures during the year" {Davis v. Moss, 
 38 Penn. B., 346, 353). 
 
 Here, the doctrine is, that a tenant holding over, after the 
 expiration of the term, is presumed to continue in occu- 
 pation of the demised premises upon the same terms as 
 under the original lease ; but the presumption seems to ex- 
 tend only to the premises actually demised ; and hence, in 
 such a case, the tenant is not estopped from claiming his 
 fixtures, as in the case of an express new lease, upon an 
 actual or implied surrender of possession of the premises 
 under the old one. 
 
 The effect of a surrender by the tenant to his landlord of 
 his fixtures in respect to a claim of a third party was de- 
 cided by the Supreme Court of Pennsylvania in 1872, in a 
 case wherein it appeared that a landlord leased certain 
 premises to his tenant who erected thereon a frame build- 
 ing, conceded to be a removable fixture. During the term, 
 a constable levied an execution, against the tenant upon 
 the building, after which, the tenant, in consideration of a 
 release of rent due, surrendered the term to the landlord 
 who had no knowledge of the levy, and he took possession ; 
 notwithstanding which, the constable sold the building 
 under execution. The court held that the purchaser could 
 not remove the fixtures. 
 
 Agnew, J., delivered the opnion of the court, and said: 
 "What was the eflfect of the surrender of their term by 
 the tenants, Gillingham and Gagg, to Isaiah Thropp, their 
 landlord \ A constable had levied on the building in question 
 as a fixture placed on the land by the tenants for the pur- 
 pose of trade, which they had a right to remove during their 
 term. This levy was made subject to a levy by the sheriff, 
 under 2i fieri facias, upon the same building, and also upon 
 certain machinery claimed to be the property of the tenants. 
 The master finds that on the 10th day of October, following 
 the levies by the sheriff and constable, the tenants, Gilling-
 
 444 LAW OF FIXTURES 
 
 liam and Gagg, agreed with Thropp, their landlord, to sur- 
 render to him the lease in consideration of his releasing 
 them from the payment of the accruing rent, and permit- 
 ting the machinery levied on by the sheriff, and claimed by 
 Thropp, to belong to the property, to be sold for the benefit 
 of the creditors of Gillingham and Gagg. * * * The master 
 also finds as a fact, that at the time of the surrender of the 
 lease, Thropp had no notice of the constable's levy. No 
 suggestion of fraud is made, or that this arrangement was 
 intended to defeat the creditors. * * * Nor, admitting that 
 by the prior levy the constable acquired a lien upon the ex- 
 ecution, which, if duly prosecuted, would pass the title to 
 the purchaser under the execution, it seems to us the rea- 
 soning of the court below on this point is inconclusive. The 
 judge says, their title under the sale dates back to the time 
 of the levy, and thinks it cannot be doubted that the sur- 
 render which he accepted would not affect the defendants. 
 It was found, however, that he was not aware of it. * * * 
 Had the constable given notice of his levy to the landlord, 
 no doubt the right of the creditor in the execution would 
 have taken precedence, and prevented the arrangement from 
 being effectual against the execution. Or had the property 
 been suscei^tible of manucaption and possession, the actual 
 seizure might have been treated as notice in law, sufficient 
 to defeat any arrangement to the prejudice of the execution 
 creditor. But a building of the kind described in the plain- 
 tiff's bill is 'prima facie a part of the realty, of whicii the 
 creditor must take notice, so as to put him on inquiry as to 
 its true character. No manual possession of it can be taken. 
 In view of this, therefore,, and in order to give the landlord 
 an opportunity of protecting his rights, whatever they may 
 be, notice to him of the levy was necessary. * * ^ There 
 being no notice to the i)laintiff, as landlord, and the sale not 
 having been made until the termination of the lease by sur- 
 render of the term, tlie right to remove the building was 
 gone, as against the landlord. It was a failure to prosecute 
 the lev}^ with due diligence so as to preserve its lien" 
 {Thropp' s Appeal, 70 Penn. R., 395, 398-400 ; vide McKen- 
 zie V. The City of Lexington, 4 Dana's B., 130).
 
 TIME OF REMOVING FIXTURES. 445 
 
 It lias been shown that, when a tenant simply remains in 
 possession of the demised premises after the termination of 
 the lease, the presumption of abandonment of fixtures does 
 not arise, and he will still be entitled to remove them before 
 his actual departure from the premises ; and the Supreme 
 Court of Illinois has held that in such a case, when a land- 
 lord obtained an injunction to restrain the tenant from 
 removing his fixtures, and the injunction was afterward 
 dissolved, the tenant, though not in possession at the time 
 of the dissolution of the injunction, was entitled to re-enter 
 and remove his fixtures. 
 
 The facts of the case were ; a landlord leased to his ten- 
 ant a flouring-mill for a term of years, with the privilege to 
 the tenant of making necessary repairs during the continu- 
 ance of the term for the convenient use of the mill, the ex- 
 pense of which repairs were to be deducted from the rent, 
 and necessary fixtures put into the mill by the tenant were 
 to be paid for by the landlord at the expiration of the term, 
 or the tenant might remove them, and the tenant was 
 obliged, during the term, to put in a new boiler, back-stand 
 and mud-valve, in order to use the mill. The court held 
 that these improvements made in the mill were fixtures, but 
 that they were subject to removal by the tenant while he 
 remained in the possession of the mill under the terms of 
 the lease ; and that the landlord, having enjoined their re- 
 moval while the tenant was in possession, could not object 
 to the tenant removing them within a reasonable time after 
 the dissolution of the injunction, though the tenant was not 
 then in the possession of the mill {Mason v. Ferin, 13 111. 
 B., 525). 
 
 And to the same effect is a decision of the Supreme Court 
 of Missouri, rendered in 1868, in a case wherein it appeared 
 that the landlord had enjoined his tenant from removing 
 certain fixtures, and while the injunction was pending the 
 tenancy was determined. The court held that the tenant 
 should be allowed a reasonable time to remove his fixtures 
 after the injunction was dissolved. But it was held in the 
 same case, that the suing out of the injunction by the land- 
 lord, was no conversion, and a judgment giving the value
 
 446 LAW OF FIXTURES. 
 
 of the fixtures in damages to the tenant, was set aside 
 {Blrclier v. Parker, 40 Mo. R., 118). And the same rule 
 was recognized and applied by the same court in a case de- 
 cided in 1870 {Vide Goodman v. Hannibal, <S:c., R. R. Co., 
 45 Mo. R., 33). 
 
 CHAPTER XXXII. 
 
 LAW OF FIXTURP:S as between landlord and tenant DOCTRINE IN 
 
 RESPECT TO THE TIME FOR THE REMOVAL OF ANNEXATIONS MADE BY 
 
 THE TENANT RULE WHEN THE TERM IS OF UNCERTAIN DURATION 
 
 EXAMINATION OF THE CASES UPON THE SUBJECT GENERAL SUM- 
 MARY OF THE AUTHORITIES RELATING TO THE TIME FOR THE RE- 
 MOVAL OF tenant's fixtures in the absence OF ANY AGREEMENT 
 ON THE SUBJECT. 
 
 The two preceding chapters have been devoted to a con- 
 sideration of the law respecting the time within which the 
 tenant may remove his fixtures from the demised premises, 
 wliere the tenant is cognizant of the time when his interest 
 in the premises will expire. A different rule in respect to 
 the removal of fixtures where the term of the tenant is of 
 uncertain duration, would seem to be required, than where 
 the tenancy is expressly limited, and the time of its termi- 
 nation well understood by the parties. In cases where the 
 term is of uncertain continuance, it would be Just that the 
 tenant should be allowed a reasonable time after the termi- 
 '^ nation of the tenanc}^ for the removal of his fixtures. Such 
 a rule is conceded to be founded in substantial justice, al- 
 though some writers have declared it to be contrary to the 
 current of authorities. It will be found, however, that the 
 rule is not only just, but in accordance with authority. 
 
 In the case of Loughraii v. Ross (45 N. Y. R., 792), 
 Allen, J., said: "The rule is, that whatever fixtures the 
 tenant has a right to remove must be removed before his term 
 expires, except when the time at which the term will end is
 
 TIME OF REMOVING FIXTURES. 447 
 
 uncertain, depending upon a contingency, and it may be 
 determined unexpectedly to the tenant, in which case he 
 may be entitled to a reasonable time for removing fixtures 
 after the expiration of the tenancy." 
 
 So also, in a case decided by the same distinguished court, 
 in 1859, Com stock, J., observed: "The general rule has 
 been laid down in many cases, that things which a lessee 
 has annexed to the freehold, if movable at all, must be re- 
 moved before the expiration of the tenancy. * * * With- 
 out questioning at this time the force of the rule, an obvious 
 qualification must be admitted where the tenancy is of an 
 uncertain duration, and is liable to be terminated, by the 
 happening of some event on which it depends, or by the 
 act of the lessor, or in the case of a tenancy at will. Where 
 the tenancy is of such a character, the supposed abandon- 
 ment or gift of the fixture to the reversioner, on which the 
 rule rests, can hardly be imputed to the tenant, until he 
 has had a reasonable time to effect the removal" {pmhony 
 V. Jones, 19 N. Y. R., 234, 238, 239). 
 
 The Supreme Judicial Court of Massachusetts decided in 
 1822, that a tenant at will is not entitled to notice to quit in 
 that state, but that he is allowed a reasonable time for the 
 purpose of removing his family and property. And it was 
 further held, that what is a reasonable time in such a case, 
 is a question of law. 
 
 Wilde, J., delivered the opinion of the court, and, after 
 examining a large number of cases on the point, said : "It 
 appears, therefore, from a review of all the authorities, that 
 an estate at will may be determined without notice ; that 
 the inconvenience arising from this principle of the common 
 laAv led, in England, to the introduction of the tenancy from 
 year to year ; and that notice to quit, as practised there, is 
 required only in relation to the latter estate. 
 
 "The question then is, whether, when an estate is de- 
 termined by the lessor, the lessee is obliged immediately to 
 quit, or may be forcibly expelled. 
 
 "We are all of opinion, that the law does not impose on 
 the lessee those hard terms, 
 
 "The lessee is entitled to the emblements, and a reason-
 
 448 LAW OF FIXTURES. 
 
 able time is allowed to him. for the purpose of removing his 
 family, furniture, and other property. If the lessor dis- 
 turbs him in the exercise of this right, an action will lie for 
 the lessee. This principle was recognized in the case of 
 Hising V. Stannard (17 Mass. M., 287), and is well estab- 
 lished. A contrary doctrine would be extremely harsh and 
 unreasonable. 
 
 "Nothing further, then, remains to be considered, except 
 the question, whether there was, in this case, sufficient and 
 reasonable time allowed the tenant to remove ; and this we 
 have found to be a question of no small difficulty. There 
 being no rule established, each case must depend on its own 
 peculiar circumstances. This, to say the least of it, is in- 
 convenient" {Ellis V. Paige, 1 Pick. R., 43, 49). 
 
 And the same court recognized the same doctrine in 1827, 
 Morton, J., delivering the opinion of the court, saying : 
 "Coombs, the debtor, having placed the' shop upon the 
 plaintiff's soil by his permission, was tenant at will of the 
 land on which it stood. He had not only a right in the soil 
 covered by the building, but also a right of ingress and 
 egress over the plaintiff's close to and from the highway, as 
 necessary to the enjoyment of the shop. There is no evi- 
 dence of the determination of this tenancy at will. The 
 shop being erected for the purposes of trade, the tenant had 
 a right to remove it at any time during the continuance of 
 the estate {Elioes v. Maw, 3 East, 52). And had the land- 
 lord determined the estate, the tenant would have been en- 
 titled to sufficient time to remove his shop and other prop- 
 erty " {Doty V. Gorham, 5 Pick. ^., 487, 489, 490). 
 
 The case referred to in the preceding chapter decided by 
 the Supreme Court of Pennsylvania, would seem to indicate 
 that, in that state, a tenant who forfeits his lease, would be 
 held to have no right to take away his fixtures after the act 
 of forfeiture. Woodward, J., said: "But here there was 
 a forfeiture of estate by discontinuance of mining operations 
 for twelve consecutive months and more. The entry of the 
 company's agents to clean and grease the engine from time 
 to time, was not a continuance of mining operations within 
 the meaning of the lease. Nor was any entry by the land-
 
 TIME ON REMOVING FIXTURES. 449 
 
 lord necessary to declare the forfeiture, for he was already 
 in possession for all purposes except mining {Hamilton v. 
 Elliot, 5 8. & R., 375). The law of entry for breach of 
 condition is somewhat different with us from what it is in 
 England and in many of our surrounding states. * -^'^ In 
 England the forfeiture, however strongly the condition is 
 expressed in the deed, is not completed until the landlord 
 elects by some positive act to take advantage of it. With 
 us it depends upon the terms of the instrument, unless there 
 be evidence to affect the landlord with a waiver of the breach, 
 like the receipt of rent or other equally unequivocal act. 
 * ^' * A discontinuance of mining operations for nearly 
 four years before the sheriff's sale, must be held to work a 
 forfeiture of the lease, or we unmake the contract of the 
 parties. There is nothing in the case from which we can 
 imply the landlord's intention to waive the palpable breach, 
 and therefore he must have the benefit of it, and we must 
 say that, the term being ended, the right of the tenant or of 
 the sheriff' s vendee to remove the engine, fell with the term. 
 That the engine was so attached to the freehold as to be a 
 imrt of the realty cannot be doubted under our decisions, 
 and though the tenant might have secured it during his 
 term, it is too late. for the exercise of this right three years 
 after his term was at an end" {Dams v. 3foss, 38 Penn. R., 
 346, 353, 354). 
 
 In connection with the case of Dams v. Moss, it should 
 be stated that, by the laws of Pennsylvania, where there is 
 a breach on the part of a lessee of the conditions contained 
 in a lease, an entry is not requii'ed to complete the for- 
 feiture. This fact was referred to by Judge Woodward in 
 his opinion in the case cited, as a reason for the rule 
 adopted in that case. In this respect, the law of Pennsyl- 
 vania is different from that of New York and most of the 
 other states, and of England. In these latter mentioned 
 states, and in England, where the lease provides that the 
 estate shall cease, or that the landlord may enter on 
 breach of condition by the tenant, the authorities establish 
 the doctrine, that the estate is not void at all events, but 
 voidable only if the landlord thinks proper to re enter, the 
 
 57
 
 450 LAW OF FIXTURES. 
 
 right to do wliicli lie may waive. As a consequence of tiiis 
 rule, re-entry becomes necessary to express the option of 
 the landlord to claim the forfeiture, and if he do not enter 
 but receives rent that accrues after the breach, or performs 
 any other act unequivocally evincive of his intention to 
 continue the lease, he waives the breach and confirms the 
 estate. But after the demise is fully at an end, either by 
 the terras of the lease or by forfeiture, it is too late for the 
 tenant to remove his fixtures, unless he remains in posses- 
 sion under such circumstances as shall justify him in con- 
 sidering himself still the tenant of his landlord. And yet, 
 when some act of the landlord is requisite to determine the 
 tenancy, the tenant must have a reasonable time after the 
 performance of tliat act in which to take his fixtures away. 
 
 So also, it is very clear, that in case of tenants at will, 
 whose terms, from the nature of the tenancy, are of uncer- ' 
 tain duration, the tenants, or their representatives, are al- 
 lowed to remove "tenant's fixtures" after the expiration 
 of the term. But cases of this kind are confined to fixtures 
 which the tenant is entitled to remove as a matter of legal 
 right, without reference to au}^ contract on the subject : and 
 there is direct authority against the extension of such right 
 of removal, after the expiration of the term, to things which 
 cannot be removed except in virtue of a special contract. 
 
 In the Irish case decided in 1857, hereinbefore referred to 
 upon another point, the defendant was lessee of the plain- 
 tiff for lives Avith a covenant for renewal, but had suffered 
 all the lives to expire without renewing. The plaintiff, as 
 landlord, gave the defendant, as lessee, notice that he would 
 take possession under a civil bill decree, provided for by 
 their practice, and which had before been obtained, and he 
 took possession accordingly. But meanwhile, the ten- 
 ant removed certain millstones and machinery from the de- 
 mised premises, for which the plaintiff brought this action. 
 
 It was admitted that the goods in question were trade fix- 
 tures, which the tenant in possession would liave had a 
 right to remove had he done so during the continuance of 
 his term and interest in the premises ; and the question 
 for decision was whether the tenant had the right to remove
 
 TIME OF REMOVING FIXTURES. 451 
 
 tliem at the time he did, which was intervening the decree 
 for possession and the actual taking of possession of the 
 demised premises under the decree. 
 
 Monahan, C. J., in his opinion, went into a historical 
 statement of all the cases from that of Poolers Case down- 
 wards to that of Mclntosli v. Trotter., hereinbefore exam- 
 ined, bearing upon the right of the tenant to remove 
 fixtures, and the time or times within which he may make 
 such removal, and then concluded as follows : " But I hold 
 that a tenant who (as in the present case) remains in posses- 
 sion after the determination of his tenancy by the service 
 and expiration of a regular notice to quit, without any 
 hona fide right so to do, under the pretence of a right of 
 removal, which had been long previously forfeited, cannot 
 by such his tortious and illegal overholding acquire a right 
 as against his landlord to remove fixtures which, in my 
 opinion, on the determination of the tenancy, became the 
 property of the landlord, being then affixed to and part of 
 the freehold, which then became his property" {DeebleY. 
 McMullen, 8 Irish C. L. R., N. S., 355). 
 
 It has sometimes been stated as a rule, that where the 
 term is of an uncertain tenure, but is determined by the act 
 of the tenant himself, the landlord has the right to resume 
 possession of the demised premises at once and deprive the 
 tenant of his fixtures. This doctrine has been held by the 
 English courts in case of the determination of the demise 
 by forfeiture {Storer v. Hunter, 3 Barn. & Ores. Ji., 868), 
 And the Supreme Court of California has decided that a 
 tenant ca'nnot remove erections made by him, after for- 
 feiture or re-entry for condition broken ( Whipley v. Dewey, 
 8 Cal. J?., 36). 
 
 The Supreme Court of Indiana in 1872, stated the time 
 within which the tenant must exercise his privilege of re- 
 moving his fixtures, as follows: "A tenant, who for the 
 better use or enjoyment of leased premises erects buildings 
 thereon may at any time before his right of enjoyment ex- 
 pires remove the buildings ; but if he omit to remove them 
 until his right of enjoyment ceases, and his possession or 
 right to use and occupj" the premises becomes wrongful,
 
 452 LA W OF FIXTURES. 
 
 such an omission is to be deemed an abandonment of his 
 right, and the buildings become a part of the real estate ; 
 and if the tenant afterwards severs them he becomes a tres- 
 passer" {Cromie v. Hoover, 40 Ind. R., 49). 
 
 And the same court, in the same year, in the decision of 
 another case, in considering the same subject, observed : 
 "A tenant who lias put trade fixtures into a building, has 
 a right to remove them, if it can be done without perma- 
 nent injury to the freehold, provided the right is exercised 
 within proper time. And this right must be exercised dur- 
 ing the term of the lease as fixed by contract, or during such 
 further period as the tenant may lawfully and rightfully 
 remain in possession, and they can be removed after a vol- 
 untary surrender of the premises, or after a lawful evic- 
 tion from the same, only with the assent of the landlord" 
 {Allen V. Kennedy, 40 Ind. R., 142). 
 
 The Supreme Court of California, in a case decided in 
 1861,'laid down the rule that, as between landlord and ten- 
 ant, in the absence of anj^ agreement, the tenant has a right 
 to remove his fixtures during the continuance of the term, 
 and during such further period of possession by him, as he 
 may hold the premises under a right still to consider him- 
 self a tenant, but not afterward. That upon the expiration 
 of such term and possession, all fixtures and improvements 
 then upon the ground pass to the landlord. And it was 
 further declared that, if the lessee continues in possession 
 under a new lease, or a new contract of any kind, he holds 
 the fixtures under that new lease or contract as a part of 
 the landlord's freehold, and not as his own personal ^yo^- 
 ertj{3ferrltty. Jiidd, 14 Cal. R., 59). 
 
 In the absence of any express understanding between the 
 parties in respect to the removal of fixtures by the tenant, 
 it may, therefore, be stated, as the general doctrine of the 
 authorities, that, when the demise is specific as to the time 
 the tenancy will expire, the tenant must exercise his privi- 
 lege of removing his fixtures during the continuance of his 
 term ; or at the farthest, during the time that he is in posses- 
 sion of the demised premises, under a right still to consider 
 himself tlie tenant of his landlord. And if the tenant
 
 TIME OF REMOVING FIXTURES. 453 
 
 neglect to avail himself of his privilege within this period, 
 he is presumed to have voluntarily relinquished his claim to 
 his fixtures in favor of his landlord. 
 
 In cases where the term is of uncertain duration, as in 
 tenancies at will, and the like, the general rule is that the 
 tenant is allowed a reasonable time for the removal of his 
 fixtures, after the term shall have been terminated. When 
 the tenancy is required to be terminated by a notice from 
 the landlord as is the case, for example, by the statutes of 
 the State of New York, in tenancies at will, the tenant will 
 have until the expiration of the term under the notice, for 
 the removal of his fixtures ; and if they are not removed 
 within the time limited by the notice for the termination of 
 tlie demise, the law presumes them to be relinquished to 
 the landlord as in ordinary cases. Whenever a tenancy ter- 
 minable by the choice or election of the lessor is determined 
 by him without notice, the general understanding is that 
 the tenant will have a reasonable time after sucli determina- 
 tion of the term to remove his fixtures. Substantial justice 
 would require such a rule, and the law is expressly so held 
 with reference to tenancies at will, and it would seem equally 
 applicable to leases voidable for a breach of condition, and 
 avoided by a re-entry. No laches can be imputed to the 
 tenant in such cases for not availing himself of his privilege 
 during the term ; and certainly, in such cases, a gift to the 
 reversioner, cannot be implied. 
 
 And the general rule also is, that where the tenant quits 
 possession, or surrenders the premises unqualifiedly to his 
 landlord, without removing or reserving his fixtures, he is 
 understood to make a dereliction of them "to his landlord. 
 And the few cases in which the right of property in fixtures 
 has been held to remain unchanged after the termination of 
 the tenancy, and the surrender of possession of the premises 
 by the tenant, rest upon the particular attendant circum- 
 stances, and may be regarded as exceptional, and they do 
 not invalidate the general rule. 
 
 It lias been sometimes thought that the presumption of a 
 gift to the reversioner of the tenant, who fails to remove his 
 fixtures witliin the required period, has no reasonable foun-
 
 454 LAW OF FIXTURES. 
 
 dation, and may often be productive of considerable hardship 
 and inconvenience. It has been explained upon the prin- 
 ciple, that the tenant, by the very act of annexing a chattel 
 to the freehold, makes it a part of the reversioner's property, 
 and retains only a qualified right in it, viz., that of reducing 
 it again to a chattel state. The omission, therefore, to exer- 
 cise this right within the time limited by the law, is very 
 properly considered tantamount to an ex^Dress gift of the 
 fixtures to the owner of the land. 
 
 It need not be stated that the doctrine of the authorities, 
 upon the point under consideration, cannot apply to cases 
 where, from the construction of the property in dispute, and 
 its connection with the realty, it is not regarded a fixture at 
 all, but is considered in law to remain a mere chattel. The 
 tenant does not lose his property in his chattels, by neglect- 
 ing to remove them from the demised premises within the 
 time limited in case of tenant's fixtures. Such property, 
 though left uj)on the premises after the expiration of the 
 term, may be. reclaimed by the tenant, or recovered from 
 the landlord by action. 
 
 Finally, the authorities establish the reasonable doctrine, 
 that when the landlord interposes to prevent the removal of 
 the fixtures at the end of the term, by the service of an in- 
 junction, or a promise not to interfere with their removal at 
 a future time, or the like, he will not be allowed to take 
 advantage of his own wrong, and will be required to permit 
 the tenant to re-enter th^ premises for the purpose of taking 
 away his fixtures within a reasonable time after the obstacle 
 has been removed. 
 
 Mr. Moak in his notes to Sal/it v. Pi'Ile?/ (12 Bnff. Ji., 
 Moak's ed., 580), lays down the rule, that a tenant who 
 allows his own fixtures, which he has a riglit to remove, to 
 remain upon the demised premises until after the exi^iration 
 of his lease, does not ipso facto forfeit his title thereto. 
 And he adds that, although the tenant may be guilty of a 
 trespass in entering to remove them, the owner of the realty 
 cannot recover as damages the value of the fixtures or of 
 any part thereof. And this he thinks is the rule, even 
 thouo-h the tenant have taken a new lease after the erection
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 455 
 
 of the fixtures, unless it be apparent from the lease that fix- 
 tures to be annexed were intended to become a part of the 
 realty. But the better authority is adverse to the rule thus 
 broadly laid down, and in accordance with the principles 
 stated in the last preceding paragraphs. 
 
 CHAPTER XXXIII. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE IN 
 
 RESPECT TO THE RIGHT OF A TENANT IN HIS ANNEXATIONS ON THE 
 
 DEMISED PREMISES AS AFFECTED BY THE TERMS OF THE DEMISE 
 
 EXAMINATION OF ENGLISH AUTHORITIES UPON THE SUBJECT CON- 
 STRUCTION OF SOME WRITTEN DOCUMENTS. 
 
 The branch of the subject under consideration in the last 
 preceding pages, has been examined on the supposition that 
 there was nothing in the terms of the demise to control or 
 affect the tenant's right of removing his fixtures. But the 
 relative interests of the landlord and tenant with respect to 
 tlie removal of the fixtures put up by the tenant, may be 
 greatly controlled by the agreement of the parties. 
 
 It is a principle applicable to the law of fixtures, as well 
 as to every other branch of law, that individuals, on enter- 
 ing into a contract, may agree to vary the strict position in 
 which they would otherwise legally stand toward each other ; 
 provided always, no absurdity or general inconvenience 
 would result from the transaction. 
 
 " Modus et conventio vincunt legem " — manner and agree- 
 ment overrule law, is a maxim, the principles of which 
 apply as well to transactions between landlord and tenant, 
 as parties sustaining other relations. A tenant, therefore, 
 may be placed in a totally different situation, by reason of 
 the conditions of the demise under which he holds, from 
 that in which he might, in the absence of such conditions, 
 he regarded. The construction of the contract between the
 
 456 LAW OF FIXTURES. 
 
 parties in respect to the occupation of the premises, is often- 
 times tlie paramount consideration for counsel and judges 
 in forming their opinions relating to the fixtures comprised 
 or apparently comprised in the document or agreement, or 
 affected or apparently affected by it ; and it has been cus- 
 tomary for writers upon this branch of the law, to make the 
 existence or non-existence of such an agreement the princi- 
 pal criterion for the logical decision of their subject. The 
 authorities will show to what extent the tenant's privileges 
 in respect to his fixtures, may be affected in different cases, 
 by the terms of the lease under which the demised premises 
 are held. 
 
 To begin with the English cases upon the subject, an ac- 
 tion was decided by the Court of Common Pleas in 1807, 
 wherein it appeared that a defendant covenanted by his 
 lease that he would repair the demised messuage and prem- 
 ises, and all erections and buildings there already erected 
 and built, and also all other erections or buildings that 
 might thereafter be erected and built in or upon the said 
 premises. The action was brought upon this covenant, and 
 the breach assigned respected certain erections and buildings 
 which, during the term, had been raised upon the demised 
 premises by the defendant himself, as tenant and occupier 
 thereof. The buildings were let into and fixed to the soil, 
 and had been built for the pusposes of trade and manufac- 
 tures only. The defendant had removed the buildings, and 
 the question was, whether they were comprehended within 
 the terms of the covenant, and whether the tenant's right of 
 removal was restricted thereby. 
 
 It was contended by the defendant, that, since the buildings 
 were removable as trade erections, they could not be con- 
 sidered to fall within the restraining words of the covenant. 
 But the court held, that the parties were precluded from all 
 general argument respecting the right of removing fixtures 
 by the express words of the covenant. It was declared that 
 the court could not go out of the covenant, which, under 
 the general terms of erections and buildings, included erec- 
 tions and buildings raised for* the purposes of trade. If the 
 tenant meant to exclude buildings of this nature, the court
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 457 
 
 tliouglit the terms of the lease should have so expressed it. 
 An exception, however, from the terms of the covenant was 
 allowed in favor of trade in respect of such buildings and 
 erections as were to rest on blocks or patens imihout being 
 let into the ground {Naylor v. Colling e, 1 Taunt. H., 19). 
 
 The Court of King's Bench decided in 1812, that, when 
 the outgone tenant had covenanted with his landlord to 
 leave the manure made by him on the farm, and sell it to 
 the incoming tenant at a valuation, to be made by certain 
 persons ; the effect of such covenant is to give the outgone 
 tenant a right of on-stand for his manure upon the' farm ; 
 and the possession of, and property in it, remains in him in 
 the mean time ; and that, therefore, if the incoming tenant 
 remove and use it before such valuation, he is answerable to 
 the outgone tenant in trespass. 
 
 Lord Ellenborough, Ch. J., observed: "The outgoing 
 tenant being bound by his covenant not to carry away the 
 dung, which was his property, from off the premises, but 
 to sell it to the incoming tenant, for a price to be ascer- 
 tained in a certain manner, the effect of the covenant is, 
 that he must in the mean time have a right of on-stand on 
 the farm for it, till he can sell it to the incoming tenant ; 
 and the property must remain in him, to enable him to sell 
 it. * '^ * The covenant in question must be construed cum 
 sociis'' {Beatty v. Gibbons, 16 EasVs M., 116). 
 
 In 1825, the Court of Exchequer decided a case, in which 
 it appeared, that a lease was granted of certain premises on 
 which steam-engines, machinery, *and other fixtures em- 
 ployed in the raining and smelting trades, were erected. 
 These engines, and other fixtures were standing on the 
 premises at the date of the demise, but did not form a part 
 of the demise ; having been purchased by the lessee from 
 the outgoing tenant. Some other engines and fixtures 
 were put up by the lessee himself during the term. The 
 lessee covenanted to repair "all and every the said build- 
 ings, lands, mines and engines," &c., and to deliver up the 
 same in good repair; but the word "engine" was not men- 
 tioned in any previous part of the lease. It was also agreed 
 that in case the indenture of lease, or the mines and prem- 
 
 58
 
 458 LAW OF FIXTURES. 
 
 ises thereby demised, or any part thereof, should be ex- 
 tended or taken in execution, the terms should cease and the 
 lessor be at liberty to re-enter. The lessor covenanted that 
 the lessees might erect engines, &c., and might remove them 
 during the term, or within twelve months after ; as well all 
 such other engines as had theretofore been erected, "except 
 as in the cases and covenants thereinbefore mentioned." The 
 lease having been forfeited by the premises being taken in 
 execution under a writ of extent, it was held by the court, 
 that the lessee was precluded from removing any of the en- 
 gines and fixtures, and that the lessor was entitled to the 
 whole of them — on the ground that this appeared to be the 
 intention of the parties according to the construction of the 
 lease. And Alexander, Ch. B., observed, that if there had 
 been no pro^visions respecting the machinery, it might have 
 been taken away by the tenant, according to the general 
 rules ; but such rules were liable to be varied by agreement 
 of the parties ; and he thought that the terms of the inden- 
 ture showed it to be intended in this case, that in the event 
 that had happened, the lessor should iiave the fixtures as 
 well as the land and buildings {Hex v. Topping, 1 McClel- 
 land & Younge's R., 544). 
 
 In a case argued and decided before the King's Bench at 
 Nisi Prius, in 1818, it appeared that the tenant went into 
 possession of a house, under a lease, by which he cove- 
 nanted to repair and keep in repair, the premises and all 
 erections, buildings and improvements which might be 
 erected thereon during the term, and yield up the same in 
 good and sufficient repair at the end of the term. During 
 the term, the tenant had erected a verandah to the house, 
 the lower part of which Avas attached to posts which were 
 fixed in the ground. Abbott, J., before whom tlie cause 
 was tried, without entering upon the question whether, in- 
 dependently of the terms of the lease, the verandah was re- 
 movable, was of opinion that the structure fell within the 
 terms of the covenant, and that the tenant could not, there- 
 fore, remove any part of it {Peiiry v. Brown, 2 Sta7'Me\<i 
 JV. P.R., 403 ; ^S'. a, 3 Eng. C. L. P., 403). 
 
 A case was decided b}" the English Court of Common Pleas
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 459 
 
 in 1832, which turned upon the interpretation of covenants 
 in a lease. The action was covenant, and it appeared that 
 the plaintiff had demised a certain mill to the defendant for 
 a term of fourteen years, and that the defendant covenanted 
 to keep the premises in repair, and at the end of the term to 
 leave the said mill and premises so repaired, with all fix- 
 tures, fastenings, and improtjements during the demise 
 fixed, fastened, or set up, in or upon the premises. It also 
 appeared that the defendant had substituted two new 
 French millstones for two old ones which had been on the 
 premises at the commencement of the demise ; and that on 
 quitting the premises at the end of the term of the demise, 
 he took the new stones out and carried them away with 
 liim, and left in their place those which he found there on 
 entering. The lower of the stones was removed in and 
 fixed with mortar, and the upper one worked on its axis. 
 Evidence was given on the trial of a custom of the country 
 allowing the removal by a tenant, of such articles as the 
 millstones in question. 
 
 The court held, that, by the terms of the covenant, the 
 tenant was precluded from taking away the new stones. 
 The decision was put upon the ground, that the words 
 '' impromments, fixed, fastened, or set up," comprehended 
 alterations in the working part of the mill ; and the stones 
 were an improvement, and an essential part of the mill. 
 
 It was thought by the court, that, in the case at bar, it 
 made no difference, that it had been proved that it was the 
 general custom for a tenant to remove such stones. The 
 question was to be disposed of according to the terms of the 
 contract between the joarties. 
 
 Tindal, C. J., in deciding against the defendant's right of 
 removal remarked: "The question is, wdiat it was the 
 intention of the parties to include under the word iinprotie- 
 ments. The word must mean what was fixed to the prem- 
 ises. These stones had been fixed for ten years ; the lower 
 one rammed in, the upper one supported on its axis. * * * 
 The words of this covenant being contrary to the custom 
 may have been expressly adopted for the purpose of ex- 
 cluding it. A covenant must be taken most strongly
 
 460 LAW OF FIXTURES. 
 
 against the covenantor. We are of opinion, therefore, tliat 
 the defendant had no right to carry off these millsstones" 
 {Martyr v. Bradley, 9 Blng. ^., 24 ; >S^. C, 23 Eng. C. L. li., 
 349). 
 
 In another case decided by the same court in 1841, it ap- 
 peared tliat the plaintiff"' s testator was lessor for years of 
 certain tenants, and granted an underlease of the same 
 premises, or part of, them, to the defendant, who, on his 
 part, covenanted to repair the premises demised to him, 
 and all erections and improvements which should be erected 
 or made during the term of his underlease, and at the end, 
 or other determination of such term, to j)eaceably yield up 
 to the testator, his executors, administrators or assigns, the 
 demised premises, and all such future building or improve- 
 ments, together with the several fixtures enumerated in a 
 schedule, and together also with all wainscots, &c., &c., 
 and other things fixed or fastened, or which during the term 
 of the said underlease might be erected or set up in or upon, 
 or affixed or fastened to, the demised premises, or any part 
 thereof. The plaintiff brought the present action against 
 the defendant for an alleged breach of his covenant to re- 
 pair, and to leave the demised premises, and the future 
 buildings and improvements thereon, in repair, and for that 
 he suffered and permitted a certain erection and improve- 
 ment, to wit, a certain greenhouse, which during the term 
 of the said underlease had been erected upon the demised 
 premises, to be pulled down and prostrated, and the ma- 
 terials to be wholly removed from off the premises, contrary 
 • to the form and effect of his said covenant. The plaiutiff 
 appears to have recovered damages for the non-repair 
 almost as a matter of course, the disputed part of his case 
 being the alleged tortious removal of the greenhouse. The 
 greenhouse was built of wood on a frame fixed upon a 
 wooden plate, which was laid upon mortar placed and 
 bedded in the indents of a dwarf wall erected for the pur- 
 pose for the front and sides ; the back being formed by an 
 old wall ; no holes were made in any part of the walls, the 
 greenhouse being erected with a view to removal ; and was
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 461 
 
 removed before tlie expiration of tlie term, leaving tlie walls 
 and ground flues, and doing no injury to tlie premises. 
 
 Upon the trial before Tindal, C. J., it was left to the jury 
 to say, whether the greenhouse was an erection or improve- 
 ment within the meaning of the covenant, and whether the 
 plaintiff's testator had assented to the sub-tenant's claim to 
 remove it. The jury found for the defendant, and on a subse- 
 quent day, upon the hearing of a rule for judgment nan ob- 
 stante veredicto obtained by the plaintiff, Chief Justice Tindal 
 reversed the finding of the jury, upon the merely technical 
 ground, however, that the formal letter of license, not being 
 under seal, could not discharge an obligation contracted by 
 deed under seal, although if the lessee (the plaintiff' s testa- 
 tor) had himself occasioned the breach, he could not (nei- 
 ther could his executor) have taken advantage of it ; and 
 with, respect to the other point, the judges were unani- 
 mously of opinion that the greenhouse came within the de- 
 scription "erections and improvements" contained within 
 the covenant, a description which they thought had been 
 purposely adopted to exclude all question of fixture or no 
 fixture. It may be well enough to state, also, that two of 
 the judges expressed an opinion that, according to the con- 
 struction of the building in question, it became annexed to 
 the freehold ( West v. Blakemay, 2 Man. & Granger' sE., 729 ; 
 8. a, AO Eng. 0. L. R., 598). 
 
 And in another case decided by the same court in 1840, 
 under a covenant by the trade-lessee of a salt-spring to 
 leave the salt-works (which tlie same lessee had also agreed 
 to erect) in good repair at the end of his term, the court 
 held that the iron salt-pans as being parcel of the works, 
 were included, and were in consequence thereof become 
 practically irremovable by the tenant, although in their own 
 nature removable, Tindal, C. J., remarking in his judg- 
 ment in the case as follows: "If this had been the ordi- 
 nary case between landlord and tenant, as to the right of the 
 latter to remove fixtures or other things erected on the 
 premises, at the end of the term, Ave should have enter- 
 tained no doubt but that the salt-works had been removable 
 by the tenant, as well from the nature and description of their
 
 462 LAW OF FIXTURES. 
 
 annexation to tlie freehold, as upon the doctrine laid down 
 by Lord Mansfield in Lawton v. Salmon, that it would have 
 been a different question if the springs had been let, and 
 the tenant had been at the expense of erecting those salt- 
 works ; he might very well have said, ' I leave the estate no 
 worse than I found it.' That would be for the encourage- 
 ment and convenience of trade, and the benefit of the estate. 
 
 "But the question before us does not turn upon any gen- 
 eral rule of law, but upon the interpretation of a positive 
 contract into which the parties have entered with each 
 other ; and the point we have to determine is, whether un- 
 der that contract it was the intention of both parties that 
 the salt-pans should be left at the determination of the 
 term, or that the tenant should have the power to remove 
 them " {Mansfield v. BlacJchurne, QBing., N. C, 426 ; >S'. (7., 
 37 Eng. C. L. R., 442, 449). 
 
 A case was decided a number of years ago in the English 
 Court of Chancery in which a similar principle was recog- 
 nized as that enunciated in the case last cited. In the case 
 referred to, a lessee of a mill and steam-engine had cove- 
 nanted to repair, "reasonable wear, &c., excepted." Dur- 
 ing the term the lessee had substituted a new steam-engine 
 of greater j)ower, in lieu of the one which was on the prem- 
 ises when the lease was granted. .The Vice-Chancellor was 
 of opinion, that the right of the lessee was to be deter- 
 mined b}' the covenant in the lease ; that the substituted 
 engine was subject to the stipulation in the lease as to the 
 old engine ; and that the lessee was not entitled to remove 
 it {Sunderland v, Newton, 3 Sim. It., 450). 
 
 A case decided in the Court of Exchequer in the year 
 1844, affords a further illustration of the effect of the cov- 
 enants in a lease, upon the claim of a tenant in removing 
 fixtures of which a general description only is found in the 
 lease. The facts of the case are special, and may be col- 
 lected from the case itself, where they are stated at length, 
 and the description of the fixtures in question particularly 
 set forth. 
 
 The covenant in the case was to repair, and yield up in 
 repair, "the furnaces, fire-engine, iron- works, dwelling-
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 463 
 
 houses, and all other erections, buildings, improvements, 
 and alterations, except the iron-work castings, railways, 
 wimsejs, gins, machines, and the removable implements 
 and materials used in or about the said furnaces, lire-engine, 
 ii'onworks and premises." It appeared that the lessee had 
 built on the premises extensive iron-works, consisting, 
 among other things, of casting-houses, a forge and mill, 
 furnaces, blast fire-engines, boilers, gins, &c., houses, build- 
 ings, and sheds. 
 
 It was held by the court, that under the covenant stated, 
 the tenant was entitled to remove whatever was in the na- 
 ture of a machine or part of a machine, but not what was 
 in the nature of building or support of building, although 
 made of iron. And that, applying this rule, the tenant 
 was entitled to remove the blast, steam, or fire-engines, cyl- 
 inders, pipes, and apparatus connected therewith ; fur- 
 naces fixed in brick-work ; wrought iron boilers resting on 
 brick- work, and surrounded by flues and brick- work ; 
 boiler grates, consisting of beams of cast iron set in brick- 
 work, with bars, doors, &c., castings and iron-work of the 
 engines ; puddling furnaces, mill- furnaces ; gasometer and 
 other fixed property specified in the case, and of the same 
 nature with the steam or fire-engines. 
 
 On the other hand, it, was held that the tenant was re- 
 strained by the lease from removing (besides buildings) brick 
 pillars, or iron-work substituted for brick-work, such as 
 hoops, beams, &c., belonging to the furnaces; cast iron 
 columns for supporting buildings, &c.; such things not 
 being in the nature of machines or implements {Foley v. 
 Addenbrooke, 13 Mees. & Welsh. R., 174). 
 
 The doctrine was laid down in a case decided by the 
 Court of King's Bench in 1824, that a lessee would be re- 
 strained by a general covenant to repair for pulling down an 
 erection which he had made before the commencement of 
 his lease and during the time he held the premises under a 
 previous tenancy. So that an erection made during a pre- 
 ceding lease, supposing it might have been removed while 
 that lease continued, is no longer removable when the prem- 
 ises are conveyed to the same lessee by general words (as
 
 464 LAW OF FIXTURES. 
 
 for instance, land, premises, or buildings) in a subsequent 
 lease, although the latter contains only the common cove- 
 nant to repair. 
 
 The court also expressed the opinion in the case, that 
 perhaps no matter dehors the lease could be alleged to pre- 
 vent the covenant to repair from attaching ; and that, at 
 any rate, there appeared nothing sufficient for that purpose 
 in the particular facts before the court. The case is referred 
 to in a previous chapter upon another point, and the facts 
 are there more fully noticed. The building in question was 
 erected by an under-lessee of the tenant, which under-lessee, 
 as against his immediate landlord, could not remove it. 
 This, however, is not supposed to have affected the principle 
 enunciated, or the decision of the case {Thresher v. East 
 London Waterworks Company^ 2 Barn. & Cress, i?., 608; 
 >S^. a, 9 Bng. C. L. R., 198). 
 
 Again, in a case decided by the Court of Common Pleas 
 in 1852, which has been fully considered upon another 
 point, an ejectment was brought for the recovery of certain 
 premises, on the 8th of February, 1851, and on the 19th of 
 the same month, the defendants allowed judgment to go by 
 default, upon the lessor of the plaintiff entering into an 
 agreement as follows: "In consideration of Messrs. J, & 
 G. Barton (the tenants) not appearing to this action, I 
 hereby undertake not to issue a writ of possession until 
 after the 25th day of March next." The court held, that 
 the defendants were by this agreement precluded from re- 
 moving fixtures put up by them on the premises, in the 
 interval between the 19th of February and the 25th of 
 March ; the fair construction of the agreement being, that 
 the premises should be given up in the same state they were 
 in when the judgment was signed. 
 
 Williams, J., said: "I think it is quite impossible to 
 give this agreement any other meaning than that which was 
 given to an agreement about identical in terms with it, in 
 Fitzherhert v. Shaio. The defendants having consented 
 that judgment in the ejectment should be signed against 
 them, the usual conveyance followed, viz., that they re- 
 mained in as trespassers, subject to the plaintiffs undertak-
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 465 
 
 ing not to issue a writ of possession until a given day" 
 {Heap V. Barton, 12 Co7u. Bench R., 274; >S'. C, 74 Eng. 
 G. L. R., 273). 
 
 The case of Fltzlierhert v. Shaw, referred to by Williams, 
 J., in the case last cited, was decided by the Court of Com- 
 mon Pleas in 1789, and has been considered in a previous 
 chapter upon another point. It appeared in the case, that 
 the defendant had been holding certain premises from year 
 to year since 1765. In 1787, tliey were purchased by the 
 plaintiff, who, having given the defendant notice to quit, 
 afterward brought an ejectment against him to obtain pos- 
 session. In March, 1788, while the action was pending, the 
 parties entered into an agreement that judgment should be 
 signed for the plaintiff, but with a stay of execution till the 
 Michaelmas following ; and it was stipulated that the de- 
 fendant should remain in possession in the mean time. In 
 this agreement no mention was made of any buildings or 
 fixtures. Between the time of entering into the agreement 
 and the ensuing Michaelmas, the defendant removed several 
 things, which Mr. Justice Gould, at Nisi Prlus, considered 
 would have been removable during the tenancy ; but he 
 thought that, by the agreement, the parties had made a new 
 contract, which put an end to the term. And the court 
 decided, that without entering into the general question as 
 to the right to remove the articles as fixtures, the defendant 
 was precluded from taking them away by the fair interpre- 
 tation of the agreement ; from which it must be implied, 
 that he was to do no act in the meantime to alter the prem- 
 ises {-Fitz/ierberiv. Shaw, 1 H. Blade. R., 258). 
 
 In 1856, a case was decided by the same court, wherein it 
 appeared that, by indenture a landlord demised to his ten- 
 ant a messuage and premises for twenty-one years. The 
 lease contained a covenant to repair, and a covenant that 
 the tenant, his executors, administrators, and assigns should, 
 at the determination of the term, yield up the premises to 
 the landlord, his executors, &c., '^together with all wain- 
 scots, windows, shutters, fastenings, &c., and other things 
 which there were or at any time thereafter should be there- 
 unto affi^xed or belonging (looking-glasses and furniture ex- 
 
 59
 
 466 LAW OF FIXTURES. 
 
 cepted) ; and together also with all sheds and other erections, 
 buildings, and improvements which should be erected, built, 
 or made upon the demised premises, in good repair and 
 condition." An assignee of the lease, during the term, 
 removed an old shop window, and put up in its place a 
 plate-glass front, but without in any manner fastening it 
 (except by means of wedges) to the premises. The Court 
 of Common Pleas held that, whether an "improvement" 
 within the meaning of the covenant or not, this plate-glass 
 front was at all events a "window" belonging to the de- 
 mised premises, and therefore that it could not be removed 
 {Burtv. Haslett, 18 Com. Bench B., 162; S. C, 86 £J/ig. C. 
 L. R., 161). 
 
 A case was decided in the English Court of Chancery, in 
 1857, which was an application to reform a lease. It ap- 
 peared that an agreement had been entered into some time 
 in 1843 between the landlord and the intended lessee, for 
 the demise to the latter of a certain worsted mill or factory, 
 and the steam-engine and other engines, gas-houses, out- 
 buildings, and api)urtenances to the same belonging. The 
 lease to be for twenty one years reckoning from the 1st of . 
 May, 1841. The actual lease when drafted was found to 
 contain not only gas-houses specilied in the agreement, but 
 also certain "gas-works" not therein specified, which the 
 intended lessee had erected at his own expense some time 
 prior to the agreement, being retorts, and the like. The 
 application to the court was to strike out the word "gas- 
 works," but the Master of the Kolls said he could not change 
 the agreement by introducing exceptions in favor of the 
 lessee ; if the tenant did not intend these gas-works to have 
 been included, he should have expressly excepted them in 
 ,the agreement (r7^o?pe v. Milligan, 5 Weekly Reporter, 336). 
 
 Another case involving tlie rights of the parties under a 
 lease was decided by the Court of Common Pleas in 1858. 
 The case was this : By a lease, the lessee covenanted to 
 erect a steam-engine, machinery, and buildings proper for 
 carrying on the business of a shipwright, on the land de- 
 mised, and to leave tlie same for the lessees at the expiration 
 or other sooner determination of the term — "it being by
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 467 
 
 the said indenture declared tliat all steam and other engines, 
 machinery, &c., set up upon the premises at any time dur- 
 ing the term for the purpose of carrying on the trade of a 
 •shipwright, together with all fixtures, should not be re- 
 moved therefrom, but should, upon the expiration or other 
 sooner determination of the said term, belong to the land- 
 lord and not to the tenant, without any payment being made 
 to him for the same." The lease then went on to provide 
 "that the last-mentioned stipulation should not be con- 
 strued to apply to any machinerj^ or other articles which 
 might be erected or set up on the demised premises by the 
 lessee during the term, for any other purpose than that of 
 carrying on the business of a shipwright ; but that it should 
 be lawful for the lessee at any time during the term, or at 
 the expiration thereof, to remove and take away all such 
 last-mentioned machinery, &c., from the said demised 
 premises." The lease then contained a further proviso, 
 "that, in the event of the lessee becoming bankrupt, it 
 should be lawful for the lessors to re-enter, and upon such 
 entry to take possession of, have, &c., as their own prop- 
 erty, without paying any thing for the same, all steam and 
 other engines, &c., which should be found on the premises, 
 and which should be used or employed in or about the 
 business of a shij^builder thereon." The lessees having 
 become bankrupt, the lessors re-entered for the forfeiture. 
 The court held, that the assignees of the lessee were entitled 
 to enter for the purpose of removing the fixtures other than 
 those set up for the shipbuilding business, and to a reasonable 
 time for that purpose {Slaasjleld v. Mayor of Portsmouth, 
 4 Com. Bench E., N. S., 120 -,8.0., 93 hig'. C. L. B., 118). 
 In a case decided in the English Court of Chancery in 
 1867, it was held that looms put up by the lessee of a cotton, 
 mill for his convenience during the existence of his term, 
 and fastened to the floor by nails driven through the loom- 
 feet into wooden plugs fitted into the floor, are, thougli 
 easily movable without injury to the freehold, fixtures 
 which will pass under an assignment of "the mill, fixed 
 macliinery, and hereditaments, with all looms and other 
 machinerj', fixed or movable," without the necessity of
 
 468 LAW OF FIXTURES. 
 
 registering the assignment as an assignment of personal 
 chattels under the Bills of Sale Act in force in England 
 {Boyd V. Sherrock, 5 Bq. Cases, 72). 
 
 And finally, a case was decided in the same distinguished* 
 court in 1869, which turned upon the construction given to the 
 lease in respect to the removal of fixtures by the tenant. The 
 facts were these: An oil-refiner was lessee of premises at 
 North Woolwich for a term of ninety-nine years, from De- 
 cember 25, 1862, subject to certain covenants, the purport of 
 w^iich were : 
 
 (1). To complete certain partially-erected buildings and 
 to erect certain other buildings in a substantial manner, 
 and at a cost altogether of not less than £2,500. (2). To 
 keep in repair, and at the end of the term to deliver up 
 the same, together with all the doors, wainscots, dressers, 
 drawers, locks, keys, bolts, bars, staples, hinges, hearths, 
 chimney-pieces, mantel-pieces, foot-faces, slabs, wings, win- 
 dow-sashes, shutters, partitions, pumps, pipes, cisterns, 
 and other things, which then were or at any time should 
 be fixed or fastened to the freehold of the said premises 
 or belonging thereto. The defendants (who were an oil 
 refining company) became entitled at a date subsequent to 
 August 23, 1865, to the said premises for the residue of the 
 term then remaining therein, and subject to the same or 
 the like covenants, and the plaintiff at a still more subse- 
 quent date purchased the freehold interest therein subject 
 to the lease. The company's business proving unsuccessful, 
 they attempted to sell their interest in the lease, and did 
 actually sell some of the fixtures, in particular "some boil- 
 ers fitted with pumps and supported wdth brick-work," also 
 other machineiy fitted up in like manner, the removal of 
 which was impossible w^ithout displacing the brick-work, 
 and otherwise dismantling parts of the buildings. The 
 plaintiff accordingly applied for and obtained an injunction 
 against the removal of these particular fixtures ; and at the 
 hearing, upon motion for a decree. Lord Romilly, the Mas- 
 ter of the Rolls, delivered judgment to the following effect : 
 
 "It is admitted by the plaintifl' that the fixtures in dispute 
 are trade fixtures, and that as such they are removable by
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 469 
 
 the company, unless the company have contracted them- 
 selves out of their rights. The question turns upon the 
 construction of a lease. * * * These are, moreover, the 
 things which the company has undertaken to leave in re- 
 pair at the end of the term. In my opinion, the company 
 is not entitled to remove these articles. The question is one 
 of construction entirely, and not of common law" {Bidder 
 v. Tr'midad Petroleum Company^ 17 Weekly Reporter^ 153). 
 
 CHAPTER XXXIV. 
 
 LAW OF FIXTURES AS BETWEEN LANDLORD AND TENANT DOCTRINE' IN 
 
 RESPECT TO THE RIGHTS OF A TENANT IN HIS ANNEXATIONS ON THE 
 
 DEMISED PREMISES AS AFFECTED BY THE TERMS OF THE DEMISE 
 
 EXAMINATION OF AMERICAN AUTHORITIES UPON THE SUBJECT 
 
 CONSTRUCTION OF SOME WRITTEN DOCUMENTS EFFECT OF A CUSTOM 
 
 UPON THE QUESTION OF THE TENANt's FIXTURES. 
 
 The American cases upon the subject of the previous 
 chapter are quite as interesting and emphatic as those of 
 the English. In some of the cases the agreement has been 
 implied, but more generally it has been express. The doc- 
 trine, however, is clear, that, as between landlord and ten- 
 ant the whole subject of fixtures lies open to agreement, 
 and the parties may determine for themselves what shall be 
 fixtures and at what time they are to be removed. The 
 rights and duties of the parties in this respect, may be 
 moulded or controlled as in other cases by contract. Of 
 course, it is not pretended that the ordinary distinction be- 
 tween real estate and personal chattels, can in general be 
 changed by the convention of the parties. Thus, it would 
 not be competent for* parties to create a personal chattel in- 
 terest in a part of the separate bricks, beams or other mate- 
 rials of which the walls of a house were composed. But it 
 is otherwise with things which, being originally personal in 
 their nature, are attached to the realty in such a manner
 
 470 LAW OF FIXTURES. 
 
 that they may be detached without being destroyed or ma- 
 terially injured, and without the destruction of, or material 
 injury to the things real with which they are connected; 
 though this connection with the land or other real estate is 
 such that in the absence of an agreement or of any special 
 relation between the parties in interest, they would be a 
 part of the real estate. This distinction has been fully ex- 
 plained in another place, and the authorities hereafter con- 
 sidered will further illustrate it. 
 
 In a case decided by the Supreme Court of the State of 
 I^ew York in 1851, it appeared, that an agreement was made 
 between the lessor and lessee of certain premises, that any 
 buildings which such lessee or his under-tenant might erect 
 on such premises might be removed. During the term, an 
 under-lessee erected on the demised premises a barn or shed, 
 which, but for the agreement, as was contended, would have 
 been irremovable. The agreement in respect to buildings to 
 be erected, was by. parol, and the ground was taken on be- 
 half of the lessor, that it was void within the statute of 
 frauds. The court held that the statute had no application 
 to the case, because the agreement was not intended to secure 
 an interest in the land ; it did not authorize the erection of 
 the building in question ; this the tenant might do under 
 the authority of the lease. It was declared that aU that the 
 parol agreement secured to the tenant, "and all that was 
 intended by it was, that, having erected the building, he 
 might enter upon tiie land and remove it." This particular 
 act was all that the agreement contemplated. " It no more 
 granted an interest in the land than it would have done if 
 the owner had granted to the tenant permission to cut and 
 remove a tree." Upon this reasoning, the court held the 
 parol agreement a mere license and therefore valid ; and 
 hence justified the removal of the building in question, 
 assuming that the building was a fixture, and could only be 
 removed by virtue of some agreement; valid as against the 
 landlord ( Dubois v. Kelly, 10 Barb. B., 496). 
 
 The same court decided a case in 1856, wherein it ap- 
 peared that an under-lessee of demised premises erected a 
 building on the land, with the assent of his landlord, at his
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 471 
 
 own expense, for his own use, and with the declared intent of 
 removing it, when his occupancy of the land should termi- 
 nate. The foundation was to some extent imbedded in the 
 earth, but tlie building was not in any manner fastened to it 
 nor to the main building. The landlord had previously let 
 the same premises to one Hall, and in the lease there was a 
 covejiant by the lessee to leave on the premises, at the end of 
 his term, all trees, shrubbery, buildings, &c. In the lease 
 subsequently executed by the landlord to the original les- 
 see, in this case, the lessee agreed to lease and rent the de- 
 mised premises, with all the privileges belonging thereto, 
 "as enjoj^ed by Hall." 
 
 The court held, that the building in question was the 
 property of the under-lessee who erected it on the premises, 
 and that he had the right to remove it away when his ten- 
 ancy expired. It was also held that the reference to the 
 former lease to Hall was for the purpose of defining the 
 privileges intended to be conferred by the new lease, and did 
 not relate to the performance of covenants by the lessee ; 
 and that consequently the clause did not operate to prevent 
 the lessee or his sub-lessee from removing a building erected 
 by him upon the demised premises {Omhony v. Jones, 21 
 Barb. R., 520). 
 
 The case was taken to the Court of Appeals, and the same 
 construction was put upon the terms of the lease as in the 
 Supreme Court. 
 
 Comstock, J., in his opinion, said : "Barmore was a ten- 
 ant at will under Wynant, who had a lease of the premises 
 for five years. Wynant was the successor to one Hall, who 
 had held a lease for the same term of time, but had surren- 
 dered it. In Hair s lease there was a covenant that he would 
 leave on the premises all trees, buildings, &c., which he 
 might put thereon during his term. In the lease of Wy- 
 nant, immediately following the description of the prem- 
 ises, are the words : ' With all the privileges thereto 
 belonging, or enjoyed by said Hall.' On the part of the 
 defendant, it is claimed that these words subjected Wynant 
 to the covenant of Hall not to remove erections put up 
 during the term, and on this ground that the building now
 
 472 LA W OF FIXTURES. 
 
 in question, erected by Barmore, the under-tenant of Wy- 
 nant, became immovably attached to the soil. Without 
 examining to see whether the under-tenant would stand, in 
 this respect, in the same situation as Wynant, we are of 
 opinion that the words quoted do not have the effect of in- 
 troducing into the lease of the latter the covenants contained 
 in the prior one given to Hall. These words are descriptive 
 of the premises and privileges to be enjoyed. It would be 
 giving a very enlarged, and, I think, a very loose construc- 
 tion, to regard them as imposing burdens, while professing 
 only to grant benefits. To allow them such a force and 
 meaning, would be to reject a construction which is natural 
 and obvious, and to adopt one, which, to say the least, is 
 remote and hazardous" {Ombony v. Jones .^ 19 N. Y. R.^ 
 234, 237, 238). 
 
 In 1854, the Court of Common Pleas of the city of New 
 York, decided a case involving the construction of a lease re- 
 specting the tenant's fixtures, and the effect of a con- 
 ditional assignment of such lease in regard to the fixtures. 
 
 Upon a learned and elaborate opinion delivered by Daly, 
 J., in which Woodruff, J., concurred, it was held, first, that, 
 when buildings and fixtures, erected by a tenant upon land, 
 were designed for and adapted to machinery, to be moved 
 by water-power flowing over the land, the use whereof was 
 specially granted in the lease, these facts were of them- 
 selves sufficient to determine that an assignment by the ten- 
 ant of his interest in the lease to the owner, by way of 
 mortgage^ included the erections, together with the land. 
 And it was decided, that an assignment, by the lessee to the 
 lessor, of all the right, title, and interest of the former in 
 a lease, as collateral security for the payment of notes to ma- 
 ture before the expiration of the term, and also for the pay- 
 ment of any demands the lessor may, after such assignment, 
 have against the lessee for merchandise or otherwise, is not 
 a surrender of the lease and a merger of the term working 
 a dissolution of the relation of landlord and tenant. Such an 
 assignment, being not an absolute but conditional transfer, 
 subject to be defeated, before the expiration of the term, by 
 the performance of the conditions, is a mortgage. But,
 
 CONSTRUCTION OF LEASE AS TO FIXTURES 473 
 
 tliat an assignment of a leasehold interest carries with it 
 the unexpired term, and necessarily includes all erections 
 upon the land, whether for manufacturing purposes or 
 otherwise, unless it is apparent that such was not the inten- 
 tion of the parties to the assignment ; and that the facts 
 before stated were sufficient of themselves to show that such 
 erections were included. 
 
 And secondly, the doctrine was reiterated, that the law 
 favors the claim of a tenant to fixtures erected by him upon 
 the land for the purposes of trade and manufactures, and with 
 a view to their removal. And, as a matter of some interest, 
 it may be stated, that it was also held in the case, that a 
 sheriff's sale, under an execution, of an interest in a lease, 
 for a term of which more than five years remain unexpired, 
 and fixtures forming a part of a freehold estate, in the same 
 manner as is provided in respect to personal property, with 
 a notice of only six days, is void {Breese v. Bangs, 2 E. D. 
 SmiiJi's R., 474). 
 
 In 1861, the Supreme Court of the State of New York 
 ■ decided a case wherein it appeared, that the tenants erected 
 their fixtures under a lease which stated that the premises 
 were demised to be used as a soda, saleratus and drug factory, 
 with a steam engine and furnace. The court held that this 
 clause in the lease was designed to enable the tenants to in- 
 troduce their engine, and the necessary vessels and appa- 
 ratus into the building, and involved the right to make an 
 opening in the wall for that purpose if necessary. And 
 that the engine and other apparatus not being permanent 
 fixtures, and so annexed to the freehold, as between land- 
 lord and tenant, the property must make its exit the same 
 way as it made its entry. Upon this view of the case, an 
 injunction which had been granted to restrain the tenants 
 from removing the property in that manner was dissolved 
 {Kelsey v. DurJcee, 33 Barb. R., 410). 
 
 The Supreme Judicial Court of Massachusetts passed upon- 
 a case in 1867, which involved the construction of a written 
 document in relation to fixtures. The case was this : By 
 consent of A., who was a tenant for life of land, B. put a 
 dwelling-house and other buildings thereon for his own use. 
 
 GO
 
 474 LAW OF FIXTURES. 
 
 A. died, and B.'s wife thereupon became a tenant in com- 
 mon of the land. B. and his wife thereafter coiive}ed their 
 interest in the land, reserving the buildings, to C, who told 
 B., that the buildings might remain till he coukl have a 
 chance to dispose of or remove them. The other tenant in 
 common, by certain conversations, recognized the buildings 
 as B.'s personal property. B. then moved from the dwell- 
 ing-house, and nine days afterward sold the buildings to C. 
 The court held from these facts a jury might find that the 
 buildings passed to C. as personal property. 
 
 Wells, J., said: ^' Prima facie all buildings, and espe- 
 cially dwelling-houses, belong to the owner of the land on 
 which they stand, as part of the realty. It is only by 
 virtue of some agreement with the owner of the land that 
 buildings can be held by another party as personal prop- 
 erty, with a right of removal. * * * Day had no direct in- 
 terest in the land. His wife had a right, in the expectancy, 
 to one-fourth of the reversion ; but as that depended ujDon 
 her becoming heir of Eliza Howard, by surviving her, it was 
 a contingent interest only. * * * The evidence tended to 
 show that he j)laced the buildings upon the land with the 
 express consent of Mrs. Searles, the life- tenant, and with 
 the knowledge of one or more of the persons interested in 
 the remainder ; that he intended them for his own exclusive 
 use, and incurred all expenses of their construction. * * * 
 If Mrs. Searles had been owner of the fee, there would have 
 been no reason against holding the buildings to be the per- 
 sonal property of Day ; and as against her they would 
 undoubtedly have been so held. So far as it concerns the 
 one-fourth interest, which came to Mrs. Day after the death 
 of Mrs. Searles, the revocation in the deed from Day and 
 wife to Fessenden establishes conclusively the character of 
 the buildings as personal property " {Hoicard v. Ftssenden^ 
 14 Allen's R., 124, 128, 129). 
 
 In the year 1872, the same court decided another case, 
 in which it appeared that a lessee put furniture and fix- 
 tures into the demised premises, under an agreement with 
 the lessor that they should become the ])roperty of the 
 latter at the expiration of the lease. During the term, the
 
 CONSTRUCTION OF LEASE AS TO FIXJ'URES. 475 
 
 lessor gave a bill of sale of liis interest in tliem to a tliird 
 person. The court lield, that the lessee's right in the fix- 
 tures passed to such person by the bill of sale, and that 
 he could maintain an action for their conversion after the 
 expiration of tli« lease. 
 
 Morton, J., said: "The agreement between Hatch and 
 Wilcox and the defendant is not fully stated in the bill of 
 exceptions. But it seems that the evidence tended to show 
 that, in consideration of enjoying the leased premises, the 
 billiard tables and other property put into the rooms 
 by the defendant were to become the property of Hatcli 
 and Wilcox at the end of the term. Under such agree- 
 ment the defendant could not rightfully remove or dis- 
 pose of the property, but Hatch and Wilcox had a vested 
 interest in it which would ripen into a perfect title by the 
 lapse of time. It is true that a man cannot sell personal 
 property in which he has no interest. A mere possibility, 
 coupled with no interest, is not the subject of sale, and 
 would not pass by a bill of sale. But if he has a present 
 interest in the property sold, a sale of it is valid. Low v. 
 Pew (108 Mass., 347), and cases there cited. 
 
 "The interest of Hatch and Wilcox in the property in suit, 
 therefore, passed to the plaintiff by the bill of sale, and on. 
 October 1, 1870, the title became perfect in him, and he 
 could maintain this suit for a subsequent conversion" 
 {Thrall v. Mil, 110 Mass. Ji., 328-330). 
 
 And in 1874 the same distinguished court decided still 
 another case, involving the construction of a lease, wherein 
 it appeared that lessees of a mill covenanted to "deliver" up 
 the premises and all future erections and additions to or 
 upon the same" at the end of the term, "in as good order 
 and condition as the same now are or may be put by the 
 lessor. ' ' The lease was for a term of years to begin at a 
 future day. When the lease w^as made, glass in some of 
 the windows was broken. I^ew glass was put in by the 
 lessees before the term began, in consideration of being 
 allowed by the lessor to occupy part of the premises in the 
 mean time. The court held that the lessees were bound to 
 pay for glass which was brok^'U during the term of the
 
 476 . LAW OF FIXTURES. 
 
 lease ; but that they were entitled to remove all machinery 
 in the nature of trade fixtures or personal property put in 
 during the term, notwithstanding the covenants in the lease. 
 
 Gray, C. J., said : " The right of a tenant to remove trade 
 fixtures may doubtless be qualified by the covenants in the 
 lease. But we are of opinion that the covenant to deliver 
 up in good order 'all future erections or additions' to or 
 upon the premises is limited, in purpose and effect, to new 
 buildings erected or old buildings added to -p- putting sucli 
 erections and additions upon the same footing, in respect of 
 the obligation to keep in repair, as the buildings upon the 
 premises at the time of the execution of the lease ; and 
 cannot be extended so as to deprive the tenants of the right 
 to remove trade fixtures, much less personal property, put 
 by them upon the premises during the term" {Holbrook v, 
 ChamherUn, 116 Mass. M., 155, 162). 
 
 A case was decided by the Supreme Court of Errors of 
 Connecticut in 1868, which has a bearing upon the subject 
 now under consideration. A barn was erected by the owner 
 of the soil, under an agreement with his tenant that the 
 latter should occupy it at a stipulated rent so long as he 
 owned the land on which it stood, and that whenever he 
 should sell the land such tenant should have the barn at a 
 stipulated price and remove it. The owner of the land 
 afterward sold the land to a tliird party, by an absolute 
 deed, duly recorded, but under a parol agreement that the 
 barn should not go with the land. The tenant paid his 
 landlord for the barn and the landlord's grantee agreed to 
 let it stand on the land for an agreed rent for the use of the 
 land. During the pendency of this state of things and 
 while the tenant was occup3dng the barn, the grantee of the 
 original landlord sold and conveyed the land to a party 
 who had no knowledge of the agreement with the tenant, 
 or of his claim to the barn. 
 
 The court held, first, that the original agreement under 
 which the barn was occupied by the tenant with the right 
 to purchase it, did not render the barn personal property, 
 and second, that the last grantee of the land on which the 
 barn stood, took the barn as a part of the realty. Stress
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 477 
 
 was put upon tlie fact that the last grantee was a bona fide 
 purchaser for .value of the lot on which the barn was 
 erected, without any knowledge of the equities between 
 the other parties in respect to the barn. The record showed 
 a clear unincumbered title in the last grantor, and it ap- 
 peared to the court that the grantor had a right to rely 
 upon the title thus shown {Lartdon v. Piatt, 34 Conn. Ji., 
 517). 
 
 The Supreme Court of Maine held in 1866, that, when 
 chattels are so far annexed to the freehold as to become fix- 
 tures, they pass to a grantee of the l^nd unless expressly 
 excepted in the conveyance ; but that, if the grantee was 
 aware that the fixtures had been annexed by a lessee then 
 in possession, he would acquire no right by the conv"eyance 
 to prevent the removal of them by the lessee before the ex- 
 piration of his lease {Davis v. Buff urn, 51 Maine R., 160). 
 
 The Supreme Court of Ohio decided a case in 1861, where- 
 in it appeared that a tenant for years of arable land, hold- 
 ing under a tenant for life, built a barn and other structures 
 thereon, for farming purposes, under an agreement with his 
 landlord that he should have the privilege of removing the 
 same. The court held that such agreement could not so 
 bind an infant remainderman as to entitle the tenant to re- 
 move the structures after the termination of tlie life-estate. 
 The agreement was binding upon the tenant for life, and so 
 long as his estate continued, the tenant was at liberty to 
 remove his structures as provided by the agreement ; but 
 his privilege of removal did not survive the termination of 
 the life-estate {HaflicJc v. Stoher, 11 OMo N. 8. R., 482). 
 
 The Supreme Court of Indiana held in 1857, that fixtures 
 left by the tenant at the expiration of his term, will be pre- 
 sumed to have been abandoned, but that the presumption of 
 abandonment may be rebutted by proof of an oral agree- 
 ment, by which tlie tenant was to have the right of removal 
 at a subsequent day ; recognizhig the doctrine that this 
 whole subject of the time within which the tenant will have 
 the privilege of his fixtures may be regulated by the agree- 
 ment of the parties ; that is to say, provided the rights of
 
 478 LAW OF FIXTURES. 
 
 third parties do. not contravene {McCracJcen v. Hall, 7 Ind. 
 JR., 30). 
 
 The Supreme Court of Pennsylvania decided a case in the 
 year 1858, which has been before referred to, wherein it ap- 
 peared that a party covenanted to erect a steam saw-mill on 
 the land of another, and to manufacture lumber therewith 
 out of logs to be furnished by the ow-ner of the land, during 
 a period of live years, at the end of which time, it was 
 agreed that tlie mill and buildings should belong to the 
 owner of the land, and the machinery to the other party. 
 The court held that,. under this agreement the party who 
 erected the machinery was bound to exercise his privilege of 
 removing his machinery during the term, the same as is the 
 rule in ordinary cases as between landlord and tenant {Omr- 
 ton V. Wllliston, 31 Peiin. R. , 155). 
 
 And in a case decided by the same court in 1861, referred 
 to in a preceding chapter, where by the terms of a lease it 
 was provided, that if the lessee should cease mining opera- 
 tions for twelve consecutive months, it should become void, 
 the entry of the lessees from time to time to clean and 
 grease an engine which had been erected on the premises 
 and used in mining, after the suspension of operations for 
 twelve months, the court held was not a continuance of 
 mining operations, within the terms of the lease, and would 
 not prevent a forfeiture ; and by reason of such forfeiture, 
 the tenant lost the right to remove his fixtures from the de- 
 mised premises [Davis v. Moss, 38 Penn. R., 346). 
 
 And still later, in 1869, the same court decided a case, 
 which depended more especially upon the construction given 
 to a lease. It appeared that a tenant covenanted to make 
 additions and improvements " of a permanent character," to 
 the value of $1,500, and 'Ho introduce machinery necessary 
 to his business — the permanent additions and improve- 
 ments to remain on the property at the expiration of the 
 lease and to belong to the owners of said premises." The 
 tenant put up machinery upon the premises at his own e: 
 pense for his own use and convenience, which, in tl 
 absence of special agreement, would be regarded as trad^ 
 fixtures. The court held that the machinery was the prop-'
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 479 
 
 erty of the tenant, and might he removed from tlie demised 
 premises during the term, and the same was subject to sale 
 on an execution against the tenant and to removal by the 
 purchaser during the term. 
 
 Agnew, J., delivered the opinion of the court, and said: 
 " It is a familiar principle, and the authorities cited abun- 
 dantly show, that a tenant who erects fixtures upon leased 
 property for the benefit of liis trade or business, may 
 remove them from the demised premises within his term. 
 And where the tenant has the right to sever and retain them 
 they are liable to be seized and sold in execution and 
 secured by the purchaser. The Judge at JVisl Prlus so 
 lield and the plaintiff recovered. The tenant's right in this 
 case depends on the terms of his lease. He covenanted to 
 make alterations, additions and improvements of a perma- 
 nent character to an extent of $1,500. These 'permanent 
 additions and iw/proDements he undoubtedly covenanted 
 that his landlord should retain at the expiration of the 
 lease. He also covenanted to introduce machinery neces- 
 sary to the purposes of his business as a manufacturer 
 of hosiery, and the evidence shows that he had to put in 
 a boiler, engine, shafting, &c., in order to carry on his busi- 
 ness. But there was no covenant that any of this ma- 
 chinery should be. retained by the landlord. A building 
 twenty-four feet wide, sixty feet long, and three stories 
 high, costing $2,200, Avas put up by the tenant, and was 
 evidently a permanent improvement which satisfied the 
 covenant to suffer such additions and improvements to 
 remain. That a boiler and engine put up by a tenant are 
 movable fixtures, is beyond doubt. * * * There being 
 nothing in the lease to enable the landlord to claim the 
 boiler, engine, shafting, &c., put in by the tenant, the title 
 remained in the tenant at tlie time the execution \evied. 
 The plaintiff seems to think that the covenant to introduce 
 machinery suitable to the tenant's business gave the land- 
 lord a title. But clearly in the presence of an express cove- 
 nant to leave to the landlord only the permanent additions 
 and improvements to be made agreeably to a specification 
 and plan to be approved by the landlord, no inference can
 
 480 LAW OF FIXTURES. 
 
 be drawn that the tenant was to leave also his machinery 
 and other things introduced for the effectual prosecution of 
 his business as a manufacturer" {Ilei/ v. Bru7ier, 61 Penn. 
 B., 87, 90, 91). 
 
 A case into which an agi'eement prominently entered, was 
 decided by the Supreme Court of the United States in 1864, 
 and should be briefly set forth in this chapter. Premises 
 in the city of Chicago were let to a tenant for twelve years, 
 for a stipulated rent, and the lessee also covenanted to pay 
 all taxes and assessments levied on the demised premises 
 during the term, with the right of re-entry by the landlord 
 in case of failure ; and the lessor bound himself by the lease 
 to pay his tenant, on the efflux of the term., for buildings 
 erected on the premises by the tenant, or to grant him a 
 renewal of the lease. The tenant took possession under the 
 lease, and erected a brick structure or storehouse on the 
 premises, after which the lease became forfeit for non-pay- 
 ment of rent ; whereupon the tenant insisted that he was 
 entitled to have the building on the demised premises ap- 
 praised under the terms of the lease, and the value paid to 
 him. The court held that the landlord was not bound to 
 pay for the building, because the lease was determined by 
 non-payment of rent before the efflux of the term. 
 
 Miller, J., said : "The well settled rule is, that such erec- 
 tions as this become a j)art of the land as each stone and 
 brick are added to the structure. * * * Tlie contract before 
 us was not intended to change this rule. The agreement to 
 purchase means nothing more than that, in a certain event, 
 the lessor will pay the lessee the value of such building, but 
 there is no implication of any general title or ownership in 
 the lessee apart from that event. This contingency has not 
 occurred, and that it can never occur is the fault of the 
 plaintiff and his assignor. This observation is also applica- 
 ble to the supposed hardship of taking the building, the 
 product of the plaintiff's money and labor, without compen- 
 sation. It is from plaintiff's own default that the right to 
 do this arises. He had his option to pay the rent due de- 
 fendant, and retain the right to payment for his building 
 when the time should arrive, or to give up. his building, and
 
 CONSTRUCTION OF LEASE AS TO FIXTURES. 481 
 
 with its loss relieve Mmself of the burden of paying rent. 
 He chose the latter with full knowledge, and there is no in- 
 justice in holding him to the consequences of his choice. 
 
 "The covenant for/e-entry provides that, in default of 
 payment of rent, the lessor may enter ' and the said prem- 
 ises repossess and enjoy, as in his first and former estate.' 
 
 " The plaintiff insists that the building is no part of such 
 former estate, and defendant therefore, does not become its 
 owner by virtue of the re-entry. We have already shown 
 that the building does become a part of the land as it is 
 built. No such meaning was ever before attached to the 
 use of the word estate in a legal document. It is used in 
 reference to the nature of defendant's interest in the prop- 
 erty, and not to the extent of improvements on the soil. 
 As if the lessee had a fee simple estate, it reverted to him 
 again as a fee simple. If he had a term for years, he was 
 in again as part of his term. But it had no relation to the 
 question of whether that estate might be more or less val- 
 uable wlien repossessed, or might bring to him more or less 
 buildings. We hold, then : 
 
 "1. That without the aid of a special contract, the law 
 infers no obligation on the landlord to pay his tenant for 
 buildings erected on the demised premises. 
 
 " 2. That treating the parties to this suit as standing in the 
 places of the original lessor and lessee, no obligation arises 
 from the contract in this case, that the lessor shall purchase 
 or pay for the building erected on said premises, except as 
 an option, to be exercised at the end of each period of ten 
 years. 
 
 "3. That the act of defendant in re-entering and possess- 
 ing himself of the premises for plaintiff's failure to pay rent, 
 imposes upon him no obligation to pay plaintiff the value 
 of the building" {Kutter v. Smith, 2 Wallace's M., 491, 
 499, 500). 
 
 From the discussion, therefore, as a whole, it is apparent 
 that a tenant may, by the special terms of his agreement, 
 not only vary his rights as to the description of articles he 
 is entitled to remove, but may enlarge the time for their 
 removal, and subject himself to greater restrictions, or 
 
 61
 
 482 LAW OF FIXTURES 
 
 secure to himself greater privileges in the ultimate disposi- 
 tion of tliem, than would attach to him merely as tenant. 
 
 Indeed, it seems to be decided that a tenant may, by the 
 terms of his holding, acquire an almost unlimited right to 
 remove things which he affixes to the freehold. It cannot 
 be said, to be sure, that the fact of agreement or no agree- 
 ment is the paramount criterion in all cases whatsoever, but 
 perhaps in the great majority of modern cases, the agree- 
 ment is practically the primary, and in many cases the only 
 consideration. The law is well settled, that a lessee cannot 
 take buildings and fixtures placed on a lot by express 
 agreement that the lessee may place them there ; although, 
 as a rule, the correspondence or non-correspondence of the 
 particular fixture to the quality of the inheritance, whereby 
 it becomes, or does not become, chemically united with it, 
 and in a manner absorbed into and lost in it, is always to be 
 taken into the account, 
 
 B}^ entering into special conditions in the temis of the 
 lease, the parties entirely change the situation in which they 
 would stand toward each other from the mere relation of 
 landlord and tenant. And it is not unusual to insert clauses 
 in leases for removing fixtures, merely for the sake of avoid- 
 ing disputes in regard to it. And in all these cases, the 
 claims in controversy cannot be determined by the law of 
 fixtures, but resolve themselves into questions of construc- 
 tion ; in which the point for determination is, whether the 
 propret}^ in dispute falls within the terms of the agreement, 
 exception or proviso. 
 
 It has been sometimes suggested that an established cus- 
 tom of a particular place or district in respect to fixtures, as 
 between landlord and tenant, would operate in the same 
 manner as a contract which specifically relates to them. 
 And it would seem that in some of the older cases respect- 
 ing the tenant's annexations, a custom was allowed to be 
 given in evidence for the purpose of determining the ques- 
 tion of the movability, or non-movability of a particular 
 fixture. But the same class of fixtures have been deter- 
 mined b}^ modern decisions in accordance with the ruling in 
 the old cases, without proof of any custom. So that it may
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 483 
 
 be matter of uncertainty, whether, at the present time, the 
 old doctrine in respect to the effect of custom, as between 
 landlord and tenant, will be recognized at all, as applicable 
 to the case of fixtures ; while, in respect to other questions, 
 claims between landlord and tenant are often determined m 
 the light of some particular custom. Clearly, however, a 
 custom will not be permitted to affect any question between 
 landlord and tenant, when it is opposed to the express words 
 of an agreement. 
 
 CHAPTER XXXV. 
 
 LAW OF FIXTURES AS BETWEEN THE PERSONAL REPRESENTATITES OF 
 TENANTS FOR LIFE OR IN TAIL AND THE REMAINDERMAN AND RE- 
 VERSIONER — RULE IN RESPECT TO ANNEXATIONS PUT UP FOR TRADE, 
 OR FOR TRADE COMBINED WITH OTHER OBJECTS — EXAMINATION OF 
 THE AUTHORITIES UPON , THE SUBJECT — DOCTRINE OF THE CASES. 
 
 The next subject of discussion in the order proposed is 
 that of fixtures as between tenants for life, or their personal 
 representatives, and the remainderman or reversioner ; or 
 rather the relative interests of fliese parties in respect of 
 things which have been annexed to the freehold during the 
 particular estate. Upon this subject, it may be affirmed, 
 that the right to disannex personal chattels affixed by a 
 tenant for life or in tail to the freehold, as against the re- 
 mainderman or reversioner is considered more favorable for 
 executors than in case of the heir of tenant in fee and ex- 
 ecutor. In fact, the rule between these parties rests much 
 upon the same ground as between landlord and tenant ; for 
 tlie tenant for life should have at least the same rights which 
 any other tenant has to hold any thing of a personal nature 
 temporarily affixed to the freehold which he did not intend 
 should constitute a permanent fixture, the removal of which
 
 484 LAW OF FIXTURES. 
 
 could be eifected without essential injury to the permanent 
 structures on the land. 
 
 Questions respecting the right to fixtures between the par- 
 ties now considered do not so frequently arise as between 
 ordinary landlords and tenants, and cases involving these 
 questions are not of frequent occurrence. And yet the de- 
 cisions are sufiiciently numerous to settle the rules appli- 
 cable in such cases, and some of these decisions have already 
 been referred to upon other points, and are of considerable 
 importance. 
 
 In the case of Laicton v. Lawton (3 Atk. H., 13), before 
 Lord Chancellor Hardwicke, it was determined that a fire- 
 engine or steam-engine erected in a colliery by a tenant for 
 life, should be considered personalty, and go as assets to his 
 executor, and that the remainderman should not take it as 
 part of the real estate. The nature of the erection has been 
 fully described in a preceding chapter. 
 
 Lord Hardwicke, in delivering his Judgment in the case, 
 observed : "It does not appear in evidence that, in its own 
 nature, the fire-engine is a personal movable chattel, taken 
 either in part or in gross, before it is put up ; but then, it 
 has been insisted that fixing it, in order to make it work, is 
 properly an annexation to the freehold. * * * It is true, 
 the old rules of law have indeed been relaxed, chiefly be- 
 tween landlord and tenant, and not so frequently between 
 an ancestor and heir-at-law, or tenant for life and remainder- 
 man. But even in these cases, it does admit the considera- 
 tion of public conveniency for determining the question. 
 
 "One reason that weighs with me is, its being a mixed 
 case, between enjoying the benefits of the land and carrying 
 on a species of trade ; and considering it in this liglit, it 
 comes very near the instances, in brew-houses, &c., of fur- 
 naces and coppers." His Lordship then proceeds to point 
 out the analogy of the case of landlord and tenant, and says 
 that in the reason of the thing, the situation of tenant for 
 life comes near to that of a common tenant, where the good 
 of the public is the material consideration. And he remarks, 
 that the indulgence resembles, in its princij^le, that of einble- 
 ments^ where the chief consideration is the benefit of the
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 485 
 
 kingdom. And lie tlien concludes his judgment: "It is 
 very well known that little benefit can be made of coal mines 
 without this engine ; and tenants for lives would be dis- 
 couraged in erecting them, if they must go from their repre- 
 sentatives to a remote remainderman, when the tenant for 
 life might possibly die the next day after the engine is set 
 up. These measures of public henefit and convenience weigh 
 greatly with me, and are principal ingredients in my present 
 opinion." 
 
 In this case the application to the court was made on be- 
 half of a creditor of the deceased tenant for life. Upon this, 
 Lord Ilardwicke observed, that the court could not construe 
 the fund for assets further than the law allowed, but would 
 do it to the utmost they could in favor of creditors. Prob- 
 ably, however, this circumstance made no difference in the 
 nature of the question. 
 
 Another important case came before Lord Hardwicke a 
 few years after the former decision, which has also been re- 
 ferred to in a preceding chapter, and is similar to the case 
 of LaiDton v. Laioton in about every respect. The facts of 
 the case were briefl;y these : Lord Dudley died intestate, 
 seised either as tenant for life or in tail (it did not appear 
 which) of an estate on which he and his father, who was 
 tenant in tail, had erected certain fire-engines for the pur- 
 pose of working certain collieries ; and the personal repre-, 
 sentative filed his bill against the defendant, who was the 
 remainderman of the estate to have the fire-engines delivered 
 up as ])art of the personal estate of Lord Dudley ; and the 
 question, so far as it affects the point under consideration 
 here, was, whether fire-engines of this nature, erected by a 
 particular tenant or by tenant in tail, are to be considered 
 as part of the owner's real or personal estate. 
 
 The Lord Chancellor, after speaking of the rule as to 
 principal and accessory, says : "The case being one between 
 executor of tenant for life or in tail and remainderman, is 
 not quite so strong as between landlord and tenant, yet the 
 same reason governs it if tenant for life erect such an engine. 
 In Lawton v. Laioton it was determined it should go to ex- 
 ecutors, partly on reasons there mentioned, and partly on
 
 486 LAW OF FIXTURES. 
 
 tlie authority of the cider-mill case. The case of Laioton v. 
 Lawton was the case of creditors, but that makes no differ- 
 ence, because the question is whether part of the real or 
 personal estate. If it is so in the case of tenant for life, Qucere., 
 How it would be in the case of tenant in tail 'i Tenant in 
 tail has such a particular estate, though somewhat higher 
 than tenant for life. In the reason of the thing there is 
 no material difference ; the determinations have been from 
 considerations of the benefit of trade. A' colliery is not 
 only an enjoyment of the estate, but in fact carrying on 
 a trade. The reason of emblements going to the executor of 
 a particular tenant holds here, to encourage agriculture. 
 Suppose a man of indifferent health ; he would not erect 
 such an engine at a vast expense unless it would go to his 
 famil}^ It is no argument to say the colliery could not be 
 worked without these engines ; they are of late invention, 
 not above forty years ago. Here were colleries worked be- 
 fore. They may be more beneficially worked than without 
 them." 
 
 The decree in the case, therefore, was, that the fire-engine, 
 erected by the testator, should go as assets to the executor 
 {Lord Dudley v. Lord Warde, Amblef s R. 113). 
 
 In the determination of each of the cases of Laioton v. 
 Lawton., and, Dudley v. Warde., Lord Hardwicke expressly 
 declared that his judgment was partly founded on the au- 
 thority of the case of the cider-mill decided by Ch. Baron 
 Comyns, referred to in a previous chapter, the inference 
 from which would be that a cider-mill set into the ground 
 may be deemed part of the personal estate of a tenant for 
 life or in tail. 
 
 The doctrine laid down by Lord Hardwicke in these cases, 
 has been recognized and confirmed by subsequent authori- 
 ties. Thus, in the "case of Lawton v. Salmon., Lord Mans- 
 field, after speaking of the exception to the old rule of law in 
 favor of the tenant against his landlord, observed : "There 
 has been a relaxation in another species of cases, between 
 tenant for life and remainderman, if the former has been at 
 any expense for the benefit of the estate, as by erecting a 
 fire engine, or any thing else by which it may be improved.
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 487 
 
 In sucli a case it has been determined tliat the fire-engine " 
 shall go to the executor, on the principle of public conven- 
 ience ; being an encouragement to lay out money m improving 
 the estate which the tenant would not otherwise be disposed 
 to do " (Lawton v. Salmo7i, 1 //. BlacJc. R., 260, in notis). 
 In like manner, Lord Kenyon, in PentoJi v. Bohart, be- 
 fore referred to, speaks of an exception having been allowed 
 in favor of the personal estate of tenants for. life or m tail. 
 He savs • "And some of the cases have even gone further in 
 favor of the executor of tenant for life against the remainder- 
 man, between whom the rule has been holden stricter for it 
 has been determined that the executor of tenant for life was 
 entitled to take away the fire-engine of a colliery" {Penton 
 V. Bobart, 2 Basfs B., 91). . ^ ., d ka\ 
 
 \nd in the great case of Mwes v. 3faw, (3 Bast s B, 54), 
 LordEllenborough speaks of the different classes of per- 
 sons between whom questions respecting the right to what 
 are ordinarily called fixtures principally arise, anc^ places 
 heir and executor in the first class, and lays down the rule 
 applicable in such cases. He then proceeds: 2dly be- 
 tween the executor of tenant for life or in tail and the 
 remainderman or reversioner, in which case the right to 
 fixtures is considered more favorably for ^^'f^^ors than m 
 the preceding case between heir and executor. And his 
 Lorclship cites the before mentioned cases, and enters into 
 a particular explanation of the principle on which he con- 
 siders them to have been decided. 
 ■ The natural conclusion to be drawn from these cases is, 
 that fixtures of the description of those in question are to be 
 considered, in consequence of their relation to ^J^^^^J^^^^ 
 nature of personal chattels; that when set up for the pur- 
 pose of en oying the profits of the land and carrying on a 
 trade they ire^o be considered as a mixed case, and shall 
 pTss to L executor; that they hold a strong analogy to 
 Ce cases which have arisen between landlord and t^^^^^^ 
 and which establish the exception to the general lule, quid- 
 ^L plantains solo, solo credit, in favor of fixtures set up 
 for the purposes of trade. Lord Hardwicke compared he 
 cases before liim to the familiar instances m which the right.
 
 488 LAW OF FIXTURES. 
 
 of removal liad been allowed to common tenants on the par- 
 ticular ground of trade. And lie says that a colliery is not 
 only an enjoj'ment of the estate, but in part carrying on a 
 trade. And further, he calls it a mixed case, between en- 
 joying the profits of land and carrying on a species of trade. 
 This is also the view which Lord Ellenborough takes of 
 these cases. 
 
 These authorities establish the fact that there are two 
 classes of fixtures which form part of tlie personal estate of 
 a tenant for life or in tail, and which are excepted out of the 
 general rule in favor of the inheritance, on the ground of 
 public benefit or convenience. These two classes of fixtures 
 correspond, in respect of their total or partial relation to 
 trade, to those fixtures which have been hereinbefore shown 
 to be removable between landlord and tenant. Many of the 
 older authorities consider the working of mines and collier- 
 ies in equity as a species of trade. And Lord Ellenborough, 
 in the great case of Elwes v. Maw, treats the exceptions 
 referred to as resting on the ground, that trade is a matter 
 of a personal nature ; and therefore, whatever is accessory 
 to trade ought itself to be deemed personalty. Lord Hard- 
 wicke also speaks in his judgment of the encouragement to 
 be afforded to tenants for life in the general improvement 
 of their estates. 
 
 But it must be recollected that in the application of any 
 princij)le established by these cases, the particular state of 
 facts must not be lost sight of as a principal ingredient in 
 arriving at any thing like a correct conclusion. It should 
 be ascertained, therefore, whether the removal of the par- 
 ticular chattel would damage the estate ; whether the inher- 
 itance can be enjoyed without the chattel ; whether the 
 chattel forms the principal or accessory ; and other points 
 which a careful consideration of the judgment these cases will 
 suggest. For, although the consideration of trade, as con- 
 ducing to the public benefit, was the substantial ground uj^on 
 which the fire-engines, in the case before Lord Hardwicke, 
 cases were deemed personalty, yet his Lordship mentions 
 several other reasons in support of the executor's claim. 
 Thus, he adverts to the nature of the engines, as being raov-
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 489 
 
 able chattels in possession in part before tliey were put up ; 
 and he compares tliem in this respect to the ordinary uten- 
 sils of a brew-house. It had been objected in argument, 
 that as the fire-engines were annexed to certain sheds, the 
 sheds ought not to be injured by taking away the accessorial 
 engines ; and in answer to this objection, his Lordship relies 
 on the circumstance that the colliery could be enjoyed with- 
 out them ; so that it was only a question of majus arid 
 minus^ whether it was more or less convenient for the col- 
 lieries. He admits, also, that it is a general maxim, that the 
 principal thing shall not be destroyed by taking away the ac; 
 cessory ; and says that it did not affect the question before 
 him, because the engines were the principal, and the walls 
 and sheds over them the acessories. Evidently, therefore. 
 Lord Hardwicke considered, that if the removal of the erec- 
 tions would have occasioned any substantial damage to the 
 estate, or if they had been so far essential to the enjoyment 
 of the land, that the inheritance could not have subsisted 
 without them, the executor would not have been entitled to 
 them, but they must have gone to the remainderman as par- 
 cel of the freehold. 
 
 In the application, then, of the general principle, as recog- 
 nized in the cases considered, the particular state of the 
 facts was much relied upon by the court. And in a case 
 decided by the English Queen's Bench in 1866, Mr. Justice 
 Blackburn cites approvingly Lord Campbell' s observations 
 in Martin v. Boe, heretofore referred to, viz.: "Where, 
 however, the cases between executors and tenants for life 
 and remainder are looked into, they will be found to turn 
 each on its particular circumstances, the character, the use, 
 the mode of attachment, the facility of severance, the in- 
 jury to the freehold by severance" {Parsons v. Hind, 14 
 'weekly R., 860). 
 
 It may also be observed, that in determining the cases 
 under consideration, the court took notice of the analogy of 
 corresponding claims, which had been the subject of discus- 
 sion between other parties. And these were supposed to 
 furnish a criterion for the decisions of like questions arising 
 between tenants for life, and those in remainder. In many 
 
 . 62
 
 490 -^^^^ ^^ FIXTURES. 
 
 instances tliis analogy would doubtless afford a safe mode 
 of determining whether an estate is to be deemed part of 
 the real or personal estate. But it must be borne in mind 
 that in resolving questions of fixtures according to this 
 method, it is very necessary to attend to the distinction 
 which is supposed to exist, or to the degree of favor with 
 which the law regards the claims of some individuals over 
 those of others. 
 
 It was said by the court in an early case, decided by 
 the Supreme Judicial Court of Massachusetts, that "there 
 3eems to be no doubt, that according to the later decisions 
 in England, and several cases in our own books, a tenant 
 for life, years, or for will, may at the expiration of his es- 
 tate remove from the freehold all such improvements as were 
 erected or placed there by him, the removal of which will 
 not injure the premises or put them in a worse plight than 
 they were in when he took possession" {Whiting v. Bras- 
 iow, 4 PicTc. R., 310, 311). 
 
 Of course, there is a want of legal accuracy in saying that 
 tenants for life may remove any thing from the freehold at 
 the expiration of their estates. The estate of a tenant for life 
 terminates with his life ; but the doctrine is, that the tenant 
 for life may remove ordinary tenant's fixtures during his 
 life, and his executors or administrators may remove them 
 at his death. That is to say, such is the doctrine of the de- 
 cision in Wliiting v. Brastoio, and the rule in respect to the 
 removal of fixtures as between landlord and tenant for years, 
 or at will, is there declared to be extended to cases of ten- 
 ancies for life. It is a remark, however, often met with in 
 the judgment of the court, that questions relating to fix- 
 tures between the representatives of tenant for life or in tail, 
 and the remainderman, are to be construed less liberally 
 than in the case of a common tenant and his landlord. 
 
 The Supreme Court of Pennsylvania has held, that fix- 
 tures erected by a tenant, which he is entitled to remove, 
 must be removed during the life of the lease ; and that this 
 rule applies more strictly between a tenant for life, or his 
 lessee, and the remainderman ( White v. Arndt, 1 Whart. B., 
 91). And the doctrine of several of the cases is, that the
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 491 
 
 personal representatives of a tenant for life, may be entitled 
 after his death to the fixtures which he has erected in his 
 lifetime, as against the remainderman, although it is said 
 that the exception to the general tule in respect to fixtures, 
 as between tenant for life and those in remainde;:-, who stand 
 in distinct and independent attitudes, has a limited range, 
 tliougli wider than in cases between executor and heir. Lord 
 Campbell, in sj)eaking of the right of a tenant for life in his 
 work on fixtures, says : "When the latter annexes any thing 
 to the freehold or in any way meddles witli it, he annexes 
 to or meddles with that in which some other person or per- 
 sons has or have at the moment an existing interest which 
 may be increased or decreased in value by what he does, 
 and which the law will protect" {Martin v. Jioe, 7 Ellis & 
 Blackburn's R., 237, 247 ; S. C, 90 Eng. C. L. Ji., 236, 246). 
 The American editors of Smith' s Leading Cases, observe : 
 "The right, title, and interest of the tenant in tlie premises 
 terminate absolutely upon his going out oJ^ possession at or 
 after the expiration of the term, and if he does not remove 
 the fixtures then, his subsequent entry under another de- 
 mise will not relate back to or revive a right which has been 
 forfeited by a failure to exercise it at the proper time. ■* * * 
 And such is, it lias also been said, the rule where the tenant 
 holds over under a new lease after the expiration or surren- 
 der of that under which he oiiginally entered. * * * It was 
 accordingly held in the State v. Elliott, that the owner of a 
 liouse is entitled to pursue a tenant, who has succeeded in 
 repossessing himself of fixtures, which he had left behind 
 him at the expiration of the term, and to retake them by 
 the use of such force as may be properly and justifiably 
 employed in the exercise of the common law right of re- 
 caption. The law was held the same in White v. Arndt (1 
 Wharton, 91) ; where it was decided, that a written agree- 
 ment between the owner of a life estate and a lessee for 
 3^ears claiming under him, for the removal of fixtures erected 
 during the term, cannot be enforced against those who are 
 entitled in remainder, because as a tenant for life is not en- 
 titled, in general, to remove fixtures himself, he cannot con- 
 fer that right on another. This case was cited and followed
 
 492 LAW OF FIXTURES. 
 
 in HaJlicTc v. Stoher (11 Ohio, N. S., 482), and the remain- 
 derman held not to be bound by the receipt of rent from the 
 lessee after the death of the testator for life, to comply with 
 the terms of a collateral* agreement between the latter and 
 the lessee, of which he had no notice when the payment was 
 made. In both these instances, however, the question arose 
 after the particular estate had expired ; and the lessee might 
 undoubtedly have removed the fixtures while the tenant for 
 life was alive, and before the remainder vested in posses- 
 sion. And it would seem that when the fixtures are of such 
 a nature that they might be removed independently of agree- 
 ment, a reasonable interval should be allowed for the pur- 
 pose after the lease is determined by the expiration of the 
 estate for life" (2 Smith' s Leading Cases, 1th Am. ed., 216). 
 Lord Hardwicke seems to treat the question of fixtures, 
 as between the representatives of tenants for life or in tail, 
 and the remainderman, in about the same light as between 
 landlords and t^iants for years : and there does not seem 
 to be any reported case, the determination of which has 
 proceeded upon a known or recognized distinction between 
 these parties. So that it cannot, upon authority, be affirmed 
 of any specific article, that it is removable as between ten- 
 ant and landlord, but that it is not removable as between 
 tenant for life and the remainderman. Lord Mansfield ap- 
 pears to consider that* the rule in respect of trade holds 
 equally in the one case as in the other. And yet, as a dis- 
 tinction has been often noticed by the highest authorities, it 
 has been well said, that it would be unsafe to disregard it 
 in practice. Although every thing which belongs to the 
 representatives of a tenant for life or in tail, on the ground 
 of its relation to trade, may be considered a fortiori re- 
 movable by a tenant against his landlord, a decision between 
 these latter parties must not be relied upon as forming a 
 conclusive ground of determination, where the claims of 
 the former individuals are in question. Nevertheless, from 
 tlie analogy which prevails between the two classes, it will 
 always be found useful, in determining the rights of tenant 
 for life or in tail, to consult any corresponding cases that 
 have been decided between a common tenant and his land-
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 493 
 
 lord. And in considering what particular description of 
 fixtures are removable and what not, it may be assumed 
 with some degree of confidence, that whenever, as between 
 landlord and tenant, a removal would be permitted, so it 
 would be in a similar case between the particular tenant's 
 representative and the reversioner. 
 
 The privilege of removal appears, in the cases considered, 
 to be limited to trade fixtures. It does not seem even to 
 have been extended further ; although it is not subject to 
 the condition that the privilege be exercised during the con- 
 tinuance of the particular estate. And the practical infer- 
 ence to be deduced from the observations made is, that in 
 ascertaining whether a particular article set up in relation 
 to trade, forms part of the personal estate of tenant for life 
 or in tail, the first inquiry will be, whether it is governed by 
 the case of the fire-engines, or that of the cider-mill, de- 
 cided between the executor and the heir of the deceased 
 owner in fee. The analogy of the difi'erent cases between 
 landlord and tenant may next be resorted to ; and in every 
 instance, the general principles of trade fixtures, as they 
 apply to each class of individuals, must be borne in mind. 
 And lastly, regard must be had to all these circumstances 
 arising out of each particular case, which have been specifi- 
 cally alluded to, when treating of the doctrine of fixtures 
 in the case of landlord and tenant, that is to say, regard 
 must be paid to considerations derived from the nature, 
 structure, and mode of annexation of the fixture. For, from 
 Lord Hardwicke's observations upon this subject, it will ap- 
 pear that, besides other considerations, the question whether 
 part of the real or the personal assets, may be materi- 
 ally affected by the nature and construction of the article, 
 its value to the inheritance, and the injury its removal will 
 cause to the estate*.
 
 494 LAW OF FIXTURES. 
 
 CHAPTER XXXVI. 
 
 LAW OF FIXTURES AS BETWEEN THE PERSONAL REPRESENTATIVES OF 
 TENANTS FOR LIFE OR IN TAIL AND THE REMAINDERMAN AND RE- 
 TERSIONER — RULE IN RESPECT TO ANNEXATIONS PUT UP FOR ORNA- 
 MENT OR CONVENIENCE EXAMINATION OF THE AUTHORITIES UPON 
 
 THE SUBJECT DOCTRtNE OF THE CASES RIGHTS OF TENANTS FOR 
 
 LIFE OR IN TAIL DURING THEIR OWN LIVES IN RESPECT TO FIX- 
 TURES RULE IN SUCH CASES IN RESPECT TO AGRICULTURAL FIXTURES. 
 
 The authorities examined in the preceding chapter relat- 
 ing to fixtures put up by tenants for life, or tenants in tail, 
 were decided upon the ground of an exception in favor of 
 trade. Articles of another description, affixed to the free- 
 hold by the same class of persons, may be considered in the 
 nature of personal estate, and removable by the personal 
 representatives of the tenant for life or in tail as against the 
 remainderman or reversioner. These are annexations put 
 up by the tenant for ornament and convenience or domestic 
 use, and the rule in respect to this class of fixtures must be 
 inferred from analogous cases, rather than from decisions 
 directly in point. 
 
 The exceptions to the old rule of law, qulnquid plantatur 
 solo, solo cedlt, iti favor of the executor of a tenant in fee- 
 simple, as against his heir holding with greater strictness 
 than in those cases where a dispute arises between the rep- 
 resentatives of tenant for life or in tail and remainderman 
 or reversioner, it may fairly be assumed that whenever the 
 executor would be permitted to remove fixtures set up for 
 the purpose of ornament and convenience or domestic use 
 as against his heir, so likewise would the personal represent- 
 atives of tenant for life or in tail as against the remainder- 
 man or reversioner. 
 
 It should be stated as a general jDroposition that the heir 
 of the tenant for life or in tail, can in no case have an inter- 
 est in the fixtures of his ancestor, as against the remain- 
 derman or reversioner, for the reason that the land in virtue
 
 RIGHT OF TENANT FOR LIFE IN FIXTURES. 495 
 
 of which the heir's claim (if he had any claim) would arise 
 has passed from him to the next in the succession, and this lat- 
 ter person becomes substituted for him, just as a devisee or 
 other successor might have been. And this substitution 
 having been once effected, the persons, the respective claim- 
 ants, namely, the remainderman or reversioner and the ex- 
 ecutor of the deceased tenant for life or in tail, appear as 
 volunteers equally as the heir and the executor in case of a 
 deceased lessee or owner in fee of land, the mitigation which 
 is allowed in favor of the executor in the case last men- 
 tioned, will also be allowed in his favor in case of the 
 tenant for life or in tail as against the remanderman or rever- 
 sioner, y^t with perhaps less indulgence ; for in this latter 
 case the executor's testator not having been himself the full 
 or sole owner of the land, or indeed the owner of it at all, but 
 holding rather in virtue of the ownership of the person who 
 erected the entail or settlement, would be obnoxious to the 
 rule, that "he who builds upon another man's ground, 
 knowing that it is another man's, must be taken to build 
 for the good of the land, and not for himself." 
 
 The claims of the personal representatives of tenant for 
 life or in tail, in matters of ornament and convenience or 
 domestic use, cannot be carried to any great extent upon 
 the authority of decisions between heir and executor. For 
 it will be found when the subject is examined, that the ar- 
 ticles which an executor of a tenant in fee has been held 
 entitled to take, as part of the personal assets, are of a pe- 
 culiar character, and possess little of the nature of a fixture. 
 These instances, therefore, only estabhsh an indulgence ex- 
 tending to things which subsist as complete chattels in 
 themselves, and which, having been put up as mere orna- 
 mental furniture, or for temporary domestic convenience, 
 are not united to the fabric of the building by any perma- 
 nent or substantial annexation. 
 
 The doctrine is illustrated in the decision of a case de- 
 cided in the English Chancery, in 1866, which has been re- 
 ferred to, wherein it was held, that, as between tenant for 
 life and remainderman, tapestry tixed as a covering for the 
 walls of a residence was an irremovable lixture. In the same
 
 496 LAW OF FIXTURES. 
 
 case, a part of the design of the house included some sculp- 
 tures, which rested in their places simply by their own 
 weights ; and it was held that they were fixtures, on the 
 ground that they were part of the architectural design of 
 the house, without reference to any question as to the 
 amount of annexation with the freehold. 
 
 Lord Komilly, V. C, said: "I should consider whether 
 they could not properly be removed, although fixed without 
 cement, and resting by their own weight alone. In such 
 case the question is not whether the thing itself is easily re- 
 movable, but whether it is essentially a part of the building." 
 
 Under the will of the original tenant for life in this case, 
 the succeeding tenant for life possessed the furniture and 
 the fixtures for his life. And the court held that by fixing 
 the tapestry and other articles to the freehold in the man- 
 ner intended by the former tenant for life he did not make 
 them irremovable fixtures {ly Eyncourt v. Gregory^ 15 
 WeeUy i?., Cli. 187). 
 
 The decision in the case last cited seems to have been 
 very carefully considered by the learned Vice Chancellor; 
 and the case may be taken as having decided the absolute 
 incapacity and want of right in the executor of tenant for 
 life as against the remainderman to efi'ect the removal of the 
 class of fixtures there in controversy, and it will be found 
 that in cases where the executor has been permitted to re- 
 move ornamental fixtures as against the heir, the fixtures 
 were very slightly affixed to the freehold, and were really 
 more in the nature of chattels than fixtures properly so 
 called. 
 
 It is very questionable whether it would be safe to con- 
 clude, that a matter of ornament -put up by a tenant for 
 life might be claimed as personalty by his executor, on the 
 ground that it would be a removable fixture' as between 
 landlord and tenant. The relaxation of the rule in favor of 
 the personal estate of the tenant for life, would probably, at 
 the present day, be carried no further than to the removal 
 of such annexations for ornament and convenience or do- 
 mestic use, as may be equally useful in other buildings, and 
 capable of being easily disunited, by which the premises
 
 * RIGHT OF TENANT IN TAIL IN FIXTURES. 497 
 
 will neither be injured nor left in a worse state than they 
 were in before the annexations were made. 
 
 In the absence of direct authority upon the subject, 
 cases respecting the right of the personal representatives to 
 things set up by tenants for life or in tail, which cannot be 
 brought within the class of trade fixtures, must in general 
 be left to be inferred from determinations between the heir 
 and executor of the owner in fee. And when none of those 
 determinations are in point, the question whether part of 
 the real or personal estate, must be examined with reference 
 to the general principles on which the exceptions in favor 
 of matters of ornament and convenience have been allowed 
 in other cases. And in the application of those principles, 
 it will alwaj^s be material to take into consideration the 
 manner in which the article is constructed and affixed, and 
 the injury which may be occasioned to the reversionary in- 
 terest by its removal. 
 
 Thus much in respect to the right of property in fixtures 
 after the death of a tenant for life, or a tenant in tail, and 
 the rules applicable to the claims of the personal represent- 
 atives of those individuals, as against the party who has 
 succeeded to the estate in reversion. It remains to inquire 
 briefly in respect to the privileges which the tenants them- 
 selves have in the things they annex to their own freehold, 
 and examine in relation to the distinction between the pow- 
 ers which they possess from the general principles of tenure 
 as incident to their articles, and those which they derive 
 under the law of fixtures. 
 
 And first, with respect to a tenant in tail. And what is a 
 tenant in tail ? In English law, a tenant in tail is one who 
 has lands, tenements or hereditaments, to hold to him and 
 the heirs of his body. Estates tail were introduced into 
 this country with the other parts of the English jurispru- 
 dence, and they subsisted in full force here before the 
 American revolution, subject equally to the power of be- 
 ing barred b}^ a fine or common recovery. But the doctrine 
 of estates tail, and the complex and multifarious bearing 
 connected with it, have become quite obsolete in most parts 
 of the United States. In most of the States, such estates 
 
 63
 
 498 LAW OF FIXTURES. • 
 
 have been abolished by statute, by being converted into 
 estates in fee-simple. In a few of the States, however, estates 
 tail have been retained, or were until a late period, if not in 
 vogue at the present time. 
 
 By reason of the nature of the estate of a tenant in tail, 
 and independently of the law of fixtures, a tenant in tail 
 may remove whatever he has affixed to the premises, with- 
 out reference either to the mode of annexation, or the pur- 
 pose for which it was put up. For a tenant in tail may 
 commit waste of every kind ; and a court of equit}^ will in 
 no case whatsoever restrain him by injunction. In Cruise's 
 Digest it is said : "That a tenant in tail having an estate of 
 inheritance has a right to commit every kind of waste, by 
 felling timber, pulling down lionse's, &c., and the power 
 must be exercised during life, for at the instant of his death 
 it ceases. If, therefore, a tenant in tail sells trees growing 
 on the land, the vendee must cut them down during the life 
 of the vendor, otherwise they will descend to the heir as 
 part of the inheritance" {Cruise's Digest, tit. 2, c7i. 1, § 32. 
 And vide Ploiod., 259 ; Liford's Case, CoJce's R., pt. 11, 
 p. 50, a). The rights which survive to the personal repre- 
 sentative of a tenant in tail, under the law of fixtures, are 
 very limited. But the same rule holds in the case of the 
 grantee of a tenant in tail, as in that of the tenant in tail 
 himself ; and if there be subsequent grantees, it applies to 
 them also. 
 
 But, as before observed, the right of a tenant in tail to 
 remove fixtures or annexations to the freehold, is quite in- 
 dependent of the law of fixtures, or their mode or purpose 
 of annexation. He derives his right from a power incident 
 to an estate in land, and not from the law of fixtures. 
 
 Secondly, with respect to a tenant for life, who is one who 
 holds, lands or tenements for the term of his own life, or for 
 that of another person, or for more lives than one. If he 
 holds for the term of any other person's life than his own, 
 he is called tenant j^^o-i^r auter me, but his rights in respect to 
 the estate, so long as the term lasts, is the same in the one 
 case as in the other. Estates for life are common in all of 
 the American States, as well as in England.
 
 TENANTS IMPEACHABLE OF WASTE 499 
 
 A tenant for life, unless expressly exempted by limitation, 
 is not permitted to commit waste of any kind, but is im- 
 peachable for it. Therefore, if glass windows, though put 
 in by the tenant himself, be broken or carried away, it is 
 waste. So it is of wainscot, floors, benches, doors, furnaces, 
 and the like, annexed or fixed to the house, either by the 
 reversioner or the tenant. And in Cruise's Digest, it is 
 said: "Although tenants for life are entitled to reasonable 
 estovers, yet they are prohibited from destroying those 
 things which are not included in the temporary profits of 
 the land, because that would tend to the permanent and 
 lasting loss of the person entitled to the inheritance. This 
 destruction is called waste" {Cruise's Digest, tit. 3, ch. 2, 
 § 13, 4:t7i edition). 
 
 It may be inferred, however, from the right which the ex- 
 ecutor of a tenant for life possesses after the tenant's death, 
 that the tenant for life is entitled during his life, to remove 
 the same description of things that his executor might claim 
 as part of the personal estate. Such undoubtedly is the 
 rule. And since the tenant for life is punishable for every 
 act of waste, it is apparent that his title to sever a thing 
 from the freehold cannot arise from a power incident to 
 Ms estate, but accrues to him by virtue of the law of fix- 
 tures only. 
 
 By the same method of reasoning the inference may be 
 indulged, that if a person is tenant pour aider me, he will 
 have all the rights after the death of the cestui que me, 
 that his own executor would have if he were tenant for his 
 own life. 
 
 But if the tenant for life holds his estate without impeach- 
 ment of waste, his situation is altogether different. How 
 the clause "without impeachment of waste" has been con- 
 strued by the courts, has been fully explained in another 
 place. In such a case the powers of the tenant for life are 
 much more extensive, and, like those of tenant in tail, arise 
 merely out of his estate. So that, whenever he severs a 
 thing from the freehold, he must be considered to do it by 
 virtue of a right quite independent of the law of fixtures. 
 Still, however, the interest of tenant for life loitliout im-
 
 500 LAW OF FIXTURES. 
 
 peac7i?ne?it, so far differs from that of tenant iu tail, that if 
 a case may be supposed where the removal of an erection 
 put up by the tenant for life , himself, would, from its 
 circumstances, amount to an act of malicious waste or 
 destruction, he probably would not be allowed to take 
 it away. 
 
 It should be explained, however, in a few words here, 
 what is the distinction between the rights which belong to a 
 tenant from his not being impeachable for w^aste, and those 
 which he derives from the law of fixtures. There have been 
 many important decisions upon the restraints imposed in 
 chancery, on the clause ^'without impeac'7i?ne?it of loaste.^'' 
 The distinction is pointed out by Lord Holt, where he ob- 
 serves, in reference to the taking of fixtures in execution, 
 that the case of a tenant for years without impeachment is 
 not like that of a common tenant. In the former case, he 
 allow^ed that the sheriff could not cut down and sell, though 
 the tenant miglit ; and the reason w^as, because in that case 
 the tenant had only a bare power without an interest ; but a 
 common tenant has an interest as w^ell as a power, as tenant 
 for years has in standing corn, in w^hich case, the sheriff 
 can cut down and sell {Poole s Case, 1 Salk. R., 368). 
 
 It is quite common in marriage settlements to make the 
 father tenant for life without impeachment of waste, and 
 sometimes the words with full liberty to commit waste, are 
 found in the instrument creating the estate. At common 
 law, the clause without impeachment of waste, only ex- 
 empted the tenant for life from the penalty of the statute, 
 the recovery of treble value and place wasted ; not giving 
 the property of the thing wasted. In one case, how^ever, it 
 was determined, that these words also pass the property 
 {Lewis BowWs Case, 11 Cokeys M., 79). 
 
 Lord Chancellor Hardwicke observed, in a case decided 
 by him in 1749 : "If tenant for life without impeachment 
 of waste pulled down farm houses, in general I should no 
 more scruple restraining him, than I should from pulling 
 down the mansion-house (only when he pulled down two to 
 make into one in order. to have the burden of one) ; if tend- 
 ing equally to the destruction of the thing settled. If there-
 
 TENANTS IMPEACHABLE OF WASTE. 501 
 
 fore, lie should pull up a wood settled, so as to destroy the 
 wood absolutely, I should restrain him" {Asto7iv. Asto7i, 
 1 Vese?/s JR., 264, 265). 
 
 But it was observed by Best, C. J., in giving the opinion 
 of the court in a case decided by the English Common Pleas 
 in 1825 : "A tenant who is not impeachable for waste, may 
 cut down all the timber on the estate, and the moment it is 
 severed from the ground he may convert it to his own use. 
 But a tenant without impeachment of waste, has no interest 
 in the woods while standing, nor can he convey any interest 
 in them to another. A tenant in tail is unimpeachable of 
 waste ; but if standing woods are sold by him, and they 
 are not cut down during his life, the property in them de- 
 scends with the estate, and the vendee cannot cut them. 
 The tenant in tail or other tenant unimpeachable of waste, 
 may give authority to cut down timber, but such authority 
 conveys no interest, and is revoked by the death of the per- 
 son by whom it was given, 
 
 "It may be said, that if a tenant unimpeachable of waste 
 might cut every tree on the estate, as the estate will sell 
 better with the trees uncut than when quite denuded of 
 timber, is it not for the advantage of the reversioner that 
 the tenant for life should give up his right of cutting the 
 timber, and be permitted to sell it with the estate ? Whether 
 this would be for the advantage of the reversioner must de- 
 pend upon many circumstances, such as the quantity of 
 the timber and the means which the tenant for life may have 
 of cutting it. He may die before he can cut the whole or a 
 considerable part, or even a high tre©»- ^ * * it is not fit, 
 therefore, that a tenant for life or trustees should be permit- 
 ted to do what may prejudice the reversioner without his 
 concurrence ; besides, in the sale of growing timber, trees 
 of the value of a shilling are included, and although a ten- 
 ant unimpeachable of waste would not be liable to any 
 action for cutting such small trees, a court of equity would 
 prevent him from taking such as were not ripe for cutting. 
 
 "The tenant unimpeachable of waste by selling the timber 
 standing, gets an advantage over the reversioner which he 
 otherwise could not be peimitted to obtain" {Cliolmeley
 
 502 LAW OF FIXTURES. 
 
 V. Paxton, 3 Binff. R., 207; 8. C, 11 Eng. C. L. R., 99, 
 101, 102). 
 
 It is clear that the severance by tenant for life of any 
 cliattel attached to the freehold would be waste ; from which 
 it w^oiild follow, that if he have any right to take any such 
 chattel away, the exception has been established by the 
 law of fixtures, as before observed, and not by any powder 
 incident to his estate in the land. In this respect the doc- 
 trine is different from that in regard to tenant in tail, for 
 the latter has the right to commit every kind of waste as an 
 incident to his estate in the land. 
 
 All erections connected with mills propelled by water- 
 power, including dams, w^ater-wheels, granaries, and ma- 
 chinery fastened to the ground or building, are prima facie 
 a part of the realty, and will pass to the remainderman as 
 between him and the tenant for life. 
 
 A tenant for life has but a special interest in the trees 
 growing on the land, so long as they are annexed to it ; and 
 if he or any other person sever them from the land, the in- 
 terest of the tenant for life in them is thereby obtained, and 
 they become the property of the owner of the inheritance 
 {Cruise's Digest, tit. 2, ch. 2, § 38 ; lb., tit. 3, ch. 2, §2). 
 
 The same rule is applied when the timber is severed from 
 the land by accident ; as when it was blown down, it was 
 deemed to belong to the first remainderman in tail {Newcastle 
 V. Vane, cited in 2 P. Wm' s R., 241). And it appears from 
 the case of Cliolmeley v. Paxton, and others which might be 
 cited, that a tenant for life is not entitled to the timber until 
 actually felled ; he cannot convey it to another, nor does an 
 authority by him given to another to cut down timber convey 
 any interesr, and if not executed in his lifetime, is revoked by 
 the death of the party giving it. And even the clause with- 
 out impeachment of w^aste is so far restrained in equity, that 
 it does not enable a tenant for life to commit malicious 
 waste so as to destroy the estate. 
 
 Woodworth, J., in delivering the opinion of the court in 
 a case decided by the old Supreme Court of the State of 
 New York in 1827, observed: "The more important ques- 
 tion is whether the" potash kettles, being affixed to the
 
 TENANTS IMPEACHABLE OF WASTE. 503 
 
 freehold, passed with the hind. If they did, the court erred, 
 luid the judgment must be reversed, unless the case falls 
 Avithin some of the qualilications or exceptions to the gen- 
 eral rule. That rule is well established ; whatever is af- 
 fixed to the freehold becomes part of it, and cannot be 
 removed. Exceptions have been admitted between landlord 
 and tenant ; between tenant for life or in tail and the re- 
 versioner ; yet the rule still holds between him and execu- 
 tor " {Miller v. Plumb, 6 Cow. i?., 665, 667). 
 
 And Hand, J., in a case decided by the present Supreme 
 Court of the State of New York, in 1850, said: "As be- 
 tween tenant for life and remainderman or reversioner, the 
 rule in favor of the realty is, as we have seen, somewhat 
 relaxed. And I am inclined to think that a tenant for life 
 who erects a fixture for the purposes of trade or manufac- 
 ture, has an equal right in respect to their removal, with a 
 tenant for years, though the cases have perhaps not gener- 
 ally gone so far. But this only applies to those fixtures 
 put up by the tenant. Thus in the leading case against the 
 remainderman {Lawioii v. Lawton, supra), engines in a 
 colliery, put up by the father of the tenant for life, were 
 considered realty" {Buckley v. Buckley, 11 Barb. R., 
 43, 61). 
 
 The rights of all other tenants for life, as in dower, by the 
 curtesy and the like, would seem to be governed by the 
 same rules with respect to severing chattels affixed to the 
 freehold as those which govern the rights of tenants for 
 life, or tenants for life without impeachment of waste. It is 
 understood that a tenant by the curtesy is punishable for 
 waste, like a common tenant for life ; and the same remark is 
 true with respect to a tenant in dower. That is to say, this 
 is the general rule, although it has been held in some of the 
 American States, that a tenant in dower cannot be made 
 liable in an action of waste. For example, such has been 
 !ield to be the law in Maine ; although it was declared that the 
 reversioner might maintain an action in the nature of waste 
 against the tenant in dower, to recover the damages of 
 actual waste ; but whether such an action would lie for per- 
 missive waste, the court doubted {F^mitJi v. FoUansbee, 1
 
 504 LAW OF FIXTURES. 
 
 Sltep. H.^ 273). A different policy however prevails in that 
 State at the present time {Stetson v. Day. 51 Maine It., 434). 
 And a contrary doctrine is recognized in New Hampshire, 
 and probably in most of the States ( Vide Fuller v. Was son, 
 7 JV. H. R., 841 ; Carr v. Carr, 4 Bev. & Batt. R., 179). 
 
 In the State of Vermont they have a statute expressly 
 prohibiting the tenant in dower from committing waste 
 {Gen. Stat., ch. 55, § 13). But it has been held by the Su- 
 preme Court of the State, that it is a sufficient compliance 
 with this statute if the tenant in dower conducts herself in 
 relation to the buildings, fences, and lands, as a prudent 
 man would with his own absolutely. And to the fact that 
 she permitted a little more hay and muck to be removed 
 than was replaced by manure returned, the court held that 
 the maxim de minimis, &c. applied {Harvey v. Harmy, 41 
 Yt. R., 373). And, as before suggested, as a general rule, 
 if the doweress do any act of a permanent injury to the in- 
 heritance, except to take her reasonable estovers, she is 
 guilty of waste, and may be proceeded against for the dam- 
 ages, or a court of equity will grant an injunction to re- 
 strain her from further damage ( Yide Tyler on Infancy 
 and Coverture, 628 et seq.). 
 
 It is obvious from this examination, that the privilege of 
 removing fixtures by tenants for life and in tail, and by 
 their personal representatives, after the determination of the 
 particular estate, does not arise out of the principle that 
 whatever a testator might have removed in his lifetime, his 
 executor is entitled to remove after his death. For it has 
 been shown, that the rights of tenants in tail, and tenants for 
 life, differ both in nature and degree ; whereas the rights of 
 their executors are in all respects similar. The distinction 
 seems to be, that in case of tenant in tail or tenant without 
 impeachment of waste, the testator removes articles affixed 
 to the freehold simply by reason of a jjower incident to an 
 estate in land ; whereas the right of the executor is commu- 
 nicated to him by the law, with a view to public benefit and 
 convenience. The analogy of the doctrine of emblements, 
 which is frequently of use in explaining the law of fixtures, 
 cannot be safely applied in this instance, or at least it would
 
 RULE AS TO ECCLESIASTICAL FLXTURES. 505 
 
 be calculated to mislead in cases of tliis kind. Emblements, 
 although annexed to and growing upon the land at the time 
 of the occupier's death, yet, as between the remainderman 
 and the representatives of the tenant for life, are consi- 
 dered as chattels, and pass as such. Whereas, annexa- 
 tions made to the freehold for strictly agricultural purposes, 
 cannot be removed from the soil upon the death of the ten- 
 ant for life, but must remain for the use and benefit of the 
 remainderman or reversioner. 
 
 In some of the States, as in Michigan, they have a statute 
 authorizing an action of waste by a reversioner against a 
 tenant for life who shall let or grant his estate, and still re- 
 tain possession and commit waste {Comp. Laws, § 4699). 
 But it has been held by the Supreme Court of the State, 
 that this provision of the statute does not apply to a tenant 
 for life who has so conveyed Ms estate and is out of posses- 
 sion {Beers v. Beers, 21 Mich. R., 464). And in New Hamp- 
 shire, it has been held that tenants for life are liable to the 
 reversioner or remainderman, for injury to the inheritance, 
 whether committed by themselves or a stranger, or by some 
 only of such tenants ; but until they have first satisfied the 
 remainderman or reversioner, for such injury, they are not 
 entitled to recover damages themselves, from the wrongdoer 
 ( Wood V. ariffin, 46 N. H. R., 230). 
 
 CHAPTER XXXVII. 
 
 LAW "OP FIXTURES IN RESPECT TO ANNEXATIONS PUT UP BY ECCLESIASTI- 
 CAL PERSONS — DOCTRINE RELATING TO DILAPIDATIONS IN CONNECTION 
 WITH SUCH PERSONS RULE IN RESPECT TO LAY DILAPIDATIONS. 
 
 TiiERE is another description of cases in which the right 
 of removing property annexed to the freehold occasionally 
 comes in question, and which seems to illustrate the rule 
 with respect to fixtures in cases of tenants for life. The 
 
 64
 
 50 G LAW OF FIXTURES. 
 
 class of cases referred to is tliat of persons holding ecclesi- 
 astical tenements and lands, or, as in England, persons hold- 
 ing ecclesiastical benefices. Strictly speaking, perhaps, tliere 
 are no ecclesiastical benefices in this conntry, in the nature 
 of those existing in England, and yet, in some of the Ameri- 
 can States they have a parish system, and a policy in respect 
 to parsonages and ministerial lands, which involve similar 
 principles as those which apply to ecclesiastical fixtures in 
 Great Britain. Besides, the claims arising between persons 
 holding ecclesiastical benefices in England and their succes- 
 sors, in respect to annexations made by them to the freehold, 
 resemble those which have been the subject of the last pre- 
 ceding chapters ; and for that reason alone, this class of 
 cases should not be entirely passed over. 
 
 The general subject of ecclesiastical dilapidations some- 
 times occupies a considerable portion of English works upon 
 fixtures, but it is not proposed here to devote but a brief 
 sjDace to its consideration, and only that branch of it which 
 tends to illustrate the doctrine of fixtures as between a cer- 
 tain class of persons common to this country. 
 
 Bishop Gribson in his Codex Juris EGclesiastlci Anglicani, 
 published some 160 year ago, in treating of dilapidations, 
 refers to a class of cases then recently decided, by which the 
 rights of tenants and reversioners in respect to fixtures put 
 up by the tenant had been discussed and determined, and 
 observes that "he sets them down as parallel to the dis- 
 putes which sometimes happen between succeeding incum- 
 bents and executors of their predecessors, as to what may 
 or may not be taken away, and how far the taking of them 
 away shall be accounted dilapidation" {Gibson's Cod. Jur. 
 Eccl.^ 752). And it is generally understood that there is an 
 analogy between the claim of a tenant for life in respect to 
 his fixtures as against the remainderman, and that of the 
 incumbent of an ecclesiastical benefice as ao:ainst his sue- 
 cessor, in respect to his annexations to the estate. 
 
 Lord Campbell, C. J., in delivering the opinion in a case 
 decided by the English Queen's Bench in 1857, observes: 
 "Messrs. Amos & Ferard, in their excellent book on the 
 Law of Fixtures {part 1, cli. 3, 34, p. 146, 2d. ed.), say :
 
 RULE AS TO ECCLESIASTICAL FIXTURES. 507 
 
 ' It may therefore, it is conceived, be laid down, that an in- 
 cumbent or his executor will, in general, be entitled to fix- 
 tures of the same description as those which form part of 
 the personal estate of the deceased tenant for life.' It may 
 be worth observing that there is a distinction between an in- 
 cumbent and ordinary tenant for life ; that the former has 
 at no time any reversioner with any present interest or rights, 
 whereas, when the latter annexes any thing to the freehold 
 or in any way meddles with it, he annexes to or meddles with 
 that in which some other person or persons has or have at 
 the moment an existing interest which may be increased or 
 decreased in value by what he does, and which the law will 
 protect. But neither the patron of the benefice nor the 
 future unknown successor has any such interest in the par- 
 sonage or glebe ; if any one can interfere it is the ordinary ; 
 and he not in respect of any interest vested in him, but to 
 advance the general public object of endowments to the 
 clergy. This seems a reason for enlarging the rule as be- 
 tween the executor and the successor, where the subject- 
 matter in dispute is not of a kind that can be considered as 
 inalienably attached to the benefice, as in such case there 
 would be no ground even for the interference of the ordi- 
 nary " {Martin v. Moe, 7 Ellis & Black. B., 237, 247 248 • 
 >S'. a, 90 Bug. a L. Ji., 236, 246). 
 
 The questions generally in dispute between ecclesiastical 
 persons, relate to matters of ornament or convenience erected 
 in the parsonage house, or other buildings on the land, by 
 the resident incumbent. And with respect to things of this 
 description, it is laid down by an eminent English author 
 upon ecclesiastical law, that "if an incumbent enter upon a 
 parsonage-house, in which there are hangings, gates, iron 
 backs to chimneys, and such like, not put there by the last 
 incumbent but which have gone from successor to successor, 
 the executor of the last incumbent shall not have them, but 
 it seeraeth they shall continue in the nature of heir-looms ; 
 but if the last incumbent fixed them there only for his own 
 convenience, it seemeth that they shall be deemed as furni- 
 ture, or household goods, and shall go to the executor" 
 {Btcrn's Ecc. Law, 304).
 
 508 LAW OF FIXTURES. 
 
 It was declared at a very early da}'- in England, that the 
 ornaments of a bishop's chapel are considered by the law as in 
 a manner fixed to the realty, and in the nature of heir- 
 looms. And on the vacancy of a see, they were held to 
 pass to the succeeding bishop, and do not belong to the ex- 
 ecutors of the deceased party, as in the case of other chat- 
 tels, the property of a sole corporation {Bishop of Carlisle's 
 Case, Year Book, 21 Edw. 3, 48; Cor mil's Case, 12 Coke's 
 M., 106). 
 
 This principle upon which questions respecting fixtures 
 are to be determined between successive incumbents of ec- 
 clesiastical lands is laid down in an important case decided 
 by the English Court of Common Pleas in 1849, when Pat- 
 teson, J., in delivering the judgment of the court, said-: 
 "The incumbent of a rectory is not precisel}^ in the situa- 
 tion of a particular tenant, because there is no person who 
 has the inheritance in reversion, but, the fee-simple of the 
 glebe being in abej^ance, the incumbent is in truth but ten- 
 ant for life ; and he or his executors are no doubt liable for 
 any waste committed. But, to constitute waste there must 
 be either, first, a diminishing of the value of the estate, or, 
 secondl}^, an increasing the burthen upon it, or, thirdly, an 
 impairing the evidence of title." 
 
 And the court held, that the executors of a rector are not 
 liable to an action on the case in the nature of waste, for 
 pulling down a building on the rector}^, and substituting 
 another in a different part, unless the value of the estate be 
 thereby impaired, the burthens upon it increased, or the 
 evidence of title impaired. Not, therefore, if the rector 
 suffers a farm building adjoining the rectory house to go to 
 decay, and in the meantime erects a better building for the 
 same purpose, a mile from the house, but in a situation 
 more convenient for the farming business, as carried on at 
 and from the time of the substitution ; although no faculty 
 or license be obtained for the alteration. 
 
 The court further held, that a cottage or farm building 
 placed upon the soil of a rectory or vicarage but not fixed 
 into the ground, and intended at the time of the erection to 
 be removable at will, may be removed without incurring
 
 RULE AS TO ECCLESIASTICAL FIXTURES. 509 
 
 liability for waste or dilapidation, although buts oVi which 
 it stands have, by the weight of the building, become im- 
 bedded in tlie ground to the depth of a foot (Huntley v. 
 Bussell, 13 Adolph. & Ellis' N. 8. H., 572; 8. C, 66 Eng. 
 C. L. R., 570, 588). 
 
 And in the case of Martin v. Roe decided by the Court of 
 Queen's Bench, it appeared that a rector had erected in the 
 garden of the rectory, apart from the rectory house, hot- 
 houses about seventy feet long and between ten and twenty 
 feet high ; consisting of a frame and glass-work, resting on 
 brick walls, about two feet high, and imbedded in mortar 
 on those walls ; and the court held that the rector, or his 
 executors in a reasonable time after his death, were entitled 
 to remove them, without incurring any liability as for either 
 dilapidation or waste (Jiar^wz v. Roe., 1 Ellis" & Black. R.., 
 237; 8. a, 90 Eiig. C. L. R., 236). 
 
 It is understood, when an incumbent voluntarily deter- 
 mines liis own interest, either by accepting a benefice, or by 
 resignation, that it may be concluded that he would not be 
 allowed afterward to remove his fixtures, on tlie same prin- 
 ciple that he is not in such a case entitled to emblements ; 
 although the lessee of the glebe of a parson wlio resigns is 
 in a difi'erent situation, for his tenancy is determined by the 
 act of another, viz., the parson, and he will, therefore, be 
 entitled to emblements {Bulwer v. Bulwei\ 2 Adolph. & 
 Aid. R., 470). 
 
 Perhaps, however, it may be thought that the right of 
 removal would not be altogether abandoned until the pos- 
 session of the fixtures is actually relinquished, in con- 
 formity with the doctrine laid down in the case of Penton v. 
 Rohart and other cases referred to in a previous chapter. 
 
 Dilapidation is a kind of ecclesiastical waste, and is de- 
 fined by an author to be "the pulling down, or destroying 
 in any manner, any of the houses or buildings belonging to 
 a spiritual living, or the chancel ; or suffering them to run 
 into ruin or decay ; or wasting and destroying the woods of 
 the church, or committing or sufl'ering any wilful Avaste in 
 or upon the inheritance of the church" {Degge' s Parson' s 
 Counsellor, 134). And Blackstone, in his celebrated Com-
 
 510 LAW OF FIXTURES. 
 
 mentarres, says, dilapidations are a kind of ecclesiastical 
 waste, either voluntary, by pulling down, or permissive, by 
 suffering the chancel, parsonage-house, and other buildings 
 thereto belonging to decay, for which an action may be 
 brought, either in the spiritual court by the common law, or 
 in the courts of common law (3 Black. Coin., 91). 
 
 The species of waste that constitutes dilapidation is such 
 as is committed to the rectory- house, lawns, outbuildings, 
 &c., belonging thereto, and to the woods, hedges and fences 
 of the same; as also to the chancel of the church. The 
 incumbents of ecclesiastical livings, being me*re tenants for 
 life, are under obligation to repair, and keep in a good and 
 efficient state, the houses, chancel of the church, glebe, or 
 other inheritance of the church, and so transmit them to 
 their successors ; for if it were otherwise, the benefice must 
 inevitably become deca3^ed, to the detriment, loss, and in- 
 jury of the successor or the patron, and the law therefore 
 casts upon the incumbent the obligation to do even ordinary 
 repairs. The peculiar nature of the incumbent's interest in 
 the living naturally places him under this obligation ; for if 
 he were not under the necessity of providing for dilapida- 
 tions, there is no other person who would, there being no 
 reversioner who could be called on for contribution. Be- 
 sides, he exercises a purely beneficial ownership over the 
 estate ; he has no liabilities in respect of either rent or cove- 
 nants ; and it is therefore but reasonable and fair that those 
 duties should devolve upon him. But his obligation is con- 
 fined to the things mentioned, and to fixtures and other 
 annexations which become part and parcel of the freehold ; 
 and, therefore, a neglect to cultivate the glebe land in a 
 husband-like manner, is held not to amount to dilapidation 
 {Bird V. BalpJi, 4 Barn. & Adolpli. R., 826 ; 8.C., 2^S:Eng. 
 C. L. R., 173). 
 
 In 1829, the English King's Bench considered the subject 
 of ecclesiastical dilapidations at length, and laid down the 
 rule, that an incumbent of a living is bound to keep the par- 
 sonage-house and chancel in good and substantial repair, 
 restoring and rebuilding when necessary, according to the 
 original form, without addition or modern improvement;
 
 RULE AS TO ECCLESIASTICAL FIXTURES. 511 
 
 but that lie is not bound to supj^ly or maintain any thing in 
 tlie nature of ornament, such as painting (unless that be 
 necessary to preserve exposed timber from decay), and 
 whitewashing and papering ; and that in an action for dilap- 
 idations against the executors of a deceased rector by the 
 successor, the damages are to be calculated upon this prin- 
 ciple ( Wise V. Metcalfe, 10 Barn. & Ores. H., 299 ; S. C, 21 
 ^ng. a L. 11., 84). 
 
 A very important case was decided by the English Court 
 of Common Pleas in 1868, which was very ably argued and 
 fully considered, and the opinion of the court contains 
 much valuable legal learning upon the subject of ecclesias- 
 tical dilapidations, and it may, therefore, be examined in 
 this place, and copious extracts from the opinion properly 
 inserted. 
 
 The action was brought against the personal representa- 
 tives of the Rev. James Adcock, deceased, rector of the 
 parish of Greatham, in the county of Lincoln, for dilapida- 
 tions by himself and his predecessors. The facts were in 
 substance these : 
 
 In the year 1793 a Local Enclosure Act was passed. By 
 the enclosure award, made in 1795, a gravel-pit situate in 
 the glebe, or adjoining thereto, was duly set out for the use 
 of the parish. After the award, the surveyors had for some 
 years exceeded the limits of the pit, by digging on the glebe. 
 Of these trespassers, Mr. Adcock, the deceased, incumbent, 
 had had no notice, and was entirely ignorant of them. Part 
 of them had been committed in Mr. Adcock' s time, viz., 
 from December, 1849, to May, 1863 ; but the greater part 
 had been committed during the incumbencies of his four 
 predecessors. The only contention before the court was 
 whether upon this evidence the defendant was liable. 
 
 Byles, J., delivered the judgment of the court, and after 
 referring to the facts, observed: "Two questions, therefore, 
 arise, —first, whether the defendant, the administrator of 
 Mr. Adcock, the last incumbent, be liable in this action for 
 the gravel dug in Mr. Adcock' s own time, —and, secondly, 
 whether he be liable for gravel dug during the incum- 
 bencies of Mr. Adcock' s predecessors, immediate or remote.
 
 512 LAW OF FIXTURES. 
 
 "In considering these questions, it is to be borne in mind 
 that the inquiry is not whether a rector can lawfully com- 
 mit or suffer such waste as is here charged and proved, but 
 only whether this action lies for that waste, at the suit of 
 his successor, against the personal representatives of the 
 deceased. An ecclesiastical corporation aggregate, like a 
 Dean and Chapter, might, it is said, at the common law, 
 until restrained by statute, have committed waste. But it 
 is plain that an ecclesiastical corporation sole having per- 
 petual succession, like a rector or vicar, cannot at common 
 law commit waste. He would be liable to a suit in the 
 Ecclesiastical Court, and he might, according to Lord Coke, 
 be liable to a prohibition from a superior court of law (see 
 authorities in Jefferson v. Bishop of Durham, 1 B. & P., 
 105, where, however, this court refused to issue a prohibi- 
 tion), as he might be restrained by injunction in equity, or 
 punished in the Ecclesiastical Court by deprivation. But, 
 whether his executors would be liable to his successor in 
 this form of action for such an injury as this, which does 
 not affect houses or buildings, or the chancel of the church, 
 or wells, or fences, and is an injury which cannot be made 
 good by any expenditure of the succeeding incumbent, is a 
 very different question. 
 
 " Serious and singular consequences might follow if the 
 remedy were extended beyond the ancient limits, of non- 
 repair to buildings and fences, and the executors of the 
 deceased incumbent were made liable for every species of 
 voluntary or permissive waste committed or suffered by the 
 testator or his predecessors. * * * The statutes of limitation 
 would afford imperfect protection, where there is a change 
 and succession of incumbents, because the neglect of a prior 
 incumbent to sue his predecessor is no answer in the case of 
 permissive and continuing waste. Moreover, in cases where 
 the complaint is the digging of minerals, the application of 
 the damages to the repair of the injury inflicted or permit- 
 ted, is impossible. • 
 
 "From this impossibility flows another consequence: the 
 measure of damage is wanting. That measure is, as we 
 shall presently see, the cost of effecting the repairs. But,
 
 RVLE AS TO ECCLESIASTICAL DILAPIDATIONS. 513 
 
 in the cases just mentioned, and in tlie case now before us, 
 repair or restitution being impossible, no measure of dam- 
 ages seems to be left but the value of the coals, or copper, 
 or gravel. Can that value be the proper measure of dam- 
 ages inflicted on the successor? Is the successor to capi- 
 talize and appropriate to his own use a value of which 
 upon his own hypothesis he could not have enjoyed even 
 the usufruct ? 
 
 "Again, if the niines were open when his predecessor ab- 
 stracted a portion of the minerals, and the bulk remains, 
 then, if that working were lawful, he can do the same, and 
 no action lies ; but, if that working were unlawful, then it 
 is no injury to him, for, the successor could not have worked 
 the mines, even if tliat previous working had not taken 
 place. * * * To avoid such consequences as these, we ought 
 to inquire very carefully into the origin and extent of the 
 liability of the executors of a deceased incumbent. The 
 reason and the extent of their liability must be sought in 
 the historical sources from which that liability originally 
 proceeded." 
 
 The learned judge then examined the provisions of law 
 upon the subject from the earliest enactment to be found, 
 dating in the year 1238, and proceeded: "It is plain from 
 these ancient authorities, that the mischief to be remedied 
 was the dilapidation of houses and buildings; and the 
 remedy was the enforced expenditure by the offending in- 
 cumbent, if still living, of so much as would put the build- 
 ings into repair. 
 
 "Hence arose the action at law against the preceding in- 
 cumbent, if he had vacated the benefice b}^ promotion or 
 otherwise, and were still living. 
 
 "At one time, in conformity with the principles of the com- 
 mon law, it seems to have been considered that such an 
 action as the present would not lie against the executors of a 
 deceased incumbent. * * * Precedents, however, of this 
 form of action more than three centuries old exist. Still it 
 has been often called an anomalous action, and such it un- 
 doubtedly is ; for, it makes executors 'liable for a tort of 
 theii" testator, which at common law could not be, and 
 
 65
 
 514 LAW OF FIXTURES. 
 
 liable moreover to a person to whom the testator was not 
 liable in his lifetime. * * * AVe cannot, tlierefore, safely 
 decide on general principles when this action lies or does 
 not lie; bnt must be gnided by the precedents as well as 
 by the particular mischief to which we have already ad- 
 verted, and to remedy which alone this form of' action was 
 introduced. 
 
 " The earliest precedents with which we are acquainted ap- 
 pear to be among the rolls of this court. * * * The law and 
 custom of the realm liinding on the incumbents is there 
 stated to be an obligation to repair all and singular the 
 houses and buildings., and if they do not, then their execu- 
 tors to satisfy all such sums of money as by the successor 
 shall be expended or paid for the necessary repair or re- 
 building. 
 
 "The precedents from which the more modern English 
 precedents appear to be taken and translated are, the forms 
 of the declarations in two cases in 1 Lutwycke, pp. 115, 116. 
 * * "^ These precedents have been Justly regarded as declar- 
 ing the law. They have been used to show against whom 
 an action lies, e.g., that it lies at the suit of the successor 
 against the executors of a deceased prebendar}^ * * « ^Ye 
 are not aware of any ancient precedent or decision extend- 
 ing the liabilit}^ of the executors of a deceased incumbent to 
 any species of waste bej^ond dilapidation of the house, the 
 church, or other buildings or fences of the benefice. And, 
 in modern times, it has been held by the Court of Queen's 
 Bench, in Bird v. Ralph (4 B. & Ad.y 826), that the action 
 will not lie for mismanagement or miscultivation of the 
 ecclesiastical property by the deceased incumbent : and this 
 decision was confirmed in the judgment of the same court in 
 Huntley v. Russell (13 Q. B., 590). 
 
 ■'SoniQ authorities, nevertheless, have been relied on in 
 support of the present action. 
 
 " The BisJiop of Salisbury's Case, {Godb., 259), has been 
 cited to show that this action lies for cutting timber. But 
 that case ^ * ^ shows that at that time this action did not 
 lie at all after the death of the incumbent.
 
 RULE AS TO ECCLESIASTICAL DILAPIDATIONS. 515 
 
 Degge's Parson's Counsellor, c. 8, was referred to ; but it 
 does not show that an action lies in a case like the present. 
 
 A passage was cited from Gibson's Codex, to show that 
 this action may lie against the executors of a deceased in- 
 cumbent for cutting down trees. But the authorities in the 
 margin do not support the position. * * * The opinion 
 of Bishop Gribson, who, though an indefatigable com- 
 piler, was not a lawyer by education or profession, weighs 
 little against the doubt of so profound a lawyer as Mr. 
 Leigh Hill. 
 
 "The case of Knight v. Moseley {A?nb., 175), was the case 
 of a bill by a patron against an incumbent to stay waste com- 
 mitted by digging stones, &c., on a glebe. It is no authority 
 for such an action as this, under such circumstances as the 
 present ; but rather tends to show that this action for such an 
 injury is unnecessary. Indeed, it would seem from the au- 
 thorities, that not only the patron, but the ordinary, and, in 
 case of need, the Metropolitan, or even the Crown, may in- 
 terpose as to any kind of waste to ecclesiastical property. 
 
 "The case of Huntley v. Russell (13 Q. B., 572, 18 L. J. 
 Q. B., 239), seems at first sight a decision in favor of the 
 plaintiff. But that case is subject to many observations. 
 * * * Moreover, in Huntley v. Russell, the liability for 
 gravel removed was fixed on the defendants by the court, 
 because the lessee of the testator had dug gravel for sale 
 and sold it for the first time. But the court add, as to dig- 
 ging gravel : ' If the gravel-pits in question had before the 
 incumbency of the last incumbent been opened and used for 
 getting gravel for sale generally, or should incline to the 
 opinion of Lord Hardwicke in Knight v. Moseley {Amb., 
 175), that the incumbent had not committed waste by con- 
 triving so to use them.' * * * We, however, for the reasons 
 already given, have come to the conclusion that this is not 
 such waste as can be the subject of this action^'' {Ross v. 
 Adcoc/c, 3 Com. Pleas R., 655, 662-670). 
 
 It seems that stone and timber on the glebe, which may 
 be used for repairs, should be allowed in reduction of a 
 claim for dilapidation {Banberry v. Hudson, 3 Exch. R., 
 558; 8. C, 18 L. J., 258). And the personal representa-
 
 516 LAW OF FIXTURES. 
 
 tives are entitled to deduct the value of timber wliicli grew 
 on the glebe if it has been used by the succeeding incumbent 
 in doing the repairs {Perclcal v, Coolce^ 2 Ca7\ & Payne's 
 ^., 460). And there seems to be no reason why timber grow- 
 ing on the glebe should not be used by the successor, and 
 an allowance made ( Vide Baiiberry v. Hudson, 3 Exch. 
 Ji., 558). 
 
 The anxiety of the law has been always so great to pre- 
 serve the temporalities &f a church from dilapidation and 
 decay, that there have been several means adopted in Eng- 
 land for the preservation thereof, as well as by the courts of 
 equity and common law, as also by the ecclesiastical courts. 
 These remedies were by visitation, by prohibition, injunc- 
 tion, action at law, and ecclesiastical suit ; but they have 
 all given place to the machinery provided by the Ecclesiasti- 
 cal Dilapidations Act, passed in 1875, the provisions of 
 which need not be repeated here. 
 
 Besides Ecclesiastical dilapidations, there are also what 
 are called Lay dilapidations, the subject of which interests 
 all countries, and the rules governing which are uniform, 
 except when varied by statutory enactment. 
 
 And it may be affirmed as a rule, that where no agree- 
 ment or stipulation respecting the repairs of demised prem- 
 ises has been entered into, the tenant or lessee is always 
 liable for them. The landlord is never obliged to repair ex- 
 cept when he has bound himself by contract so to do, and 
 the landlord is not liable to his tenant, for repairs made by 
 the latter to the demised premises, unless there be a special 
 agreement by him to pay for them {Mumford v. Broum., 6 
 Co'W. R., 475). And where no j)articular agreement to put 
 the premises in repair is made, the tenant takes them for 
 better or for worse, and the landlord is under no obligation 
 to repair {Cleves v. WUlougliby, 7 HUT s R., 83, 90). This 
 has been declared to be the rule, even where the landlord in- 
 sured the premises against fire, and on their being burned 
 down, received the amount fi'om the office {Belfour v. Wes- 
 ton, 1 Term R., 312). When it is stated, however, that 
 the landlord is never liable to repair, it must be understood 
 only that an action cannot be maintained against him for
 
 R ULE AS LA Y DILA PIDA TIONS. 517 
 
 not repairing, for tlie tenant is bound only to ordinary- 
 repairs. 
 
 Tile authorities are explicit also, that no implied covenant 
 arises on a lease that the house is reasonably fit for habita- 
 tion or occupation. And there is no implied condition that 
 the tenant may quit when the landlord neglects to do re- 
 pairs which he is bound to do. If there is an express stipu- 
 lation to that effect, of course the rule is different. So algo, 
 it may be affirmed, that there is no 'implied stipulation that 
 if the landlord omit to do the repairs according to his cove- 
 nant, the tenant may do them and deduct the amount from 
 his veni {Smith v. Mapleback, 1 Term R., 441; Wiegallv. 
 Waters, 6 ib., 488). Of course, these questions do not gen- 
 erally arise where there exists a lease by which the liabilities 
 of both parties are defined. 
 
 Tenants from year to year are bound to commit no waste, 
 because the law implies a contract on their part to use the 
 premises in a tenant-like manner. A tenant from year to 
 year of a house, however, is only bound to keep the house 
 wind and water tight. In a case before the English courts, 
 it apx^eared that the stairs of the house demised were worn 
 out, new sashes were wanted, the doors were rotten and fall- 
 ing to pieces fi'om decay, the sash-lines, latches, catches, 
 keyes and locks were broken and damaged, and a panel of 
 one of the doors was broken. It was admitted that the de- 
 fendants were not liable for substantial repairs, but it was 
 contended that they had not done that which a tenant from 
 3^ear to year ought to do ; that they ought to make good the 
 sash or lines, broken panel, and the latches, &c., and Lord 
 Tenterden, C. J., in summing up, said: "It appears that 
 this was a very dilapidated house w^hen the defendants took 
 it, and that they had a \evj considerable quantity of work 
 done upon it. However, the first question is, what are the 
 things which an occujDier of a house from year to year is 
 bound to do 1 I am of opinion that he is only bound to keep 
 the house wind and water tight, and that is all lie is bound 
 to do. A tenant who covenants to repair is to sustain and 
 uphold the premises ; but that is not the case with a tenant 
 from year to year" {AmooriJi v. Johnson, ^Car. & Payne' s
 
 518 LAW OF FIXTURES. 
 
 Ji., 289). And this is in accordance with another case de- 
 cided by the same court, in which also Justice Patterson 
 said, that as the defendant was tenant from year to year, 
 he was not bound to do substantial repairs ; he was only 
 bound to keep the premises wind and water tight {Leech v. 
 Thomas, 7 Car. & Payne's R., 327). 
 
 The estate of a tenant at will being so uncertain, the law 
 imjDoses no responsibility upon him for dilapidations. The 
 landlord, therefore, has no remedy against him, unless in- 
 deed for wilful waste. In a very early English case, it was 
 held that a tenant at will was not liable to an action in con- 
 sequence of the house being burned down by reason of his 
 negligently keeping the fire {Countess of Shrew shury' s Case, 
 5 Coke's R., 13). And in Cruise's Digest, it is said, that a 
 strict tenant at will is not bound to repair or sustain houses 
 like a tenant for years {Cruise s Dig., tit. 9, §§ 14, 15). 
 
 The examples here given, are sufficient to point out the 
 general doctrine of the law concerning dilapidations ; and 
 the only object of the discussion in this place at all was, 
 to give a general idea of the subject, and, perchance, afford 
 some illustrations which might be of service in determining 
 the rights of certain tenants, in certain circumstances, in the 
 annexations which they may make to the premises tempora- 
 rily in their occupation. Some writers upon the law of 
 fixtures carefully exclude from consideration the law of 
 ecclesiastical fixtures, as being of too peculiar and unfa- 
 miliar a character to be treated promiscuously^ with the 
 other class of fixtures in a general review of the law. But 
 some of the ecclesiastical cases contain much valuable dicta 
 in regard to fixtures generally", and may be prolitably re- 
 ferred to on that account, as well as for the illustrations 
 which they serve to make of cases arising in practice.
 
 RULE AS BETWEEN VENDOR AND VENDEE. 519 
 
 CHAPTER XXXVIII. 
 
 LAW OF FIXTUBES AS BETWEEN VENDOR AND VENDEE OR GRANTOR 
 
 AND GRANTEE DOCTRINE IN SUCH CASES EXAMINATION OF CASES 
 
 UPON THE SUBJECT. 
 
 The next subject proposed to examine is, that of the 
 right to fixtures as between vendor and vendee, or grantor 
 and grantee. The rules which govern the subject of fixtures 
 as between these parties are similar to those which are ap- 
 plicable as between some other parties ; but it is, neverthe- 
 less, quite important to consider in a distinct place, the cases 
 in which the question has arisen between these specific par- 
 ties. Questions of this kind sometimes arise between the 
 vendor and vendee themselves, and sometimes between the 
 lessee of the vendor and the vendee ; but it will only be 
 necessary to consider the subject here, in its relations to 
 vendors and vendees, as the other branch has been neces- 
 sarily examined in treating of the subject as between land- 
 lord and tenant. 
 
 It will be remembered that it has frequently been observed 
 in previous chapters, that the courts are less liberal in de- 
 termining the right to fixtures as between vendor and vendee, 
 than as between landlord and tenant ; that is to say, that 
 the courts will decide against the right to recover certain 
 su])posed fixtures by the vendor, or grantor, as against his 
 vendee or grantee, when the same class of fixtures, and un- 
 der similar circumstances of annexation to the realty, might 
 be held to be removable as between landlord and tenant. 
 In other words, it has often been held that there has been 
 no exception made by the courts, or relaxation of the old 
 rule, that whatever is attached to the freehold becomes part 
 of it, and must not be taken away, in cases arising between 
 vendor and vendee. 
 
 Controversies in respect to fixtures as between these par- 
 ties, more generally arise with reference to the construction 
 to be made of the terms of the contract or conve3^ance ; but
 
 520 LAW OF FIXTURES. 
 
 there are some rules which apply in all cases of this char- 
 acter, and those rules will first be referred to and stated. 
 And here it ma}^ be affirmed, as a rule, that as between ven- 
 dor and vendee, or grantor and grantee, all fixtures pass to 
 to the latter, even though they were erected by the vendor 
 or grantor for the purposes of trade or manufactures, or 
 other purposes wdiich might render them removable when 
 affixed by a tenant. Of course, this rule is open to the in- 
 quiry as to whether the articles are fixtures, or simply per- 
 sonal chattels. If not fixtures within the definitions given, 
 the person who placed them upon the land, whether vendor, 
 grantor, tenant or what not, is at liberty to take the articles 
 away, unless they have been convej^ed in the manner requi- 
 site for the transfer of personal property. But, if the ar- 
 ticles are in reality fixtures, and annexed to the land, by 
 the vendor or grantor, they will pass by the conveyance to 
 the grantee, unless they are reserved by the grantor, and 
 there is no good reason why this should not be the rule. 
 The vendor has the absolute control not only of the land 
 but of the improvements made thereon, and the fixtures an- 
 nexed thereto ; and he has an election to sell or not to sell 
 the inheritance. If he does elect to sell, he knows that, by 
 law, the fixtures pass; and there is no plausible ground 
 upon which it may be said that the law should interpose in 
 his behalf, and protect him against loss of improvements 
 which he has deliberately chosen to part with. It is for rea- 
 sons of this kind, doubtless, that the old rule of law still 
 holds in respect to fixtures as betw^een grantor and grantee, 
 or vendor and vendee, and the fixtures in such cases are not 
 considered as personal property. 
 
 The first inquiry in these cases, as in all others respecting 
 annexations to the land is, whether the article in contro- 
 versy possesses the characteristics of a fixture. If the 
 article belongs to a building, it undoubtedly must be essen- 
 tial to the business of the erection, and attached to it in 
 some way, or mechanically fastened so as, in ordinary un- 
 derstanding, to make a part of the building itself. It must 
 be permanently attached, or the component part of some 
 erection, structure or machine which is attached to the free-
 
 RULE AS BETWEEN VENDOR AND VENDEE. 521 
 
 hold, and without which the erection, structure or machine 
 wouhl be imperfect and incomplete. This has been ex- 
 plained in a previous chapter ; and upon this principle, 
 the Supreme Court of New York, held, in 1862, that 
 shelves, drawers and counter- tables, put up by the owner 
 to fit the building for the uses of a retail dry goods and 
 grocery store, and without which the building was not 
 adapted to the business, were, as between vendor and pur- 
 chaser, fixtures, and a part of the building, and that the 
 vendor had no right to remove them. In the contract of 
 purcliase there was no mention made of the articles in ques- 
 tion, nor any thing to show whether the vendor designed to 
 sell them with the realty or not. 
 
 Brown, J., in giving his opinion, said: "The shelves, 
 drawers and counter- tables, in the present case, were put up 
 by the owner to fit the building for the uses of a retail dry 
 goods and grocery store. Without them the building was 
 not adapted to the business. They were made to fit the 
 building which the defendant contracted to sell, and not to 
 fit any other building. And when he removed them, the 
 shelves, certainly, and the drawers and counter-tables, prob- 
 ably, were little better than so much lumber. They were 
 for these reasons fixtures, and a part of the freehold ; and. 
 the defendant did wrong to remove them. The purchaser 
 had every reason to think he would receive them with his 
 store" {Tabor v. Bohinson, 36 Barb. R., 483-485). 
 
 Upon the same principle, the Court of Appeals of the State 
 of New York, in 1869, held in a case hereinbefore referred 
 to upon another point, that a " portable grist-mill" for 
 grinding flour, under the circumstances of the case, was a 
 part of the realty, and title thereto would pass by the ordi- 
 nary conveyance of the realty. The mill had been used in 
 another mill, and from there was taken to the premises 
 which were conveyed. It was built at a factory ready for 
 use, and was made in such a manner, as to be readily taken 
 apart without injuring it, and moved from one place and 
 set up in another. It consisted of a heavy frame of timber, 
 containing the mill stones, the lower one being stationary. 
 Its only connection witli the other machinery in the build- 
 
 06
 
 522 LA W OF FIXTURES. 
 
 ing, was by a belt passing over a drum in tlie frame, and 
 around tlie shafting, supplying the power to it. The mill 
 stones were about two and a half feet in diameter, eight or 
 ten inches in thickness, and weighed about one ton. It was 
 fastened to the building by placing two sticks of timber par- 
 allel with each other, upon ihe lloor, as far apart from each 
 other as the width of the mill frame, and extending from 
 one side of the room to the other. Then the mill, in its 
 frame, was set ui3on these cross timbers, and iron rods or 
 bolts, provided with screws, nuts and washers, were run 
 down through the frame timbers, the cross sticks, the floor 
 joists and through corresponding cross sti(;ks under the floor 
 joists, supported by upright posts resting on the cellar bot- 
 tom or set in the ground. The nuts, at the end of the rods, 
 being screwed on and tightened, the mill was thus held Arm 
 in its place. It was also found as a fact in the case, that 
 when those mills were thus put in by the owner of the prem- 
 ises, he designed them as a permanent structure for use as 
 a custom and grist-mill for that neighborhood. Under these 
 ciz'cumstances, the court held the "portable grist-mill" in 
 controversy was a fixture, and, being such, passed by a 
 conveyance of the land on which the building containing it 
 was situated. Had the article been placed in the building 
 by a tenant for the purposes of trade or manufacture, it 
 would have been removable by the tenant ; but as between 
 vendor and vendee, the court held (one judge dissenting) 
 that it was a fixture not to be removed {PoUer v. Cromioell, 
 40 W. Y. ^., 287). 
 
 On the contrary, the old Supreme Court of the State of 
 New York held in 1848, that machinery erected for manu- 
 facturing purposes on timbers imbedded in the ground, or 
 fastened to the timbers of a building by bolts, screws, i^ins 
 or cleats, if put up with a design not to be kept there per- 
 manently, but with a view to its being removed without in- 
 jury to the building, was not a fixture passing with the free- 
 hold. It wa*s a circumstance thought by the court to be 
 worth}^ of observation in the case, that the main wheel which 
 moved the machinery, was itself no moi-e, if as much attached 
 to the building as the other machinery, while the motive
 
 RULE AS BETWEEN VENDOR AND VENDEE. 523 
 
 power of the wheel w^as not dependent upon or attached 
 to the building, but wholly separate from it, and capable of 
 being removed with the machinery and applied to it when 
 placed in another building {Farrar v. Chavffetete, 5 Denid s 
 R., 527). 
 
 So also the same court held at an earlier day, in 1840, 
 that, as between a vendor and vendee of land upon which 
 there was a dwelling-ho'use without a fire-place, and without 
 a chimne}^ except from the chamber floor, a stove from 
 which went a pipe into the lower end of the chimney was 
 not a fixture, and did not pass with the land to the pur- 
 chaser. The reasons for the decision are given by Bronson, 
 J., in his opinion. He says : * "I think the stove and pipe 
 were not affixed to the freehold, and did not pass by the 
 conveyance of the land to the plaintiff. It is not alleged 
 that the stove was fastened to the building in any manner 
 whatever, and the temporary fastenings about the pipe were 
 such as could be removed without the slightest injury to the 
 chimney. * * * Stoves put up in such a manner that they 
 can be removed at pleasure, and without injury to the build- 
 ing, have never been considered a part of the freehold in 
 this State. 
 
 It is said, that a stove put up in the manner this was, 
 would not, under ordinary circumstances, pass with the free- 
 hold ; yet, as there was no fire-place in the house, the stove 
 was a necessary part of the building, and must have been 
 so designed by the builder. The fact that there was no fire- 
 place, only proves that the building was less perfect than it 
 might have been made. It has, I think, no tendency to 
 prove that the stove was a part of the freehold. The same 
 mode of reasoning would go far to show^, that bricks pre- 
 pared for the construction of a chimney, if that were wholly 
 wanting, would pass with the house ; or, if there had been 
 neither stove nor fire-place, that the iron bake kettle, used 
 as a substitute, would be a fixture. It is very probable that 
 the builder supposed a stove would be used instead of a 
 fire-place ; but if he did not put up a stove and make it part 
 of the house, liis design can have no influence upon the 
 question.
 
 524 LAW OF FIXTURES. 
 
 I see nothing to distinguisli tliis from the ordinary case of 
 stoves put uj) in such a manner that they can be removed 
 and replaced, or others substituted, at pleasure, vv^ithout in 
 any way impairing the building. The stove was a part of 
 the furniture of the house, which the vendor had a right to 
 remove with his other goods" {Freeland v, 8outhworth, 24 
 Wend. R., 191-193). 
 
 On the contrary, the Supreme Judicial Court of Massa- 
 chusetts held, in 1811, that iron stoves fixed to the brick- 
 work of the chimneys of the house were a part of the house, 
 and passed with it, on the extentof an execution upon it 
 {Goddard v. CJiase, 1 Mass. i?., 432). And Justice Bron- 
 son distinguishes this case from Freeland v. Southioorth by 
 the fact that stoves were set in the chimnies so that it was 
 necessary to pull down the fire-places to get them out. But 
 he might with propriety have refused to follow the case as 
 a precedent, because there "can be little doubt that the stoves 
 in that case were not fixtures, but furniture of the house. 
 It was held by the Supreme Judicial Court of Massachusetts 
 in 1801, that a portable iron stove and funnel running into 
 the chimney, but not plastered in, were not fixtures, and did 
 not pass by a deed of the house ( Williams v. Bailey, 3 
 Dane^ s Ab., 162) ; and there would not seem to be an essen- 
 tial difference between that case and the case of Goddard v. 
 Cliase. 
 
 The Supreme Judicial Court of Massachusetts has, in 
 many cases, laid down the broad doctrine that things per- 
 sonal in their nature, but fitted and prepared to be used 
 with real estate, and essential to its beneficial enjoyment, 
 liaving been fixed to the realty, or used with it, and con- 
 tinuing to be so used, become parts of the land, accesslone 
 et destinatione., and pass with it by the deed of conveyance, 
 although they might be removed without substantial injury 
 to the premises. And the court decided a case in 1837, 
 wherein it appeared that the owner of land had erected upon 
 it a dye-house and set up dye-kettles therein, firmly secured 
 in brick- work; and it was held that the dye-kettles became 
 a part of the realty and passed by a deed of tlie land, with- 
 out express words. The grantor, at or before the deliverj^ of
 
 RULE AS BETWEEN VENDOR AND VENDEE. 525 
 
 the deed removed the dye-kettles by parol, but the court 
 held that this should not control the ordinary eJffects and 
 operation of the conveyance. 
 
 Shaw, C. J., lirst stated the facts of the case, and then 
 said : '^ This presents two questions ; first, whether the deed, 
 by its ordinary effect and operation, transferred the prop- 
 erty in these dye-kettles, and if so, then secondly, whether 
 that effect can be controlled by the parol agreement made 
 before or at the time of the delivery of the dei?d, that the 
 kettles should not be considered as included in the deed. 
 
 "As to the first, whatever doubt there might be, if kettles 
 were erected in like manner by a tenant on the demised 
 premises, for the purposes of his trade, or by a mortgagor 
 after the estate had been mortgaged, we have no doubt, that 
 when an owner erects a dye-house on his own land, and sets 
 up dye-kettles therein, firmly secured in brick-work, they 
 become part cff the realty, and pass by a deed of the land 
 without express words. The legal effect and operation of 
 such a deed is to vest the entire right and property in the 
 kettles in the grantor ( Union Banli v. Emmerson, 15 Mass 
 li., 159). 
 
 " 2. Then is it competent for the grantor to control or re- 
 strain this legal effect, by proof of a parol agreement, made 
 previously to or at the time of the delivery of the deed ? 
 The court are all of the opinion, that it is not" {Nohle v. 
 BoswortJi, 19 Pick. R., 314, 315). 
 
 As an illustration of the tenacity with which the courts 
 adliere to the ancient rule with respect to annexations to 
 the realty as between grantor and grantee, it may be stated, 
 tliat the old Supreme Court of the State of New York de- 
 cided in 1843, in a case wherein it appeared that the owner 
 of real estate hired the use of certain personal property, 
 namely, a steam-engine and two boilers, and wrongfully 
 converted the sfime by annexing them to and making them 
 a part of his real estate, and then sold the real estate to 
 a tliird person who had no notice of the facts, that the party 
 injured could not reclaim his property from the purchaser, 
 as the title to it passed to him by the deed. The court was 
 clear that the articles were fixtures, and were so annexed to
 
 526 LAW OF FIXTURES. 
 
 the realty as that the grantor liad a right to suppose that he 
 was purchasing them with tlie freehold. 
 
 Bronson, J., gave the opinion of the court, and said : " A 
 man cannot maintain an action against me by proving that 
 the person from whom I purchased my house, wrongfully 
 took or converted the brick, stone, timber,^ lime or other 
 materials of which my house was constructed. Nor can he 
 enter and tear down my house for the purpose of regaining 
 that portion of it wliich once belonged to him. His only 
 remedy is against the wrongdoer." Upon this reasoning, 
 the learned judge came to the conclusion that the grantee 
 in the case acquired just as good a title to the engine and 
 boilers as he did to the rest of the real estate, and the court 
 accordingly so held {Fryatt v. The Sullivan Company, 5 
 HilVs R., 116-118). 
 
 The case was taken to the Court of Errors, and the judg- 
 ment was affirmed by a majority of the members, fifteen 
 voting for aflarmance, and six for reversal {Fryatt v. The 
 SulUxan Company, 7 HilVs B., 529). 
 
 In a case decided by the old Supreme Court of the State 
 of New York in 1839, most of the cases arising under the 
 law of fixtures prior to that decision are collected and ex- 
 amined, and the whole subject discussed with much learn- 
 ing and ability. It was there held that machinery in a 
 woollen factory which had been used, and passed from one 
 owner to another, for eleven years or more, the same as if 
 actually annexed, was not a part of the realty. The learned 
 judge, who wrote the elaborate and comprehensive oi)inion 
 in the case, lays down the rule as gathered from the cases, 
 that nothing of a personal nature in itself will pass by a deed 
 "unless it be brought within" the denomination of a fix- 
 ture by being in some w^ay, permanently, at least habitually, 
 attached to the land or some building upon it. It need not 
 be constantly fastened. It need not be so fixed that detach- 
 ing will disturb the earth or rend any part of the building" 
 {Wallcerv. Slierman, 20 Wend. R., 636). This rule, as a 
 general proposition, is sound and has not been essentially 
 altered by any subsequent decision. In fact it seems to 
 have been sanctioned and sustained by repeated adjudica-
 
 RULE AS BETWEEN VENDOR AND VENDEE. 527 
 
 tions liolding tliat macliineiy in cotton, and otlier mills, not 
 attached to the building, and capable of removal without 
 injury to it, were not fixtures, even as between vendor and 
 vendee, but personal property. 
 
 But it is not always easy to determine when machinery 
 is brought within the rule Last stated. In a case decided 
 by the Court of Appeals of the State of New York in Sep- 
 tember, 1876, it was held that the ma^iinery of a twine fac- 
 tory was a part of the factory, as between vendor and 
 vendee, and passed to the grantee by a deed of the realty, 
 in which no mention was made of the machinery. The evi- 
 dence showed that the building was erected for the purpose 
 of a tw^ine factory, and the machinery was specially adapted 
 to it ; and that the original intention of the annexation was 
 to make the machinery in question a part of the building 
 and the freehold. It was found, however, that each of the 
 machines was complete in itself and received no support 
 from the w^alls, ceiling, or roof of the building, and would 
 operate with the proper powder applied wherever it was 
 placed, and that all the machines could be taken apart with- 
 out injury to the machines or the building, except such as 
 result from loosening the fastenings, and could, without in- 
 jury, be put together and operated in any place wdiere there 
 was sufficient room for them to stand, and where the neces- 
 sary powTr could be applied. The Supreme Court decided 
 that the machines w^ere fixtures and part of the freehold ; 
 and the Court of Appeals held (Allen and Earl, JJ., dis- 
 senting), that the conclusion of the su]3reme court was cor- 
 rect ; and it was declared, that the rule enacted by 2 Revised 
 Statutes, 83, §§ 6, 7, as between the personal representative, 
 and the heir of a deceased part3^ is not controlling between 
 vendor and vendee: that as between vendor and vendee the 
 mode of annexation is not the controlling test, that the 
 purpose of the annexation and intent with which it was 
 made is the most important consideration (McRea v. Cen- 
 tral National Bank of Troy, 3 N. Y. Weekly Digest, 
 241, 242). 
 
 The Supreme Court of Kansas has held that a simple 
 deed of a hotel carries with it as an appurtenance, unless ex-
 
 528 LAW OF FIXTURES. 
 
 pressly reserved, the hotel sign and post, though set some 
 feet in front of the hotel lot {Recllon v. Barker, 4 Kansas 
 JR., 445). And the Supreme Court of Illinois decided a case 
 wherein it appeared, that the owner of a parcel of land lent 
 to a second person for use upon his land, the rails in a 
 piece of fence standing upon the landlord's land. After- 
 ward, and while the rails were thus away, the owner of the 
 parcel of land first mentioned sold and conveyed his land to 
 the j)erson to whom he lent the rails. The court held that 
 the rails passed to the grantee by the deed of the land as 
 part of the realt}^ {3fcLaug7ilin v. Johnson, 46 III. R., 163). 
 
 The Supreme Court of Iowa has held, that fixtures so 
 permanently attached to the realty as to become a part 
 thereof as between vendor and vendee, pass to the vendee 
 free from the lien of a chattel mortgage, of which such ven- 
 dee had no notice, and it was declared that, in examining 
 the title to real estate, a purchaser is not required to ex- 
 amine the records of chattel mortgages {Bringholff v. Mun- 
 zenmaier, 20 loioa R., 516). 
 
 The Supreme Court of California has declared, that the 
 rule relating to fixtures is applied with different degrees 
 of strictness between different parties ; and that as be- 
 tween vendor and vendee the machinery of a flouring-mill 
 would be considered part of the realty ; although it would 
 be otherwise between landlord and tenant {McG-reery 
 V. Osborne, 9 Cal. R., 119). And the Supreme Court of 
 Missouri has held that, as between vendor and vendee a 
 bathing- tub and the necessary pipes for conducting water 
 through the apartments of a house into a bath-room, if fast- 
 ened by nailing, are fixtures, and pass to the grantee of the 
 land, by the ordinary conveyance. The inference might be, 
 that if the bathing apparatus had been fixed by screws, for 
 example, rather than nails, it would have been regarded as 
 removable. But as between vendor and vendee, even in that 
 case, the articles would probably pass to the vendee {Cohurn 
 V. Kyler, 27 Mo. R., 122). 
 
 In a case before the Supreme Court of North Caro- 
 lina, decided in 1875, it was held, as between grantor and 
 grantee, that a " carding-machine" standing on the bank of
 
 RULE AS BETWEEN VENDOR AND VENDEE. 529 
 
 a water-course, run b}- a water- wlieel, and was very heavy, 
 requiring several men to move it, though not fastened to 
 the house in which it was used, was a fixture ; and nothing 
 appearing to change the ordinary rule of construction, 
 passed to the grantee with the land. That is to say, the 
 judge at iF/^/ Pi his, so charged the jury, in an action of 
 ejectment, and the court in banc held "no error." Pearson, 
 C. J., delivered the opinion of the court, and said: "We 
 see no error in the instructions. 
 
 "1. If the 'carding-machine' was not a fixture then 
 clearly the dealing, in regard to it was valid, and the defen- 
 dant was entitled to have the price agreed on credited upon 
 the mortgage debt. 
 
 "2. If the 'carding machine' was a fixture and consti- 
 tuted a part of the mortgaged premises, we can see no rea- 
 son why the mortgagee was not at liberty to buy, and the 
 mortgagor to sell his interest, that is, his right to redeem, 
 so as to give the mortgagee an absolute title, discharged of 
 the right to redeem, 
 
 "Why should not an agreement by which the mortgagee 
 takes, say, one-half absolutely and the mortgagor takes the 
 ■ other half discharged from the incumbrance, be valid ? This 
 was the view taken of the case by his Honor and the jury, 
 and we find no fault in it" {Deal v. Palmer, 72 JV. C. M., 
 582, 586). 
 
 The same distinguished court held, in a case decided the 
 year before, in the year 1874, that a cotton-gin, with the 
 usual gearing, in a gin-house, as between grantor and 
 grantee, were fixtures, and belonged to the freehold, and 
 could not be disposed of, by the owner of the realty, after 
 the levy of an execution thereon. Settle, J., observed: 
 "In answer to the suggestion that the gin was not suffi- 
 ciently attached to the house to make it a part thereof, we ob- 
 serve that the later and better authorities 2)ay more regard to 
 the purposes which are to be secured by the thing attached 
 than to the manner of making the actual attachment. 
 
 "In South Carolina it is held that a cotton gin in its place, 
 i. e., connected with the moving works in the gin-house, is 
 a fixture which passes to the purchaser of the house {Brat- 
 
 67
 
 530 LAW OF FIX TV RES. 
 
 ton V, Clauson, 2 Strobhart, 478.) And tliis court has lield 
 that pla;iks laid down as an upper floor of a gin-liouse, and 
 used to spread cotton seed upon, though not nailed or oth- 
 erwise fastened down than by their own weight, became a 
 part of the gin-house by being put in it for the purpose of 
 being used with it, and the court says, 'in that view it 
 makes no difference whether they were nailed to the sleepers 
 or not'" {Latliamx. Blakely, 10 N. C. R., 368, 371, 372). 
 And to the same effect i& a case decided by the Supreme 
 Court of Mississippi in 1873, in which it was held that a 
 cotton gin fixed upon a cotton plantation in the usual way, 
 being necessary to such plantation, is deemed to be a fixture, 
 and, if not expressly excepted, passes to the purchaser of 
 the plantation ; and the general doctrine w^as declared, that, 
 to the precise rules of the common law respecting fixtures, 
 there are many modern exceptions in favor of tenants and 
 for the benefit of trade ; that in favor of tenants, the great- 
 est liberality is indulged, while, as between vendor and 
 vendee, heir and executor, and mortgagor and mortgagee, 
 the strictest construction obtains. 
 
 In respect to the case before the court, Tarbell, J., in his 
 opinion, said: "In the case at bar, an inspection of the 
 projDerty, its nature, mode of attachment, use, the relation 
 of the party making the annexation, the circumstances at- 
 tending sucli annexation, the silence of the party as to an 
 intention of removal, and of the sale, and its non-removal 
 until after the purchase of tlie realty by Tate, who was also 
 the mortgagee of Howell, all indicate a permanent accession 
 to tlie realty. As we understand this case, the rules of law 
 governing it are not overcome, or, in other terms, this case is 
 not brought within the exceptions to the general rules, by 
 the unexpressed mental intention of Howell, and the porta- 
 ble character attempted to be given to the fixtures, nor is it 
 vvithin the class of cases where the character of the property 
 is fixed b}^ agreement of parties. But in the cotton States, 
 the property in controversy is held to be realty, and to pass 
 therewith, and there is nothing in the case at bar to take it 
 out of the operation of these cases and of the recognized
 
 RULE AS BETWEEN VENDOR AND VENDEE. 531 
 
 rales on the subject" {Tate v. Blackburne, 48 Miss. H., 
 1, 9, 10). 
 
 In a case before the Supreme Court of North Caro- 
 lina decided in 1874, it was held, tliat a cotton-gin secured 
 by the usual method of letting the front ledge rest against a 
 plank in the gin-house was a fixture, and would pass to the 
 grantee by the ordinary conveyance of the land {Latham v. 
 Blakely, 70 N. C. R., 369). And to the same effect is the 
 decision of the highest court of South Carolina, made in 
 1848, where it was held that a cotton gin in its place, that is, 
 connected with the running w^orks of the gin-house, is a fix- 
 ture that passes to the purchaser of the house by the usual 
 deed {Bratton v. Glawdon, 2 Strobharf s B., 478). 
 
 In 1866, the present Supreme Court of the State of New 
 York held that, where the owner of land conveys the same, 
 by an absolute conveyance, wine plants., set in the ground 
 and growing there at the time, will pass by the conveyance, 
 notwithstanding 2i parol resermition thereof by the grantor. 
 
 Balcom, J., said: "The law as to wdiat will pass by a 
 deed of land is stated by Chancellor Kent in his Commenta- 
 ries {Yol. 4., p. 549, Wi ed.\ to be that, 'Upon a convey- 
 ance of land and delivery of possession, it has been adjudged 
 that the growing grain does not pass to the vendee, for it is 
 deemed to be personal estate {Smith v. Johnson, 1 Penrose, 
 471). A contrary rule was, however, previously declared in 
 Foot V. CalolniZ John., 216), and likewise in Kittredge v. 
 Woods (3 N. H. Rep., 503). If the land be sold without 
 any reseivation of the crops in the ground, the law is strict, 
 as between vendor and vendee ; and I apprehend the weight 
 of authority to be in favor of the existence of the rule that the 
 conveyance of the fee carries with it w^hatever is attached to 
 the soil, be it grain growing, or any thing else ; and that it 
 leaves exceptions to the rule to rest upon reservations to be 
 made by the vendor. The rule was so understood and decided 
 in Crews v. Pendleton {l Leigh" sVirg. P., 247).' * * * Tlie 
 Supreme Court of this State decided in Austin v. Sawyer (9 
 Coicen, 39), wdiere A. quit-claimed land to W. on which a 
 crop of wheat w^as growing ; reserving the wheat by parol, 
 * * * that such reservation was inadmissible to contradict
 
 532 LAW OF FIXTURES. 
 
 the conveyance in writing, whicli carried the title of the 
 wheat with tlie land. * * * The correctness of this rule has 
 never been questioned by any court in this State, and we 
 must adhere to it so far as it is applicable to this case. It 
 settles the question that the wine plants in dispute could not 
 be reserved, by parol, by Sterling, from the effect of his deed 
 of the land to the defendant" {Wintermlre v. Light, 46 
 Barb. R., 278, 283, 284). 
 
 The Supreme Court of Alabama decided in 1855, that, as 
 between vendor and vendee, the stationary machinery by 
 which turning-lathes or other portable machines which are 
 of equal value every where, are impelled, if erected on the 
 land by the vendor during his ownership, for his own use, 
 for the purposes of either itrade or agriculture, and fixed in 
 or to the ground, or to some substance which has already 
 become a part of the freehold, are irremovable fixtures, 
 which pass to the vendee under the deed for the land. 
 
 Rice, J., delivered the opinion of the court, and said : 
 "It is settled by the adjudicated cases, as part of the com- 
 mon law of America, that as between vendor and vendee, 
 tJie stationary machinery by which turning-lathes, or any 
 of those machines which are portable and of equal use every 
 where, are impelled, must be regarded as irremovable fix- 
 tures and part of the freehold, wherever such stationary 
 machinery shall have been erected on the land by the ven- 
 dor himself during his ownership, for his own use, and fixed 
 in or to the ground, or to some substance already become 
 a part of the freehold — whether erected for the purposes 
 of trade or agriculture; and that such stationary machinery 
 passes by the deed of the vendor to the vendee, conveying 
 the land on which it stands" {Harkness \\ Sears, 26 Ala. 
 li., 493, 497, 498). 
 
 The Supreme Court of xS orth Carolina has held, that stills, 
 put up for distilling, incased iji brick and mortar work, are 
 fixtures that pass by a deed conveying the fee of the land 
 on which they are situate. It was also decided in the 
 same case, that a large copper-kettle, put up for cooking 
 food for hogs and incased in brick and mortar, was a fix- 
 ture and passed to the grantee by the usual convej'auce,
 
 RULE AS BETWEEN VENDOR AND VENDEE. 533 
 
 • 
 
 and a similar decision was made in respect to rough plank, 
 put iuto a o-in-liouse to pound cotton seed on, though not 
 nailed down {Bryan v. Laiorence., 5 Jones' L. H., 337). 
 
 But the Supreme Court of Texas has held, that a gin- 
 stand, not attached to the realty, though used for the pur- 
 poses of the farm, is not a fixture which will pass by the 
 ordinary conveyance of the farm ; and that the same rule 
 would apply to a bell, though used for farm purposes ; pro- 
 vided it is only set upon posts, and not permanently affixed 
 {Cole V. Roache, 37 Texas B., 413). * 
 
 CHAPTER XXXIX. 
 
 LAW OF FIXTURES AS BETWEEN VENDOR AND VENDEE OR GRANTOR AND 
 GRANTEE EXAMINATION OF FURTHER AUTHORITIES UPON THE SUB- 
 JECT PROPOSITIONS ESTABLISHED BY THE CASES EXAMINED. 
 
 There is a considerable number of authorities illustrat- 
 ing the doctrine, that upon a sale of the fi?eehold, fixtures 
 attached to it will pass, as between vendor and vendee, or 
 grantor and grantee, in the absence of any express provis- 
 ion to the contrary in the conveyance ; and, of course, the 
 more important of tliose cases should all be noted. 
 
 In 1861, the Supreme Court of New Hampshire decided a 
 casein which it appeared that a cider-press, and lumber chain 
 and staples, had been severed from the barn upon premises 
 while under repair^ and while thus severed the premises 
 were sold, with no special reference to the press, chain and 
 staples, or mention made of them in the conveyance. The 
 court held that the articles were fixtures and passed to the 
 purchaser ; and it was declared that many articles, really 
 chattels in themselves, are by construction or distinction so 
 annexed to the freehold as to be properly regarded as fix- 
 tures, or part and parcel of the realt}^ ; and that whatever 
 has become thus annexed to the realty, though temporarily
 
 534 LAW OF FIXTURES. 
 
 • 
 
 separated therefrom for convenience in making repairs, or 
 otherwise, stjll remains a part, and passes by a conveyance 
 thereof, notwithstanding the severance. And it was fur- 
 ther hekl, that the secret, inchoate, unexecuted intention of 
 the owner of the freehold to substitute for the dissevered 
 portions of a buikling others of a different construction, 
 cannot change the character and convert into chattels per- 
 sonal what would otherwise be clearly and unequivocally 
 a part of the realty ; and that, as against the grantee, evi- 
 dence of such secret, inchoate, unexecuted intention of the 
 grantor is inadmissible to control the facts and circum- 
 stances determined by the law itself which, at the time of 
 the conveyance, gave to movable objects an immovable char- 
 acter {Wadleigh v. Janmin, 41 JSf. H. R., 603). This last 
 proposition is in accordance with the view taken in the case 
 of Tate V. Blackburne, referred to in the preceding chapter, 
 and is also sustained by several other cases. 
 
 The Supreme Court of New Hampshire decided, in 1841, 
 that, as between vendor and vendee, machines, and other 
 articles essential to the occupation of a building, or to the 
 business carried on in it, and which are affixed or fastened 
 to the freehold, and used with it, partake of the character 
 of real estate, become part of it, and pass by a conveyance 
 of the land. Further, expressly held, that an engine used 
 in a building, and which cannot be removed without taking 
 down part of the building is a lixture. But the loose mov- 
 able machinery, not attached nor affixed, wlieu it is used in 
 prosecuting any business to which the freehold property is 
 adapted, is not regarded as part of the real estate, or as an 
 appurtenant to it. 
 
 Parker, C. J., observed: "The strict rule as to fixtures, 
 that prevails between heir and executor, applies as between 
 vendor and vendee. * * ^ The same rule applies between 
 mortgagee and mortgagor. * * * Machines and other articles 
 essential to the occupation of a building, or to the business 
 carried on in it, and which are affixed or fastened to the 
 freehold, and used with it, partake of the character of real 
 estate, become part of it, and pass by a conveyance of the 
 land. * * * Sucli articles pass b}^ the conveyance, although
 
 RVLE AS BETWEEN VENDOR AND VENDEE. 
 
 535 
 
 disannexed for a temporary purpose. -* ^- And some 
 things are held to be continuously annexed. - i^xcep^ 
 
 tions have been made, or the property has not been deemed 
 fixtures, in the case of a stone for grinding bark ; ^ 
 machines for spinning and carding, attached by cleats ; 
 * * * and carding machines, secured by nails or spilves 
 driven into the floor (14 Mass., Gale v. Wood). The report 
 of this last case, however, is somewhat contradictory upon 
 the point, and the case itself was doubted by Chief Justice 
 Richardson (3 N. H., 506. See also 20 Wend. 441 ; B Dane s 
 
 Ahr., 156). .^. . ^, 
 
 "Articles of furniture, it is said, do not come withm the 
 rule, although temporarily detached. * * * Some of the 
 excepted cases seem to have made the question depend upon 
 the character of the fastening, whether slight or otherwise 
 But this is a criterion of a questionable character, not 
 sustained by the weight of the decisions. More depends 
 upon the nature of the article, and of its use as connected 
 with the use of the freehold. * * ^^ It is not practicable to 
 lay down a rule in a few cases which shall be apphcable to 
 all cases. The particular circumstances of each case are en- 
 titled to special consideration. 
 
 "Different rules prevail in case of landlord and tenant. 
 "Upon the general principles above stated, the kettles 
 set in brick-work were fixtures. So of the steam-engine. 
 Although not attached to any fastening, it could not be re- 
 moved without taking down part of the building. It may 
 with propriety be said to be constructively affixed. So as 
 to the screw press let into the floor, and the steam-pipes 
 probably; although, as to these articles, perhaps farther 
 evidence respecting the mode of annexation, and use, might 
 be desirable. Respecting the cullender there is not suffi- 
 cient evidence to determine its class. 
 
 "Loose movable machinery, not attached nor affixed, 
 even when it is used in prosecuting any business to which 
 the freehold is adapted, is not to be regarded as part of the 
 real estate, or as an appurtenance to it. * * * The printing 
 machine, printing shells, and the boiler which lay without 
 the buildino;, and tools, came within this description' {Dc-
 
 536 LAW OF FIXTURES. 
 
 spatcJi Li?ie of Packets v. Bellamy Man: Co., 12 N. H. II., 
 205, 232-234). 
 
 To the same effect is a decision of the Supreme Court of 
 Yermont, made in 1844, by which it was held that, as be- 
 tween vendor and vendee, a barn, built of wood, resting on 
 a stone underpinning all around, was a fixture, and belonged 
 to the land. Redtield, J., in his opinion, observed : "There 
 are some few propositions, which we think fully settled by 
 adjudged cases. 
 
 "1. That as between vendor and vendee of the inheritance 
 in freehold estates, all fixtures pass to the vendee. *' * * 
 2. It seems equally well settled that all fixtures for the time 
 being are a part of the freehold, and that, if any right to 
 remove them exist in the person erecting them, this must 
 be exercised during the term of the tenant — and if not so 
 done, the right to remove is lost-' {Preston y. Br iggs, 16 
 Vt. B., 124, 128, 129). 
 
 The same court held in 1869, that a stone, split out and 
 freed from its original connection in a ledge, but not re- 
 moved away from the place, does not necessarily pass by a 
 deed of the land from which it has been severed. If severed 
 for the purpose of being used upon the land, it will so pass ; 
 but if severed in order to be removed and used elsewhere, 
 it will not. And it was held that the intent with which it 
 has been severed, if not apparent from its character and 
 surrounding circumstances, may be shown by parol proof 
 that the grantor in the deed declared, at the time of negoti- 
 ating the conveyance, that he intended to remove the stone 
 {Noble \. Sylvester, 42 Vt. R., 146). • 
 
 And the same court held at an earlier day, that, when 
 personal property is attached by a person to a building, of 
 which he is the owner, and is used as part of the furniture 
 of the building, for the convenience of the business of its 
 occupant, but is attached in such a manner that it can be 
 removed without injury to the building and the property, it 
 does not thereby become a part of the freehold, so as to pass 
 by deed from the owner of the building to a purchaser of 
 the premises {Cross v. Marston, 17 Yt. R., 533). But it 
 was held in another case, that buildings erected for a tern-
 
 RULE AS BETWEEN VENDOR AND VENDEE 537 
 
 porary use, or barns erected by persons other than the 
 owners, and not intended for permanent fixtures, may, in 
 some cases, be treated as personal property ; but as between 
 vendor and vendee, mortgagor and mortgagee, heir and ex- 
 ecutor, all buildings which enhance the value of the estate, 
 and are designed to be occupied by the owner thereof, agree- 
 ably to the principles of the common law, become a part of 
 the realty, and pass with it by deed or by descent {Lela7id 
 V. Oassett, 17 Vt. R., 403). 
 
 The Supreme Court of Nevada decided in 1870, that a 
 saw-mill built upon timbers lying upon the surface of the 
 ground, and constructed with the object and purpose, after 
 sawing the timber within a convenient distance, to be re- 
 moved to another locality, is a mere personal chattel, as 
 between grantor and grantee, and will not pass by a con- 
 veyance or patent of the land. Of icourse, there could be 
 no doubt in respect to the removability of such a struc- 
 ture, as between landlord and tenant, and the Nevada 
 court holds it to be removable, under the circumstances, 
 even- as between grantor and grantee {Brown v. Lillie, 6 
 mv. R., 244). 
 
 The Supreme Court of the State of New York held, in 
 1869, that unattached scantling, which had been used to 
 hang tobacco on to cure, in a barn, built on a farm where 
 tobacco had been raised, which were put up and taken 
 down, as they were, or were not wanted for the drying of 
 tobacco ; and at the time of the sale of the land were partly 
 piled up in the barn, and partly used as scaffolding for 
 straw ; no tobacco having been raised on the farm for a year 
 or two previously, did not pass as fixtures by a conveyance 
 of the farm. And the court declared that, in determining 
 what will pass as fixtures by a deed conveying the freehold, 
 the distinction between things actually annexed, and things 
 totally disconnected, is one of the most easy and certain 
 application, and should be maintained, except where the 
 exigencies of trade or long established usage, or precise au- 
 thority has established an exception. In accordance with 
 this proposition and tested by the rules usually applied in 
 such cases, the court were of opinion that the scantling un- 
 
 68
 
 538 LAW OF FIXTURES. 
 
 attached, as it was, and being of uncertain and intermitted 
 use, and not absolutely essential to the enjoyment or value 
 of the realty, could not be considered as bringing it within 
 the legal definition of a fixture {JVoyes v. Terry, 1 La7i- 
 sincfs R., 219). 
 
 On the contrary, the New York Court of Appeals held, 
 in 1854, that poles used necessarily in cultivating hops, 
 which were taken down for the purpose of gathering the 
 crop, and piled in the yard with the intention of being 
 replaced in the season of hop-raising, were a part of the 
 realty, and passed to the grantee of the land by the usual 
 conveyance. 
 
 The reason for the judgment will appear from an extract 
 of the opinion. Gardner, Ch. J., said : "The root of the hop 
 is perennial, continuing for a series of years. That this 
 root would pass to a.ptirchaser of the real estate, there can 
 be no question. The hop-pole is indispensable to the 
 proper cultivation of this crop. It is distinctly averred, and 
 admitted, that the poles belonged to the yard upon these 
 premises, that they were used for the purposes of cultiva- 
 tion, and were removed from the place where they were set, 
 in the usual course of agriculture, with a view to gather the 
 crop, and without any design to sever them from the free- 
 hold, but, on the contrary, with the purpose of replacing 
 them, as the exigency of the new growth required. In a 
 word, they were to be permanently used upon the land, and 
 were necessary for its proper improvement. If the poles 
 had been standing in the yard at the time of the sale, all 
 admit that they would have formed a part of the realty. 
 But being placed in heaps for a temporary purpose, they 
 would not lose their distinctive character, as appurtenant to 
 the land, any more than rails, or boards, from a fence in the 
 same condition, would become personal property" {Bishop 
 V. Bishop, 11 N. Y. B., 123-125). 
 
 The Supreme Court of Illinois has held that nursery trees 
 growing upon the land of the owner, as between vendor and 
 vendee, are fixtures and pass to the vendee by the convey- 
 ance of the land. It was also held that evidence of a verbal 
 reservation of such nurscrv trees at the time of the sale of
 
 RULE AS BETWEEN VENDOR AND VENDEE. 539 
 
 the land was not admissible, and that where the vendor 
 attempts or claims the right to remove and take away the 
 trees under such verbal reservation, he may be enjoined from 
 doing so by injunction {Smltli v. Price, 39 III. R. , 28). 
 
 And the SuJDreme Court of Maine has held, that timber 
 trees cut down and allowed to lie upon the ground where 
 they fell will pass by a deed of the land {Brackett v. Ood- 
 dard, 54 Maine i?., 309). 
 
 The Supreme Judicial Court of Massachusetts decided a 
 case in 1869, in which it appeared that the owner of a house 
 and barn put up in the house several marble slabs, laid 
 upon but not fastened to brackets secured into the wall. 
 He also placed in the cupola of the barn a bell, hung on an 
 axle resting upon a wooden frame, which was placed on the 
 platform of the cupola and secured to it by cleats fastened 
 by nails. In this condition he conveyed the house and 
 barn, by the ordinary deed ; and then claimed the right to 
 take these articles away, as not passing to the grantee by 
 the deed. The court held that the slabs were not so an- 
 nexed to the real estate as to become a part of it. As they 
 were not attached to the wall, and could be removed with- 
 out injury to the house or to themselves, the court were of 
 the opinion that they formed part of the furniture of the 
 rooms, useful and convenient, but not essential to the en- 
 joyment and use of the house, and not permanently incor- 
 porated with the freehold so as to become part of it. But 
 the court held tlie bell to be a fixture and to have passed to 
 the grantee by the deed. The mode in which it was at- 
 tached, and its use in connection witli the barn, led the court 
 to the conclusion that it was intended to be, and was perma- 
 nently annexed to the barn, as an incident and appurtenant 
 thereof {Weston v. Weston, 102 Mass. B., 514). 
 
 In a case decided by the Supreme Court of Pennsylvania 
 in 1850, it was declared to be the doctrine in tliat State, that 
 the machinery of a cotton or woollen manufactory, w^hich is 
 necessary to constitute it, is a part of the freehold, and as 
 such, will pass by the deed of the vendor of the land on 
 which the manufactory stands, or by the deed of tlie sheriff
 
 
 540 -^^^^ OF FIXTURES. 
 
 who sells the real estate of the owner under an execution 
 against his propert3^ 
 
 Another important question was considered in the same 
 case, which it is very proper to note. The property in ques- 
 tion was sold under an execution and purchased by the 
 plaintiff in the execution. Ordinarily, the same rule, as to 
 fixtures, applies in such case as in cases of sale and convey- 
 ance by the owner. But it appeared in this case, that, al- 
 though the execution was issued on a judgment which 
 bound the woollen and cotton factory and machinery in con- 
 troversy, the plaintiff directed the sheriff to levy on the real 
 estate, and stated that the machinery had been assigned or 
 belonged to another, and that he had nothing to do with it ; 
 and after the sale and purchase by him, he stated to another 
 that he had purchased the factory and real estate, but not 
 the machinery. But, it was claimed that this direction and 
 these declarations were made by the plaintiff, in ignorance 
 of his rights and without consideration, and without the in- 
 tention of relinquishing his rights ; and the court held that 
 if this were true, such direction and declaration did not es- 
 top him from asserting his title to the machinery under his 
 purchase at the sheriff's sale. It was said that, if the real 
 estate brought less at the sheriff's sale in consequence of 
 the plaintiff's mistake of the law, it might have been a rea- 
 son for setting aside the sale, but that it would not estop 
 the purchaser from maintaining his title to the machinery 
 attached to the realty- purchased {Harlan v. Harlan, 15 
 Penn. R., 507). 
 
 The same court held in 1862, that rolls cast for a rolling- 
 mill, paid for and delivered at the mill, where they remained 
 for more than two years without being turned or tinished off 
 or put into the mill, do not, on sheriff's sale of the mill, 
 pass to the purchaser as realty. Of course, the question 
 in this case was decided preciselj^ as it would have been, 
 had it arisen between vendor and vendee, under the ordi- 
 nary conveyance, and without extraneous circumstances to 
 affect the transaction. 
 
 Lowrie, C. J., delivered the opinion of the court, and ob- 
 served : " Do the rolls go with the mill to the purchaser?
 
 RULE AS BETWEEN VENDOR AND VENDEE. 541 
 
 The test question is, were they elementary parts of the mill 
 at the time of the sale ? And, as matter of fact, it is quite 
 plain that they were not ; for the mill had always run with- 
 out them. TSTo doubt they were intended to be made part of 
 the mill, but we do not see how we can take the intention, 
 without fact, in order to declare what constitutes the mill. 
 If we do, then the sale of a half-built or half-ruined house 
 would include all the materials provided for its completion 
 or repair. 
 
 " A very provident man is quite sure to have on hand ma- 
 terials which he sees will some time be necessary for the re- 
 pair of his works, or for supplying deliciencies in them ; but 
 his having them with this intention does not make them con- 
 stituent parts of his works. * * * And if mere intention 
 could affix STicli articles to the realty, then a mere change of 
 intention would unfix them, or prevent their becoming af- 
 fixed, and we should thus be without any rule at all to guide 
 us. Besides, it is rather a contradiction in terms to say, at 
 the same time, that they are parts of the structure, and are 
 intended to be made so. 
 
 "That these rolls will fit no other mill does not make them- 
 part of this one, or prove them so. * * * The rolling-mill, 
 consisting of all its constituent parts, as it was actually con- 
 structed and used at the time of the sale, is all that passed 
 by the sale, and therefore the rolls were not included. 
 
 " We have expressed similar views to these in the case of 
 Wright v. Pp7ie, from Lancaster County, decided in 1860, and 
 not reported'' {Johnson v. Mehaffey, 43 Penn. Ji., 308-310). 
 
 And in 1870, the same court had a case before them in 
 which the only material facts were, that two partnei-s were 
 the owners of a lot of ground on which they erected build- 
 ings and placed therein a steam-engine, one still complete, 
 one doubler, one worm and worm-tub and one large tank, for 
 the purpose of carrying on the distilling business. In this 
 condition, one of the partners bought the other out, and 
 took a conveyance. The question was, whether the inter- 
 est of the vendor in these articles passed to the vendee, and 
 this was reserved at the trial for the court in banc to deter- 
 mine. The court were of opinion that the case was not
 
 542 LAW OF FIXTURES. 
 
 sufficiently presented by tlie evidence to enable tliem to de- 
 cide tlie question. 
 
 Slmiswood, J., said: "What are fixtures is always a 
 mixed question of law and fact. The things set forth and 
 disclosed in the declaration in this case pr hna facie are per- 
 sonal property. Certainly in th'e hands of the manufac- 
 turer of them, or in the possession of any one disconnected 
 with any building- in which they may be used, they are so. 
 It is plain that without some other facts, a court cannot say 
 as matter of law that 'one steam-boiler, one steam-engine, 
 one still complete, one doubler, one worm and worm-tub, 
 and one large tank,' are fixtures per 5e" {Campbell v. 
 aNeill 64 Penn. J?., 290, 292). 
 
 It would seem evident from the report of the case of 
 Camplell v. O Neill, that the articles in controversy were 
 purchased by the owners of a lot upon which was a building 
 intended by them to be used as a distillery, or for the pur- 
 pose of carrying on the business of distilling, and by them 
 placed in such building for the purpose of being used in that 
 business ; but there was doubtless an absence of evidence 
 in respect to whether the articles had actually been used in 
 the business or were annexed in any way to the building, 
 except that it is said i\\^Y "were put up." Under these 
 circumstances, it would not have been a forced construction 
 of the evidence to hold, as between vendor and vendee, that 
 the articles were part and parcel of the realty. 
 
 The Supreme Judicial Court of Massachusetts held in 
 1867, that, where fixtures are added to real estate by one 
 who is in posseseion thereof under a bond for a deed, with- 
 out paying rent, his right to remove them, after breach of 
 the bond, must be determined by the rule which prevails as 
 between vendor and vendee or purchaser, and not that 
 which prevails as between landlord and tenant. Accord- 
 ingly, under such circumstances, it was held that a trip-ham- 
 mer firmly attached to a block set in the ground ; the blower 
 of a forge ; a force pump and its pipes for raising water on 
 the premises; and shafting fastened to the building by 
 screws and bolts, cannot be removed after breach of the 
 bond. The court considered that the articles had all been
 
 RULE AS BETWEEN VENDOR AND VENDEE. 543 
 
 annexed to the freeliold, and more especially adapted to be 
 used in connection with the realty, and therefore became a 
 part of it, and could not be removed again without the con- 
 sent of the ownier of the land {McLaughliti v. Nash, 14 
 Allen's i?., 136). 
 
 The Supreme Court of New Hampshire has held that, 
 where land is sold and conveyed, all manure made in the 
 ordinary course of carrying on the farm, and which is upon 
 the premises at the time of the sale and conveyance, will 
 pass to the grantee as an incident to the land conveyed, un- 
 less there be a restriction in the deed. And it was declared 
 that it made no difference whether the manure was in the 
 field, or in the yard, or in heaps at the windows, or under 
 cover. 
 
 It appeared in the case that, at the time of the sale and 
 convej^ance, there was a quantity of manure in the barn, in 
 a place fitted for the purpose behind the cattle stall, and the 
 court held that the manure passed to the grantee by the ordi- 
 nary effect of the deed. And it was furtlier decided, that a 
 parol reservation of the manure upon a farm, agreed upon 
 either before or at the time of making the deed, could not 
 control the legal effect and operation of the deed; and that 
 parol evidence, tending i^o show such a reservation, was in- 
 admissible to affect the force of the conveyance {Conner v. 
 Coffin, 22 iV. H. B., 538). 
 
 In a case decided by the Supreme Court of Vermont, it 
 appeared, that, just before a house and lot were conveyed, 
 certain blinds and double windows made for the house, had 
 been procured and set up in the house, where the}^ remained 
 a short time, and previous to the sale of the house they 
 were taken down and put away by the vendor. The win- 
 dows had been fitted to the casings, and set up on the inside 
 of the windows belonging to the house, but had never been 
 nailed or fastened in, and no preparation had been made to 
 fasten them to the house. The blinds were never in any 
 manner attached to the building or windows, or even fitted 
 to them. The court held that neither the blinds nor win- 
 dows passed with the house by the conveyance to the gran- 
 toi- {Peck V. Batchelder, 40 VI. ^., 233).
 
 544 LAW OF FIXTURES. 
 
 It lias often been decided, however, that things construc- 
 tively annexed to the realty will pass to the grantee by a 
 conveyance of the land. Thus when an unfixed thing is a 
 part of that which is fixed — for instance, where a single 
 article consists of two parts, one of which is affixed to the 
 soil, or to that which is attached to it, the remaining part, 
 being unfastened and removable at pleasure, is a fixture, 
 although it be temporarily removed or lost, upon the prin- 
 ciple that the accessory partakes of the nature of the prin- 
 cipal. For example, it was held by the English courts, at 
 a very early day, that keys of a door, although they are dis- 
 tinct things, yet pass with the house {Lf/ord's Case, 11 
 Cokeys R., 50). And the same rule has been held to obtain 
 in case of a millstone, severed at the time of the conveyance, 
 and doors and windows temporarily separated from the realty 
 at the time of the sale and conveyance, unless there may be 
 circumstances to show tliat it was not the design of the par- 
 ties that the articles should pass {Vide ShepparcV s Touch- 
 stone, 90; Liford' s Case, supra). 
 
 The Court of Common Pleas of the City of New York has 
 held, that tlie adjustment of gas-fixtures is not such an 
 annexation to the freehold as to make them a part of the 
 realty and included in a grant of the land {Shaio v. Leiike, 
 1 Daly's R., 487). But the Court of Appeals of the State of 
 New York held in 1854, that a statue erected as an orna- 
 ment to grounds may pass by a conveyance of the realty, 
 althougli not fastened to the base on which it rested. And 
 in the same case, it was held, that a sun-dial erected on a 
 permanent foundation of stone, without being in any way 
 fastened to it, was a part of the real estate, althougli re- 
 movable without difficulty, and passed to the grantee by a 
 conveyance of the realty {Snedeker v. Warring, 12 N. Y. R., 
 170). 
 
 And the Supreme Court of New Hampshire recently held 
 that saw-mill saws purchased by the owner of the mill for 
 use therein, and attached to the mill, and in use there, 
 without any intention of removing them at the time, became 
 parts of the realty, and passed by the conveyance of the 
 "land ; so of the leather belting in use in the mill, and indis-
 
 RULE AS BETWEEN VENDOR AND VENDEE. 545 
 
 pensable to connect the machinery with the motive power. 
 But the court held that the saws purchased by the owner of 
 the mill for the purpose of using them in the mill, where 
 he had kept them for a long time, did not lose their charac- 
 ter of personalty, and did not pass by the conveyance 
 {Burns ide v. TwUchell, 43 N. H. H., 390). 
 
 The present Supreme Court of the State of New York de- 
 cided a case in 1874, wherein it appeared that the owner of 
 a saw-mill detached the saws, belting and machinery used 
 therein and removed the same to the house of a third person 
 having no connection with the mill. Afterward he sold the 
 mill at auction, and the purchase price was paid. The pur- 
 chaser claimed that the detached saws, belting and machinery 
 were included in the purchase and passed to him by the sale 
 of the mill. The court held that the articles thus detached 
 were personal property, and the title to the same would not 
 pass by a conveyance of the realty ; but that the sale thereof 
 could be made by parol, and that the question whether the 
 articles were sold with the real estate was properly submit- 
 ted to the jury {Bliss v. Misner, 4 ISf. Y. 8. C. M., 633). And 
 the Supreme Court of Missouri held in 1874, that a trustee's 
 sale of real estate wherefrom the improvements had been 
 burned down, did not pass fixtures which had been removed 
 during the fire {Curry v. Sclwiklt, 54 Mo. R., 515). 
 
 The old Supreme Court of the State of New York held in 
 1841, in accordance wdth the generally recognized doctrine, 
 that fences are a part of the freehold, and that the fact that 
 the materials of which they are composed are accidentally 
 or temporarily detached, without any intent in the owner to 
 divert them from tlieir use as a part of the fence, makes no 
 change in their nature ; hence, that they will, notwithstand- 
 ing, pass under a deed conveying the land. And the court 
 applied the same rule in the case of manure lying in the 
 barn-yard on the farm at the time of the conveyance, and 
 held tliat such manure passed by the deed to the purchaser 
 {Goodricli v. Jones, 2 HilV s H., 142). 
 
 In a case decided by the English Court of King's Bench 
 in 1823, in an action of trover for certain stoves, grates, 
 kitchen-ranges, closets, shelves, brewing-coppers, cooling- 
 
 69
 
 546 LAW OF FLXTURES. 
 
 coppers, masli-tubs, locks, bolts, and blinds; it appeared 
 that the plaintiff had put in the articles in question while 
 owner of the fee, and tliat he afterwai-d sold and conveyed 
 the house to which the fixtures were attached to the defen- 
 dant, who subsequently took possession thereof. The con- 
 veyance was silent in respect to the fixtures or articles in 
 question. The court held, nevertheless, that the articles 
 ' passed by tlie conveyance and belonged to the purchaser. 
 It was admitted by counsel that a j)ortion of the articles 
 were fixtures and passed by the conveyance, but it was con- 
 tended that some of them were not fixtures and did not pass. 
 The court, however, were of the opinion that all of the arti- 
 cles passed by the conveyance to the purcliaser {Colegrove v. 
 Dios Santos, 2 Barn. & Cress. Ji., 76; S. C, 9 Eng. C. L. 
 B., 30). 
 
 The foregoing embrace the leading cases upon the subject 
 of fixtures, as between vendor and vendee or grantor and 
 grantee, where there is nothing in the terms of the convey- 
 ance by which the question is taken from the general rule. 
 And upon a careful consideration of these authorities, two 
 proiDositions will be found to be true: 1st. That the relaxa- 
 tion of the ancient rule in relation to fixtures in favor of 
 trade, manufactures, and the like, which has been found to 
 apply in cases between landlord and tenant, does not apply 
 as between vendor and vendee ; but as between the latter, 
 all annexations connected with the freehold pass with the 
 realty by the usual conveyance of the latter. 2d. That the 
 motive power of machinery, which is stationary in its nature, 
 as between vendor and vendee is always regarded as a fix- 
 ture, and passes with the freehold ; while the machinery 
 propelled is sometimes regarded as a fixture, and sometimes 
 as a personal chattel, dependent upon the manner in which 
 it is annexed or attached to the realty.
 
 CONSTRUCTION OF CERTAIN CONVEYANCES. 547 
 
 CHAPTER XL. 
 
 LAW OF FIXTURES AS BETWEEN TENDOR AND VENDEE OR GRANTOR AND 
 GRANTEE EXAMINATION OF SOME CASES IN WHICH THE CONVEY- 
 ANCE HAS BEEN CONSTRUED AS AFFECTING THE QUESTION GEN- 
 ERAL RULE UPON THE SUBJECT. 
 
 The cases thus far considered involving the right to fix- 
 tures, as between vendor and vendee, have been contined to 
 those in which the conveyances made no special mention of 
 the articles claimed to have passed as fixtures, and no ques- 
 tion was made in respect to. the terms of the deed. There 
 are certain classes of fixtures, which become immediately, 
 upon their annexation to the land, incorporated w^ith the 
 realty as part and parcel of it, so as not to be removable 
 again. Now, that being the characteristic quality of that 
 s^pecies of fixtures, it is clear that a conveyance of the land 
 to which they are annexed, albeit the fixtures were not men- 
 tioned, would carry with it as parcel of the conveyance, the 
 fixtures which for the time being, were annexed to the land ; 
 and such are the authorities examined. But sometimes the 
 fixtures designed or supposed to be designed to be conveyed 
 are specifically mentioned in the conveyance, or mention is 
 made in the conveyance of eertain articles as part and parcel 
 of the hereditaments principally dealt with, and which it is 
 the express intention of the parties shall pass to the pur- 
 chaser. In those cases, it is often a question as to what ar- 
 ticles come within the specifications of the conveyance, and 
 more frequently as to whether certain articles being ex- 
 pressed in the conveyance, any other articles of fixtures 
 belonging to the realty conveyed shall be held to pass by 
 the deed. It becomes important, therefore, to examine the 
 rules by which these terms in a conveyance are to be con- 
 strued, and the cases in which construction has been given 
 by the courts. 
 
 An interesting case upon this particular subject of con- 
 struction, and which it will be profitable to consider, is one
 
 548 LAW OF FIXTURES. 
 
 that was decided by the English Court of Queen's Bench i-n 
 1853. The action was for an injury to the reversionary es- 
 tate of the plaintiff, in premises by removing some staddles, 
 a threshing-machine, and a granary. It appeared that the 
 plaintiff had purchased the premises from the devisees in 
 trust of one Thomas Cottrell, deceased, the father of the de- 
 fendant ; and the premises had been convej^ed to the plain- 
 tiff by a deed in which they were described as follows : " All 
 that messuage or tenement and farm-house, with the barns, 
 stables, and other appurtenances to the same belonging, 
 
 * * * and also and singular the several closes," which are 
 afterward enumerated, "all which farm lands, heredita- 
 ments, and premises, thereinbefore described, * * * were 
 more particularly known by the description contained in the 
 schedule" to the deed annexed, "and the site thereof was 
 more particularly shown in the plan" on the deed; "with 
 the rights, members, and appurtenances thereto belonging, 
 
 * * * and all fixtures, trees, hedges, ditches, fences," &c. 
 In the schedule referred to, were enumerated (aniQug other 
 things) two barns, two cart-sheds, and such like, but it was 
 argued that the fixtures claimed in the action were not 
 enumerated in the schedule ; while the plaintiff contended 
 that they were covered by the general words in the descrip- 
 tion of the premises as above given. 
 
 The court was of opinion that the deed, which had been 
 executed to the plaintiff, having conveyed the land and all 
 fixtures, and it moreover appearing that the erections had 
 been put upon the land by the defendant' s father, and not by 
 the defendant himself, the defendant clearly could not re- 
 move either the staddles or the threshing-machine, which 
 from the manner in which they were annexed to the soil 
 passed by the conveyance as real estate. But the court 
 thought the question as to the granary involved more diffi- 
 culty. Coleridge, J., in speaking of the latter said : " It ap- 
 peared to be laid on a wooden foundaition, supported by 
 staddles; and it lay upon them in the same manner that 
 the ricks lay upon the rick-staddles. The part above the 
 stone caps was wood with a tile roof. In removing this gran- 
 ary, the caps of the staddles and the upright stones were
 
 CONSTRUCTION OF CERTAIN CONVEYANCES. 549 
 
 taken away ; but it appeared tliat it was not attaclied, ex- 
 cept by its weight, to the staddles ; as it was proved that by 
 sufficient power it might have been lifted from the staddles 
 without disturbing them. 
 
 "We think that we are bound by the authorities to con- 
 sider such an erection as a mere chattel, and neither as part 
 of the land or affixed to the freehold. In Culling v. Tuf- 
 nal {Bull. N. P., 34), a barn erected on pattens and blocks 
 of wood, but not itself affixed in or to the ground, was held 
 to be removable. The custom of the country was relied on 
 in that case as making such erections removable by an out- 
 going tenant ; but Lord Ellenborough, in the great case of 
 Elwes V. Maio (3 East, 38), in referring to Culling v. Tuf- 
 nel {Bull. N. P., 34), treats the barn as having been clearly 
 removable without any custon, because it was not a fixture at 
 all, as not being fixed in or to the ground. In WansbrougJi 
 V. Ilaion (4 A. & E., 884), it was decided that a barn resting 
 by its mere weight on a brick foundation was not a fixture, 
 but was a mere chattel for which trover might be brought. 
 Mr. Justice Patterson referred in that c^se to Rex v. Otley 
 (1 B. (fc Ad., 161), where it was held that a windmill, rest- 
 ing by mere weight on a foundation of brick, was not a part 
 of the freehold so as to contribute to the value of the tene- 
 ment. In Rex V. Lonclonthorpe (6 T. R., 377), it was held 
 that a windmill not attaclied to the ground, but constructed 
 on cross trees laid upon brick pillars, but not attached or 
 affixed thereto, was a mere chattel. 
 
 " On these authorities, we think that the granary in ques- 
 tion must be treated as a mere chattel, and not as a part of 
 the land, nor as so affixed to the freehold as that its sever- 
 ance would give a cause of action for injury to the rever- 
 sionary estate in the land, the subject of the first count. 
 
 "It has been suggested, however, that it might pass as a 
 chattel under the word 'fixtures' in the conveyance ; and it 
 is said that the red mark in the plan, showing the site of 
 the granary, tends to prove that it was intended to pass. 
 The word 'fixtures,' though properly applicable to some- 
 thing annexed to the freehold, is sometimes used in a larger 
 sense. In Sheen v. Ricl-i6 (5 31. & W., 175, 183), where it is
 
 550 LAW OF FIXTURES. 
 
 said by Baron Parke : 'It does not necessaril}^ follow, that 
 tlie word '•fixtures' must import things affixed to the free- 
 hold, nor has the word necessarily acquired that sense. It 
 is a very modern word, and is generally understood to com- 
 prehend any article which a tenant has a power of remov- 
 ing.' It maybe doubtful whether the word 'fixtures' as 
 used in this conveyance, immediately followed by the words 
 'trees, hedges, ditches, fences,' and without there being any 
 other words in the conveyance denoting any intention of 
 passing chattels, can be construed as sufficient to pass the 
 granary as a mere chattel. The plan is said in the deed to 
 show the site of the premises ; and the site of the granary 
 was stated on the argument to be marked in red ink. And, 
 no doubt, the permanent erections and the staddles on which 
 the granary rested would pass ; but it is not so clear that a 
 mere chattel resting on such a site would pass, 
 
 "Considering, however, that this article was put up so long 
 ago by a party who became owner of the freehold, that it 
 seems to have been always demised with the freehold, and 
 remembering that the word ' fixture ' is capable of the large 
 meaning pointed out in the case we have referred to from 
 the Exchequer, and considering that the red mark seems to 
 include the granary, we should have been disposed to hold 
 that it might have passed as a chattel if we had found 
 that either count could be supported on that supposition. 
 Neither the first count of the declaration, which is for injury 
 to the reversionary estate of the plaintiff in the land, nor 
 the second count of the declaration, which is in trover, is 
 applicable to the abstraction of a chattel the possession 
 of which was for the time being in the plaintiff's lessor" 
 ( Wilts/iear v. CoUrell, 1 Mils & Bl. R., 674, 689, 690 ; 8. C, 
 T2 Eng. C. L. R., 674, 687, 688). 
 
 A case giving much light upon this branch of the subject, 
 was decided by the New York Court of Appeals in 1863. 
 The action was brought to recover the value of a carding 
 machine. The facts were briefly these : Joseph Sibley, de- 
 ceased, in his lifetime, and the defendant entered into a con- 
 tract, in writing, under seal, by which the former for a 
 sufficient consideration, agreed to sell to the latter, his
 
 CONSTRUCTION OF CERTAIN CONVEYANCES. 551 
 
 house, farm and premises, situated in the towns of Chili 
 and Riga, containing about three hundred and forty acres 
 or upward, with the crops growing on the same ; all the 
 lumber for the house; all the tools belonging to the 
 saw-mill; all the apparatus belonging to the grist mill ; to- 
 gether with all the fixtures belong ing to the fulling-mill 
 and carding machine, together with every article attached 
 to the freehold. Sibley subsequently gave a deed to the de- 
 fendant for the property, pursuant to the contract. 
 
 It was proved that a building on the farm, which had 
 been used in the wool-carding and cloth-dressing business, 
 was called and known, at the date of the contract, as the 
 fulling mill and carding machine. But the building had 
 not .been used for that business for several years, and the 
 carding machine itself had been taken from the building, 
 and stored in the grist-mill. The court held that the vendor 
 intended to sell, and the vendee intended to purchase, by 
 the contract, not only the fulling-mill and carding machine 
 building, but all the machinery on the farm, which had 
 been used in such building as fixtures ; and that such ma- 
 chinery was what the parties meant b}^ the words " fixtures 
 belonging to the fulling-mill and carding machine." 
 
 Balcom, J., in the course of his opinion, said: "The 
 meaning of the contract cannot be satisfactorily ascertained 
 without the aid of extrinsic evidence ; and such evidence 
 establishes, or at least strongly tends to establish, that the 
 words, 'fulling-mill and carding machine,' were words in 
 the contract to designate the building in which the carding 
 machine in question and the fulling-mill had been situated 
 and used ; and that the former had been removed and stored 
 in the grist-mill, upon the same farm, prior to the making 
 of the contract ; and by assuming that the words 'fulling- 
 mill and carding machine,' were employed to designate the 
 building I have mentioned, the presumption is that the 
 phrase 'fixtures belonging to the fulling-mill and carding 
 machine,' as used in the contract, means the carding ma- 
 chine itself and other machinery that had been used in the 
 carding machine and fulling-mill building, and belonged 
 therein when in their proper place. This interpretation of
 
 552 LAW OF FIXTURES. 
 
 the contract is the only one that is consistent with the con- 
 duct of the parties. For the defendant assumed to own the 
 carding machine in the fore part of the year 1837 or 1838, 
 and disposed of it in one of those years ; and Sibley did not 
 bring this suit until February, 1843. And it is probable if 
 Sibley had not intended to sell the carding machine itself 
 to the defendant, it would have been expressly reserved in 
 the contract, for the inference is quite cogent that Howell 
 would have thought it necessary to reserve it expressly, to 
 prevent it passing by the general language of the contract. 
 It seems to me Sibley intended to sell, and the defendant 
 intended to purchase, by the contract, not only the fulling- 
 mill and carding machine building, but all the machinery 
 on the platform, which had been used in such building as 
 fixtures ; and that such machinery is wiiat they meant by 
 the words ' fixtures belonging to the fulling-mill and card- 
 ing machine.' In other words, they supposed they correctly 
 described the machinery that was formerly attached to and 
 used in such building, when they designated the same as 
 fixtures belonging to the same. It is not improbable that 
 the defendant contemplated putting the carding and fmlling 
 works into operation again, at the time he contracted for 
 the premises, and regarded the machinery which had been 
 detached from the building, as fixtures belonging to the 
 same" {Martin v. Cope, 28 N. Y. Ji., ISO, 182, 183). 
 
 In giving construction to special terms in a conveyance, it 
 should alwaj'S be borne in mind that as a rule, under the 
 name of land are comprised all buildings and erections 
 affixed to the soil ; and it has been shown that the term land 
 has been held to convey houses and other buildings erected 
 thereon, although not mentioned ; and this is the rule, not- 
 withstanding other houses and buildings are specifically 
 described in the conveyance. Upon this principle, where 
 mere personal chattels are annexed to the freehold, they 
 are made incident to the freehold, and will be included in a 
 conveyance of the land in general terms. And this doc- 
 trine applies equally to cases where personal chattels have 
 been affixed to the freehold, and there may be a subsisting 
 right to remove them under the law of fixtures. A case de-
 
 CONSTRUCTION OF CERTAIN CONVEYANCES. 553 
 
 cided by the English Court of King's Bench in 1824, and 
 examined in a previous chapter, illustrates the doctrine; 
 Avherein the court seems to have been of opinion, that if a 
 tenant takes premises under a renewed lease containing the 
 terms land, buildings, erections, &c., such general words 
 will comprise T^^^z^re^ which have been put up pending a 
 former lease ; and that consequently, the tenant will be pre- 
 cluded from setting up any claim to remove the fixtures, 
 whatever may have been his rights antecedently to the new 
 lease {Thresher y. East London Water Worlis Co., 2 Barn 
 & Ores. ^., 69 ; >S'. a, 9 Eng. C. L. i?., 198). 
 
 So also, in a case decided by the English Court of Com- 
 mon Pleas in 1789, also referred to in a previous chapter, a 
 tenant had entered into a certain agreement with his land- 
 lord, in the construction of which the court thought that it 
 was implied that the premises should be redeliveied to the 
 lessee in the same state as at the time of the agreement ; and 
 although there was no mention of fixtures in the agreement, 
 yet it was held that they were subject to the same stipula- 
 tion with the land itself, because they formed a part of the 
 land {Fltzherherty. Shaw, 1 B. Blaclc. R., 258). 
 
 The authorities, therefore, may be considered to establish 
 the general proposition, that by a conveyance of the free- 
 hold to a purchaser, all things annexed to the freehold will 
 pass with the land as parcel thereof ; and the cases show 
 that the circumstances must be very special which would 
 prevent the operation of this general principle. This doc- 
 trine should always be remembered in examining the terms 
 of a conveyance to determine the question of fixtures, as 
 between vendor and vendee. 
 
 At the same time, it should be observed that, notwith- 
 standing there may be general words in a conveyance which 
 would include fixtures, yet if it can be collected from the 
 deed itself that these words are qualified by other stipula- 
 tions found in the deed, so as to make it appear that the 
 intention of the parties was restrictive of the general terms 
 employed, in such a case the primu facie inference arising 
 from the general expressions is modified and controlled. 
 
 As an example of such a qualification of the general rule, 
 
 70
 
 554 LAW OF FIXTURES. 
 
 reference may be had to a case decided by tlie English Court 
 of King's Bench in tlie year 1833, wherein it appeared that 
 the owner in fee of a certain foundry, contracted to 
 sell the same to a party who subsequently requested the 
 vendor to convey the premises to a person of whom he de- 
 sired to borrow money, and he accordingly executed a con- 
 veyance by which he granted to the grantee and his heirs 
 "all and singular the said iron foundry, together with the 
 said dwelling-houses, warehouses, shops, yards, gardens 
 and appurtenances, thereto belonging, and also all the close 
 called the Foundry Field, and the dwelling-houses or build- 
 ings erected thereon, and all other the premises, together with 
 all grates, boilers, bells, and other fixtures in and about the 
 said two dwelling-houses and the two houses thereto belong- 
 ing, and all other houses, otherwise, &c., barns, &c., rights, 
 &c., easements, &c., whatsoever to the said foundry belong- 
 ing or appertaining." The contract between the vendor 
 and purchaser subsequently occasioning dispute, the ven- 
 dor entered the foundry (his vendee being in possession at 
 the time), and carried away the tools and other movables, 
 and also severed and took away (among otlier things) a 
 steam-engine and certain cranes, presses, frames for gas- 
 ometers, and other apparatus, all fixed into the earth or 
 walls. For this the action was brought. The question for 
 the court was, w^hether the fixtures annexed to the foundr}^ 
 passed by the conveyance. The court held that they did not 
 upon the maxim ^^'eccjyressio iinius est excluslo alieriiis.^'' 
 That is to say, it was held that the specifications of the 
 grates and fixtures in the dwelling -house excluded the arti- 
 cles in the foundry, and shoAved that the latter was not 
 intended to pass ; though it was admitted that they would 
 have passed under the general terms in the granting part 
 of the deed, if the others had not been mentioned. 
 
 Mr. Justice Parke remarked: ^'' Prima facie the mere 
 conveyance of the foundry would have passed them ; but 
 we must look to the deed to see how far that is controlled 
 by subsequent words ; and I think no reasonable person 
 can doubt, that if a transfer of these fixtures liad been con- 
 templated, different expressions would have been used.
 
 CONSTRUCTION OF CERTAIN CONVEYANCES. 555 
 
 The granting part of the deed (to which the appointing 
 part refers) is as follows." [His Lordship then read the 
 description of the premises and other matters conveyed, 
 and continued] : "Now, I think it is impossible to suppose, 
 that if the parties making this grant had intended to convey 
 Tby it fixtures which are valued at more than 600Z., they 
 would have omitted to mention these and inserted those 
 others which are of much less importance. It seems to me, 
 therefore, that the intention was to pass the walls of the 
 foundry, and nothing more ; and consequently the plain- 
 tiff must fail as to that part of the case." 
 
 Mr. Justice Taunton expressed the matter more clearly. 
 He said: "It is very plain that if the granting part of the 
 deed had only mentioned the foundry, messuages, and 
 dwelling-houses, the foundry fixtures as well as those of 
 the dwelling-houses would have passed. But as the deed 
 goes on to say 'together with all grates,' &c., I think the 
 mention of these fixtures excludes those in the foundry, 
 upon the principle ' express io unius est exclusio alter ius: 
 Moreover, in the recital of the plaintiff's agreement to lend 
 money in the early part of the deed it does not a^opear that 
 any security was proposed beyond that of the real property " 
 {Hare v. Horton, 5 Barn. & AdolpTi. R., 715 ; S. (7., 27 
 Eng. C. L. R., 160, 164, 165). 
 
 At an early day the Court of Appeals of the State of 
 Maryland decided a case, wherein it appeared that a jie.ri 
 facias was issued against the owner of real estate, on which 
 the sheriff sold a "house and lot with the appurtenances." 
 The house was built for a distillery, and the implements 
 necessary for the conduct of the business were on the prem- 
 ises at the time of the sale. In an action of trover to recover 
 the articles, it was held that the pumps, cisterns, iron grat- 
 ing, door, distillery and horse mill passed by the sheriff's 
 deed ; but that the joists, vats, buckets, spigots and faucets 
 did not pass by the deed ; the distinction being taken be- 
 tween things fixed to the freehold, and mere loose utensils 
 for carrying on the business {Klrioan v. Latour, 1 Harr. & 
 Jolms. R., 289). 
 
 It should be mentioned that there are cases at variance
 
 556 LAW OF FIXTURES. 
 
 with the general run of decisions in respect to the effect of 
 tbe ordinary conveyance of land in carrying with the free- 
 hold the lixtures of the grantor. For example, the case of 
 Bx parte Quincey (1 Atk. i?., 477), decided by the English 
 Court of Chancery in 1750, referred to nj)on anotlier branch 
 of the subject, Lord Hardwicke seemed to have been of the 
 opinion, that the fixed utensils of a brew-honse would not 
 pass by a conveyance of the brew- house with the appur- 
 tenances. But of this case our data is scanty, and tbe cir- 
 cumstances are complex, and the decision, upon this point, 
 is not generally followed. It may be that the particular 
 utensils which were in dispute in the case were of a purely 
 chattel character, although indeed it may also be that they 
 were fixtures of that sort which are a defeasible interest in 
 land. But however this fact may have been, the case is 
 looked upon with suspicion. 
 
 Then there is the case of Beck v. Reboio (2 P. Wins. R., 
 93), decided by the same distinguished court forty-four years 
 earlier, in 1706, in which it was held, that a covenant to sell 
 a house and all things fixed to the freehold of the house, 
 did not comprise certain matters of ornament which at the 
 time of the deed were affixed to the house, and united to it 
 by serews and nails. But with respect to this case, it is 
 ^particularly to be remembered, that the property in dispute 
 ajDpears to have been of a description similar to that 
 which in other cases has been held removable, as between 
 heir and executor. It may therefore be thought, perhaps, 
 that without infringing the rule in ordinary cases, the court 
 considered that articles of the description involved in the 
 last two cases cited, which are so much in the nature of 
 personalty as to be .assets in the hands of the executor, 
 might be an exception to the general rule, and ought not to 
 be comprehended under the general terms of a conveyance. 
 In the case of Beck v. Behom, the Lord Keeper held that 
 certain pictures on the staircase of the house in question, 
 and the fixtures over the doors, and over the chimney- 
 pieces, went to the plaintiff under the covenant, because the 
 covenant expressly referred to them ; but the other articles 
 in controversy ; the hangings and the looking-glasses, the
 
 CONSTRUCTION OF CERTAIN CONVEYANCES. 557 
 
 Lord Keeper was of the opinion, were only matters of orna- 
 ment or .furniture, and were not, therefore, to be regarded 
 as part of the house, or as fixed to the freehold of the mes- 
 suage. 
 
 The doctrine here suggested is supported by some ex- 
 pressions of the court in the case of Colgrove v. Dlas San- 
 tos, cited in a previous chapter,' although the principle does 
 not seem to have been recognized in any other determina- 
 tion ; on the contrary, it appears from the whole current of 
 authorities, that things fixed to the freehold are, in all cases, 
 to be deemed essential ^oarts of the freehold, while they sub- 
 sist in a state of anne^iation, notwithstanding they may be 
 subject to a right of being afterward severed from the free- 
 hold, and converted into personal chattels. 
 
 Precedents for determining the question in respect to fix- 
 tures, as between vendor and vendee, when depending upon 
 the construction to be given to the terms of the conveyance, 
 may be found in some cases where the question arises be- 
 tween mortgagor and mortgagee ; for the courts often refer 
 to decisions in the one case as precedents for their determi- 
 nation in the other. Thus, in a case decided by the Supreme 
 Court of Pennsylvania in the year 1841, the same reasoning 
 was acted upon. The case was an action between the trus- 
 tee of one Pennock for the benefit of creditors, under an 
 assignment of all tlie personal property of Pennock made 
 on the 16th of September, 1839, and a party, who subse- 
 quently to the date of the assignment, purchased at a sale 
 by the sheiiff a certain rolling-mill the property of Pennock, 
 the Tiouslrigs in the rolling-mill being at tlie time filled with 
 rolls, with the exception of one set of the housings, wdiich 
 w^as empty. There w^ere a great many duplicate rolls, some 
 of which, ap%)arently, had not been at any time in use, 
 although indeed this circumstance (if it was a fact) is not 
 stated as such in the report, it being merely stated in con- 
 nection with the duplicate rolls, that in the manufacture^ of 
 iron it is customary to have more rolls than housings The 
 court held that all the rolls passed as realty to the purchaser 
 upon the sale of the mill by the sheriff. It was expressly 
 declared that the principle of the case was settled by Yoor-
 
 558 LAW OF FIXTURES. 
 
 liles V. Freeman (2 Watts & SergeanV s Reports, 116), wliicli 
 was a case in which it was ruled, that a mortgage, and sale 
 of a lot and iron-rolling mill, with the buildings, apparatus, 
 steam-engine, boilers, and bellows attached to the same, 
 passed the entire set of rolls used in the mill, whether ac- 
 tually in place, or temporarily detached to make room for 
 such as were; and that such rolls could not be seized and 
 sold as chattels, on a fieri facias against the mortgagee. 
 The court in that case also remarked, that if it were neces- 
 sary, they would hold that the rolls might have passed, had 
 they been chattels, by force of the word apparatus in the 
 description of the premises. And the court in the case now 
 under consideration declared, that as regarded the rolls, the 
 case was that of Voorhies v. Freeman in terms ; and that 
 as regarded ihe iron plates, it was stronger still {Pyle v. 
 Pennock, 2 Watts & Serg. P., 390). 
 
 One other observation may be made in this connection ; 
 which is, that in the construction of the language of a con- 
 veyance, that construction must prevail which is the most 
 favorable to the grantee. If the language is plain, there is 
 no occasion for the office of construction ; but where there 
 is doubt in respect to the meaning of certain expressions in a 
 deed, then that construction must be given which is the most 
 favorable to the grantee. Hence, the rules which are cus- 
 tomarily held to control the interpretation of written docu- 
 ments will be found to be read as subordinate to the principle 
 which allows to the grantee the special favor mentioned; 
 unless, indeed, the words are expressly and elaborately 
 framed to exclude that favorable mode of interpretation. 
 This doctrine will be further illustrated in the consideration 
 of the subject of fixtures as between mortgagor and mort- 
 gagee, which is the next in the order of discussion adopted.
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 559 
 
 CHAPTER XLI. 
 
 LAW OF FIXTURES AS BETWEEN MORTGAGOR AND MORTGAGEE GEN- 
 ERAL DOCTRINE IN SUCH CASES EXAMINATION OF AUTHORITIES 
 
 UPON THE SUBJECT. 
 
 The next subject of inquiry is that of the law of fixtures 
 as between mortgagor and mortgagee ; and in respect to the 
 transfer of fixtures by way of mortgage, it may be observed 
 that tliis species of property may be mortgaged either in 
 connection with or in separation from the realty. And 
 again, there seems to be no good reason for saying,^ that a 
 mortgage of lands can be construed to pass any different 
 rights with respect to fixtures than an absolute conveyance. 
 It may, therefore, be assumed in the commencement of the 
 examination of the subject, that, as a rule, fixtures are in- 
 cluded under general terms in mortgage conveyances, as well 
 as in conveyances of any other description. A contrary 
 doctrine was supposed to have been laid down in a case de- 
 cided by the English Court of Chancery in 1750, briefly 
 referred to in the preceding chapter, but without any very 
 sufficient reason. The case was this : A person sold the 
 utensils and granted a lease of a brew-house, and afterward 
 mortgaged the brew-house with the appurtenances to another 
 person. The lessee sold his lease and utensils to an indi- 
 vidual, who, for a sum of money, mortgaged the whole to 
 the original proprietor, wlio afterwai'd became bankrupt; 
 and the right to these fixtures was litigated between his 
 assignees and the first mortgagee of the brew-house. Under 
 these circumstances Lord Hardwicke was inclined to think 
 that the fixed utensils of the brew-house did not pass by 
 the mortgage. The Lord Chancellor observed : " For there 
 is some description generally of things in a brew-house; 
 the manner of describing the parcels shows that it was not 
 meant to mortgage the utensils, for the word appurtenances 
 seems only to intend things belonging to the outhouses. 
 It is said that a mortgage is a purchase ; but then it is a
 
 560 LAW OF FIXTURES. 
 
 redeemable one. How does it stand between a purchaser 
 and a vendor ? If a man sells a house where there is a cop- 
 per, or a brew-house where there are utensils, unless there 
 was some consideration given for them they would not pass" 
 {Ex 2^ arte Qulncey, 1-Atk. B., 477). It is reported, how- 
 ever, that the case stood over, and it does not appear that 
 it was ultimately determined; so says Mr, Amos in his 
 treatise upon the Law of Fixtures. 
 
 Still, here is the opinion of Lord Hardwicke, which ap- 
 pears to be at variance with his Lordship's observations in 
 a prior decision, which will be noted hereafter. But, it is 
 submitted that the case itself does not warrant the position 
 that fixtures will not pass by a mortgage of land as part 
 and parcel of the mortgaged estate, unless they are specifi- 
 cally mentioned. For, allowing to the case full weight as 
 a final decision, it must be considered to have been deter- 
 mined entirely with reference to its own peculiar circum- 
 stances, to the intent of the parties, and to the construction 
 put upon the language of the conveyance. 
 
 In the case of Hare v. Horton^ the particulars of which 
 are given in the preceding chapter, the court distinctly recog- 
 nize the piinciple that under a conveyance of land by way 
 of mortgage, property affixed thereto would in general pass, 
 and that there was no distinction between such a convers- 
 ance, and a general convej^ance by sale ; but they thought 
 that in this case it was to be collected from the terms of the 
 deed itself, that the trade fixtures in dispute were never in- 
 tended b}^ the parties to be included in the mortgage. 
 
 So, in a case decided in the English Court of Exchequer 
 in 1833, which will be referred to hereafter upon another 
 branch of the subject, it was held that certain fixed ma- 
 chinery did not i)ass to the mortgagee ; although the 
 mortgage deed contained an express mention of fixed 
 property in ver}'" general terms. But the court came to the 
 conclusion from the very special circumstances of the case, 
 and without at all impugning the general principle that 
 under a mortgage property affixed to the land will in gen- 
 eral pass to the mortgagee. For they considered that it 
 appeared from the facts of the case, that the fixtures in
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 561 
 
 question were not meant by tlie parties to be included in the 
 mortgage deed, and tliat the words in the deed which would 
 seemingly have embraced them, were satisfied by other fixed 
 property about which no question was made {Trappes v. 
 JIarter, 2 Or. & Mees. H., 153- S. C, 3 Tyrw. R., 603). 
 
 But English authorities may be cited, which expressly 
 hold that fixtures, as a rule, pass by a mortgage of the land 
 itself ; such is a case decided by the King's Bench in 1834. 
 In the case referred to, the court was of opinion, that even 
 althougli no mention is made of fixtures, they pass with 
 the estate, and constitute a part of the mortgagee's security. 
 The action was trover for counters, presses, grates, coppers, 
 workboards, cupboards, glazed doors, movable partitions, 
 &c. The lessee of a house containing these fixtures exe- 
 cuted an assignment of the premises by way of mortgage, 
 not mentioning the fixtures ; and afterward he assigned the 
 premises and all the estate and effects to trustees. The 
 trustees being in treaty for a sale of the fixtures to a 
 third party, tlie mortgagee, whose principal and interest 
 were due, took forcible possession of the house, and refused 
 on demand to deliver ujj the fixtures ; whereupon the trus- 
 tees brought an action of trover. The court held that the 
 trustees were not entitled to recover the fixtures, as against 
 the claim of the mortgagee {Longstaff v. 3Iagoe, 2 Adolpli. 
 & Ml. B., 167 ', S. a, 29 Ung. C. L. i?., 94). 
 
 To the same effect is an earlier case decided by the same 
 court, in which it was held that by a mortgage of a mill, the 
 stones, tackling, and implements necessary for the working 
 of the mill passed to the mortgagee {Place v. I^agg, 4 3fan. & 
 Ryl. R., 277). 
 
 In 1856, the Court of Queen's Bench of England held that 
 the machinery annexed to an estate after a mortgage did 
 not pass to the mortgagee as parcel of the freehold. The 
 reason for the ruling, however, was, that the instrument of 
 mortgage did not show that the parties so intended, but 
 rather the reverse. Erie, J., observed: "It was further 
 suggested that this machinery might have passed to the 
 mortgagee of the freehold as parcel thereof, though annexed 
 after the mortgage ; but the terms of the instrument show that 
 
 71
 
 562 LAW OF FIXTURES. 
 
 the parties did not so intend ; and trade fixtures, as above 
 decided, would not by subsequent annexation become par- 
 cel of the freehold" {Water/all v. Penlstone, 6 Ellis & 
 Blackhurns R., 876 \ 8. C, 88 Eag. C. L. R., 875, 890). 
 
 In a case decided by the English Court of Common Pleas 
 in 1859, in which a mortgagee who was the owner of the in- 
 heritance had annexed, after the date of the mortgage, fix- 
 tures to the freehold for a permanent purpose, and for the 
 better enjoyment of the estate, it was held that these fixtures 
 had become a part of the mortgaged estate, there being no 
 evidence of a contrary intention, and that they could not 
 be claimed by the assignees in bankruptcy of the mort- 
 gagee, although they might be trade fixtures, which, in the 
 case of an ordinary tenacy would have been removable by 
 the tenant. The judgment of the court was deliveied by 
 Cr-owder, J., who explained, and distinguished Trappes v. 
 Harter, and Waterfall v. Penistone., before cited, and de- 
 clared that they had no application to cases between mort- 
 gagor and mortgagee, in which the relation of landlord and 
 tenant does not exist. The learned judge observed: "But 
 two cases of mortgagee and mortgagor in possession were 
 cited by the plaintiff's counsel as strongl}' supporting their 
 client's title to the verdict. One was Trappes v. Harter 
 (2 C. & J/., 177), decided by the Court of Exchequer, in which 
 Lord Lyndhurst delivered the judgment of the court ; and 
 the other was Waterfall v. Penistone (6 Ellis & B., 876), in 
 which our present Chief Justice, then Mr. Justice Erie, de- 
 livered the judgment of the Court of Queen's Bench. 
 
 Trappes v. Harter was a decision in favor of the assignees 
 of a bankrupt mortgagor in possession, upon the gi'ound 
 that the mortgage did not pass the fixtures in question, and 
 was not intended by the parties to pass them. The mort- 
 gage enumerated various fixtures, but did not refer to the 
 fixtures in dispute ; and this omission, together with other 
 circumstances in the case, induced the court to be of opinion 
 that they were intentionally omitted in the mortgage- deed, 
 and therefore did not pass by it. The other case, of Water- 
 fall V. Penistone, was also that of a bankrupt mortgagor 
 in possession and a mortgagee, where the question was,
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 563 
 
 whether the bill of sale of the fixed machinery, drawn in the 
 shape of a mortgage, required registration under 17 & 18 
 Vict. c. 36, This partly involved the consideration as to 
 whether the fixtures were to be deemed goods and chattels 
 within that act, and Hallowell v. Eastioood, was cited in the 
 argument, and recognized as a valid authority b}^ the court. 
 But the species of mortgage was of a peculiar description. 
 There had been a prior mortgage of the premises with the fix- 
 tures then thereon. Afterward, for a further consideration, • 
 a mortgage was made of the fixtures which had been subse- 
 quently annexed, by themselves ; and the court was of 
 opinion that they did not pass by the j^rior mortgage, 'be- 
 cause the tenor of the instrument shows that the parties did 
 not so intend ;' and they held that the separate mortgage 
 of these fixtures was within the 17 & 18 Vict. c. 36, requiring 
 the deed to be registered ; and for want of such registration, 
 they decided that the fixtures passed to the assignees. In 
 the present case, however, there do not appear any circum- 
 stances tending to show^ an intention existing between Moore, 
 the bankrupt, and his mortgagee, that the fixtures annexed 
 subsequently to the date of the mortgage should not become 
 part of the mortgaged estate ; and, in the absence of such 
 intention, the current of authorities in the bankruptcy court 
 shows that such an annexation of fixtures would enure to 
 the benefit of the mortgagee. * * * We think, therefore, 
 that, when the mortgagee (who was the real owner of the 
 inheritance), after the date of the mortgage, annexed the fix- 
 tures in question for a permanent purpose, and for the 
 better enjoyment of his estate he thereby made them part of 
 the freehold which had been vested by the mortgage deed 
 in the mortgagee ; and that, consequently, the plaintiffs, 
 who are the assignees of the mortgagor, cannot maintain 
 the present action" {Walmsley v, Milne., 1 Com. Bench Ji., 
 JSr. S., 115 ; 8. a, 97 B/iff. C. L. R., 114, 132, 133, 138). 
 
 In 1866, it was decided in the English Court of Chancery, 
 that trade fixtures affixed to mortgaged freehold premises, 
 after the mortgage, by the mortgagor and his partner, occu- 
 pying tlie premises for the purpose of their trade, pass to 
 the mortgygee. The fixtures were certain articles of ma-
 
 564 ■ LAW OF FIXTURES. 
 
 chinery put up in a building to be used as an engineer's 
 fitting shop. 
 
 Lord Romilly, Master of the Rolls, observed: "In this 
 case two questions arise — one a question of law, and the 
 other a question of fact. The first is, whether the machin- 
 ery which has been fixed to the premises since the date of 
 the mortgage deed, and which consists solely of trade fix- 
 tures put up for the purpose of enabling the partners to 
 carry on business, passes to the mortgagee, by virtue of his 
 mortgage, as attached to the freehold ; and the second is, 
 whether some of the machinery was in reality loose, or 
 whether it was affixed to the freehold. 
 
 As to the first question, after reading and considering all 
 the cases cited, I am unable to distinguish this case from 
 the case of Bx parte Cotton (2 J/. D. & Z>., 725). There a 
 trader mortgaged the trade premises in fee, and then en- 
 tered into partnership, and the firm carried on business on 
 the same premises, and, after the mortgage, they erected 
 trade fixtures and then became bankrupt, and it was held 
 that these trade fixtures belonged to the mortgagee and not 
 to the assignees. Now that is precisely this case. But it 
 remains to be considered whether that is the law on the sub- 
 ject ; and, as opposed to that, the case of Trappes v. Bar- 
 ter (2 C & J/., 153), was cited, which Avas a very careful 
 decision, and elaborately considered by the Court of Ex- 
 chequer, and unquestionably it seems at first difficult 
 to reconcile Trappes v. Harter with the case of Ex parte 
 Cotton. 
 
 It is to be observed that Trappes v. Harter was the earlier 
 case, and was not cited in Ex parte Cotton. * * * At first 
 sight it seems rather difficult to reconcile the two cases ; and 
 this case was very strongly relied upon b}^ the defendants, 
 and also the case of Waterfall v. Penlstone (6 E. & B.^ 
 876). -^ * * That case is very distinguishable from ^^^ar^e 
 Cotton (2 M. D. & Z>., 725), because it turns very much 
 upon the fact of the indenture not having been registered. 
 But all this is gone into and veiy clearly pointed out, in an 
 elaborate judgment by Mr. Justice Crowder in the case of 
 Walmsley v. Milne (7 C. R., JSf. S., 115), and in the course
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 565 
 
 of the argument in tliat case Mr. Justice Williams ex- 
 pressed his opinion that, so far as regards the right to the : 
 lixtures having be^n decided to pass to the assignee in pref- 
 erence to the' mortgagee, the case of Trappes v. Barter {2 
 a & 3L, 153), had been overruled; and Mr. Justice 
 Crowder suggests that Trappes v. Barter must be consid- 
 ered to have been determined on the peculiar facts of the 
 case, and not otherwise. * * * The only point on which 
 any substantial argument can be founded in this case is, 
 that the fixtures were put up by the tenants, and not by the 
 mortgagor. But, without going into the question whether 
 the partners were properly tenants in the strict sense of the 
 term, this question is disposed of by the case of Ex parte 
 Cotton (2 3L D. & i>., 725). The other cases cited, which 
 are most of them commented on at length in Walmsley v. 
 Milne (7 C. R., N. 8., 115), which I have referred to, and 
 the case of MatJier v. Fraser {2 B. & J., 536), before Vice- 
 Chancellor Sir William Page Wood, all concur in this view. 
 I am, therefore, compelled to follow JEx parte Cotton, and 
 to hold that the fixtures, although trade fixtures, and put 
 up for the purpose of carrying on the business of the part- 
 nership, and, although put up since the date of the mort- 
 gage, so far as they are affixed to the freehold, go with it to 
 the mortgagee" {Cullwick v. Swindell, 3 Equity Cases, 
 L. R., 248, 251-255). 
 
 In the year 1868, the English Court of Exchequer followed 
 the case of Cullwick v. Swindell, last cited, and held that 
 trade fixtures which have been annexed to the freehold for 
 the more convenient using of them, and not to improve the 
 inheritance, and which ^re capable of being removed with- 
 out any appreciable damage to the freehold, pass under a 
 mortgage of the freehold to the mortgagee. The action was 
 detinue for a steam-engine and boiler. 
 
 Kelly, C. B., delivered the judgment of the court, who, 
 after stating the facts, observed : "It is clear that, as against 
 a landlord, these articles would have been removable by a 
 tenant. But Climie was not a tenant ; he was a mortgagee 
 in possession. * * * The question, therefore, is whether, as
 
 566 LAW OF FIXTURES. 
 
 between mortgagor and mortgagee, trade fixtures are re- 
 movable by the mortgagor. 
 
 "The term 'fixtures' is an ambiguous one. * * * But, as 
 already said, it is a case between mortgagor and mortgagee, 
 and no authority has been cited to show that a mortgagor 
 is entitled to remove such trade fixtures. There have been 
 several cases where the courts have decided that, upon the 
 true construction of the mortgage deeds, trade fixtures were 
 removable by the mortgagor, but not one to show that such 
 right exists without a special provision. A mortgage is a 
 security or pledge for a debt, and it is not unreasonable if a 
 fixture be annexed to land at the time of the mortgage, or 
 if the mortgagor in possession afterward annexed a fixture 
 to it that the fixtures shall be deemed an additional security 
 for the debt whether it be a trade fixture or a fixture of 
 any other kind. It has already been observed that no au- 
 thority has been cited to show that trade fixtures may be 
 removed by the mortgagor, but there are several to the con- 
 trary ; and unless we are prepared to overrule them, our 
 judgment must be adverse to the plaintiff. It is unneces- 
 sary to refer to cases earlier than Mx parte Cotton (2 M. D. 
 & JDe 6^., 725). * * * The case of Oullwick v. Swindell {Law 
 Hep., 3 Eq.., 249), was decided in 1866 by Lord Romilly, 
 He stated that he w^ould follow Ex parte Cotton (2 M. D. & 
 De G., 725), and held that fixtures, although trade fixtures, 
 and put up for the purpose of carrying on the business, and 
 although put up since the date of the mortgage, so far as 
 they are affixed to the freehold, go with it to the mortgagee. 
 This is a stronger case than the present, for here the trade 
 fixtures were upon the freehold at the time of the mortgage, 
 and all the authorities seem to show that they pass with the 
 land. * * * It follows from this that the findings of the 
 jury, that the steam-engine and boiler were fixed by the 
 mortgagor for their better use,^and not to improve the in- 
 heritance, and that they could be removed without any ap- 
 preciable damage to tlie freehold, become immaterial, for 
 the right of the mortgagee attaching by reason of the annex- 
 ation to the land, the intention of the mortgagor in respect
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 567 
 
 of tliem cannot prevail against the legal effect of the deed" 
 {Cllmle V. Wood, 3 UxcJi. R., 256, 260, 261). 
 
 The case last cited was carried by appeal to the Exchequer 
 Chamber, and the judgment of the Court of Exchequer was, 
 in 1869, affirmed, and the law declared as in the court be- 
 low. Willes, J., observed: "The question in this case 
 turns upon whether a claimant under the mortgagee of cer- 
 tain land or the purchaser from the mortgagor is entitled to 
 an engine and boiler employed in a saw-mill on the mort- 
 gaged premises and erected under the circumstances and in 
 the manner proved at the trial. The Court of Exchequer 
 held that the claimant under the mortgagee was entitled, and 
 we are of opinion tliat their judgment ought to be affirmed. 
 There is no doubt that sometimes things annexed to land 
 remain chattels as much after they have been annexed as 
 they were before. The case of pictures hung on a wall for 
 the purpose of being more conveniently seen may be men- 
 tioned by way of illustration. On the other hand, things 
 may be made so completely a part of the land, as being es- 
 sential to its convenient use, that even a tenant could not 
 remove tliem. An example of this class of chattel may be 
 found in doors or windows. Lastly, things may be affixed 
 to land, for the purposes of trade or of domestic convenience 
 or ornament, in so permanent a manner as really to form a 
 part of the land ; and yet the tenant who has erected them 
 is entitled to remove them during his term, or, it may be, 
 within a reasonable time after its expiration. Now in the 
 present case we think* upon the evidence and findings of the 
 jury, that the engine and boiler belonged to this class, and 
 if erected b}^ a tenant might have been removed by him dur- 
 ing his term ; and in this view we are supported by the au- 
 thority of Lyde v. Russell (1 B. & Ad., 394). The reasons, 
 however, for a tenant with a limited interest being allowed 
 to remove trade fixtures are not applicable to the owner of 
 the fee." The learned judge then quotes the following lan- 
 guage of Lord Cottenham in Fisher v. Dixon (12 CI. & F., 
 912): "The principle upon which a departure has been 
 made from the old rule of law in favor of trade appears to 
 me to have no application to the present case. The indi-
 
 568 LAW OF FIXTURES. 
 
 vidual who erected the machinery was the owner of the land 
 and of the personal property which he erected and em- 
 ployed in carrying on tlie works ; he might liave done what 
 he liked with it ; he might have disposed of the land ; he 
 might have disposed of the machinery ; he might have sepa- 
 rated them again. It was therefore not at all necessary in 
 order to encourage him to erect those new works which are 
 supposed to be beneficial to the public that any rule of that 
 kind should be established, because he was master of his 
 own land. It was quite unnecessary, therefore, to seek to 
 establish any such rule in favor of trade as applicable here, 
 the whole being entirely under the control of the person 
 who erected this machinery." Mr. Justice Willes then 
 added: "And we are of opinion, that the decisions which 
 establish a tenant's right to remove trade fixtures do not 
 apply as between mortgagor and mortgagee any more than 
 between heir at law and executor. The irrelevancy of these 
 decisions to cases where the conflicting parties are mort- 
 gagor and mortgagee was pointed out in Walmsley v. Milne 
 (7 C It., JV. S., 115), and we concur with the observations 
 made in that case by the Court of Common Pleas" {Climie 
 V. Wood, 4 Exch. R., 327-330). 
 
 In a case decided by the English Court of Queen's Bench 
 in 1869, where A. (who was a woollen manufacturer) was 
 the owner and occupier of a piece of land with the building 
 then erected upon it, and mortgaged the same by equitable 
 deposit to B., and then built a mill upon the land, and fitted 
 up the mill with steam-engines and w^ith the other ma- 
 chinery which was necessary for his trade, and then by bill 
 of sale assigned to C. "all the machinery, fixtures, imple- 
 ments, utensils, effects, and things" mentioned in a sched- 
 ule, and including in fact all the machinery and articles in 
 the mill, and then afterward executed a legal mortgage to 
 B., the said equitable mortgagee ; the court held that all the 
 machines which were fixed in a quasi-permanent manner to 
 the floor, roof, or side walls, passed to B., under his mort- 
 gage, but that those which were merely removable articles 
 passed to C. under his bill of sale {Longhottom v. Berry, 39 
 L.J., N. S., Q. B., 37),
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 569 
 
 So, in a case decided by the Englisli Court of Common 
 Pleas in 1869, where, under circumstances of some com- 
 plexity, a question having arisen between A., who alleged 
 himself to be an equitable mortgagee of B., on the one hand, 
 and the assignees of B. on the other, as to the right to cer- 
 tain fittings put up by B. ; the court held that A. was in fact 
 the equitable mortgagee he alleged, and the further decision 
 of the question was left to follow as of course {Tabh v. 
 Hodge, 39 L. /., N. S., C. P., 56). 
 
 A case decided by the English Court of Queen's Bench so 
 recently as the year 1873, may be referred to as properly fall- 
 ing with the present division of the subject of fixtures, 
 although it was the case of an execution creditor. The con- 
 sideration of that case will close the present chapter^ though 
 by no means close the consideration of the subject. 
 
 The facts of the case were these : One Hamilton was as- 
 signee of certain leaseholds, being an iron foundry and prem- 
 ises, for the residue of a term of years created therein by 
 indenture, and he was also absolute assignee of the fixed 
 and removable machinery, plant, fixtures, implements, 
 utensils, and effects fixed to or placed or used upon the 
 foundry and premises. By indenture, dated the 20th of 
 March, 1872, Hamilton demised to the plaintiffs the said 
 leasehold premises for the residue of the said term, less the 
 last two days, and also assigned to the plaintiffs absolutely 
 all and singular the fixed and removable machinery, plant, 
 fixtures, implements, utensils, and effects then or thereafter 
 to be fixed to or placed or used upon the premises, being 
 the property of Hamilton, subject to a proviso for the sur- 
 render and reassignment of the respective premises upon the 
 mortgage debt intended to be secured thereb}^ being unpaid. 
 The mortgagee continuing in possession of all the said prem- 
 ises, on the 14tli September, 1872, the defendants recovered 
 judgment against him for a sum of 25Z. and odd, and on or 
 about the same day the sheriff, under a writ of fieri facias, 
 issued by the defendants on their judgment, seized the ma- 
 chinery, plant, fixtures, and effects, as well the fixed as the 
 unfixed or movable ; and, thereupon, the plaintiffs, under 
 their said indenture of mortgage, claimed as their own all 
 
 72
 
 570 LAW OF FIXTURES. 
 
 such parts of the said machinery, plant, fixtures, and efTects 
 as were fixed. On the 26tli September, 1872, tlie slieriff 
 served an interpleader summons upon the plaintiff and the 
 defendants, and the matter coming on for argument before 
 Quin, J., that judge, although thinking the matter clear, 
 granted a special case and afterward settled the same for the 
 opinion of the Court of Queen's Bench. 
 
 The case as finally settled, stated (among other things and 
 as the facts were) that the fixtures comprised in the mort- 
 gage consisted solely of such articles as are known as trade 
 fixtures, and that the indenture of underlease and assign- 
 ment had not been registered under the Bills of Sale 
 Act, 1854. 
 
 Upon the case coming on for hearing before the Court of 
 Queen's Bench, it was contended for the plaintiff that regis- 
 tration, under the Bills of Sale Act, of the indenture of mort- 
 gage was unnecessary in respect of the fixed machinery, 
 plant, and fixtures comprised therein ; on the other hand, 
 it was contended for the defendants that such registration 
 w^as necessary, and that for want thereof tlie things in ques- 
 tion were liable to be seized under their writ of fieri facias. 
 
 The court gave judgment in favor of the defendants, on 
 the ground that the indenture of mortgage being a Bill of 
 Sale as to the fixtures was not registered under the Bills of 
 Sale Act. 
 
 Blackburn, J., said: "Apart from the interpretation 
 clause of the Bills of Sale Act, 1854, fixtures would not be 
 personal chattels, but for the purpose of that act they are 
 made so by that clause. This provision was made for the 
 protection of execution-creditors and assignees (i, e. trustees) 
 in bankruptcy, the registration required by the act being a 
 most obvious mode of securing that end. 
 
 "With reference to the cases, Holland, v. Hodgson is dis- 
 tinguished from the present case, as there the fixtures were 
 put uj) on land which was the mortgagor's own property in 
 fee simple ; and that is always a ground of difference ; in 
 Mather v. Fraser, there was the like ground of difference. 
 
 " If the matter were res Integra., I should hold that a man 
 mortgaging a term without securing the fixtur^^s would pass
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 571 
 
 not tlie right to sever, but only the right to (for the term) 
 enjoy, the fixtures ; but that when he names the fixtures, 
 then as to them he makes a Bill of Sale within the meaning 
 of the act. But then there is the case of Bo?jd v. SJiorroclc, 
 which apparently is to the contrary. In that case, Wood, 
 y. C, proceeding chiefly upon the nature of fixtures, held 
 that they passed to the mortgagee, as against the trustee in 
 bankruptcy of the mortgagor, notwithstanding that the 
 mortgage deed had not been registered. On the other hand, 
 I find the case of Begbie v. Fenioiclc, in which Malins, V. C, 
 proceeding to some extent upon the injury to credit, held 
 that the fixtures in question in the latter case passed to the 
 trustee in bankruptcy of the mortgagor as against the mort- 
 gagee, inasmuch as the mortgage deed had not been regis- 
 tered. I rather agree with Malins, V. C, that it is difficult 
 to see upon what prinpiple Boi/d v. Shorrock was decided. 
 
 "If Boyd V. Shorrock had stood alone, I should have 
 taken time to consider my judgment ; but there is the im- 
 portant case of BegUe v. Femolck; and agreeing, as I rather 
 do, with the opinion of Malins, V. C, in this latter case, I 
 shall decide at once for the defendants." 
 
 Mellor and Lush, JJ., were of the same opinion, remark- 
 ing that the policy of the Bills of Sale Act, 1854, would be 
 carried out by this decision, the former judge remarking that 
 if the fixtures had been assigned alone, registration would 
 have been necessary, and it made no difference that the 
 assignment was part of another transaction, and the latter 
 judge expressly and carefully distinguished between a de- 
 mise and an absolute assignment, and saying that, as 
 the deed is not a Bill of Sale so as to require registra- 
 tion where the fixtures pass with the building. So if the 
 fixtures in the case before him had passed under the demise 
 a qualified interest in them only would have passed, and to 
 that extent the deed would have been effectual without any 
 legistration, but as the fixtures were separately assigned 
 and for an absolute, interest, that made a difference, and the 
 assignment wanted registration to render it effectual, as 
 against the execution creditor or the trustee in bankruptcy
 
 572 LAW OF FIXTURES. 
 
 {Hawtrey v. Butlin, L. R., S. Q. 7?., 290; S. C, 21 W. 
 R., 633). 
 
 Mr. Brown in his work on Fixtures, says that tlie remarks 
 of Lush, J., in the case of Hawtrey v. ButUn, express what, 
 in his opinion, is the true distinction in all this class of 
 cases. He says: "The opinion which Blackburn, J., hes- 
 itated to express in the principal case commented on, and 
 the opinion, also, which Lush, J., more positively expressed 
 in that case, confirm the foregoing statement as to the true 
 operation of the habendum where there is only one testa- 
 tum" {Brown on Fix., M ed., p. 148). 
 
 CHAPTER XLII. 
 
 LAW OF FIXTURES AS BETWEEN MORTGAGOR AND MORTGAGEE EXAM- 
 INATION OF FURTHER AUTHORITIES UPON THE SUBJECT. 
 
 In the further consideration of the cases involving the 
 right to fixtures, as between mortgagor and mortgagee, refer- 
 ence may next be made to a case decided by the English 
 Court of Chancery in the year 1857. The facts of the case 
 were these : One H., in 1847, had mortgaged a certain mill, 
 being a nankeen manufactory, to the defendant, with the 
 appurtenances, "together with the steam-engines, boilers, 
 shafting, piping, mill-gearing, gasometers, gas-pipes, drums, 
 wheels, and all and singular otlier the machines, fixtures, 
 and effects fixed up in, or attached or belonging to, the said 
 mill or factory, buildings Or premises." At the date of the 
 mortgage there were on the premises 220 looms for weaving 
 cotton yarn into cloth. These looms were on the basement, 
 and standing on iron feet, and were steadied for working 
 in the usual way, thus : Four holes wefe made in the flag 
 pavement, into each of which was placed an iron cylinder, 
 surmounted with an iron cup or parallelogram, which cylin- 
 der with the cup is usually called a " loom-foot," and each of
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 573 
 
 the four legs of the loom was placed, without any fastening, 
 into one of such cups ; the cups themselves were not fast- 
 ened to the flooi'ing of the mill in any way, but were merely 
 dropped into the holes made in such flooring ; they could 
 be taken out and removed at pleasure without any fasten- 
 ing of any kind whatever having to be undone, there not 
 having been in fact any such fastening. The defendant had 
 subsequently sold the mortgaged premises under the cus- 
 tomary mortgagee's power of sale to the plaintiff, in words 
 equivalent to those used in the mortgage deed. The court 
 decided that the looms did not pass either under the mort- 
 gage or by the sale ; and in giving the decision. Lord Rom- 
 illy said: "My opinion is that the words used mean that 
 the mill and every thing that properly belongs to the mill 
 is the thing that is mortgaged. I do not, however, think 
 that the furniture of the mill (including these looms) does 
 properly belong to the mill ; it is liable to be changed from 
 time to time. * * ^ I do not doubt that looms are machinery 
 in one sense, but the question is, are they, i3roperly si3eak- 
 ing, machinery belonging to the mill ? In one sense, no 
 doubt, they belong to the mill, but I read these words as 
 'belonging essentially to the mill,' and forming necessarily 
 a part of it, whatever may be the purpose to which the mill 
 (as a mill) may be applied. To whatever purpose the mill 
 may be applied, the steam-power, the gas lighting, and the 
 like, do form a part of it, but the others do not, being 
 merely accidental, and no more forming a part of the mill 
 than a carpet forms part of a house. If a house and all 
 the things belonging to the house were assigned., that would 
 not necessarily include the furniture unless it was so speci- 
 fied. * * * I am clear the looms are not fixtures in any 
 proper sense of the term" {Hutchinson v. Kay^ 23 Beav. 
 JR., 413). 
 
 In a case decided by the English Court of Common Pleas 
 in 1871, and affirmed on error by the Court of Exchequer 
 Chamber in 1872, it appeared that the plaintiffs were mort- 
 gagees under a mortgage dated the 7th of April, 1869, wliereby 
 one George Mason conveyed to them in fee a certain mill of 
 which he was tlie owner, "with the warehouse, counting-
 
 574 LAW OF FIXTURES. 
 
 house, engine-house, boiler-house, weaving shed, wash-house, 
 gas-works, and reservoirs belonging, adjoining, or near there- 
 to, and also the steam-engine, shafting going-gear, machinery, 
 and all other fixtures whatever," which then were, or at any- 
 time thereafter during the continuance of that security should 
 be, set up and affixed to the said land and premises. The 
 defendants were the assignees of the said George Mason by 
 a deed dated the 3d of July, 1869, of all his estate and effects 
 to be administered as under a bankruptcy ; and as such 
 assignees they had taken possession of and sold (among 
 other things in the said mill) 436 looms for 1,()38Z. 4.?. The 
 looms in question were placed some on the ground floor and 
 some on the first floor ; they were in all instances steam- 
 power looms, and weighed each of them about seven or eight 
 cwt. They stood each upon four feet, and were steadie'd so 
 as to be kept perpendicular to the steam shafting which sup- 
 plied their motive power by means of a wooden plug stuck 
 througli each foot into the floor. The mortgagees, the plain- 
 tiffs, claimed tliat all these looms were included in their 
 security. The Court of Common Pleas gave judgment for 
 the plaintiffs, upon the ground that (as counsel for the de- 
 fendants admitted) the looms in question were not distin- 
 guishable from the articles in Longbottoin v. Berry (18 
 W. R. C. L. Dig., 43; L. R., 5 Q. B., 123), in which the 
 Court of Queen's Bench had given a similar decision. The 
 Court of Exchequer Chamber affirmed the judgment of the 
 Court of Common Pleas. 
 
 Mr. Justice Blackburn, after stating the facts of the case, 
 said : "As the plaintiffs' mortgage deed was not registered 
 under the Bills of Sale Act (17 & 18 Vict. c. 36), it was by 
 sect. 1 of that act void as against the defendants, the as- 
 signees for the benefit of Mr. Mason's creditors so far as it 
 was (if it was at all) a transfer of 'personal chattels' within 
 the meaning of that act ; and as by sect. 7 of the act the 
 phrase ' personal chattels' is declared to mean for the pur- 
 poses of the act, inter alia, 'fixtures,' it was void against 
 these defendants so far as it ^-as (if it was at all) a transfer 
 of fixtures as snch. Since the decision of this court in 
 blimie v. Wood {L. R., 3 Exch., 257) ; and on appeal (Z. R.,
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 575 
 
 4 Exch.^ 328), it must be considered as settled law (except, 
 perliaps, in the House of Lords) that what are commonly- 
 known as trade or tenant's fixtures form part of the land, 
 and pass by a conveyance of it ; and that the person who 
 erected these fixtures, if he was a mortgagor in fee, has no 
 right as against his mortgagee to sever them from the land. 
 * * * Now it was admitted at the bar (and we think prop- 
 erly admitted) that when there is a conveyance of the land 
 the fixtures are transferred, not as fixtures, but as part of 
 the land, and the deed of transfer does not require registra- 
 tion as a bill of sale. 
 
 "What we have now to decide is as to the application of 
 these rules to looms put up by the owner of the fee in the 
 manner they have been put up in the present case. In 
 Hellawell v. Eastwood (1 C. R., 895), decided in 1851, the 
 plaintifl' held the premises as tenant of the defendant, who 
 put in a distress for rent, and seized nnder the distress cer- 
 tain cotton spinning machinery called ^ mules,'' some of 
 which were fixed by screws to the wooden fioor, and some 
 by screws which had been sunk in the stone fioor and se- 
 cured by molten lead poured into them. * * * The de- 
 cision of Parke, B., in that case was a true exposition of 
 the law as applicable to the po.rticular facts of the case 
 {Turner v. Cameron, L. R., 5 Q. B., 306) ; but we cannot as- 
 sume from that decision that the Court of Exchequer meant 
 thereby to decide that the fixtures in question were not part 
 of the land, although they were liable to be removed by the 
 tenant. The words ' merely for a temporary purpose,' which 
 occur in that judgment must be understood as applying to 
 such a case as that of a carpet tacked to the floor, and not 
 to a case such as that of a tenant, who, for example, affixes 
 a shop counter for the purpose (in one sense temporary) of 
 more effectually enjoying the shop whilst he continues to 
 sell his wares there. 
 
 " Counsel for the defendants, the assignees in the present 
 case, have contended, and justly, that Hellawell v. East- 
 wood is very like the present case, with this exception, that 
 there the tenant had a limited interest only, whereas here 
 he has the fee ; and if that case should apply to this case it
 
 576 LAW OF FIXTURES. 
 
 would follow (but for that exception, perhaps), that the 
 looms which are in question remained chattels. But that 
 case was decided in 1851 ; and afterward, in 1853, the Court 
 of Queen's Bench had to consider, in Wiltshear v. Cottrell 
 (1 E. & B., 674), what articles passed by the conveyance in 
 fee of a farm ; and there the court decided {Hellawell v. 
 Eastwood having been cited in the argument) that a certain 
 threshing-machine inside a barn, fixed by screws and bolts 
 to four posts which were let into the earth, passed by the 
 conveyance. It seems difficult to point out how the thresh- 
 ing-machine in that case was more for the improvement of 
 the inheritance of the farm than the looms were in the pres- 
 ent case for the improvement of the manufactory. 
 
 " Then there was the case Mather v. Eraser (2 Kay & /., 
 536), in 1856, and afterward that oi*Walmsley v. Milne 
 (7 C. B., JSr. S., 115), in 1859, in both of which a similar de- 
 cision to that in Wiltshear v. Cottrell was given. Now all 
 these cases seem authorities for this principle — that when 
 an article is affixed by the owner of the fee, though only 
 affixed by bolts and screws, it is to be considered as part of 
 the land, at all events when the object of setting up the 
 article is to enhance the value of the premises to which it is 
 annexed for the purpose to which these premises are ap- 
 plied. The threshing-machine in Wiltshear v. Cottrell was 
 affixed by the owner of the fee to the barn as an adjunct to 
 the barn, in much the same way as the hay-cutter in 
 Walmsley v. Milne was affixed to the stable as an adjunct 
 to it, and to improve the usefulness of the stable. And it 
 seems difficult to say that the machinery in Mather v. Era- 
 ser was not as much affixed to the mill as an adjunct to it, 
 and to improve the usefulness of the mill as such, as either 
 the threshing-machine or the hay-cutter. 
 
 "If, therefore, the matter were to be decided on principle, 
 without reference to what has been done on the faith of the 
 decisions, we should be much inclined, notwithstanding the 
 profound respect w^e feel for every decision of Parke, B., to 
 hold that the looms now in question were, as matter of fact, 
 part of the land. But there is another view which weighs 
 heavily with us : Hellawell v. Eastwood, as being a decision
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 577 
 
 between landlord and tenant, was not so likely to influence 
 those who advance money on mortgage as MatJier v. Fraser, 
 which was a decision directly between mortgagor and mort- 
 gagee. * * * We cannot, therefore, doubt that much 
 money has, during the last sixteen years, been advanced 
 on the faith of the decision in 3Iat7ier v. Fraser. * * * 
 We think, therefore, that the judgment below should be 
 affirmed" {Holland v. Hodgson, L. B.,7 C. P., 328 ; S. C, 
 41 L. J. a P., JY. S., 146 ; -S'. C, 20 W. P., 990). 
 
 In a case decided in the English Court of Chancery m 
 1871, referred to in the opinion of Blackburn, J., in Hawtrey 
 V. Butlin in the preceding chapter, it appeared that one H. 
 (who was a shipbuilder), by indenture of mortgage dated 
 the 20th of January, 1865, demised all and singular certain 
 leasehold premises held under three separate indentures of 
 lease to one Beglin for the then unexpired residues of the 
 several and respective terms subsisting in the respective 
 premises, left the last ten days of such several and respec- 
 tive terms, and also assigned to Beglin absolutely all steam- 
 engines, boilers, machinery, plant and fixtures, erections, 
 implements, tools, and utensils, then or at any time there- 
 after fixed, placed, or being in or upon or about the prem- 
 ises thereby demised, and not being in the nature of 
 landlord's fixtures. This indenture was not registered as a 
 bill of sale. Fenwick was a subsequent mortgagee of the 
 same leasehold premises and fixtures, and had registered 
 his mortgage quoad the fixtures as a bill of sale. The ques- 
 tion was Whether the trade fixtures passed to Beglin as part 
 of the leasehold under his mortgage without registration, or 
 passed to Fenwick under his registered bill of sale. The 
 court held that they passed to Fenwick, and in brief for the 
 following reasons, viz.: There were two testatums, the 
 second of which expressly assigned the fixtures, which 
 therefore could not be considered as comprised in the first 
 testatum, whereby the premises themselves were demised 
 {Waterfall v. Penistone, Q Q. B., 876); the assignment of 
 the fixtures was an assignment of the absolute interest, and 
 the policy of the Bills of Sale Act required that such an 
 interest (being in excess of the leasehold interest) should be 
 
 73
 
 578 LAW OF FIXTURES. 
 
 registered {Begbie v. FeniolcJc, 19 W. Ji., 402 -,8.0., L. H., 
 8 Ch. App., 1075, in notls). 
 
 The general rule is, where there is but one witnessing part 
 to the deed of mortgage, the fixtures will pass for such in- 
 terest as the words of limitation in the habendum., say of tlie 
 principal hereditaments and premises, and neither for a less 
 nor for a greater interest ; and this they will do as being for 
 the time, part and parcel of the land conveyed. This doc- 
 trine is fully illustrated in decisions before cited, both in 
 respect to fixtures as between grantor and grantee, and as 
 between mortgagor and mortgagee. But, in the case of two 
 testatums., that is, when the fixtures are separately and sub- 
 stantially assigned, or at any rate intended by the parties so 
 to be, having a separate and substantive testatum to them- 
 selves, the case is different. The intention of the parties in 
 this regard is material, because, apart from such intention 
 being so expressly shown, it might be argued that the fix- 
 tures being for the time (as unquestionably they are) inter- 
 ests in land, and part and parcel of the hereditaments 
 principally conveyed must be taken to have passed under 
 the first testatum^ so that the second testatum would be 
 tautological ; but the parties having themselves expressly 
 (in manner) excepted the fixtures out of the fii-st testatum^ 
 the courts have properly considered that they were com- 
 prised in the second testatum only. This latter doctrine 
 is well illustrated in the case of Begbie v. FenvyicJc, last 
 cited, and the same principle is recognized in other cases 
 which have been before fully considered. 
 
 Mr. Brown thinks the practical conclusion to be derived 
 from the contrast and comparison of the two classes of cases 
 is this : "That it is better to have one testatum than to have 
 two in the mortgage of land or houses (be they freehold, 
 copyhold, or leasehold) when it is intended that the fixtures 
 shall form part of the security, and yet the mortgagor ob- 
 jects (as in general he does object) to the publicity of regis- 
 tration." "And certainly," he continues, " where the here- 
 ditaments principally mortgaged are freeholds (or copy- 
 holds), the less said about fixtures the better, as, whether 
 mentioned or not in the first testatum, they will pass as
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 579 
 
 part and parcel of the freehold (or copyhold) hereditaments 
 principally mortgaged ; on the other hand, when the prop- 
 erty is leasehold, some difficulty in general arises from the 
 mortgagee's desire to have an absolute assignment in fee 
 simple of the fixtures, while he can have only a demise or 
 assignment of the principal hereditaments for at the most 
 only tlie residue of the term therein. . Whether and how 
 far this object can be accomplished without the necessity of 
 registering the mortgage deed as a bill of sale quoad the 
 fixtures comprised therein is to be gathered from the two 
 decisions of the Court of Appeal in Chancery that are next 
 hereinafter stated" {Brown on Fix., Sd. ed., pp. 148, 149). 
 The cases referred to in the conclusion of the observations 
 of Mr. Brown, are Ex parte Daglisli, In re Wilde, and Ex 
 parte Barclay, In re Joyce, which were bankruptcy cases, 
 and will be elaborately considered in a subsequent chapter, 
 when the subject of fixtures as between the mortgagee and 
 the assignee or trustee in bankruptcy of his mortgagor shall 
 be treated. 
 
 Another English case may properly be referred to under 
 the present head, which was decided by the Court of Chan- 
 cery in 1861. The action was for the administration of the 
 estate of one X., deceased, and it appeared that one X., a 
 silk manufacturer, by deed dated in 1853, mortgaged certain 
 land of which he was the owner, and "also all that silk-mill 
 there erected or in the course of erection, and all other build- 
 ings then or thereafter to be erected thereon ; and also all 
 those the steam-engine or steam-engines, boilers, steam- 
 pipes, main-shafting, mill-gearing, millwright's work and 
 other machinery and fixtures whatsoever there erected or set 
 up, or to be thereafter, &c., upon the said plot of land, mill, 
 and premises, with the appurtenances" to the defendants ; 
 and that afterward, by deed dated in 1857, X. made a second 
 mortgage to other parties of the land, silk-mill, and other 
 the premises comprised in the first-mentioned indenture, and 
 the "steam-engine, steam-boilers, steam-pipes, main-shaft- 
 ing, mill-gearing, millwright's work, and other machinery, 
 plant, fixtures, erections, and works fixed and unfixed, im- 
 plements and things constructed, standing, and being in,
 
 580 LAW OF FIXTURES. 
 
 ■upon, and about the said lands and premises, and used in 
 the machinery and works carried on at the said mill." 
 
 The defendants had sold the property comprised in their 
 mortgage pursuant to an order of the Court of Chancery 
 made in the administration suit ; and the question wliich 
 was now in dispute and before the court for its decision was, 
 what part of the machinery passed to the defendants, the 
 first mortgagees, under their mortgage. 
 
 The Master of the Rolls decided that only such machinery 
 passed to the defendants under the words "other machin- 
 ery" as were ejusdem generis with the articles preceding in 
 the enumeration; in other words, that the words "other 
 machinery, &c." ought to be confined to the machinery that 
 was necessary for the purpose of giving power to the mill, 
 and that only fixtures so necessary were included in the 
 mortgage. But, on appeal from the decision of the Master 
 of the Rolls, Lord Chancellor Campbell held, upon the 
 words of the special agreement contained in the mortgage 
 deed, that all the machinery passed to the defendants under 
 their mortgage irrespectively of the questions whether or 
 not it was ejusdem generis with the preceding enumeration, 
 or whether or not it was exclusively applicable for giving 
 power to the mill. "There was no absurdity," he said, "in 
 including in the security all the machinery placed in the 
 mill, whether for creating power or for being moved by the 
 power created. On the contrary, it seems rather improb- 
 able that the parties should have contemplated such a dam- 
 aging disruption of the machinery as must take place if the 
 mortgagors, in seeking to make good their security, must 
 tear in pieces the machinery in the mill, and remove and 
 sell one-half of it without the other half. * * * The spinning- 
 mills (which are the most important of the items in dispute) 
 are permanently fastened to iron rods which are part of the 
 roof of the mill, and are fixed to the freehold; I think, 
 therefore, that these articles might pass as fixtures under 
 this deed. * * * But between these parties (namely, the 
 first and second mortgagees) the criterion is not what is 
 affixed to the freehold, but w^iat is set up in the mill to be 
 used as machinery or fixtures in carrying on the business of
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 581 
 
 manufacturing silk in the mill. * * * I entirely concur with 
 the Vice -Chancellor Wood in his final view of the law upon 
 this subject in 3Iat7iew v. Fraser (2 K. &J.), 536, and I am 
 clearly of opinion that, according to the true construction 
 of the mortgage deed, all the disputed articles are included 
 in the mortgage to the defendants" {Haley v. Hammer sley, 
 3 De Gex, F. & J. B., 587 ; >S'. C, 9 W. B., 562). 
 
 And this examination would not be complete without 
 a reference to one other English case in this connection ; 
 a case decided by the Court of Common Pleas in 1859. A 
 lessee mortgaged tenant's fixtures, and afterward surren- 
 dered his lease to the lessor, who granted a fresh term to 
 another tenant, who took possession of the demised prem- 
 ises with the fixtures. The court held, under these circum- 
 stances, that the mortgagor had a right to enter and sever 
 the fixtures, as it was not competent to the tenant to defeat 
 his grant by a subsequent voluntary surrender. 
 
 The question which was labored in the case was, whether 
 a mere tenant for years can by assigning the fixtures prevent 
 himself from afterward bona jide surrendering his term to 
 his landlord. It was insisted on the part of the mortgagee, 
 that the property in the fixtures vested in the mortgagee 
 from the moment default was made by the mortgagor ; and 
 that the surrender of the term by him did not affect the fix- 
 tures ; but that, so far as they were concerned, the original 
 term had continuance for the purpose of supporting the 
 grant or assignment to the mortagee. And further, that it 
 was not competent to the mortgagor tenant by surrendering 
 his term to his landlord to derogate from the grant he had 
 * previously made to the mortgagee. 
 
 On the part of the defendant, who was the tenant in 
 possession, it was contended that fixtures had no legal in- 
 dependent existence whilst attached to the freehold ; conse- 
 quently that, the defendant, in possession of the premises 
 as tenant, and had bona fide purchased the fixtures without 
 notice of the mortgagee's claim, was entitled to retain them. 
 And further, that there was no such thing known to the law 
 as a grant of fixtures independently of the possession of 
 the premises to Avhich they were annexed ; that the only
 
 582 LAW OF FIXTURES. 
 
 way sucli an instrument could operate would be by way of 
 license to enter and remove them ; and that the instrument 
 under which the mortgagee claimed was a mere personal 
 license. 
 
 The case was regarded as one of much importance, and 
 was ably argued on both sides, and a large number of au- 
 thorities was cited in support of the respective propositions. 
 In the course of the argument on behalf of tlie defendant, 
 Cockburn, C. J., remarked: "The tenant assigns the fix- 
 tures to plaintiffs before he surrenders his lease to the land- 
 lord. Supposing he had not surrendered, he would have 
 had an undoubted right to remove the fixtures, and so 
 would his assignees. It may be that it was competent to 
 the grantor by the surrender to derogate from his grant." 
 Williams, J,, asked the defendant's counsel: "Suppose 
 tenant for years sells growing crops, and then surrenders 
 his term, would not the vendee be entitled to go upon the 
 land and take the crops f To which the counsel answered 
 that growing crops are subject to very different incidents 
 from fixtures ; for the tenant has a right to go in and sever 
 growing crops upon the expiration of his term. Willes,- J., 
 said: "You say there is a grant here of a right to go in 
 and take the fixtures. The tenant, having granted that 
 right, surrenders his term. Why should not the right re- 
 main ?" The counsel answered that there was no authority 
 to show that it is competent to a tenant for years to confer 
 oh a third party an estate in the fixtures independent of 
 the soil ; and referred to the case of Keppell v. Bailey (2 
 Mylne & K., 517), as a strong authority to show the disin- 
 clination of the courts to countenance the annexation of 
 such burthens to estates. In this case, the Lord Chancellor 
 (Lord Brougham), in delivering the judgment of the court, 
 said: "There are certain known incidents to property and 
 its enjoj^ment ; among others, certain burthens wherewith 
 it may be affected, or rights which may be created and en- 
 joyed over by parties other than the owner ; all which inci- 
 dents are recognized by the law. In respect of possession, 
 the property may be in one, while the reversion is in an- 
 other ; in r(^spect of interest, the life-estate in one, the
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 583 
 
 remainder in tall in a second, and the fee in reversion in a 
 third. So, in respect of enjoyment, one may have the 
 possession and the fee simple, and another may have a rent 
 issning out of it, or the tithes of its produce, or an ease- 
 ment, as, a right of way upon it, or of common over it. 
 And such last incorporeal hereditament may be annexed to 
 an estate which is wholly unconnected with the estate 
 affected by the easement, although both estates were origi- 
 nally united in the same owner, and one of them was after- 
 wards granted by him with the benefit, while the other was 
 left subject to the burthen. All these kinds of property, 
 however, all these holdings, are well known to the law, and 
 familiarly dealt with by its principles. But it must not 
 therefore be supposed that incidents of a novel kind can be 
 devised and attached to property, at the fancy or caprice 
 of any owner. It is clearly inconvenient both to the science 
 of the law and the public weal, that such a latitude should 
 be given. There can be no harm in allowing the fullest 
 latitude to men binding themselves and their representa- 
 tives, that is, their assets real and personal, to answer in 
 damages for breach of their obligations. This tends to no 
 mischief, and is a reasonable liberty to bestow ; but great 
 detriment would arise, and much confusion of rights, if 
 parties were allowed to invent new modes of holding and 
 enjoying property, and to impress upon their lands and 
 tenements a peculiar character which should follow them 
 into all hands, however remote. Every close, every mes- 
 suage, might thus be held in several-fashion ; and it would 
 hardly be possible to know what right the acquisition of 
 any parcel conferred, or what obligations it imposed." 
 
 On the contrary, the counsel opposed cited the case of 
 Doe d. Beadoti v. PyJce (5 M. & Selw., 146), where it was 
 held by the Court of King's Bench, that, although a sur- 
 render of a life- estate to the owner of the fee is as between 
 the parties an extinguishment of the estate surrendered, yet 
 might have continuance to uphold a prior interest devised, 
 under it. Lord Ellenborough, in giving Judgment in the 
 case, says: "The conveyance to the bishop, as between him 
 and the conveying parties, operated as a surrender of the
 
 584 LAW OF FIXTURES. 
 
 lease of 1751 ; and it was urged that such a surrender would 
 annihilate all interests devised under that lease. No au- 
 thority, however, which goes the length of that position was 
 adduced ; and we consider it as clear law, that, though a 
 surrender operates between the parties as an extinguisli- 
 ment of the interest which is surrendered, it does not so 
 operate as to third persons who at the time of the surrender 
 had rights which such extinguishment would destroy, and 
 that as to them the surrender operates only as a grant, sub- 
 ject to their right, and the interest surrendered still lies for 
 the preservation of their continuance." 
 
 These arguments of counsel, and suggestions of the Judges 
 contain much learning upon the point under consideration, 
 and hence they are inserted here. The decision of the court 
 was as indicated, and the Judgment was delivered by Wil- 
 liams, J., who said: "The question in this case is, whether, 
 if a lessee mortgages tenant' s fixtures, and afterwards sur- 
 renders his lease, the mortgagee has a right to enter and 
 sever them. 
 
 "The principles of law applicable to this point are well 
 settled ; the difficulty lies in the application of tliem. * * * 
 The question is thus reduced to the inquiry whether the 
 mortgagee's right to sever the fixtures from the freehold is 
 a 'riglit or interest' within the meaning of this rule of law. 
 And we are of opinion it is. Certainly it is an interest of a 
 peculiar nature, in many respects rather partaking of the 
 character of a chattel than of an interest in real estate. 
 But we think that it is so far connected with the land that it 
 may be considered a right or interest in it, which if the ten- 
 ant grants away, he shall not be allowed to defeat his grant 
 by a subsequent voluntary act of surrender" {The London 
 and Westminster Loan and Discount Company v. Brake., 
 6 Com. Bench M., N. S., 798 ; S. C, 95 :Eng. C.L. H., 796).
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 585 
 
 CHAPTER XLIII. 
 
 LAW OF FIXTURES AS BETWEEN MORTGAGOR AND MORTGAGEE EX- 
 AMINATION OF STILL FURTHER AUTHORITIES UPON THE SUBJECT. 
 
 Passing from a consideration of the English to the 
 American authorities upon the subject of iixtures, as be- 
 tween mortgagor and mortgagee, the examination may be- 
 gin with a case decided by the Supreme Court of Missouri 
 in 1825, wiierein it appeared that the plaintiff in the court 
 below sued the defendant in trover for a stone slab and cop- 
 per boiler, and obtained a verdict for the boiler, but not for 
 the slab ; whereupon the defendant brought error to re- 
 verse the former part of the verdict. The facts of the case 
 were these : The boiler in question was a copper boiler 
 which had been built with bricks and mortar by one X. in 
 his tanyard, into a furnace erected to receive it, and to con- 
 ceal and protect it aR but the mouth. The^ chimney of the 
 furnace communicated with the principal chimney of the 
 house in which it was erected, but it was not interlaced with 
 the latter chimney, and could be removed without interfer- 
 ing with it further than by laying bare the hole of commu- 
 nication. X., who was owner in fee, mortgaged the land to 
 the plaintiff in the court below, and afterward sold all the 
 utensils to the defendant. The plaintiff below also subse- 
 quently purchased the same utensils under an execution 
 against X., at a sale thereof by the sheriff. 
 
 Under these circumstances the Supreme Court held, re- 
 versing that part of the verdict which was for the plaintiff 
 below, that the boiler did not pass to the plaintiff below 
 under his mortgage deed. The material part of the Judg- 
 ment is the following: "A copper kettle or boiler ab- 
 stractedly considered is a personal chattel, yet it may become 
 a part of the realty in either or both of two ways, namely, 
 either (1) by incorporating it with the realty as a part 
 thereof for some permanent object ; or (2) by affixing it to 
 the realty (whatever the object) in such a manner as that it 
 
 74
 
 586 i^ W OF FIXTURES. 
 
 cannot be removed without dilapidation or injury to the 
 inheritance. But wherever property, personal in its nature 
 is claimed as belonging to the freehold, the party claiming 
 it must show that its character has been changed by some 
 facts or circumstances which will clearly prove the inten- 
 tion of the owner thus to change it. * * * The intention 
 of the parties to the deed must in each case determine. If, 
 then, a lot were conveyed by a general description as so 
 much land, bounded in a particular manner, without saying 
 any thing further, the grantee would still be allowed to re- 
 move every thing which might be dissevered without vio- 
 lence to the freehold. But if the deed conveyed the land 
 together with the manufactory thereon, the evident inten- 
 tion of the parties w^ould be, that every thing annexed to 
 the freehold which w^as necessary to carry on the manufac- 
 tory should pass, and every such thing w^ould pass accord- 
 ingly. In the present case the deed was merely for a lot of 
 land ; and even if it had been also for the tannery thereon, 
 still there is nothing in the case which shows that the boiler 
 in question was in any way connected wdth the tannery, nor 
 is there any other circumstance which shows that it was 
 permanently annexed to the freehold, so as to be considered 
 a part thereof. The bare fact of its being set in brick and 
 mortar does not afford the presumption. But in fact in the 
 present case, not only the boiler but also the furnace and 
 flue may be removed, without any other injury to the build- 
 ing than laying bare a hole already existing in the chim- 
 ney " {Hunt\. Mullanphy, 1 Mo. R., 508). 
 
 The extreme favor which is shown to the mortgagee in 
 the construction of his mortgage deed is illustrated in a 
 case decided by the Supreme Judicial Court of Massachu- 
 setts in 1818 ; wherein it was held that a kettle in a fulling- 
 mill, used for dyeing cloth, being set in brick- work, passed 
 to the mortgagee of the mill, as against a subsequent ven- 
 dee of the kettle from the mortgagor. The grounds of the 
 decision appear in the judgment of the court, w^hich was 
 pronounced as follows: "This kettle w^as a part of the 
 realty, and passed to the plaintiffs by Kellogg' s mortgage. 
 It could not be removed without actual injury to the mill.
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 587 
 
 It is true tliat, by late decisions, tenants have been favored 
 in questions of this kind, and the strictness of the ancient 
 law has been much relaxed. And in the case before us, 
 had the defendant, after making the mortgage deed, put 
 this kettle into the mill, we should have considered him au- 
 thorized to remove it before delivering possession to the 
 plaintiff. This fixture was essential to the use of the mill. 
 It was attached to it at the time of executing the mortgage, 
 and it remained there when the plaintiffs took possession. 
 They had a right to retain it ; and the defendant must an- 
 swer to them for the value of it." 
 
 It will be observed that the copper kettle in this case ,was 
 similarly circumstanced to that in Hunt v. Mullanpliy last 
 cited ; but the decision is different, and the grounds stated 
 seem to be that the kettle could not be removed without 
 actual injury to the mill, and that, moreover, it was essen- 
 tial to the use of the mill ( Union BanJc v. Emerson^ 15 
 Mass. R., 152). 
 
 The same favor was shown to the mortgagee in a case de- 
 cided by the- old Supreme Court of the State of New York 
 in 1843, wherein it appeared that chattels were leased to a 
 mining company, and the company, with the knowledge of 
 the lessors, affixed the same to their freehold, so that they 
 could not be removed without destroying the building in 
 which they were placed ; at least, they were so annexed to 
 the realty as to make a part of the freehold ; and the com- 
 pany subsequently mortgaged the land with all the build- 
 ings, fixtures and appurtenances to another who had no 
 notice of the lessor's claim to the chattels. The court held 
 that the chattels had been converted into real estate, as re- 
 spected the mortgagee of the land, and that the lessors of 
 the same could not reclaim them from the purchasers at a 
 foreclosure sale of the premises. 
 
 The articles in controversy were an engine and boiler, and 
 the court declared that the mortgagees of the land and ap- 
 purtenances acquired as good a title to the engine and boiler 
 as they did to the rest of the real estate {Fryatt v. The 
 Sullivan Com'pany, 5 HilV s i?., 116). The case was taken 
 to the court of dernier resort, and the Judgment of the Su-
 
 588 -^^^ ^^ FIXTURES. 
 
 preme Court was affirmed {Fryatt v. Tlie Sullivan Com- 
 pany, 7 HilVs B., 529). 
 
 The Supreme Court of Vermont decided, in a case re- 
 ferred to upon another point, that, as between vendor and 
 vendee of the inheritance in freeliold estates, all fixtures 
 pass to the vendee ; and it wa*s declared that the same rule^ 
 obtains between mortgagor and mortgagee. It was further 
 decided that if a stranger, by permission of the mortgagor, 
 given after the law day is passed, and during the pendency 
 of a suit for the foreclosure of the mortgage, erect a barn 
 on the mortgaged premises, he acquires no right to remove 
 the. barn, as against the . mortgagee, who comes into pos- 
 session by virtue of a decree of foreclosure {Preston v. 
 Briggs, 16 VL B., 124). 
 
 The Supreme Court of Indiana held that a steam-engine, 
 erected in a permanent manner in a tanyard, to facilitate 
 the process of tanning, and used there for that purpose for 
 two or three years, but which could be removed witliout 
 injury to the building with which it was connected by 
 braces, was a fixture, and passed by a mortgage of the land 
 on which it was erected, to the mortgagee {SparJcs v. State 
 Bank, 7 Blaclf. B., 469). 
 
 The Supreme Court of Maine decided that a clapboard 
 machine and shingle machine, fastened into a saw-mill to be 
 there used, are to be considered a part of the realty, and 
 will pass to the mortgagee by a mortgage of tlie real estate. 
 It appeared in the case that a mortgage had been executed 
 by the owner of the real estate, of such clapboard machine 
 and shingle machine, and the mortgage was recorded in the 
 town clerk's office, but not in the registry of deeds for the 
 county. Afterward, and while the machines were still re- 
 maining there, and being used with the saw-mill, a creditor 
 of the- mortgagor levied a ^e?'/ facias upon such real estate ; 
 that is, a levy was legally made upon the land, mill, and 
 appurtenances, and the same were sold on the execution: 
 The court held, under the.se circumstances, that the ma- 
 chines passed to the purchaser of the real estate under the 
 execution as parcel of the realty {Trull v. Fuller, 28 Maine 
 B., 545). And at a subsequent date, the same court held
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 589 
 
 tliat, when a sbingle machine, and tlie apparatus attached 
 to it, are put into a mill by the mortgagor, after the execu- 
 tion and delivery of the mortgage, the same becomes apart 
 of the freehold, and pass to the mortgagee upon foreclosure 
 {Corliss V. 3fcLagln, 29 Maine li., 115).. 
 
 And to the same effect is a decision of the Supreme Court 
 of Delaware, in a case in which it was held, that real fix- 
 tures, such as steam-engines, and the like, placed on the 
 premises by the owner, and attached to the freehold, as a 
 fixed establishment, are a part of the freehold, subject to 
 real estate liens, and are not liable to be seized on an execu- 
 tion as chattels {Rice v. Adams, 4 Harrington's R., 332). 
 
 In a case decided by the Supreme Court of New Hamp- 
 shire, it appeared that in a mortgage deed, the premises 
 were described as certain land, "with the paper mill, &c., 
 thereon, and water privilege appurtenances," &c., "together 
 with all its privileges and appurtenances," &c. At the date 
 of the mortgage there was certain machinery in the mill, and 
 it stood, at the time of the attachment, on the floor of the 
 mill, and the feet, which rested on the floor, were fastened 
 down by means of iron bolts passing through the floor, as 
 well as through certain timbers beneath the floor, and there 
 were nuts on the lower ends of some of the bolts. The ma- 
 chinery was also attached to the mill, by means of bands 
 passing over the wheel or pulley, and operating the ma- 
 chinery. The bolts could, without difficulty, be removed, 
 and the machinery could, without being taken to pieces, and 
 without injury or prejudice to itself or the building, be re- 
 moved therefrom, and was capable of being used in other 
 paper mills. The couil held that the machinery passed by 
 the mortgage deed of the, land and mill, as a part thereof 
 {Latlirop V. Blalie, 3 Foster's R., 46). 
 
 The Court of Chancery of Maryland held in 1854, that a 
 steam-engine and boilers affixed to a building for manufac- 
 turing purposes, and supplying the motive power, are fix- 
 tures, and as between the mortgagor and mortgagee belong 
 to the latter, though placed in the building after the execu- 
 tion of the mortgage. This is in accord with other cases 
 hereinbefore cited. The court also declared that where im-
 
 590 LAW OF FIXTURES. 
 
 provements, doubtful in their nature, have been so affixed 
 as to become a part of tlie realty, they pass to the mort- 
 gagee. But it was held in the case, that machinery in a 
 cotton mill, such as looms, cards, spinning frames, and 
 speeders, and only fastened to the building so as to se- 
 cure their steady and unforra operation, are not fixtures. 
 But the I'lile was laid down that, as between mortgagor 
 and mortgagee, if it be impossible to disunite the personal 
 from the real estate, without injury to both, or especially to 
 the latter, the former will be regarded as fixtures, though 
 not affixed perpetui usus causa. And it was declared that, 
 as between mortgagor and mortgagee, the question is 
 whether the thing claimed to be a fixture is so attached as 
 to become a part of the freehold ; and that this is a question 
 of fact depending upon the mode of annexation to the soil 
 or fabric of tlie building, and the extent to which it is united 
 to them {McKim v. Mason, 3 3Id. Cli. Decis., 186). 
 
 The Supreme Judicial Court of Massachusetts decided in 
 1817, in a case wherein it appeared that the owner of a man- 
 ufactory had mortgaged the building and appurtenances for 
 carrying on the same, and still remained in possession ; that 
 three carding machines which could not be taken out of the 
 building without being first taken in pieces, were personal 
 property, as between the mortgagee and the execution cred- 
 itors of the mortgagor. 
 
 Parker, C. J., delivered the opinion of the court, and said : 
 ''They must be considered as personal property; because, 
 although in some sense attached to the freehold, yet they 
 could be easily disconnected, and were capable of being 
 used in any other building erected for similar purposes. It 
 is true that the relaxation of the ancient doctrine respecting 
 fixtures has been in favor of tenants against landlords ; but 
 the principle is correct in every point of view ; and it is to 
 be considered, when they are removed from the realty by an 
 officer, who takes them for the debt of the tenant, that they 
 go substantially to his use. 
 
 "The mortgagees of the building and privilege, not being 
 in possession, had no possession of the machines, which
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 591 
 
 were therefore liable for the debts of the mortgagor" {Gale 
 V. Ward, 14 JIass. B., 352, 356). 
 
 The Supreme- Court of Vermont held in 1859, that ma- 
 chinery in a bedstead manufactory and a grist-mill, consist- 
 ing of a planing machine, a machine for cutting screws, a 
 turning lathe, a circular saw and frame, and a boring ma- 
 chine, which, though spiked to the floor, studs, and posts 
 of the building, could still be removed, and were in fact re- 
 moved without difficulty or essential injury either to the 
 building or the machinery itself, and were used in another 
 building, were to be regarded as personal property and no 
 part of the real estate as between the mortgagor and mort- 
 gagee of the real' estate {Fullam v. Stearns, 30 Vt R., 443). 
 But the same distinguished court held in 1863, that, as 
 between a mortgagee and a vendee of the mortgagor with 
 notice, a steam-engine, boiler, the archmouth in front of the 
 boiler, and the iron plate under the boiler, which furnished 
 the motive power for a machine-shop, together with the 
 shafts and pulleys connected with the engine, were fixtures, 
 and passed to the mortgagee, by virtue of his mortgage 
 {Harris v. Haynes, 34 Vt. B., 220). 
 
 The Supreme Court of New Hampshire held in 1863, that 
 buildings and mills erected by the mortgagor, on lands pre- 
 viously mortgaged, will be held by the mortgagee, until his 
 mortgage debt is paid. And the same rule was laid down 
 in respect of any personal property so annexed to the mill 
 or building by the mortgagoi', and so used as to become a 
 fixture or part of the realty ; for example, mill-saws pur- 
 chased by the owner of a saw-mill for use therein, and ac- 
 tually attached to the mill, and thus used as a part of the 
 mill, without any intention, at the time, of removing them 
 {Biirriside v. Tioitchell, 43 N. H. B., 390). 
 
 The courts of New Jersey held in 1858, that, as between 
 mortgagor and mortgagee, any thing pertaining to the real 
 estate, necessary for its enjoyment, and permanently at- 
 tached to the freehold, is a fixture for the benefit of the 
 mortgagee, and the rule was laid down, that the permanency 
 depends, not so much on the degree of physical force with 
 which it is attached, as upon the motive and intent of the
 
 592 LAW OF FIXTURES. 
 
 party attaching it ; that if attached for temporary use, witli 
 the intent of removal, the mortgagee cannot interfere with 
 its i^emoval by the mortgagor ; but if for the permanent im- 
 provement of the freehold, the mortgagee may interfere to 
 prevent its removal {Crane v. Brigliam, 3 Stocld. R., 29). 
 And the Supreme Court of Indiana, at about the same date, 
 made a similar decision, holding that a mortgage of a build- 
 ing, used for manufacturing purposes, carries the fixtures 
 used therein to the mortgagee {Millikin v. Armstrong, 17 
 Ind. R., 456). But the Supreme Court of Kansas in a case 
 in which it appeared that a mortgagor of real estate built a 
 house thereon, and after the maturity of the mortgage, but 
 before its foreclosure, sold the house and removed it from 
 the premises, held that the assignee of the mortgage could 
 not recover the house from the purchaser. Of course, as 
 between mortgaggr and mortgagee, the house belonged to 
 the mortgaged premises ; but as it had been removed and 
 moved away from the premises, the mortgagee lost his right 
 to the propert}^ tliough he might have had a cause of action 
 for the waste {Clark v. Reyburn, 1 Kansas R., 281). 
 
 In this connection, a case may very appropriately be 
 cited, which was decided by the Supreme Court of Penn- 
 sylvania in 1863. The facts of the case, in brief, were the 
 following : The owner of a machine-shop and mill executed 
 a mortgage thereon for the security of a certain sum of 
 money. In this shop was a lathe at the time the mortgage 
 was executed, and, some time after the date a*nd delivery of 
 this mortgage, the mortgagor sold the lathe to a third party, 
 who at once removed the same to other premises. Subse- 
 quently the mortgagee entered up judgment upon his mort- 
 gage-bond, issued execution on liis judgment to the sheriff 
 who levied upon the lathe in the hands of the purchaser ; 
 and an interpleader issue was directed by the court to try 
 the question of OAvnership, or to ascertain the right of 
 property in the lathe as between the vendee and mortgagee. 
 
 On the trial, the jury were instructed by the judge to 
 find for the mortgagee, and the vendee brought error. The 
 Supreme Court held that the instruction was proper, and 
 laid down the following legal propositions :
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 593 
 
 1. A mortgage of a machine- shop includes all its fixtures 
 as such, and the mortgagor cannot remove them to the 
 injury of the mortgagee. 
 
 2. As a purchaser of a fixture from mortgaged premises 
 is afi'ected with knowledge of the existing lien, the sale is 
 a fraud upon the mortgage-creditor and void as against 
 him ; and he may follow the property in the hands of the 
 wrongful vendee. 
 
 Lowrie, C. J., delivered the opinion of the court, and 
 said : " The mortgage of this machine-shop of course in- 
 cluded all the fixed elements of it that gave it its peculiar 
 character as a machine-shop, and it is quite plain that the 
 lathe was one of them, and that the sale and removal of it 
 was a violation of the rights of the mortgagee. The pur- 
 chaser had both constructive and actual knowledge of the 
 mortgage, and the morality of the law calls such purchase 
 a fraud upon lien-creditors, and void as against them. Of 
 course, therefore, the mortgagee liad a right to follow the 
 removed property, and assert his rights over it. He may 
 even treat it as personalty as against the wrongdoer, for the 
 wrongful act cannot be alleged by the wrongdoer as a 
 means of shelter for himself. Even without knowledge of 
 the mortgage, it is hard to see how a purchaser could be 
 relieved from this responsibility ; for all purchasers, hirers 
 and renters are bound to ascertain, or take the risk of as- 
 suming the title of their vendors and lessors. But may 
 not a mortgagor sell in the usual way the lumber, firewood, 
 coal, ore, or grain found growing on the land, without vio- 
 lating the rights of the mortgagee 1 Yes, he may, until 
 the mortgagee stops him by ejectment or estrepement, for 
 those things are usually intended for consumption and 
 sale, and the sale of them is the usual way of raising the 
 money to pay the mortgage. But in the case of a factory, 
 or other building, it is by the use of it as it is, and not by 
 its consumption or its sale by piecemeal, that all its profits 
 are to be derived. We think the case was properly de- 
 cided" {HosMn V. Woodward^ 45 Penn. i?., 42, 44). 
 
 In 1870, tlie Supreme Court of Louisiana decided that, 
 as between mortgagor and mortgagee, an engine and ma- 
 
 75
 
 594 LAW OF FUTURES. 
 
 cliinery in and attached to a sugar-house forms a part of 
 the realty and is subject to a mortgage ; but if detached or 
 removed from the sugar-house, that then it becomes remov- 
 able property, and is not subject to the mortgage (C/Y/^eyi' 5 
 BanJc V. Knapp, 22 La. An. R., 117). Tliis would seem to 
 be adverse in principle to the case of Hoskin v. Woodward., 
 but in accord with the case of Clark v. Reyburn, cited from 
 the Kansas reports. 
 
 In a late case decided b}^ the Supreme Court of Ohio, it 
 appeared that the owner of the fee erected a building for a 
 steam saw-mill, without substantially altering the struc- 
 ture, and which would have been, comparativel}^ of little 
 value for any other purpose ; and the boilers, engines, saws 
 and gearing, and other machinery for applying the power, 
 were so attached and adapted to the structure as to show 
 they were designed to be permanent, and without which the 
 mill w^ould be incomplete. The court held that, as between 
 the owner of the fee as mortgagor and his mortgagee, in a 
 real estate mortgage such property is to be regarded as fix- 
 tures {Brennan v. WJtliaker^ 15 Ohio St. R., 446). 
 
 The Supreme Court of Louisiana held in 1871, that ma- 
 chinery set in bricks and run by steam, and used as a cot- 
 ton seed oil factory, constitutes a. part of the realty on 
 which it is erected ; that such machinery cannot, therefore 
 be removed from the premises after the land on which it 
 stands has been seized under a mortgage. This was the de- 
 cision of the court, but from the doctrine of .the case, it is 
 clear that the machinery, as between mortgagor and mort- 
 gagee of the real estate on which it was erected, would be- 
 long to the mortgagee, and the mortgagor would have no 
 legal right to remove it from the premises until satisfaction 
 of the mortgage {TJiererer v. Nautre, 23 La. An. R., 749). 
 
 In 1873, the Court of Chancery of New Jersey held that, 
 as between mortgagor and mortgagee of a large brick build- 
 ing, certain boilers, engines, shafting and steam pipes for 
 heating purposes, the latter fastened along the walls, were 
 a part of the realty, although they were called personal 
 property in a deed and bill of sale to the mortgagor. And 
 the court laid down the rule that the permanency of a fix-
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 595 
 
 ture depends on the motive of the party attaching it,— 
 whether for temporary use or for permanent improvement 
 of the freehold {Quiiiby v. Manhattan Cloth and Paper 
 Co., 24 N. J. Eq. B., 260). But in another case before the 
 same learned court in 1875, it was held, as between mort- 
 gagor and mortgagee of real estate, that a "planer and 
 matcher," and a "moulder," weighing each nearly two 
 tons, placed directly on the floor of a sash and blind fac- 
 tory, and driven by connections with secondary shafting 
 were not fixtures, and that no title thereto would pass 
 by a sale under foreclosure of a mortgage on the land. 
 And it was declared that movable machines, whose num- 
 ber and permanency are contingent on the varying cir- 
 cumstances of business, subject to its fluctuating con- 
 ditions and liable to be taken in or out, as exigencies 
 may require, are different in nature and legal charac- 
 ter from steam-engines, boilers and other articles secured 
 by masonry or other substantial annexation, designed to 
 be permanent, and indispensable to the enjoyment of the 
 freehold {^Rogers v. BroJcaw, 25 N. J. Eq. R., 496). 
 
 In 1860, the Supreme Court of the State of New York 
 decided a case, in which it appeared that the owner of real 
 estate erected thereon a keg factory, and at the same time 
 put in the machinery, for the express purpose of the fac- 
 tory ; after which he executed and delivered to the mort- 
 gagee, a mortgage upon the premises on which the factory 
 stood. After the mortgage became due, it not being paid, 
 the mortgagee with the consent of the mortgagor, took ac- 
 tual possession of the premises ; but nearly a year previous 
 a creditor of the mortgagor had recovered a judgment 
 against him, on which execution was issued to the sheriff, 
 who seized and removed from the mortgaged premises a 
 part of the machinery and implements of the factory, that 
 is to say, a machine for turning kegs and its fixtures, a 
 machine for jointing staves, and a machine for cutting 
 staves and fixtures. To separate the property thus taken 
 from the building, levers were used to tear it up. The 
 judgment on which the execution was issued was recovered 
 before the mortgagee took possession of the premises,
 
 596 LAW OF FIXTURES 
 
 although the sheriff did not remove the property in ques- 
 tion until after the mortgagee got possession. 
 
 The mortgagee claimed the property under his mortgage, 
 and brought his action against the sheriff to recover its 
 value. He did not bring his action, however, until after he 
 had foreclosed his mortgage by advertisement under the 
 statute and purchased the mortgaged property at the sale. 
 The court held that the articles of machinery were to be 
 deemed fixtures and passed to the mortgagee by the mort- 
 gage. 
 
 Gould, J., delivered the oi)inion of the court, and ob- 
 served : "In considering this case, and determining whether 
 the articles in question were, or were not, fixtures, we are to 
 follow the decision in Snedeker v. Warring (2 Kern. 174), 
 holding the same rule as between mortgagor and mortagee 
 that would be held as between grantor and grantee. And 
 this, whether the mortgagee were, or were not, in possession 
 of the premises. Nor can there be anj^ doubt, if the prop- 
 erty before detached were fixtures, that the person having 
 the title to the realty could sue for the specific recovery of 
 the things themselves, or in trespass for the damage to the 
 freehold. A tort feasor has no riglit to complain of the 
 form of the remedy ; nor is the owner of machinery, of 
 which its cliief value may be its immediate employment on 
 the premises, to be debarred of legal process for its imme- 
 diate reception for the purposes of such employment. 
 
 "It seems to me, however, that the mortgagee was in pos- 
 session of the premises at the time of the removal of the 
 machinery. So that the taking was from his actual posses- 
 sion ; a possession which his subsequent foreclosure and 
 sale ripened into an absolute title, instead of a conditional 
 one, as it was when he took the possession" {Lafiin v. 
 Griffiths, 35 Barb. M., 68, 62). 
 
 The last paragraph of the opinion of the learned judge 
 above quoted settles an important principle, not confined 
 exclusively to cases of fixtures, though quite pertinent in 
 this connection ; but upon the subject now under considera- 
 tion the case is directly in point to establish the doctrine 
 that the articles of machinery involved were to be deemed
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 597 
 
 fixtures in the true sense of the word, and that they passed 
 to the mortgagee by virtue of his mortgage. And it was 
 decLared, and doubMess very properly, that the rule, which 
 was applicable to the case and justified the decision of it, 
 was established by the well recognized case of WaUter v. 
 merman (20 Wend. R., 639), decided by the old Supreme 
 Court of the State of New York, and the before-mentioned 
 case of Snedeker v. Warring (12 N. Y. R., 174), decided by 
 the New York Court of Appeals. The case has been fre- 
 quently cited and approved in other subsequent cases in the 
 State of New York, and may be regarded as competent 
 authority. There was another point in the case which 
 should be noted. Upon the foreclosure of the mortgage, 
 the mortgaged property was purchased by the mortgagee at 
 a price sufficient to satisfy the mortgage. But the court 
 held that this did not alter the rights of the mortgagee. If 
 at the time the sheriff seized the articles, the mortgagee had 
 the title to them, even a conditional one, that was sufficient 
 to give him a cause of action, in the expressed opinion of 
 the court. , 
 
 CHAPTER XLIV. 
 
 LAW OF FIXTURES AS BETWEEN MORTGAGOR AND MORTGAGEE — EX- 
 AMINATION OF AUTHORITIES UPON THE SUBJECT CONTINUED. 
 
 In the further examination of the American authorities 
 upon the subject of the last two chapters, reference may be 
 made to a late case decided by the Commission of Appeals 
 of the State of New York, which has been cited upon an- 
 other point, in which it was held, that a steam-engine and 
 boilers and shafting and gearing placed and attached to 
 a building by the owner of the freehold for the purpose 
 of being permanently used there after he had executed 
 and delivered a mortgage of the realty, passed to the mort-
 
 598 LAW OF FIXTURES. 
 
 gagee as parcel of the realty, and could be claimed by him, 
 as against the holder of a chattel mortgage covering the 
 same before it became attached to the realty. It appeared 
 that the articles were capable of being removed without 
 injury to the walls of the building, and without injury to 
 the foundations on which they were laid ; but, after much 
 consideration the court held that they were fixtures, and 
 having come to that conclusion, it was decided that the claim 
 of the mortgagee of the realty to the lixtures was paramount 
 to that of the mortgagor of the chattels before they became 
 fixtures {Voorhees v. McGinnis, 48 N. Y. M., 278). 
 
 And the Supreme Court of the State of New York decided 
 in 1855, that there is no relaxation, as between mortgagor 
 and mortagee, of the general rule of the common law which 
 prevails between vendor and vendee, that whatever is fixed 
 to the freehold, thereby becomes part of it. And therefore, 
 where a mortgagor, subsequent to the execution of the mort- 
 gage had put machiner}' and other fixtures into a mill upon 
 the mortgaged premises, it was held that the purchaser of 
 the mortgaged premises, at a foreclosure sale acquired title 
 to the fixtures as being part of the real estate. There was 
 a somewhat novel feature in the case, but the court was of 
 opinion that it did not affect the application of the general 
 principle. The property in question consisted of millstones, 
 conveyers, water-wheels, saws and other machinery belong- 
 ing to and used in a mill upon the mortgaged premises ; and 
 it appeared that the mortgagor had executed a quitclaim deed 
 of the land before the property in dispute was placed in 
 the mill ; but this was done under an agreement by which 
 the mortgagor was interested to enhance the value of the 
 land, and make the avails of the sale of it as much as pos- 
 sible. The court thought that the property was so attached 
 to the building as to bring it within the principle referred 
 to, and therefore passed with the laud to the purchaser upon 
 the mortgage sale {Gardner v. Finley^ 19 Barh. B., 317). 
 
 But the same court decided a case in 1850, wherein it ap- 
 peared that the owner of premises on which were a paper- 
 mill and saw-mill, and a cotton factory, executed a mortgage 
 on the premises in the usual way by metes and bounds, for
 
 • RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 599 
 
 the price of land on wliicli the mills stood. The property 
 in dispute consisted of various articles of machinery for 
 carding, spinning, twisting, balling, preparing, and packing 
 cotton yarn and cotton twine. Tlie mortgagee brought the 
 action to foreclose his mortgage, and the articles in question 
 were claimed upon a judgment and execution against the 
 mortgagor, rendered and issued subsequent to the execu- 
 tion and recording of the mortgage. It appeared that every 
 machine might be easily and conveniently removed, without 
 injury to itself or to the building in which it stood ; and, it 
 so removed, might be used with the same effect and for the 
 same purpose on the floor of any other building where there 
 was motive power to put it in operation. The court held 
 that the property was not so attached to the building as to 
 brino- the articles within the denomination ot fixtures ; and, 
 therefore, the same could not be deemed to have passed to 
 the mortgagee by virtue of his mortgage. The general prin- 
 ciple, however, was conceded, that the mortgagee of the 
 lands, tenements and hereditaments, is entitled, as against 
 the mortgagor, to have all the fixtures and additions in the 
 nature of fixtures, applied to the satisfaction of his mort- 
 gage debt, all of which are embraced by the mortgage 
 {Vanderiwol v. Van Allen, 10 Barb, i?., 157). 
 
 The same distinguished court decided in 1868, that a 
 mortgage, executed by a railway company upon its "rail- 
 road and equipments," might properly be construed, and 
 was sufficient, to include in the mortgaged property the 
 rolling stock, as a part of the road and necessary to its use. 
 This construction, however, was put upon the terms of the 
 mortgage, chiefly upon the ground that it was intended by 
 the parties to the mortgage, that the rolling stock and equip- 
 ments of the road should pass to the mortgagee as a part of 
 the mortgaged security. The object of the mortgage was to 
 provide funds for- the building of the road and prepanng it 
 for travel, and the court, hence, concluded that the intent 
 of the parties was to secure the bondholders with the mort- 
 gao-e on the whole property of the road as used by the com- 
 pany for travel. With this view, the court expressed the 
 opinion, and so held, that the mortgage need not be treated
 
 600 LAW OF FIXTURES. 
 
 as a chattel mortgage, but rather as one entire mortgage, 
 covering the road and its accessories. But the case itself 
 will be more aj^propriately considered under another head 
 {Hoyle V. The Plattshurgh & Montreal Railroad Company^ 
 51 Barh. R., 45). 
 
 Reference may also be had to a case decided by the Court 
 of Appeals of the State of New York in 185.8, which has 
 been cited upon another point. The owner of the property 
 executed a mortgage upon "all that estate and real prop- 
 erty, known as the Owasco Woolen Factory, situate on the 
 Owasco Outlet, in the city of Auburn. * * * The same be- 
 ing the plot of ground, buildings and water privileges lately 
 owned by the Auburn Woolen Company." There was a 
 further description of the mortgaged property, but, from 
 the view the court took of the case, it is not necessary to 
 insert it here. The question controverted was in respect to 
 twenty-five head looms, situated in the factory building 
 upon the mortgaged premises. These looms were placed in 
 one of the factory buildings, and fastened to the floor by 
 means of the screws in each loom, merely for the purpose 
 of keeping them in their place, and they were capable of 
 being easily removed from place to place, and the motion of 
 any one stopped by throwing off tlie band, without stopping 
 or impairing the motion of any other loom. The looms were 
 used for the weaving of broadcloth. The mortgage was 
 recorded as a mortgage of real estate, and was not tiled as a 
 chattel mortgage ; and the looms were seized upon an execu- 
 tion issued upon a judgment against the mortgagor. So the 
 question was whether the articles passed as part of the real 
 estate ; for if they did not pass as realty, it was necessary, 
 as there was no actual change of possession, that the mort- 
 gage should have been filed as a chattel mortgage. The 
 court held that the articles were personal property, and not 
 fixtures and part of the realty. And, although by express 
 terms of the mortgage the articles in question were embraced 
 in the mortgage, yet, as the instrument was not filed as a 
 chattel mortgage, the mortgagee could not hold tiiem, as 
 against the execution creditor of the mortgagor. In other 
 words, so far as the present point is concerned, it was held
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 601 
 
 that, as between mortgagor and mortgagee, the looms in 
 question were not realty, and did not pass to the mortgagee 
 by a simple mortgage of the land and appurtenances {Mur- 
 dock V. Glfford, 18 R. Y. B., 28). 
 
 It was held by the Supreme Court in the case of Murdoch 
 V. Gifford^ that the looms having been intended to be a per- 
 manent and essential part of the woolen factory, were to be 
 ^kiemk^di fixtures^ as between mortgagor and mortgagee, and 
 hence, that the mortgage of the factory and machinery car- 
 ried the looms to the mortgagee. This view, however, was 
 not sustained by the Court of Appeals {Murdoch v. Harris, 
 20 Barh. R., 407). 
 
 The Supreme Judicial Court of Massachusetts decided in 
 1842, in a case noted upon another point, that fixtures, and 
 additions in the nature of fixtures, which are placed in a 
 building by a mortgagor, after he has mortgaged the prem- 
 ises, become part of the realty, as between him and the 
 mortgagee, and cannot be removed or otherwise disposed 
 of while the mortgage continues in force. The articles held 
 to have so become a part of the realty, were, a steam-engine, 
 boilers, and machinery adapted to be moved by such engine, 
 by means of connecting bands and other gearing, which 
 were placed in the building designed for the manufacture of 
 steam-engines and other heavy iron work. 
 
 Shaw, C. J., delivered the opinion of the court, and, upon 
 this point, observed: "The court are of opinion that the 
 steam-engine and boilers, and all the engines and frames 
 adapted to be moved and used by the steam-engine, by 
 means of connecting wheels, bands, or other gearing, as be- 
 tween mortgagor and mortgagee, are fixtures, or in the 
 nature of fixtures, and constituted a part of the realty ; and 
 that as all these fixtures were annexed to and made part of 
 the realty by the mortgagor, they are part of the mortgaged 
 premises, and passed by the first mortgage to the defen- 
 dants. 
 
 "A different rule may exist, in regard to the respective 
 rights of tenant and landlord, tenant for life and remainder- 
 man or reversioner, and generally where one has a tempo- 
 rary and not a permanent interest in the land. ^ * * But 
 
 76
 
 602 LAW OF FIXTURES. 
 
 the case of mortgagor and mortgagee stands upon a differ- 
 ent footing. The mortgagor, to most purposes, is regarded 
 as the owner of the estate ; indeed, he is so regarded to all 
 purposes, except so far as it is necessary to recognize the 
 mortgagee as legal owner, for the purposes of his security. 
 The improvements, therefore, wiiich the mortgagor, remain- 
 ing in the possession and enjoyment of the mortgaged prem- 
 ises, makes upon them, in contemplation of law he makes 
 for himself and to enhance the general value of the estate, 
 and not for its temporary enjoyment. * * * The expecta- 
 tion of such improvement and such increased value often 
 enter into the consideration of the parties, in estimating the 
 value of the property to be bound, and its sufficiency as 
 securit}^ for the money advanced. And we think the sam^ 
 rule must apjDly to those articles which in their own nature 
 are doubtful, whether actual fixtures or not, on the ground 
 of the presumed intention of the parties. A presumption 
 arises from the relation in wiiich they stand, that such im- 
 provements were intended to be permanent and not tempo- 
 rary, and that the freehold and the improvements intended 
 to be made upon it are not to be severed, but to constitute 
 one entire security" {Winsloio v. The Merchants' Insur- 
 ance Company, 4 3fet. B., 306, 310, 318). 
 
 The doctrine of the case of Winsloio v. The Merchants'' 
 Insurance Company was confirmed by the same distin- 
 guished court, in a case decided in 1871, wherein it was 
 held, that a mortgage of a building used as a machine-shop 
 covered polishing frames, machines, pulleys and shafting, 
 bolted or screwed to the floors or timbers of the building, 
 although it appeared that they could be removed without 
 substantial injury to the building ; also a machine bolted to 
 the floor ; and also wheels belonging to the polishing 
 machine, although they could be detached therefrom with- 
 out injury. But it was decided that the mortgage did not 
 cover machines which were not fastened to the floor, but 
 were supported by their own weight, nor machines which 
 vrere fastened to benches, although such machines were run 
 from the shafting ; nor vises screwed to benches, although 
 the benches were attached to the building by nails.
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. G03 
 
 Ames, J., delivered the opinion of the court, and ob- 
 served: "The question between the parties is governed by 
 the rules which apply to the case of mortgagor and mort- 
 gagee ; the defendant claiming the contested property by 
 virtue of a mortgage of the real estate, and the plaintiffs 
 under an earlier conveyance from the mortgagor, in which 
 the machinery is described as personal property. The re- 
 port finds that before either of tlie mortgages under which the 
 parties respectively claim was made, the morgagors owned 
 a machine-shop which they were occupying for. manufactur- 
 ing purposes, and were ' also owners of the machinery de- 
 scribed in the report. It appears also that all the machinery 
 had been placed by them in position, before the defendant's 
 'title accrued. Under such circumstances, and inasmuch as 
 the report finds that the mortgage under which the plain- 
 tiffs claim was given in contemplation that all the machinery 
 should be set up and fastened to the building as described 
 in the report, we think that whatever the mortgagees an- 
 nexed to the freehold, for the more convenient use and im- 
 provement of the premises, must pass by the mortgage of 
 the real estate {Winslow v. If er chants' Insurance Co., 4 
 Met, 306). Articles placed in a mill by the owner to carry 
 out the obvious purpose for which it was erected, and 
 adapted to that purpose, are generally part of the realty, 
 notwitlistanding the fact that they could be removed and 
 used elsewhere {Parsons v. Copeland, ^S Maine R., 537). 
 In a building erected as a factory, the steam-works relied 
 upon to furnish the motive power, and the works to be 
 diiven by it, are essential parts of the factory, adapted to 
 be used in it and with it, and would pass with it by a con- 
 veyance of the real estate ( Winslow v. Merchants'' Insur- 
 ance Co., 4 3Iet., 306). 
 
 "By this rule the large punch, the three polishing frames., 
 the three vibrators, the polisher, the fan-blower, and the 
 pulleys, shafting and hangers, appear from the auditor's 
 report to have been annexed to the freehold and specially 
 adapted to be used in connection with it. * ^ * The two 
 punches, although not so firmly attached to the building, 
 appear to us to fall within the same rule. The wheels be-
 
 604 LAW OF FIXTURES. 
 
 longiiig to the polishing frames come somewhat more to the 
 dividing line, but as they are understood to be essential 
 parts of the polishing machines, they must be governed by 
 the same rule. 
 
 "But the lathes fastened to a bench by screws, and oper- 
 ated bj" a foot-movement ; the five grindstones resting upon 
 frames standing upon the floor ; the rattler and frame, the 
 tack machines, the slitter, the anvils, the vises, the lathes, 
 and the portable forge, are none of them fixtures in any 
 sense of the word. For the value of tliese articles, to be 
 determined by an assessor, the plaintiffs are entitled to 
 judgment" (Pierce v. George, 108 3Iass. R., 78, 82, 83). 
 
 The Supreme Court of Vermont decided a case in 1856, in 
 which it appeared that the owner of lands executed a mort-* 
 gage upon said lands, and "also the paper-mill, dry-house, 
 and size-house, situated at Bellows Falls, now used and im- 
 proved for making paper, together with the land on which 
 said paper-mill, dry-house and size-house are situated." 
 
 The evidence showed that some time after the execution 
 of the mortgage, the paper-mill building was taken down 
 and another building substituted in the same place, and 
 fitted up for manufacturing paper, with fixtures and ma- 
 chinery, and occupied by the mortgagor for manufacturing 
 paper as before. It further appeared that an iron boiler 
 was fitted up in said building, near the centre, in brick- 
 work laid on a stone foundation jDlaced on the ground, and 
 that the floor of the building was laid up to it, but was 
 attached to the building in no other manner ; also four en- 
 gines for grinding rags into pulp, fixed in large oval tubs, 
 in the usual way, were fitted up in the building scribed up 
 to them, which were attached to the building in no other 
 way, saving that they were carried and operated by a band 
 from shafting which carried the machiner}^ ; and that there 
 were five paper presses with screws of iron, the lower ends 
 of which dropped through the floor to the ground, and were 
 in no other way attached to the floor, and their upper ends 
 surrounded by cleats nailed to the floor over head, to keep 
 them in place, which, by taking off some iron nuts, could 
 be taken out without injury or disturbing the building ; and
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE 605 
 
 certain other machiueiy similarly attached to the building. 
 And that there were iron pipes connected with the boiler 
 by screws and bolts, which could be easily taken off, and 
 iron shafting put up in the building for turning and carry- 
 ing the machinery, by hangers of iron bolted to the beams 
 and sills, which could be taken down by unscrewing the 
 bolts. 
 
 The court held that the boiler and the iron pipe connected 
 with it, the engines, paper presses and other machinery, 
 were no part of the real estate, as between mortgagor and 
 mortgagee ; but otherwise of the iron shafting referred to. 
 
 Bennett, J., who delivered the ojjinion of the court, said : 
 "We think the rule in this State should be that the various 
 articles of machinery belonging to a manufactory are, in no 
 respect, real estate, excepting as they are a part of the free- 
 hold, or substantially attached to it, and that it is not suf- 
 ficient to make them a part of the freehold if they are 
 attached to the building for the purpose, and in the manner 
 adapted to keep them steady, and that their use may be 
 more beneficial as chattels, and in such a way that will ad- 
 mit of their removal without any material injury to the 
 freehold, or to the chattels. Neither is it enough to make 
 them real estate that they are essential to the occupation of 
 the building for the business carried on in it. * * ^ The 
 rule requiring actual annexation, is not affected by those 
 cases where a constructive annexation has been held suffi- 
 cient. These cases may be regarded as exceptions to the 
 general rule, or else as cases where the things were mere 
 incidents to the freehold, and became a part of it, and jDassed 
 with it, upon a principle different from that of its being a 
 fixture. 
 
 "In determining the character of what the plaintiff claims 
 to be fixtures, or a part of the realty, we must not only 
 have reference to the manner and extent of the annexation, 
 but also to the ohject and purpose of it. * * * To change 
 the nature and legal qualities of a chattel into a fixture, re- 
 quires a positive act on the part of the person making the 
 annexation, and, his intention so to do, should particularly
 
 606 LAW OF FIXTURES. 
 
 appear, and, if this be left in doubt, the article should be 
 held still to be personal property. 
 
 " We see no reason why the case of the potash kettles, in 
 5 Vt. should not govern this, as to an iron boiler. * * * We 
 think the four engines, used for grinding rags into pulp, 
 cannot be regarded as a part of the paper mill, or as an- 
 nexed to it, so as to become part of the realty. 
 
 "The iron shafting put up in the building for the purpose 
 of turning and putting in motion the machinery, by means 
 of hangers of iron bolted to the beams and sills of the build- 
 ing, we are disposed to regard as a constituent part of the 
 mill. The shafting was necessary to communicate the mo- 
 tive power to the machinery, and should be regarded as a 
 part of the mill, as much as a water-wheel, by which a 
 water-power is called into existence" (HIU v.Wentwo7^th, 
 28 Vi. i?., 429, 436-439). 
 
 The same court held in 1862, that the boilers and steam- 
 engine in a marble mill, which supplied the motive power 
 of the machinery of the mill, and were set up and used 
 for the beneficial enjoyment of the mill, and subsequently 
 annex'ed to it, were fixtures, as between mortgagor and mort- 
 gagee, and part of the realty, notwithstanding the machiney 
 moved hy the engine could be readily removed without 
 injury to the building ; but that the saw frames in such mill, 
 fastened at the top and bottom, to the building by bolts and 
 nuts for the purpose of steadying the saws, should be re- 
 garded as chattels and not fixtures, passing to the mort- 
 gagee of the real estate. 
 
 Kellogg, J., said: "There can be no question but that 
 the mill is a part of the realty, and that, as such, it w^ould 
 pass to a mortgagee, whether erected previous or subsequent 
 to the date of the mortgage. * * * In respect to the saw 
 frames, we do not find in the manner in which they were 
 fastened for use, any such annexation to the realty as would 
 operate to change their character as chattels, and the decree 
 of the chancellor directing that they should be considered 
 and treated as personal property, is in accordance with the 
 law of the subject as applied in the case of JIlll v. Went- 
 wortJi (28 W., 428), and Fullam v. Stearns {^OYt, 443), and
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. GOT 
 
 Bartlett v. Wood et at. (32 Yt, 372)." {Sioeetzer v. Jones 35 
 Vt R., 317, 321, 322). 
 
 The Supreme Court of Illinois decided a case in 1867, 
 wherein it appeared that the owner in fee of certain premises 
 executed a mortgage upon the premises, and afterward, to- 
 gether with his partner in trade, erected a building on the 
 same, for trade purposes. The structure was built with 
 means of the firm, and in no manner permanently fixed to 
 the freehold. The court held, that the building being 
 merely a temporary one, and erected for trade purposes, the 
 mortgagee acquired no interest therein, and could not in- 
 hibit its removal. It was held, however, that, when a fix- 
 ture, permanent in its character, is erected upon mortgaged 
 premises, with the intention of so remaining, it cannot be 
 removed without the mortgagee's consent. And it was de- 
 clared that, although the question, whether structures are 
 real or personal estate, cannot always be determined by the 
 known intention of the party erecting the building, yet, in 
 cases of doubt,* it will have a controlling inllueiice in fixing 
 the same. 
 
 Walker, J., delivered the opinion of the court, and, 
 among other things, observed : "While the intention alone 
 will not always determine whether such structures are real 
 or personal estate, it will have a controllig influence in cases 
 of doubt. Here, the property of a stranger to the mortgage, 
 to the extent it belonged to the partner of the mortgagor, 
 was placed on this lot. And no one could claim that he 
 could have intended it to become fixed, and a part of the 
 real estate, especially when w^e see the apparent effort and 
 care observed, that it should not become attached even so 
 slightly as by the blocks upon which it rested sinking into 
 the soil. That seems even to have been guarded against, so 
 that there could be no claim that it had become attached, 
 and formed a part of the realty. 
 
 "Even a mortgagor may make temporary erections, if they 
 are not attached to the freehold, and remove them, before 
 the mortgage is foreclosed, if he does not depreciate the 
 value of the security, as it was when the mortgage was 
 given. In such a case, a court of equity w^Ould not inter-
 
 608 ^^^ OF FIXTURES. 
 
 fere to restrain its removal ; mnch less to prevent^ the re- 
 moval of such an erection, when placed there by a third 
 party" {Kelly v. Ausiin, 46 III. R., 156, 158, 159). 
 
 The Supreme Court of Pennsylvania ruled in 1841, that a 
 mortgage and sale of a lot and iron rolling-mill, with the 
 buildings, apparatus, steam-engine, boilers, and bellows at- 
 tached to the same, passed the entire set of rolls used in the 
 mill, whether actually in place, or temporarily detached to 
 make room for such as were ; and that such rolls could not 
 be seized and sold as chattels, on a fieri facias against the 
 mortgagor. 
 
 Gibson, C. J., in delivering the opinion of the court, said : 
 "But such rolls, being adapted to the manufacture of bars 
 of different shapes and sizes, cannot all be used at once ; 
 and according to the ordinary criterion, only those in place 
 and fixed for use would be deemed a part of the mill. But 
 by the criterion proposed, they must be deemed equally a 
 part of it when unfixed to give place to others ; for a rolling- 
 mill without rollers for all work, would be as incomplete as 
 a hatter's shop without blocks for all heads. * * * Dupli- 
 cates necessary and proper for an emergency, consequently 
 follow the realty on the principle by which duplicate keys 
 of a banking-house, or the toll-dishes of a mill, follow it. 
 
 "We are of opinion, therefore, that the rolls in question 
 passed as a part of the freehold by the mortgage and sale 
 on the levari facias ; but that if they had not passed, they 
 could not have been sold as chattels on the plaintiff's fieri 
 facias against the mortgagor ; and were it necessary, we 
 would further hold that they might have passed, had they 
 been chattels, by force of the word apparatus in the descrip- 
 tion of the premises" {Voorhis v. Freeman, 2 Watts & 8erg. 
 B., 116, 120). 
 
 The Court of Appeals of Virginia held in 1875, in a case 
 involving the right to fixtures as between mortgagor and 
 mortgagee, that the two rules in determining what are fix- 
 tures in a manufacturing establishment, when the land and 
 buildings are owned by the manufacturer, is : That wiien 
 the machinery is permanent in its character, and essential 
 to the purposes for which the building is occupied, it must
 
 RVLB AS BETWEEN MORTGAGOR AND MORTGAGEE. 609 
 
 be regarded as realty, and passes with the building ; and 
 that whatever is essential to the purposes for which the 
 building is used will be considered a fixture, although the 
 connection between them be such that it may be severed 
 without physical or lasting injury to either {^Green v. Phil- 
 lips, 26 Oraitan's R., 752). . , .^ , . .o.o ,i,^t 
 ■ The Supreme Court of Pennsylvania decided in 1852, tnat 
 a steam-engine and boilers fixed in an anthracite furnace tor 
 the manufacture of iron, as between mortgagor and mort- 
 gacee, were part of the realty ; and that though the articles 
 we1-e put up after the mortgage upon the real estate was 
 given they constituted a part of the mortgage security,^ and 
 were not liable to removal by the mortgagor or his assigns, 
 if such removal was injurious to the mortgagee, who, it was 
 declared, has a right to benefit from any appreciation of the 
 mortgaged premises arising from any cause. 
 
 Lowrie J., delivered the opinion of the court, and said: 
 » But a writ of replevin is effectual for the delivery of per- 
 sonal property only ; and it furnishes no justification to an 
 officer, who, under it, severs and delivers part of the rea ty. 
 This engine, with its appurtenances, was part of the realty, 
 unless Anna C. Bayard had a right, as against her mort- 
 gagee, to treat them as personal property, which, under or- 
 dinary circumstances, she has not. ^ 
 
 "It is insisted, however, that because the engine, &c., 
 were put up after the giving of the mortgage, therefore they 
 constituted no part of the mortgaged security, and might 
 be removed without doing any wrong to the naortgagee. 
 But this is not so. As the mortgagor may suffer by the de- 
 preciation of the property, arising from fluctuations in value, 
 from accident, and from neglect, so he may be benefited by 
 its appreciation, whether the same arises from the proper 
 cultivation and improvement of the property, or from any 
 other cause. No other rule could be at all practical {Rob^ 
 erts V. The Dauphin Deposit Bank, 19 Penn. ^.,71, 75, 
 76) This is in strict accordance with the doctrine of other 
 cases, and some very cogent reasons for the rule are assigned 
 in this, which are not found in the other cases. 
 
 77
 
 610 LAW OF FIXTURES. 
 
 CHAPTER XLV. 
 
 LAW OF FIXTURES AS BETWEEN MORTGAGOR AND MORTGAGEE EXAMI- 
 NATION OF AUTHORITIES UPON THE GENERAL SUBJECT CONCLUDED 
 
 THE DOCTRINE OF THE CASES AND THE UTILITY OF EXPRESSING 
 CLEARLY THE INTENTION OF THE PARTIES IN A MORTGAGE. 
 
 Iis" still further examining the decisions of the courts ujDon 
 the subject of fixtures, as between mortgagor and mortgagee, 
 a case may be referred to which was determined by the Su- 
 preme Court of Errors of the State of Connecticut, wherein 
 it appeared that a nursery gardener executed a mortgage 
 upon the land owned and occupied by him as a nursery, 
 and that at the time of the execution of the mortgage, cer- 
 tain trees and shrubs were growing upon the mortgaged 
 premises, which had been planted b}^ the mortgagor for the 
 temporary purpose of cultivation and growth until suitable 
 for market, when they were to be removed and sold. The 
 trees and shrubs were claimed by the creditors of the mort- 
 gagor as personal property. Tlie court held that the articles 
 passed by the mortgage of the land, so that the mortgagor 
 or his assignees could not remove them as personal prop- 
 erty. 
 
 Hinman, C. J., delivered the opinion of the court, and 
 said: "The question in this case is, whether trees and 
 shrubs planted in a nursery garden for th'3 temporary pur- 
 pose of cultivation and growth until they should become 
 sufficiently mature to be fit for market, and then intended 
 to be taken up and sold, pass by a mortgage of the prem- 
 ises on which they are so planted, so that the mortgagor or 
 his assignees cannot remove them as personal chattels. As 
 the question arises between the mortgagee and the assignee 
 and creditors of the mortgagor, it is to be determined upon 
 principles applicable to persons standing in the relation of 
 mortgagor and mortgagee and not in the relation of landlord 
 and tenant. As betw^een landlord and tenant many things 
 which pass under the general name of fixtures will, for the
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 611 
 
 encouragement of trade, be permitted to be removed by the 
 tenant during his term, which as between him and executor, 
 vendor and vendee, or mortgagor and mortgagee, would be 
 considered as parcel of the realty, and would therefore be- 
 long to the heir or vendee or mortgagee. And, as between 
 landloi-d and tenant, it may be true of nursery trees in a 
 garden, especially when land is let to a nursery gardener to 
 be used for the purposes of his trade, that they would be 
 treated as personal chattels, removable by the tenant during 
 his term. But admitting that this is so, it is an exception 
 to the general rule. Trees and shrubs are generally as 
 much part of the realty as the soil itself, whether growing 
 upon it naturally, or planted and cultivated by the hand of 
 nmn. It is therefore incumbent upon the party claiming 
 that they are personal chattels, which do not pass with the 
 transfer of the land, to show that such was not the intention 
 of the parties. How is this attempted to be done in this 
 case ? We have nothing but the simple circumstance that 
 Millon the mortgagor was a nursery gardener, and that the 
 trees and shrubs in question were his stock in trade. This, 
 as we have intimated, might be important if the question 
 arose between landlord and tenant, but its importance here 
 we do not perceive. He owned the land on which he planted 
 the trees. By placing them there for cultivation and growth 
 they became prhna facie parcel of the land itself. If he 
 had sold and conveyed the land instead of mortgaging it, 
 they would have passed to his vendee unless specially ex- 
 cepted out of the conveyance. This would be so even if it 
 be admitted that they partook to some extent of the nature 
 of emblements, since it is a general rule that when an es- 
 tate is determined by the act of the tenant the emblements 
 shall go to the owner of the soil. If this is so as between 
 vendor and purchaser, then the only question is whether the 
 same rule applies as between the mortgagor and mortgagee ; 
 and we are satisfied that it does. We can discover no rea- 
 son for construing an absolute conveyance any differently 
 from a mortgage, so far as the interest to be conveyed by 
 them is concerned ; and we are referred to no authority 
 which sustains any such principle. On the contrary the au-
 
 612 LAW OF FIXTURES. 
 
 thorities cited by the counsel for the respondents show that 
 the current of decisions is the other way. . And why should 
 it not be so ? The mortgagor must be presumed to have in- 
 tended that every thing which passes by his deed should 
 stand pledged for the security of his debt, and as he made 
 no exceptions to the general words of the deed he must also 
 be taken to have intended that every thing annexed to the 
 realty, so as to become a part of it, should be held by the 
 mortgagee, provided the debt was not paid'' {Maples v. 
 Millon, 31 Conn. R., 598-600). 
 
 And the Supreme Court of Iowa held in 1866, that nur- 
 sery trees planted by a mortgagor after the execution of the 
 mortgage, become, a part of the realty, and pass as such to 
 the purchaser at a sale upon foreclosure of the mortgage. 
 In other words, it was held that, as between mortgagor and 
 mortgagee, a mortgage of the realty carries to the mort- 
 gagee nursery trees standing upon the land during the life 
 of the mortgage, whether planted before or after the execu- 
 tion of the mortgage, and that the mortgagee is entitled to 
 the same as a part of his mortgage security {Price v. Bray- 
 ton, 19 loioa R., 309). 
 
 An important case was decided by the Supreme Court of 
 Ohio in 1866, wherein it appeared that the owner of the fee 
 erected a building for a steam saw-mill, which, without sub- 
 stantially altering the structure, would have been, com- 
 paratively of little value for any other purpose ; and the 
 boilers, engines, saws, and gearing, and other machinery for 
 applying the power, were so attached and adapted to the 
 structure as to show they were designed to be permanent, and 
 without which the mill would be incomplete. The court 
 held that, as between mortgagor and mortgagee, in a real 
 estate mortgage, such property was to be regarded as fix- 
 tures, passing to the mortgagee with the realty. 
 
 White, J., delivered the opinion of the court, and, among 
 other things, said : "The remaining question is, whether the 
 chattel mortgage to the plaintiffs, as against the real estate 
 mortgagees, deprives the property in controversy of the 
 character of fixtures? The plaintiffs claim that this is tho 
 effect of the chattel mortgage. * '^ -^ Here it was not only
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 613 
 
 the intention of Farley & Ketcham to annex the property 
 to, and make it a part of, the freehold, but their so doing 
 was according to the understanding of the parties when the 
 mortgage to the plaintiffs was executed. In the mortgage 
 it is said the boilers are ' designed to be used in their (F. & 
 K.'s) saw-mill,' and power is given the plaintiffs on default 
 of payment, ' to take possession thereof (mortgaged prop- 
 erty) whether the same shall be attached to the freehold 
 and in law become a part of the realty or not.' The right 
 .given to tlie plaintiffs, by the mortgage, to enter upon the 
 premises and sever the property would, doubtless, have 
 been effectual as between the parties. But the defendants 
 were purchasers without notice of this agreement. The 
 liling of chattel mortgages, is made constructive notice, 
 only, of incumbrances upon goods and chattels. The de- 
 fendants purchased, and took a conveyance of real estate, 
 of which the property now in question was, in law, a part ; 
 and, in our opinion, it devolved upon the plaintiffs who 
 sought to change the legal character of the property, and 
 create incumbrances upon it, either to pursue the mode 
 prescribed by law for incumbering the kind of estate to 
 which it appeared to the world to belong, and for giving 
 notice of such incumbrance, or, otherwise, take the risk of 
 its loss in case it should be sold and conveyed as part of the 
 real estate to a purchaser without notice. It is true that in 
 the case of Ford v. Cobb (20 JY. Y. Bep., 344), it was held 
 that an agreement which was evidenced by a chattel mort- 
 gage was effectual against a subsequent purchaser of the 
 land, without notice. But it seems to us to be the sounder 
 rule, and more in accordance with principle, and the policy 
 of our recording laws, to require actual severance, or notice 
 of a binding agreement to sever, to deprive the purchaser of 
 the right to fixtures or appurtenances to the freehold {Fort- 
 man V. Goepper, 14 Ohio 8L Rep., 565; 2 Smith's L. C, 
 259; Fryatt v. 8uUim7i Co., 5 Hill, 116; Richardson v. 
 Copeland, 6 Gray, 526; FranTdand et at. v. Moulton et al., 
 5 Wisconsin R., 1). 
 
 "In the case last named, the owner of a steam-engine, sold 
 and assisted to annex the same to the realty, reserving a
 
 614 LAW OF FIXTURES. 
 
 chattel mortgage on the same for a part of the purchase 
 money ; and it was held that the chattel mortgage was in- 
 operative as against a prior mortgagee of the real estate. 
 The mode of annexation was very similar to that existing in 
 the case under consideration ; and the holding that the 
 chattel mortgage was imperative as against a prior mort- 
 gagee of real estate as was likewise done in Copeland v. 
 Richardson., supra., restricts the operation of agreements to 
 sever what would otherwise be regai'ded as fixtures, more 
 than is required to be done for the decision we make, in 
 the present case. Whether the restriction upon the right 
 of removal, that was applied in favor of a mortgagee of the 
 real estate claiming the proj)erty added to the premises after 
 his mortgage, as fixtures, and -against a party claiming the 
 same property as personal chattels under a chattel mort- 
 gage from the owner, when the removal would leave the 
 realty claimed by the mortgagor as security, in as good 
 plight as when his mortgage was taken, it is unnecessary 
 now to inquire; and, upon this question, we express no 
 opinion" {Brennan v. Whitaker, 15 Ohio St. R.., 446, 
 452-454. 
 
 The Supreme Court of Pennsylvania decided in 1866, in a 
 case hereinbefore referred to upon anotlier point, that boilers 
 put into a steam-mill, after the execution of a mortgage 
 upon the mill and ground on which it stood, under an 
 agreement between the mortgagee, that the boilers should 
 remain the property of the person who put them into the 
 mill, and be used by the mortgagor at a rent of $4 per 
 month, and the owner of the boilers to have the privilege to 
 remove them whenever he pleased, were not subject to the 
 mortgage. It was held, that, by the agreement, the prop- 
 erty remained the chattels of the original owner who put 
 them into the mill, and that the mortgagor was to be re- 
 garded as simpl}^ the hirer of the chattels. But for the 
 agreement the boilers would have been regarded as part of 
 the realty, and covered by the mortgage {Hill v. Sewald, 63 
 Penn. R., 271). 
 
 In 1875, the Court of Chancery of New Jersey decided a 
 suit which was brought to foreclose a mortgage upon prop-
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 615 
 
 erty described therein as all the goods and chattels men- 
 tioned in the schedule thereto annexed. Among the 
 property mentioned were, an engine and boiler not con- 
 nected with the walls of the building in which they were 
 placed, and could be removed without injury to it, and 
 the shafting and pulleys put into the building by the 
 owner, the mortgagor, for the purposes of his business 
 there, to furnish motive power for his machinery (the en- 
 gine and boiler being fixed to the freehold, and evidently 
 intended to be permanent attachments to the premises, and 
 the shafting and pulleys attached to the premises, and de- 
 signed to convey power from the engine to the machinery 
 which might be in use in the factory). The land on which 
 this property was situate was sold upon an execution issued 
 before the making of the mortgage, but levied on the land 
 alone. The court held that these articles constituted a 
 part of the freehold and passed to the purchaser of the land 
 under the sale mentioned. 
 
 Among the mortgaged property were also machines fast- 
 ened to the floor, or uprights, or to the walls, by screws or 
 bolts to keep them steady in place, but readily movable — 
 not specially adapted to the' premises, nor designed to be 
 permanently attached • thereto. The court held the ma- 
 chines to be personalty, subject to the mortgage, and that 
 they did not pass by the. sheriff's sale and the sheriff ' s deed. 
 
 Runyon, Chancellor, said: "The engine and boiler, and 
 the shafting and pulleys were jout into the factory by the 
 owner, for the purpose of his business there, to furnish 
 motive power for his machinery. The engine and boiler 
 were both fixed to the freehold, and were evidently intended 
 to be permanent attachments to the premises. Both were 
 so fixed to the freehold as to constitute a part of it, and 
 consequently passed with and as part of it, by the sheriff's 
 deed {Crane v. Binr/ham, 3 StocM., 29). The shafting and 
 pulleys were fixtures also. They were attachments to the 
 premises, designed to convey the power from the engine to 
 the machines which might be in use in the factory. The 
 rest of the property in dispute is of a different character. 
 It consists of machines rt^adily movable; not specially
 
 616 LAW OF FIXTURES. 
 
 adapted to the j)remises, nor designed to be permanently 
 attached thereto ; not let into the building, nor fixed to it, 
 except by screws or bolts designed merely to hold them 
 in place while in use. * * * The complainant is entitled to 
 a decree for sale of all the property described in the sched- 
 ule, except the engine, boiler, shafting and pulleys" {Kene 
 V. Paccton, 26 jy. J. Eq. R., 107, 109, 110). 
 
 And, in the same year, the Court of Errors and Appeals 
 of IS'ew Jersey decided an appeal from the decree of the 
 Vice-Chancellor of the State in a case in which it appeared, 
 that the owner purchased and placed in his sash and blind 
 factory, a moulding machine and planing machine, to be 
 used by him in his factory. The machines were rested on 
 the main floor of the building. One was bolted to the floor 
 for greater firmness in use ; the other was of sufficient 
 weight to be steady without fastenings. The owner exe- 
 cuted a mortgage upon this real estate, including the build- 
 ing in which the machines were ; and subsequently, he 
 "executed a chattel mortgage upon the machines. The court 
 held, affirming the decree of the Vice-Chancellor, that the 
 machines were not fixtures subject to the real estate mort- 
 gage, but passed under the chattel mortgage. 
 
 Knapp, J., delivered an elaborate opinion, referring to 
 many authorities in respect to what are fixtures, and came 
 to the conclusion that, to constitute such chattels fixtures, 
 there must be actual annexation to the freehold, of a char- 
 acter evincive of an intent to make them a permanent acces- 
 sion to the freehold {Blanche v. Rogers, 26 N. J. Eq. 
 R., 563). 
 
 In 1845, a case was decided by the Court of Chancery of 
 the State of New York, before the Assistant Vice-Chancel- 
 lor of the First Circuit, in Avhich it appeared that parties 
 holding a lease for twenty years of premises on which was 
 erected a white lead manufactory, with steam-engine and 
 other appropriate fixtures and apparatus, executed a mort- 
 gage upon the premises to recover the payment of certain 
 moneys. It was insisted that the steam-engine, machinerj^, 
 and fixtures were not included in the mortgage, but it was 
 held that tliey were.
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 617 
 
 The Assistant Vice Cliancellor said : " Although tlie les- 
 sor of the land could not claim them, it is otherwise of the 
 morto-agee of the lessees. The question here is between 
 grantor and grantee, in which case the grantee holds all fix- 
 tures whether for trade and manufacture, or for the pur-^ 
 pose of agriculture or horticulture" {Day v. Perkins, 2 
 Sand Ch. B., 359, 364). The defendants in the case ap- 
 pealed to the Chancellor from the decision, who affirmed 
 the decree of the Assistant Vice-Chancellor, with costs, on 
 the 6th of October, 1846, although the Chancellor expressed 
 a qusery in respect to a single point, not involved m the 
 question of the fixtures, upon which he had no doubt. 
 
 In 1872, an important case was decided by the English 
 Exchequer Chamber, in which it appeared, that the owner 
 in fee of a worsted mill, at which he carried on the busi- 
 ness of a worsted spinner and stuff manufacturer, mort- 
 gaged it to the plaintiff. By a deed of arrangement under 
 the Bankruptcy Act, 1861, subsequently executed, the 
 mortgagor assigned all his property to the defendants as 
 trustees for the benefit of his creditors. Under this latter 
 deed the defendants seized certain looms which were in the 
 mill that was mortgaged. These looms were attached to 
 the stone floors of the mill by means of nails driven 
 through holes in the feet of the looms, in some cases into 
 beams which had been built into the stone, and m other 
 cases into plugs of wood driven into holes drilled m the 
 stone for that purpose. It was necessary that the looms 
 should be so attached for the purpose of steadying them 
 and keeping them in a true direction, perpendicular to the 
 'line of the shafting, by means of which the steam power 
 was applied to them. It was impossible to remove the 
 looms without drawing the nails; but this could be done 
 easily and without any serious damage to the flooring, ilie 
 plaintiff brought trover for the looms. 
 
 The court held that the looms passed by the mortgage ot 
 the mill as part of the realty, and the action was therefore 
 
 maintainable. . , 
 
 Blackburn, J., delivered the opinion of the court, ana, 
 among other things, said : " Since the decision of this court 
 
 78
 
 618 LAW OF FIXTURES. 
 
 in CUmie v. Wood {Law Rep., 4 Eq., 328), it must be con- 
 sidered as settled law (except perhaps in the House of 
 Lords) that what are commonly known as trade or tenant's 
 fixtures form part of the land, and pass by a conveyance 
 of it ; and tliat though if the person who erected those fix- 
 tures was a tenant with a limited interest in the land he has 
 a right, as against the purchaser, to sever the fixtures from 
 the land. Yet if he be a mortgagor in fee he has no such 
 right as against tliis mortgagee. * * * If a tenant having 
 only a limited interest in the land, anrd an absolute interest 
 in the fixtures, were to convey not only his limited interest 
 in the land and his right to enjoy the fixtures during the 
 term, so long as they continued a part of the land, but 
 also his power to sever those fixtures and dispose of them 
 absolutely a very different question would have to be con- 
 sidered. As it does not arise, we decide nothing as to this. 
 * * * In the court below it was properly admitted that 
 there was no real distinction between those looms and the 
 articles which the Court of Queen's Bench, in Longhottom 
 V. Berry {Law Rep., 5 Q. B., 123), decided to be so an- 
 nexed as to form part of the land. Judgment was accord- 
 ingly given for the plaintiffs, without argument, leaving the 
 defendants to question Lon,ghottom v. J^erry in a court of 
 error. 
 
 "The present case is therefore really, though not in form, 
 an appeal against the decision of the Court of Queen's 
 Bench in Longhottom v. Berry, and was so argued. * * * 
 We find that Mather v. Fraser (2 I{^ay <& Johns. R., 536 ; 
 ;S^; a, 25 Law J. {Ch.), 361), which was decided in 1856, has 
 been acted upon in Boyd v. S/ierrock {Lata. R., 5 Eq. 72), 
 by the Court of Queen's Bench in Longhottom v. Berry 
 {Law R., 5 Q. B., 123), and in Ireland in Re DawsoR {L\ 
 Law Rep. , 2 Eq. , 222). These jjases are too recent to have been 
 themselves much acted upon, but they show tliat Mather 
 V. Fraser, has been generally adopted as the ruling case. 
 We cannot, therefore, doubt that much money has, during 
 the last sixteen years, been advanced on the faith of this 
 decision in Mather v. Fraser. It is of such importance 
 that the law as to what is the security of a mortgngee
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 619 
 
 should be settled ; and without going so far as to say that 
 ;a decision only sixteen years old should be upheld, right or 
 wrong, on the principle that communis error fac it jus, we 
 feel that it should not be reversed unless w^e clearly see that 
 it is wrong. As already said, we are rather inclined to think 
 that, if it were res Integra we should find the same way. 
 We think, therefore, that the judgment below should be 
 affirmed" {Holland v. Hodgson, Law Reports, 7 Common 
 Pleas, 328 ; S. C, 2 Hng. R., MoaJc' s ed., 655). It willbe 
 observed that this case was decided upon authorities which 
 have been referred to and elaborately examined in a pre- 
 vious chapter ; and those cases, may, therefore, be regarded 
 as expressly affirmed by the Exchequer Chamber, and stand 
 as undisputed authority. And at the same time, the learned 
 judge who gave the opinion, takes occasion to say that, if 
 the\uestion before the court was without previous au- 
 thority, or was a thing undetermined, the court would hold 
 the looms in controversy, situated as they were, to be fix- 
 tures so attached to the realty as to pass by the mortgage 
 to the mortgagee. And this is really quite in accordance 
 with the doctrine of several of the cases decided by the 
 American courts, as well as those of the English. 
 
 As a further illustration of the rule in these cases, it may 
 be stated that the Supreme Court of North Carolina, in 1874, 
 declared that, as between mortgagor and mortgagee, a cot- 
 ton-gin and press annexed to the freehold in the usual way, 
 became a fixture. Bynum, J., after stating the facts, pro- 
 
 ceeded '. 
 
 "In the case of Latham v. BWkely (70 N. C. Rei^., 368), 
 decided at last term, this court, in a very similar case of 
 facts, upon a thorough review of all the conflicting authori- 
 ties, lield that the gin was a fixture. That case governs this 
 as to the status of the gin and press, which we declare to be 
 fixtures to the land and a part of the freehold. 
 
 " The case is not altered by the fact that these fixtures were 
 
 erected subsequent to the mortgage. In Winsloio v. The 
 
 ■ Merchants' his. Co. (4 Metcalf, 306), it was held that a 
 
 steam-engine and other machinery of a manufactory were 
 
 to be considered as fixtures, and had vested as such in the
 
 620 LAW OF FIXTURES. 
 
 f 
 
 defendants under a mortgage of the building prior to the 
 period at which they were erected against the phiintiff, who 
 claimed as here, under a subsequent specific mortgage of 
 the machinery itself. Many cases to the same effect are 
 collected in 2 Smithes Leading Cases, 254-6. 
 
 "The gin and press having thus been so far annexed to the 
 freehold as to acquire the character of fixtures, became 
 mere incidents to the realty and conformed to all the laws 
 by which it is governed, subject to the dower of the widow, 
 descend to the heir, pass to the vendee of the land, unless 
 expressly excepted in the* conveyance" {Bond v. Coke, 71 
 JY. a Ji, 97-99). 
 
 This concludes the examination of the cases upon the 
 general subject of fixtures, as between mortgagor and mort- 
 gagee, which illustrate the rules ordinarily applied to 
 parties sustaining that relation. From the authorities con- 
 sidered, it clearly appears that, as a rule, a mortgage of 
 real estates carries with it all fixtures belonging to the 
 realty, unless the same are specially excepted by the terms 
 of the conveyance. And it may also be collected from sev- 
 eral of the decisions referred to, that there is no distinction 
 in respect of fixtures which are annexed by the mortgagor, 
 subsequent to the mortgage. For it is held that the security 
 extends alike to all the annexations to the realty, and the 
 mortgagee is entitled to every thing he finds affixed to the 
 mortgaged premises during the life of his mortgage. That 
 is to sa}^, such is the rule, unless there is evidence of an ex- 
 pressed intention to except them. So, whether the fixtures 
 have been added by the mortgagor himself, or in partner- 
 ship with others at their joint expense. As when a trader 
 mortgages his premises, and then enters into a partnership, 
 and the firm continue to carry on the business on the same 
 premises, and erect additional fixtures thereon. As a rule, 
 the mortgagee is not affected by, and has no concern with 
 the question of, the partnership claims. He is entitled to 
 every thing belonging to the estate, as against the mort- ■ 
 gagor. There may be instances where the mortgagor, sub- 
 sequent to the execution of the. mortgage, forms a copart- 
 nership with another for the i^urposes of carrying on a
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 621 
 
 • 
 
 species of trade or manufacture upon tlie mortgaged prem- 
 ises, and partnership funds are appropriated to place trade 
 fixtures upon the realty, when the doctrine of fixtures, as 
 between landlord and tenant may be applied, and the mort- 
 gagee deprived of the benefit of the fixtures as a part of 
 his security. But such are cases under special circum- 
 stances, and are exceptions to the general rule. And it 
 may also be affirmed, that there is no ditference in the rule 
 as to fixtures passing by a mortgage, whether it is a mere 
 equitable mortgage, or a lien by deposit of title deeds ; nor, 
 again, whether it is an absolute mortgage in fee, or for a 
 term. 
 
 And it may also be suggested, that, although it clearly 
 appears from the authorities examined that a mortgage of 
 lands cannot be construed to pass any different rights, with 
 respect to things attached thereto, than other conveyances 
 of real estate, yet the decisions referred to may be useful, 
 not only as illustrative of the rules applicable to the subject, 
 but as showing the utility of expressing in clear terms in 
 mortgages, as well as in other instruments of conveyance, 
 the intention of the parties with regard to the transfer of 
 property annexed to the freehold. It is well in all cases 
 to describe with reasonable fulness the exact estate which it 
 is designed to transfer, and if any fixtures are to be excepted 
 from the mortgage, the fact should be stated. 
 
 CHAPTER XLVL 
 
 LAW OF FIXTURES AS BETWEEN MORTGAGOR AND MORTGAGEE IN- 
 STANCES IN WHICH THE MORTGAGEE IS NOT FAVORED IN RESPECT TO 
 THE FIXTURES UPON THE MORTGAGED PREMISES EFFECT OF POSSES- 
 SION OF THE PROPERTY BY THE MORTGAGOR AFTER THE EXECUTION 
 OF THE MORTGAGE. 
 
 In the last preceding chapters, the doctrine established 
 by the courts in respect to the rights of mortgagees of real
 
 622 LA W OF FIXTUR ES. 
 
 estate in the fixtures found upon the mortgaged premises 
 during the life of tlie mortgage, has been fully and exhaust- 
 ively examined. The rules illustrated by the cases re- 
 ferred to, however, must be understood as only applicable 
 where the subject is not regulated by act of the legislature. 
 In an occasional instance, the common law and general doc- 
 trine is modified by statutory enactment. For example, in 
 Vermont, it is provided by statute, that no mortgage of any 
 machinery, used in a factory, shop, or mill, is good except 
 between the parties, unless possession be delivered to and 
 retained by the mortgagee. It will be recollected that in 
 some of the cases cited from the reports of the Vermont 
 courts, the judges speak of the rule respecting fixtures an- 
 nexed to manufacturing establishments, as it is settled in 
 that State. This statute may explain the pertinancy of 
 such remarks. And again, in the State of Connecticut, they 
 have a statute which provides that there may be a mortgage 
 of manufacturing machinery, without the real estate to 
 which it is attached ; and the mortgage may be effectual, 
 though the mortgagor retain possession of the machinery. 
 This is directly opposed to the policy of Vermont, and in 
 examining Connecticut cases upon this particular branch of 
 the subject, it will be important to keep in mind the statute 
 referred to. 
 
 It may be safely affirmed, however, that all of the de- 
 cisions examined, are undoubted authorities in the States 
 where they were pronounced, and are recognized as of gen- 
 eral application, except in the few instances where statutes 
 exist modifying the subject in some specified particular ; 
 and these instances are so very rare as to constitute them 
 nothing more than exceptions to a general rule. 
 
 In respect to the subject, generally, of fixtures as between 
 mortgagor and mortgagee, it will be recollected that it has 
 been stated that extreme favor is shown to mortgagees in 
 the construction of their mortgage deeds, and several cases 
 were examined which illustrated this doctrine, and no case 
 already considered has been found to militate against the 
 general rule. We have at least one instance, however, in 
 which it appears that this uniform favor shown to the mort-
 
 RVLE AS BETWEEN MORTGAGOR AND MORTGAGEE. 623 
 
 gagee was withdrawn from him ; and as the case emanates 
 from exceedingly respectable authority, it is important that 
 it be noted. The instance of the withdrawal of this favor is 
 found in a case decided by the Circuit Court of the United 
 States, for the district of Massachusetts in 1824, involving 
 the question of certain fixtures, as between a mortgagor and 
 a dowress ; and the court held, that the main mill-wheel 
 aiKl gearing of a factory, attached to the factory and neces- 
 sar}^ for its operation, are fixtures, and real estate, to which 
 tlie right of dower attaches. ^ 
 
 Story, J., in his opinion upon the question of fixtures, 
 said : "The other exception presents the question, whether 
 the water-wheel and mill-gearing of the factory, without 
 which it cannot be put in operation, are fixtures annexed 
 to the freehold, and so real estate, or are to be deemed mere 
 personalty. The general rule undoubtedly is, that whatever 
 is annexed to the freehold becomes parcel thereof, and 
 cannot be afterwards severed but by him, who is entitled to 
 the inheritance. * * * In modern times a relaxation has, 
 indeed, taken place in cases between tenant for life and re- 
 mainderman, and still more favorably in case's between land- 
 lord and tenant for the benefit of trade. The authorities are 
 most ably summed up and commented on by Lord Ellen- 
 borough, in Mioes v. 3Iaw (3 East 38) ; and it would be 
 a useless labor to review them. In that case the court de- 
 cided, whether rightly or not I am not called upon to decide, 
 that the relaxation as between landlord and tenant was con- 
 fined to erections for the benefit of trade, and did not ex- 
 tend to those for agricultural purposes. 
 
 " It is the less necessary to consider the nature and extent 
 of these exceptions, because they steer wide of the present 
 case, and all proceed upon the ground, that such fixtures 
 are annexed to the freehold, and would, under the general 
 rule, form a parcel of the inheritance." 
 
 The learned judge then examines a number of cases in 
 which the general subject is discussed, both English and 
 American, and observes : " Upon the plain principles of the 
 common law, then, the water-wheel and its gearing wei-e 
 fixtures annexed to the freehold. They were necessary to
 
 624 LAW OF FIXTURES. 
 
 the beneficial use of tlie factory, and could not be removed 
 without prejudice to it. They were so annexed, not by a 
 tenant for life or for years, or for a limited purpose, but by 
 the owner for the permanent enjoyment of the inheritance. 
 They would have passed as appurtenances or incidents to 
 the heir by descent, to a purchaser by a sale, and tcran ex- 
 ecution creditor, who should levy on the estate, as parcel of 
 the factory. Nothing has been done to disannex them from 
 the freehold. I cannot therefore perceive any ground, upon 
 which the court can declare them not to be parcel of the in- 
 heritance for the purpose of dower. Against the heir they 
 would clearly be parcel, and I think they must be so as to 
 purchasers also. They do not fall within any exception, in 
 favor of which the ancient rule of law has been relaxed" 
 {Powell v. Monson and Brimjield Manvfacturing Com- 
 pany, 3 Hasan's B., 459, 464-468). 
 
 The reason of the withdrawal of the favor usually shown 
 to the mortgagee in this particular instance, has been re- 
 garded as the same reason which in the general instance 
 underlies the favor which is customarily shown to the mort- 
 gagee, so that the exceptional instance rather tends to for- 
 tify the principle of the general rule. Judge Story observes, 
 in his excellent work on Equity Jurisprudence, that "the 
 equity of redemption is not only a subsisting estate and in- 
 terest in the land, in the hands of heirs, devisees, assignees, 
 and representatives (strictly so called) of the mortgagor ; 
 but it is also in the hands of any other persons, who have 
 acquired any interest in the lands mortgaged, by operation 
 of law or otherwise, in priority of title. Such persons have 
 a clear right to disengage the property from all incum- 
 brances, in order to make their own claims beneficial or 
 available. Hence, a tenant for life, a tenant by the curtesy, 
 a jointress, a tenant in dower in some cases, a reversioner, a 
 remainderman, a judgment creditor, a tenant by elegit, and 
 indeed every other person, being an incumbrancer, or hav- 
 ing a legal or equitable title or lien therein, may insist upon 
 the redemption of the mortgage, in order to the due enforce- 
 ment of their claims and interests respectively in the land. 
 When any such person does so redeem, he Or she becomes
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 625 
 
 substituted to the rights and interests of the original mort- 
 gagor in the land, exactly as in the Civil Law. And in 
 some cases .(as we have alread}^ seen) a farther right of 
 jDriority by tacking may sometimes be acquired beyond what 
 the Civil Law allowed. Hence it is, that a mere annuitant 
 of the mortgagor (who has no interest in the land), has no 
 title to redeem " (2 Story's Eq. Jur., § 1023). 
 
 In all these cases the question of fixtures upon the mort- 
 gaged premises is determined upon the same principles, 
 precisely, as are applied as between mortgagor and mort- 
 gagee, and unless the case is one where the mortgage of the 
 realty carries the annexations to the mortgagee, of ccfurse, 
 none of the parties mentioned would have the right to re- 
 deem them, though they would have the privilege of redeem- 
 ing the realty. It is true, that dower is more particularly 
 favored by the law than any other estate, and a dowress is 
 said to be in the care of the law and a favorite of the law ; 
 nevertheless, it is not probable that she would be permitted 
 to redeem ordinary chattels covered by the terms of a 
 mortgage of real estate, simply because she has a right of 
 redemption in the realty. But the question decided in the 
 case of Powell v. Monson and Brimfield Mamtfacturing 
 Company (3 Mason's P., 459), has nothing to do with the 
 right of redemption referred to. It peitains exclusively 
 to the effect of the husband' s mortgage of the realty or fix- 
 tures attached upon the inchoate right of dower of his wife. 
 The struggle in the case against the dowress was to prove 
 that the wheel and gearing of the factory were not to be 
 considered a part of the freehold, in such sense that the 
 widow could have dower in them, and both New York and 
 Massachusetts cases were cited to sustain that proposition. 
 But the court held that the widow's right to dower attached 
 to the property as against the husband's mortgagees of the 
 realty, on the ground that the articles were fixtures annexed 
 to the factor}^ and necessary for its operation ; and that ac- 
 cordingly in assigning dower to her out of the freehold fac- 
 tory of her husband, which he had mortgaged subsequently 
 to the marriage, account was to be taken of the value of the 
 
 79
 
 G26 LAW OF FIXTURES. 
 
 property at the date of the mortgage including the improve- 
 ments upon it that were existing at that date. 
 
 It should be observed, however, that the doptrine of the 
 case in 3d Mason' s Reports is not recognized in England, 
 nor in all of the American States. By an act of Parliament 
 in England the widow's right of dower is postponed to all 
 alienations of her husband made during his lifetime, and 
 the same rule is established by statute in some of the Amer- 
 ican States. But in a large majority of the States the rule 
 is the same as is recognized in the case in 3d Mason, except 
 that, as a general rule, there is no dower, when the mort- 
 gage *\^as given to secure the purchase-money, or rather, in 
 most cases, the mortgage, when made to secure purchase- 
 money, is not subject to the right of dower of the wife. In 
 such cases, in order to save the dower right in the realty 
 mortgaged, she must redeem it from the lien of the mort- 
 gage. 
 
 In a late English case, which has been fully considered in 
 a previous chapter, an execution creditor was preferred to 
 the mortgagee of the realty in respect to the fixtures 
 attached, from which it appears that whenever the fixtures 
 are mortgaged, whether by the same deed as that which 
 mortgages the lands or houses, or by a separate deed in such 
 manner as that the absolute interest- in them passes to the 
 mortgagee with power of severance from the premises and 
 removal therefrom upon a sale thereof separately from the 
 premises, so that in fact the mortgage quoad those fixtures 
 is a bill of sale, then and in every such case, the mortgagee 
 must duly register and also re- register in accordance with 
 the English Bills of Sale Act, otherwise his mortgage will 
 quoad such fixtures be postponed to the rights of the execu- 
 tion creditor, who may seize and sell the same upon writ of 
 fieri facias {Haiotrey v. Butlln., L. B., S Q. ^., 290 ; /SI (7., 
 21 Weekly R., 633). From the first glance at this decision 
 it might seem that the court designed, as a general rule, to 
 construe a mortgage with respect to fixtures, more strictly 
 against the mortgagee, as between him and an execution 
 creditor, than as between him and the mortgagor himself. 
 But by reference to the full report of the case, it will be
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 627 
 
 perceived that the decision turned upon the peculiar policy 
 as fixed by the Bills of Sale Act, and does not affect the 
 general subject in the least. So that it may be affirmed that 
 the rights of the parties, so far as fixtures are concerned, 
 are determined by the same rules when the controversy 
 arises between the mortgagee and mortgagor, and when be- 
 tween the mortgagee and the execution creditor of the mort- 
 gagor. The terms of the mortgage are construed precisely 
 alike in both cases. 
 
 Several questions have arisen respecting the effect of the 
 mortgagor retaining possession of the fixtures after execut- 
 ing a mortgage of the land to which they are attached. 
 Sometimes this matter is expressly settled by statute, and 
 then, of course, there is very little opportunity for ques . 
 tion or doubt. But controversies of the kind have arisen 
 where no statutes upon the precise subject exists, and hence 
 a few paragraphs may properly be devoted to a considera- 
 tion of the question. The ground of objection in these cases 
 has been, that as fixtures may be regarded in the nature of 
 personal chattels, the possession of them after a conveyance 
 would, in general, be inconsistent with the deed, and strong 
 proof of fraud. But even with regard to personal chattels, 
 it is not in every case necessary that there should be a 
 change of possession ; provided the possession is consistent 
 with the deed. The want of a delivery of the goods is, 
 as a rule, only evidence that the transfer is colorable. This 
 doctrine is frequently established by statute, and in other 
 cases it is the common law of the courts. 
 
 In the case of Bx parte Quincey, examined in a previous 
 chapter. Lord Hardwicke thought that there would have 
 been a difficulty on account of the mortgagor's possession, 
 if it had not appeared that there was an express agreement 
 between the parties that he should have a right of entering 
 upon the brew-house. It is, however, clearly established 
 that, where there is no statutory requisition, things affixed 
 to the land partake of the nature of realty, and that the re- 
 taining possession of them together with the land after an 
 assignment, will not avoid the conveyance on the ground of 
 fraud. In this respect, therefore, a mortgage of property
 
 628 LAW OF FIXTURES. 
 
 in a state of. annexation, differs from a mortgage of things 
 severed from tlie freehold, or of mere personal chattels 
 transferable from band to hand. The authorities upon this 
 question are numerous ; a few only will be referred to in 
 this connection, as the same subject is involved in some of 
 the cases which will be referred to in a subsequent chapter. 
 
 In an early case decided by the English Court of Chan- 
 cery, a person having borrowed money, as a security con- 
 veyed and assigned his dwelling-house and brew-house, and 
 all the coppers and utensils of trade belonging thereto, by 
 w^ay of mortgage, subject to redemption, and afterward con- 
 tinued in i^ossession. On a question between the first mort- 
 gagee and the subsequent mortgagees and creditors, as to 
 the validity of the first mortgage, which was disputed on 
 the ground of fraudulent possession by the debtor, the 
 court were clearly of the opinion, that the first mortgage 
 was not invalidated on this account, nor was the mortgagee 
 deprived of his lien upon the fixed utensils. The court said, 
 moreover, that neither the mortgagor nor any other person 
 had a right to remove the fixtures until the mortgage was 
 satisfied {Hj/all v. Rolle, 1 At^. R., 165; 8. C, 1 Ves. 
 R., 348). 
 
 In like manner, in a case decided by the English Court of 
 Common Pleas in 1820, a person having mortgaged a wind- 
 mill of a peculiar construction, continued in possession of 
 it after the mortgage ; and it was held that the possession 
 was not fraudulent. And it was observed b}^ the court, that 
 it was not to be expected that the mortgagee should come to 
 reside in the mill. The mortgagee, in conformity with the 
 usual practice in such cases, permitted the mortgagor to 
 continue in possession, and constructive possession of the 
 land under the deed was a sufficient possession of the mill, 
 standing on the land ; and the more so, as this was not an 
 absolute conveyance, but a mere pledge to be kept till the 
 money lent on the security of it was repaid. If the party 
 relinquished possession, it would probably defeat all the 
 ends of the mortgage. The mortgagee could only have 
 taken possession by entering the land summarily, or by oc- 
 cupying the mill to his ov/n personal inconvenience {Stew-
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 629 
 
 ard V. Lombe, 1 Brod. & Bing. R., 506 ; 8.C.,Q Eng. C. L. 
 
 B., 167). 
 
 In the last case cited it may be observed, that the mill had 
 been erected by the owner of the fee, and was not seizable 
 Tinder a writ of fieri facias against him ; and the court ap- 
 pear' in some measure to have relied upon this circumstance. 
 It lias been said that this distinction has been insisted upon 
 in some other cases. But it is clear that the principle of 
 the decision holds equally in the case of the mortgage of a 
 mere chattel interest ; as where a tenant having erected fix- 
 tures during the "term, afterward mortgages his interest in 
 the premises. The circumstance of the fixed property being 
 in the latter case seizable under a fieri facias in the hands 
 of the tenant, cannot make it so far a personal chattel, that 
 the mortgagor's retaining possession of it afterward together 
 with the land, w^ould be deemed fraudulent. 
 
 A case decided by the Supreme Judicial Court of Massa- 
 chusetts in 1817, has been sometimes cited as opposed to the 
 doctrine here laid down. It is the case where the owner of 
 a manufactory had mortgaged the building and the appur- 
 tenances for carrying on the same, but still remained in 
 possession, and it was held that certain fixtures, which could 
 not be taken out of the building witliout being first taken to 
 pieces, were liable to attachment at the suit of the creditors 
 of the mortgagor. It is true that Parker, C. J., in giving 
 the opinion ^n this case, said: "The mortgagees of the 
 building and privilege, not being in possession, had no pos- 
 session of the machines, which were therefore liable for the 
 debts of the mortgagor." But he had previously declared 
 and shown that the articles in controversy "must be con- 
 sidered as personal property, because, although in some 
 sense attached to the freehold, yet they could be easily dis- 
 connected, and were capable of being used in any other 
 building erected for similar purposes" {Gale v. Ward, 14 
 Mass. JR., 352, 356). And that this case may be understood 
 in its bearing upon the subject now under discussion, it 
 should be stated that they have a statute in Massachusetts, 
 which has been in force over forty years, certainly, and 
 possibly a similar enactment was in force when Gale v.
 
 630 LAW OF FIXTURES. 
 
 Ward was decided, providing " that no mortgage of per- 
 sonal property hereafter made sliall be valid against any 
 other person than the parties thereto, unless possession of 
 the mortgaged property be delivered to and retained by 
 the mortgagee, or unless the mortgage be recorded in the 
 office of the clerk of the city or town where the mortgagor 
 resides" {Statutes of 1832, c7i. 157, § 1). Still, it does not 
 appear but that the case was disposed of according to the 
 principles of the common law. 
 
 Another case sometimes cited in opposition to the general 
 doctrine upon this subject, is one which was decided by the 
 Supreme Court of Errors of Connecticut in 1831, wherein 
 the facts so far as regards the point under consideration, 
 were these : On the 7th August, 1829, one Lee made a mort- 
 gage deed to the defendant of the building and macliinery, 
 in which the articles in controversy were then, and had 
 been for years before, used. This deed was executed at 
 New London, about twenty -five miles from Windham, the 
 place where the manufactory was situated. The defendant 
 then delivered the deed back to Lee, under an agreement that 
 lie should, immediately on his return to Windham, procure 
 it to be recorded. Lee remained in possession, using the 
 machinery as his own, until the 15th of August, when he 
 conveyed the premises to the plaintiffs, and delivered imme- 
 diate possession, having' lodged the deed to the defendant 
 for record, on the 14th. The deed was made to the plaintiffs, 
 as trustees for the creditors of the grantor, with full power 
 to sell the property and apply the avails in discharge of his 
 debts. The deed to the plaintiffs counted upon a mortgage 
 made to the defendant, and declared it subject "to such 
 claims as the mortgagee can legally have to the same." 
 The validity of the defendant's claims against Lee were un- 
 doubted ; but there was no pretence of any possession by 
 him other than what arose out of the delivery of the deed. 
 Lee, at the date of both deeds, was insolvent. 
 
 The court held that the mortgage deed from Lee to the 
 defendant, not being accompanied or followed by possession, 
 was fraudulent and void as against the creditors of Lee. 
 Daggett, J., delivered the opinion of the court, and said:
 
 RULE AS BETWEEN MORTGAGOR AND MORTGAGEE. 631 
 
 "The doctrine of this court, as established in Patten v. 
 Smith (5 Con7i. H., 196), is, that a sale of goods and chattels, 
 either absolute or by way of mortgage, with an agreement 
 either in or out of the deed, that the mortgagor shall remain 
 in possession except in special cases, and for special reasons 
 to be shown to and approved by the court, is fraudulent 
 and void against creditors and bo7ia fide purchasers. This 
 has been the law of Connecticut for the last forty years, if 
 not from the beginning. It is- not according to the course 
 of the court to call this a fraud ^:>er se, and direct the jury to 
 find the sale void, but the question of fact, with instruction 
 that if they find none of the established exceptions, they 
 will find the transaction fraudulent. I see no good rea- 
 sons to depart from these principles. 
 
 "Let us now attend to the objections used against the 
 claim of the plaintiffs. 
 
 "First, it is urged, that the plaintiffs had notice of the 
 mortgage to the defendant, and that too of the specific claim 
 of the defendant. This notice, however, can have no effect ; 
 for if they knew of the prior conveyance, they knew also, 
 that the vendor remained in possession, using the property 
 as his own, and as he had been using it years before ; and 
 they therefore knew, that the sale, to the defendant, so far 
 as it related to the personal property, was void. All the 
 authorities are one way on this point. * * * 
 
 "Thirdly, it is insisted, that this conveyance to Lee is by 
 way of mortgage, and that in such case, it is consistent with 
 the deed that the property shall remain with the vendor. It 
 is no part of the deed that possession should remain ; nor is 
 there any suggestion of any sucli agreement out of the deed. 
 If this deed, then, be good because conditional, then it is so 
 in all cases where it is conditional ; but there can be no au- 
 thority for such a position. In Ryall et al. v. Bolle (1 Atk..^ 
 165), and in Worseley et al. v. De Mattos et al. (1 Burr.., 
 467), it was declared, that there was no difference between 
 an absolute deed and a mortgage, when the vendor remained 
 in possession ; they are equally fraudulent. -^ * * The mort- 
 gagee can take possession of mortgaged goods ; and there is 
 no good reason why he should not, except in' special cases,
 
 632 LAW OF FIXTURES. 
 
 to procure a collusive credit. No special reason is assigned, 
 in this case, why the mortgagor appears and acts as owner. 
 He may impose upon mankind, by false appearances, ob- 
 tain new credit, and mortgage the property a hundred times 
 over" {Swift V. Thompson, 9 Conn. M., 63, 69-71). 
 
 It will be observed that the court remark, in Swift v. 
 Thompson, that the law of Connecticut holds a chattel 
 mortgage void as to the creditors of the mortgagor, or sub- 
 sequent purchasers in good faith, unless the mortgagee take 
 possession of the mortgaged chattels, and continue to hold 
 the same. But it may be affirmed that at common law, a 
 mortgage of personal property is not valid against creditors 
 of the mortgagor, unless the mortgagee has taken posses- 
 sion ; and to obviate the inconvenience arising from tliis re- 
 quirement of the common law, that the possession of the 
 property shall be changed, most of the states have provided 
 by statute that mortgages of chattel property may be regis- 
 tered or filed, or both, which shall take the place of a change 
 in the possession. For example, in the State of Massachu- 
 setts, they have a statute upon the subject, the provisions 
 of which have been stated. In respect to this statute, Shaw, 
 C. J., observed : "It seems to have been the intent of this 
 statute to enable the owners of personal property to make 
 a valid transfer, by way of mortgage or conditional sale, to 
 stand as security, and of course available against third per- 
 sons, as well as against the mortgagors and their heirs, and 
 yet to enable such mortgagors to have the possession and 
 use of the goods until condition broken. For this purpose 
 registration is required as giving equal and perhaps greater 
 notoriety to the transaction, than delivery and retaining 
 possession. * * * The plain implication is, that if possession 
 is delivered to and retained by the mortgagee, or if the mort- 
 gage is recorded, pursuant to the directions of the statute, 
 it shall be valid against other persons " {Bullock v. Williams, 
 16 PicJc. B., 33, 34). 
 
 And in a case decided in 1837, Morton, J., remarked: 
 "By the St. 1832, c. 157, the registration of a mortgage of 
 personal property is substituted for delivery of possession. 
 And a mortgage duly executed and recorded, is effectual to
 
 RULE IN BANKRUPTCY CASES.' 633 
 
 pass the property described in it, without any other act or 
 ceremony. * ^ * And whether the mortgaged goods con- 
 tinue to be holden under the mortgage or become absolutely 
 the property of the mortgagee, the possession of the mort- 
 gagor can at most be but evidence of fraud" {ShurtleffY. 
 Willard, 19 Pick. R., 202, 210). . 
 
 When the fixtures are of such a nature that they will not 
 pass to the mortgagee by the usual conveyance of the realty, 
 and the mortgagee claims them by special terms in his mort- 
 gage, he must either take possession of the property, or file, 
 register or record his mortgage according to the require- 
 ments of the law in respect to mortgages of chattels, or .he 
 may lose his claim as against creditors of the mortgagor, or 
 subsequent bona fide purchasers. But it is evident from 
 the principles settled by the authorities, that, in cases where 
 the fixtures are so attached to the realty as to become a part 
 of it, and pass with it by the ordinary conveyance, although 
 the mortgagor may continue in possession of the estate and 
 of the fixtures, after the mortgage, the mortgagor is not at 
 liberty to disannex and remove any of the fixtures from off 
 the premises, and the claim of the mortgagee upon the fix- 
 tures, as against third persons, is as good as it is upon the 
 body of the realty itself. 
 
 CHAPTER XLVII. 
 
 LAW OF FIXTURES AS BETWEEN A BANKRUPT AND HIS ASSIGNEES 
 
 RULE AS BETWEEN THE MORTGAGEE AND THE ASSIGNEE OR TRUS- 
 TEE IN BANKRUPTCY OF HIS MORTGAGOR EXAMINATION OF THE 
 
 AUTHORITIES UPON THE SUBJECT. 
 
 Peehaps the most numerous class of cases in which the 
 question has arisen regarding the rights of mortgagees on 
 the one hand, whether of lessors or of lessees, as against 
 other parties claiming in a different manner under the mort- 
 
 80
 
 634 LAW OF FIXTURES. 
 
 gage, and especiall}^ in England, is that which pertains to 
 the rights of the mortgagee in the fixtures attached to the 
 mortgaged premises, as against the assignees in bankruptcy 
 of the mortgagor ; and this subject remains to be consid- 
 ered, and its examination will further illustrate the law of 
 fixtures, as between mortgagor and mortgagee. 
 
 The leading English case upon this branch of the subject 
 was decided by the Court of King's Bench in 1808. The 
 plaintiff in the case was the widow and executrix of John 
 Horn, who during his life had carried on the business of a 
 distiller in South wark. The defendants were then assignees 
 in bankruptcy of William Horn and Richard Jackson, who 
 were originally the partners and afterward the successors 
 of the said John Horn during his lifetime in the said busi- 
 ness, and to whoever as such successors he had demised the 
 distillery premises for all the interest which he himself had 
 therein, being practically a renewable leasehold interest. 
 The demise was made by indenture of 20th March, 1801 ; 
 and the deceased thereby demised also the vats, stills, and 
 utensils of the distillery premises for the lives and life of 
 hiinself and of the plaintiff, and the survivor of ihem, the 
 said William Horn and Richard Jackson thereby covenant- 
 ing in consideration of the demise of the said premises and 
 fixtures to pay to the deceased during his life, and after- 
 ward to his widow during her life, an annuity of £500, 
 and also to keep the said fixtures in repair. The indenture 
 of demise contained the customarj'' proviso for re-entry and 
 re-possession by the lessor in case the said annuity slwuld 
 be in arrear for the space of two calendar months. It also 
 gave the lessees an option to purchase the said fixtures upon 
 the decease of the survivor of the plaintiff and her said tes- 
 tator. The lessees took immediate possession under this 
 indenture, and carried on the business of distillers down to 
 the 26th of July, 1806, when a commission of bankruptcy 
 issued against them, the payment of plaintiff's annuity be- 
 ing at that date more than two months in arrear, but plain- 
 tiff not having meanwhile re-entered or re -possessed herself 
 of the premises. The assignees in bankruptcy sold the 
 vats, stills, and utensils in question, claiming tliem as part
 
 RULE IN BANKRUPTCY CASES. 635 
 
 of tlie estate and effects of the bankrupt. The plaintiff 
 claimed that, subject to a certain nser of the assignees 
 therein, they belonged to her a§ executrix of her late hus- 
 band, and she brought the action to recover in damages the 
 value of her interest in them, whatever it might be. 
 
 The disputed articles were: 1. Five stills set in brick- 
 work and let into the ground. 2. Three vats or worm- tubs 
 supported by and resting upon brick- work and timber, but 
 not lixed in the ground. 3. Sixteen other vats, standing on 
 wooden horses or frames which stood on the floor. 4. Nu- 
 merous other vats under the rectifying distill-house, some of 
 them standing on brick and timber, and others on horses 
 and frames as above. 5. Various utensils in use in a distil- 
 lery. There did not appear to be any usage in the trade for 
 distillers to hire or lease vats, stills, &c., with their premises. 
 Lord EUenborough in deciding for the plaintiff as to the 
 stills, and against her as to the vats and utensils, spoke as 
 follows : "The stills, it appears, were fixed to the freehold, 
 and as such, we think, they would not pass to the bank- 
 rupt's assignees under the description of goods and chattels 
 in the reputed ownership clauses of the bankruptcy acts. 
 But as to the vats and utensils, there is nothing in the case 
 to rebut the reputed ownership following the possession of 
 the bankrupts after the dissolution of the old firm, when 
 the business was continued to be carried on by the bank- 
 rupts alone. 
 
 " It is true that as between the parties to the contract, the 
 new partners could hot indeed sell, alter, order, or dispose 
 of the property but according to the provisions of the in- 
 denture of demise ; but as to the world in general, they ap- 
 peared to have the same right over it as the former owners 
 had. ■ Had they not then the reputed ownership \ If, as in 
 some manufactories, where the engines necessary for carry- 
 ing on the business are known to be let out to the several 
 manufacturers employed upon them, tliere had been a knoion 
 usage in this trade for distillers to rent or hire the vats and 
 other articles used by them for the purpose of distilling, 
 the possession and use of such articles would not in such a 
 case have carried the reputed ownership. But in the ab-
 
 636 LAW OF FIXTURES. 
 
 sence of such a usage, there is nothing stated in the case 
 which qualifies the reputed ownership arising out of the 
 possession and use of the tilings in their trade. The world 
 would naturally give credit to traders on their reputed 
 property ; and the person who permitted them to hold out 
 to the world the appearance of their being the real owners 
 ought to be answerable for the consequences, and was so 
 intended to be by the statute. * * * The principle to be 
 deduced from all the cases is, that where the reputed owner- 
 ship of the goods in the trades is permitted to be held out to 
 the world, it shall, with respect to the world, be considered 
 as the real ownership. I do not enter into the question, 
 whether the bankrupt's possession was consistent or not 
 with the deed ; * * * for in my view of the case, however 
 consistent their possession might have been with the deed, 
 it would only have shown that the deed itself was the fraud 
 which the statute meant to guard against." Mr. Justice 
 Lawrence also agreed that nothing turned upon the ques- 
 tion whether or not the possession of the bankrupts was 
 consistent with the deed under which they claimed {Horn 
 V. Baker, 9 last's R., 215). 
 
 A brief reference is made to the case of Horn v. Baiter in 
 a previous chapter, but upon a point having no connection 
 with the branch of the subject under which it is here con- 
 sidered. It should be stated, however, that the question in 
 this case arose under the statute of James, which enacted 
 that " if any person or persons shall become bankrupt, and 
 at such time as they shall so become bankrupt, shall by the 
 consent and permission of the true owners and proprietors, 
 have in their possession, order and disposition, any goods 
 or chattels, whereof they shall be reputed owners, and take 
 upon them the sale, alteration or disposition as own- 
 ers, that in every such case, the commissioners shall have 
 power to sell and dispose of the same, to and for the benefit 
 of the creditors which shall seek relief by the commission- 
 ers as fully as any other part of the estate of the bank- 
 rupt" (21 Jac, 1, ch. 19). With respect to the movable 
 utensils in this case, there was nothing to rebut the reputed 
 ownership of the bankrupts as to them ; and tlie court
 
 RULE IN BANKRUPTCY CASES. 637 
 
 seem to have considered that the articles would not have 
 passed to the assignees had there been a known usage of 
 trade of leasing sucli tilings together with the premises ; 
 for then the use and possession of them would not have 
 carried the reputed ownership. • 
 
 In speaking of the case of Horii v. Baker., Mr, Gibbons, in 
 his work on Fixtures, remarks: "It was not doubted but 
 the distilling vats, supported upon brick- work and timber, 
 but not let into the ground, and vats standing on horses 
 or frames of wood, were goods and chattels ; and that stills 
 set in brick- work and let into the ground were fixtures. A 
 copper merely resting on a brick- work socket, and a water 
 butt standing on the ground, or a wooden stool, are not fix- 
 tures ; otherwise if the copper was fastened in brick-work " 
 {Gibbons on Fixtures., 17). And Mr. Grady says: '-'■ Horn v. 
 Baker was a case under the ' order and disposition ' clause 
 of the Bankruptcy Act" {Grady on Fixtures, 16, 17). The 
 case is an early one, but the principle to be deduced from it, 
 that fixtures constitute part of the freehold, and are not to 
 be taken as goods and chattels within the meaning of the 
 bankruptcy acts, has been recognized and affirmed by a 
 series of decisions of modern date. 
 
 In a case in the English Court of Chancery, decided by 
 Yice-Chancellor Shadwell in 1831, the general rule without 
 qualification to it was applied. In that case a tenant in fee 
 of a cotton mill in which there was a steam-engine, boilers, 
 &c., mortgaged the mill, engine, and boilers, &c., to one 
 Bagshaw, and afterward while remaining in possession was 
 made bankrupt. It was held that the steam-engine was not 
 within the order and disposition of the bankrupt act at the 
 time of his bankruptcy, notv/ithstanding that only the en- 
 tablature plate of the engine was fixed to the freehold of 
 the mill, and every other part of it (constituting the really 
 active part) was secured merely by bolts and screws, and 
 might be removed without injury to the building {Hubbard 
 V. Bagshaw, 4 Sim. R., 326). * 
 
 Again, in a case decided by the Court of Queen's Bench 
 in 1832, both the general rule and the limitation to it were 
 held to apply, and were applied. The case was an action of
 
 038 LAW OF FIXTURES. 
 
 trespass brought by the plaintiffs as assignees of the bank- 
 rupt against the defendant, his hite copartner. It appeared 
 that tlie bankrupt and the defendant, being at the time part- 
 ners, took a lease of a mill and iron-forge from one X. who 
 was himself a lessee of the same from one Y. Both under- 
 lease and lease contained a covenant, in precisely the same 
 words, to deliver up, upon the determination of the ten- 
 ancy, to the lessors, at a valuation to be made at the end of 
 the term, all the mills, wheels, machinery, hearths, ham- 
 mers, anvils, bellows, tools, utensils, and implements upon 
 the premises ; and the underlessees had, in fact, purchased 
 these articles from their immediate lessor X., at the time of 
 taking their underlease. Subsequentlj^ to taking this under- 
 lease the defendant dissolved partnership with the bank- 
 rupt, and assigned to the latter all his moiety of the 
 partnership estate and effects, the bankrupt agreeing to 
 pay to the defendant ceilain annual and other sums, and 
 also to indemnify him against the debts of the copartner- 
 ship, the bankrupt at the same time mortgaging to the de- 
 fendant, as a security for the payments and indemnity in 
 question, all his, the bankrupt's, interest in the premises, 
 with the usual clause of forfeiture upon default. The 
 mortgagor continued in possession, but after a time made 
 default in his payments to and indemnity of defendant, and 
 ultimately committed an act of 'bankruptcy by absenting 
 himself from home. The defendant subsequently took pos- 
 session of the premises. The question in this case w^as, 
 whether the assignees could recover in this action for the 
 fixtures and movable articles, or for the latter only, or for 
 neither. The court, expressly following Horn v. Baker, 
 gave Judgment for the assignees as to all the movables, and 
 for the defendant as to the fixtures properly so called : 
 Parker, J., remarking as follows: "On the default made 
 by the bankrupt the defendant should have entered pur- 
 suant to the mortgage deed ; but instead of doing so, he 
 allowed him to retain the apparent ownership, a/id the right 
 of the assignees hy relation had attached before the defen- 
 dant entered^'' {Clarke v. Crownshaw, 3 Barn. 2 Adolph. 
 R., 804 ; /S'. a, 23 Eng. C. L. R., 190).
 
 RULE IN BANKRUPTCY CASES. 639 
 
 In another case decided by the same court in 1833, it ap- 
 peared that the defendant was in possession of the fixtures 
 in question as agent of the lessor of tlie colliery to which 
 the fixtures belonged. * The lease under which the bankrupt 
 held contained a proviso for re-entry and determination of 
 the lease upon the bankruptcy of the lessee, and also a 
 proviso to the following effect, namely, that an inventory 
 and valuation should be made of the workmen's tools, 
 movable engines, and machines, and all the timber and 
 other materials, being the property of the lessor, then being 
 in and upon the icollieries ; that the lessee should have the 
 full use and enjoyment of all and singular the said stock 
 and movable engines and materials during the continuance 
 of the demise ; and that at the expiration or other sooner 
 determination of the term of the said stock, workmen's 
 tools, and movable engines and materials, together with all 
 improvements, additions, and separations which should be 
 made of, in, or to the same by the lessees at any time 
 during the term, should be delivered up to the lessor for 
 his own use and benefit. It was found to be the custom of 
 the trade for the lessor to demise the machinery with the 
 old collieries, such as the present colliery was, he retaining 
 the property in it and the right to it upon the determina- 
 tion of the lease, and the tenant having meanwhile the use 
 of it only during the continuance of his term. Under these 
 circumstances it was held by the court, following Horn v. 
 Baker ^ that the steam-engine did not pass to the assignees, 
 for the reason that the article did not come under the de- 
 scription of "goods and chattels" used in the Bankruptcy 
 Act {Coombs v. Beaumont, 5 Bar7i. & Adolpli. B., 72; >S'. 
 C, 21 Eng. C. L. B., 38). 
 
 In a case decided by the English Court of Exchequer in 
 1834, the doctrine laid down in Horn v. Baiter was again 
 distinctly recognized and adhered to. In that case it ap- 
 peared that the bankrupt was a termor of the lands, and 
 had taken the fixtures belonging thereto from his landlord, 
 at a valuation ; that he mortgaged the term and fixtures, 
 and afterward, while remaining in possession, became bank- 
 rupt. Mr. Baron Parke held that the fixtures did not pass
 
 640 LAW OF FIXTURES. 
 
 to the assignees as goods and chattels of the bankrupt 
 within liis order and disposition at the date of tlie bank- 
 ruptcy ; and he stated, as a reason for the distinction in 
 this respect between fixtures and othei^ or ordinary chattels, 
 that ^''loltli regard to real property, the possession is con- 
 sidered as nothing, and the title only is looked to" {Boy- 
 dell V. M'MlcJtael, 1 Or. M. R. 72., 177; ^. C, 3 Tyrwh. 
 a., 974). 
 
 In a case decided in 1835 by the English Court of Review 
 in Bankruptcy, it appeared that the bankrupt, in consider- 
 ation of a sum of £15,000 advanced to him, mortgaged to X., 
 Y., and Z. (among other hereditaments) all that capital mes- 
 suage called with the coach-house, stables, &c., thereto 
 
 l)elonging, and also all that piece or parcel of land called , 
 
 together with the messuage or tenement and outbuildings 
 standing or being thereon, and all other the messuages and 
 hereditaments of the bankrupt with their appurtenances. 
 The bankrupt after this mortgage continued in possession, 
 partly hj liimself and partly by his tenants, of all the said 
 hereditaments up to the date of his bankruptcy, which was 
 on the 26th of Januaiy, 1832. His assignees sold all the 
 premises together with the fixtures, the sale being made 
 without prejudice to the question as to whom such fixtures 
 belonged. The question was, whether the fixtures belonged 
 to the assignees in the bankruptcy, or to the mortgagees, 
 and it was decided in favor of the mortgagees. 
 
 Erskine, C. J., obst?rved : "Some of the articles in ques- 
 tion were fixed, it is said, after the mortgage was made, and 
 the assignees contend that to these latter at all events the 
 mortgagees are not entitled ; and the assignees also contend 
 that the articles in question in this case are not fixtures in 
 any proper sense of that term, but consist of mere ordinary 
 furniture. Now if this latter contention were in fact estab- 
 lished, there would be an end of the matter, for there is 
 nothing in the mortgage that could by any possibility ex- 
 tend to articles of furniture. But in point of fact the articles 
 in question are fixtures. They are for the most part not 
 only modelled and fitted into their respective places and 
 recesses, but are also fixed there by nails and plugs ; so that
 
 RULE IN BANKRUPTCY CASES. 641 
 
 though they mi^it have been mere articles of furniture in 
 the lirst instance, they have lost that character and become 
 fixtures. * ^- * Now, that being so, it has always appeared 
 to me that when the owner of the inheritance affixes property 
 to it, it becomes a fixture in the general sense of the term, 
 and part of the freehold ; and if the inheritance be afterwards 
 sold or let, the fixture goes with the freehold ; and I confess 
 I see no distinction for this purpose whether the deed be one 
 of absolute conveyance, or be one of lease only, or of mort- 
 gage only. A mortgage therefore, made by the owner of 
 the inheritance will, without naming them, pass all the fix- 
 tures therein ; and I know of no case, nor has any dicturri 
 even been quoted, to the effect that when a mortgagor in 
 possession alters the premises, by addition or otherwise, the 
 mortgagee shall not have the benefit of such alteration. I 
 can find no substantial distinction, therefore, between those 
 fixtures which were affixed before and those which were 
 affixed after the mortgage deed. 
 
 "And with reference to the allegation of reputed owner- 
 ship, that question will only arise if the articles in question 
 are goods and chattels. Now I entirely agree that tenants' 
 fixtures pass as a rule to the assignees {Ex parte Austin, 1 
 B. & Ch., 208) ; and Ex parte Wilson (4 D. & Gli., 155), are 
 authorities for that. But here the circumstance that the 
 bankrupt mortgagor was the owner of the inheritance makes 
 all the difference ; for in such a case the things affixed by 
 him become part of the freehold itself. And that being so, 
 the fixtures in the present case passed instantly to the mort- 
 gagees under their deed of mortgage ; and they were not 
 goods and chattels within the meaning of the reputed owner- 
 ship clauses in the Bankruptcy Acts" {Ex parte Belcher^ 
 4 Deacon & Cliitty \s R., 703). 
 
 In a case decided by the same court in 1841, it appeared 
 that the bankrupts having purchased certain copyhold prop- 
 erty known as the Vauxhall Gardens, and described in the 
 deed of conveyance thereof to them as "all that substantial 
 
 brick dwelling-house called , with the gardens thereto 
 
 belonging, and a piece of ground in the occupation of , 
 
 and also all that piece or parcel of ground called , and 
 
 81
 
 642 LAW OF FIXTURES. 
 
 the workshops, sheds, ice-house, great rocfm, or orchestra, 
 covered walks, open walks, ways, passages, pavilions, 
 boxes, and spring gardens, yard, and pond, and also an 
 aqueduct to supply the said pond at Vauxhall Creek," after- 
 ward mortgaged the same by covenant to surrender to Rey- 
 nall and another, the words of description in the mortgage 
 deed being an exact reproduction of those contained in the 
 deed of conveyance as above set forth. The fixtures belong- 
 ing to the premises consisted of stoves, grates, bells, a gas- 
 ometer, retort-houses, gas-fittings, &c., all of which it was 
 stated could be readily removed without injury to the free- 
 hold. Moreover, the gasometer, retort-houses, and gas- 
 fittings, also a certain balloon-hall, a steam-engine, and a 
 saw-mill had been put up upon the premises after the date 
 of the equitable mortgage to Reynall ; but the others were 
 already upon the premises at that date, and were indeed 
 taken by the bankrupts under their deed of purchase. The 
 question before the court was, whether these fixtures or any 
 of them passed to the mortgagees or to the assignees. It 
 was held that the articles passed to the mortgagees. 
 
 Mr. Commissioner Holroyd in giving judgment, said : 
 "The workshops,' are admitted to be part of the mortgaged 
 estate ; but some of the articles in them are claimed by the 
 assignees. Now these latter articles and any others which 
 may be in dispute, if they pass to the mortgagees on the one 
 hand must pass to them as part of the estate to which they 
 are annexed, and if they pass to the assignees on the other 
 hand, they might pass to them as goods and chattels of the 
 bankrupts. Any articles which, .though loose, have been 
 disunited without the leave or knowledge of the mortgagees 
 must, I think, follow the fixtures ; for they cannot be con- 
 *sidered in the order and disposition of the bankrupt wif/i 
 the consent of tlie true owner. 
 
 "Now, by a conveyance of a freehold house containing 
 fixtures, as stoves, grates, kitchen-ranges, closets, &c., 
 when there is nothing to indicate a contrary intention, the 
 fixtures will pass with the house ; and it seems to me that 
 the same rule must prevail in the case of a purchase of an 
 estate mortgaging the estate which he purchased ; for the
 
 RULE IN BANKR UPTCY CASES. 643 
 
 mortgagee must be taken to be a purchaser to the extent of 
 his charge on the estate. * * * Then, too, in the present 
 case, the very same words of description are used in the 
 deed of mortgage as in the deed of conveyance. 
 
 "Applying, tlien, these rules of law to the present case, I 
 am of opinion that the articles in question fixed to the free- 
 hold, though they are of such a nature that they would be 
 held removable as between landlord and tenant, pass to Mr. 
 Reynall by virtue of the deed under which they have been 
 deemed equitable mortgagees of the Vauxhall Gardens ; and 
 
 1 think no distinction can be made between those articles 
 which were affixed before and those articles which were 
 affixed after the mortgage deed. The mortgagee is entitled 
 to the security of the property in its altered state, by the 
 annexation of any additional fixtures" {Ex parte Reynall, 
 
 2 Montagu^ Deacon & De Gex's H., 443). 
 
 And in another case decided by the same court in 1842, it 
 appeared that the bankrupt, in January, 1837, deposited all 
 his deeds relating to a piece of land and hereditaments, of 
 which the bankrupt was owner in fee simple, with his 
 bankers as a security for past and future advances made 
 and to be made by the bankrupt to them ; and at the same 
 time he signed a memorandum of deposit stating generally 
 that he had deposited "the deeds and documents under 
 which he held the steam-mills, cottages, land, buildings, 
 and premises" affected thereby. After the date of this 
 memorandum the bankrupt erected on the premises a build- 
 ing for the crushing of bones, and also another building for 
 the crushing of oil seeds, setting up in them the machinery 
 necessary for those purposes — the whole being affixed to 
 the freehold. The court held that the fixtures in question 
 passed to the equitable mortgagees. 
 
 Sir John Cross, in giving judgment, said: "The only 
 question in this case is, whether the fixtures in the mort- 
 gaged premises are included in the memorandum of deposit. 
 That some fixtures existed when the deposit was made there 
 can be no doubt, and it certainly appears, to have been the 
 intention to include the whole of them in the equitable 
 mortgage. To entitle the assignees, therefore, to any part
 
 644 LAW OF FIXTURES. 
 
 of the fixtures, it is incumbent on tliem to show that the 
 part they claim was excepted, of which there certainly is 
 no evidence. It is a matter of perfect indifference whether 
 the erection of the machinery and fixtures was completed 
 or not at the time of the mortgage — whether part was put 
 up before or subsequent to that event. The question is, 
 therefore, which of these articles are to be considered fix- 
 tures, * * * the assignees will examine for themselves, 
 whether any of the articles in question are, or are not fix- 
 tures" {Kx parte Price, 2 Man., Dea. & Be G. R., 518). 
 
 So also, in another case decided by the same court in 1847, 
 the petitioner was an equitable mortgagee by deposit of a 
 lease to which the bankrupt was entitled. A memorandum 
 in writing accompanied the deposit, and in it the leasehold 
 property was described as "all the piece or parcel of ground 
 with the messuage or tenement thereon erected, being No. 
 14 Southampton Row, with the premises thereto belonging 
 and the appurtenances." No mention of the fixtures was 
 made in the memorandum. The lease and fixtures were 
 sold by the assignees without prejudice to the question of 
 title to the fixtures. The Chief Judge declared the peti- 
 tioner an equitable mortgagee of " the leasehold messuage 
 or tenement, fixtures and premises mentioned in the peti- 
 tion" {Ex parte Tagart, 1 De Oex' s B., 531). 
 
 An important case was decided by the Lord Chancellor of 
 Ireland in 1855, involving the subject now under review, 
 wherein it appeared that tlie bankrupt was tenant for lives 
 renewable forever of a flax-mill, and had erected in connec- 
 tion therewith a steam-engine, with boiler, shafting and 
 gearing. The steam-engine was attached to the boiler by 
 screws and nuts, and also to the engine-house by various 
 supports ; but all of these supports were capable of removal, 
 and the engine with them, without material injury either to 
 the engine or to the engine-house. The boiler could not 
 have been so readily removed. The engine-house was con- 
 structed to contain a steam-engine and was not suited for 
 any other purpose. The bankrupt mortgaged the flax-mill 
 to the Northern Banking Company to secure an advance of 
 the balance of his account for the time being, and the
 
 RULE IN BANKRUPTCY CASES. 645 
 
 petitioners, Montgomery and Bristow, as public officers of 
 the ba.nk, claimed tlie engine and other the machinery of 
 the flax- mill as included in their mortgage. The bankrupt 
 had remained in possession of the mill and the machinery 
 subsequently to the mortgage and up to the time of his 
 bankruptcy; the assignees therefor claimed the same as 
 having been in the order and disposition of the bankrupt at 
 the date of the adjudication. But the Lord Chancellor, re- 
 versing the decision of Mr. Commissioner Macan, decided in 
 favor of the mortgagees, reviewing in an elaborate manner 
 in his judgment all the principal cases bearing upon the 
 right of the assignees, and concluded as follows: "I find 
 that all the cases come round to the same CLuestion, namely, 
 what are fixtures? Now, it appears to me that this does 
 not at all depend upon the power of removal ; the owner m 
 fee has the right to remove all the fixtures ; the tenant has 
 a right to remove fixtures erected for trade purposes ; but 
 untfl they are severed they are still fixtures, and as between 
 mortgagor and mortgagee they are not removable, though 
 the mortgagor remain in possession. I therefore think that 
 the possibility of removal is not so much the test as the 
 nature of the article. Now here we have an engine which 
 is attached to the freehold in two ways ; first, it is itself 
 secured to a stone foundation, which is embedded in the 
 soil, and which is of no use save to have the engine attached 
 to it. This stone, and the whole building, would be worth- 
 less if the engine were removed. Further, it is attached to 
 the boiler ; I am unable to comprehend the use of the boiler 
 without an engine. * * * It seems to be very clear that 
 the engine is fixed to the freehold. 
 
 " Then as to the next portion of the property, the shaftmg 
 and gearing, I also consider it attached to the freehold ; it 
 is the connecting power between the motive power and the 
 machinery, without which the engine would be useless. It 
 is part of the principal macliinery — like the shaft of the 
 wheel of a water-mill — essential to the utility of the whole. 
 "The question is simply what is the property as it stands ? 
 Is it in its present position, goods and chattels 1 I think it 
 cannot be so considered. It is true that the whole property
 
 646 LAW OF FIXTURES. 
 
 is capable of being removed, and if removed it would be 
 properly described as goods and chattels ; but while it re- 
 mains fixed it is a fixture, and must be so treated. 
 
 "The hot- water-pipes which are brought through the floor 
 from the steam-engine, like gas-pipes through the walls, 
 will not be distinguishable from the shafting and gearing" 
 {Bx parte Montgomery and Bristow, In re McKibbin, 4 
 Irish Ch. H., N. 8., 520). 
 
 The cases upon this branch of the subject of fixtures are 
 numerous and important, and they will be resumed in the 
 next following chapter. 
 
 CHAPTER XLVIII. 
 
 LAW OF FIXTURES AS BETWEEN A BANKRUPT AND HIS ASSIGNEES 
 
 RULE AS BETWEEN THE MORTGAGEE AND THE ASSIGNEE OR TRUSTEE 
 
 IN BANKRUPTCY OF HIS MORTGAGOR EXAMINATION OF THE CASES 
 
 UPON THE SUBJECT RULE IN CASES OF EQUITABLE MORTGAGES AND 
 
 LIENS RULE UPON THE SUBJECT IN THE UNITED STATES. 
 
 All of the cases examined in the last preceding chapter 
 arose under the statute 21 James I, ch. 19, the material pro- 
 visions of which were transcribed, and under the subsequent 
 act of 6 Geo. IV, ch. 16, § 72, which is substantially a re- 
 enactment of the former act ; or under the still later act of 
 12 & 13 Victoria, ch. 106, § 125, which latter act was in 
 nearly the same words of the one for which it was substi- 
 tuted. The only change in th*e act of Geo. IV was, that in 
 the latter act the words " or disposition " were substituted 
 for the words ""and disposition" in the statute of James I ; 
 and in the act of Geo. IV the words "whereof he was re- 
 puted owner^ or whereof he had taken upon himself, the 
 sale," were substituted for the words "whereof they shall 
 be reputed owners, &c., and take upon them the sale," in 
 the statute of James I. And the onl}^ difference between
 
 RULE IN BANKRUPTCY CASES. 647 
 
 the act of Geo. IV and the substituted act of 12 & 13 Vict, 
 is as to the power of the courts in the disposition of the 
 bankrupt's effects. The statute now in operation in Eng- 
 land is the "Act to consolidate and amend the Law of Bank- 
 ruptcy " 32 & 33 Vict. ch. 71, 1869, the 15th section of which, 
 sub-clause 5, provides that the property of the bankrupt 
 divisible amongst his creditors shall comprise "all goods 
 and chattels being at the commencement of the bankruptcy 
 in the possession, order, or disposition of the bankrupt, be- 
 ino- a trader by the consent and permission of the true owner 
 of which goods and. chattels the bankrupt is the reputed 
 owner, or of which he has taken upon himself the sale or 
 disposition as owner." 
 
 It will be observed that the several English bankruptcy 
 acts, the provisions of which have been referred to are quite 
 similar in all essential points, so that the decisions of the 
 courts under the former acts may be considered as author- 
 ities in the construction of the latter. 
 
 In resuming the consideration of the cases m respect to 
 the rio-ht to fixtures as between bankrupt and assignee, 
 reference may be had to a case decided by the English High 
 Court of Chancery in 1855, where A. (who was by trade a 
 publican) was lessee of a public-house, and of other houses 
 and deposited by way of equitable mortgage his lease with 
 B o-ivino- at the same time the usual memorandum of de- 
 posit, and then afterward became bankrupt while in posses- 
 sion both of the public-house and of the otiier houses, and 
 also of the trade and tenant' s fixtures belonging to them 
 (being tli^ fixtures usual in the trade of a publican) ; it was 
 held that B., as such equitable mortgagee as aforesaid, was 
 entitled to all the said fixtures (both the trade and the ten- 
 ant s ones) as against the cMm of A.'s assignees in_ bank- 
 ruptcy, the fixtures not being (nor any of them being) in 
 the oi^er and disposition of the bankrupt withm the mean- 
 ino- of the Bankrupt Law Consolidation Act of 184o {Ji.x 
 plrte Barclay, 5 De O. Mac. & Gor. B., 411). 
 
 In another case decided by the same court m 1856, where 
 A and B. (who were copper-roller manufacturers) were the 
 owners in fee and tenants in common of certain land and oi
 
 648 LAW OF FIXTURSS. 
 
 tlie mills erected thereon, and mortgaged tlie same to C, 
 and afterward became bankrupt, it was held by Wood, 
 Y. C, that the mortgage of the land and premises carried 
 with it all the articles let into the soil or fixed to the free- 
 hold whether by screws, solder, or any other permanent 
 means, and that for that matter it made no difference that 
 the purpose to which the land in question was applied by 
 the bankrupts was trade or manufacture and not agricul- 
 ture ; and moreover, that as these fixtures passed as part of 
 the freehold, no registration of them under the Bills of Sale 
 Act (17 & 18 Vict., ch. 36), was requisite for the purpose of 
 conferring a complete title to them upon the mortgagees. 
 The assignment in bankruptcy of the mortgagors had there- 
 fore no claim whatever as against the mortgagees to any 
 of the fixtures above enumerated, but articles standing by 
 their own weight alone were not to be considered fixtures 
 for the purpose of conferring such prior right upon the 
 mortgagee, in the absence at least of a properly registered 
 bill of sale specially applicable to themselves {Mather v. 
 Fraser, 4.W. R., 387; 8. C.,2 Kay & Johns. R., 536). 
 
 In a case decided by the English Court of Queen's Bench 
 in 1856, it appeared that A. (who was a paper-maker) was 
 the owner in fee of a piece of land and of the mill erected 
 upon it, and mortgaged the same with the machinery to B., 
 and afterward mortgaged the same w^ith the machinery to 
 C, and afterward by bill of sale, "bargained, sold, assigned, 
 and set over," by way of mortgage to the said C, certain 
 machinery erected since the date of the former mortgage to 
 him, and in the same deed also covenanted that, the mill 
 and machinery comprised in the former mortgage to C. 
 should be charged in addition with the money advanced 
 upon the said second mortgage to him ; and A. afterward 
 became bankrupt, C. not having registered his said second 
 mortgage as a bill of sale within the prescribed period of 
 twenty-one days from the date thereof, the court held that 
 the assignees in bankruptcj^ of A. were entitled to the ma- 
 chinery comprised in the said bill of sale, as fixtures of a 
 chattel-nature and which had been treated as such by the 
 parties to the third of the before mentioned three mort-
 
 RULE IN BANKRUPTCY CASES. 649 
 
 gages, such third mortgage being primarily and character- 
 istically, and essentially a bill of sale, and not a freehold 
 conveyance, notwithstanding the covenant also contained in 
 it ( Waterfall v. Penistone, 6 Queen's B. R., 876). 
 
 And in a case decided by the same distinguished court in 
 1866, it appeared that the plaintiff being the owner of a 
 factory at Nottingham, had contracted to sell it to X. and 
 Y., who entered into possession under this contract, but 
 who neither took any conveyance of the mill, nor paid any 
 part of the purchase-money. Barely two years after the 
 date of the contract, X. and Y. were made bankrupts, and 
 the assignees in the bankruptcy elected not to adopt their 
 contract, but proceeded nevertheless to sell the effects of 
 the bankrupts, including therein a certain hydraulic press, 
 which was bought by the defendant Hind for £35. The 
 plaintiff disputed the right of the assignees and of the pur- 
 chaser under them to this machine, and claimed it as his 
 own as being part of the freehold ; and the defendant hav- 
 ing therefore broken into the factory and removed the press, 
 the plaintiff sued him for the tresjDass and the conversion. 
 At the trial the jury gave a verdict for the plaintiff, with 
 £3 damages for the breaking and entering, and £50 damages 
 for the conversion. On a rule nisi to reduce the damages 
 by £50, on the ground that the press was part of the effects 
 of the bankrupts in their reputed ownership at the date of 
 the bankruptcy, it was proved in evidence that the press 
 was not essential to the carrying on of the works of the fac- 
 tory, but was merely a convenience in so doing ; and the 
 court, proceeding upon the evidence, made the rule ab- 
 solute. 
 
 Mr. Justice Blackburn delivered the Judgment of the court 
 and observed : "Whether or no a thing remains a chattel, or 
 becomes part of the freehold, is often difficult to decide, turn- 
 ing as it does on a question of more or less. We think, 
 however, that the press in question was clearly a chattel. 
 In the case of things built into the wall of the freehold, it 
 is often doubtful whether or no they become jiart of the free- 
 hold. It is certain of course. * * * It is equally certain. 
 * * * But there are also the intermediate cases which are 
 
 82
 
 650 LAW OF FIXTURES. 
 
 uot SO clear. There are generally three classes : First, 
 those cases where a chattel still remains a chattel, e.g., the 
 clock in court ; secondly, those cases where a chattel is 
 fixed for the better enjoyment of the freehold, and is sub- 
 ject to a right of removal, — this latter group of cases being 
 what are generally called fixtures ; thirdly, those cases 
 where chattels are fixed to the freehold, and are not subject 
 to any right of removal. Hellawell v. Eastwood (6 Excti.^ 
 295), gives the two guiding points to determine whether or 
 no the article remains a chattel. The guiding points in 
 HellaweU v. Eastwood are these : first, the mode and the 
 degree of the annexation ; and, secondly, the purpose or 
 the object of the annexation. * * * Now, applying these 
 rules to the present case, it appears that, taking the first 
 criterion, there was some fixing with mortar, but not much. 
 The press itself was great and bulky ; and the mortaring 
 was therefore of secondary moment. And taking next the 
 second criterion, it seems to us that the object of this press 
 was not to improve the premises : it was not a thing essen- 
 tial to the carrying on of the factory works ; nor was it a 
 thing like a fire-place ; but it w^as a machine brought into 
 the factory for convenience, just like an ordinary table." 
 
 Mr. Justice Mellor added : "If we could see, as in the 
 gas-works case {Reg. v. Lee, L. R.,1 Q. B. 241 ; 8. C, 14 
 W. R., 311), an intention that the chattel should remain 
 fixed to the factory so long as the factory remained a fac- 
 tory, then Ave might think the press to be sufficiently fixed 
 to become a part of the freehold ; but here we see no such 
 intention'- {Parsons v. Hind, 14 W. R., 860). 
 
 Reference may also be had to a case decided by the Eng- 
 lish Court of Common Pleas in 1859, which has been quite 
 fully considered upon another point, wherein it appeared 
 that A., the owner of land, in 1833, mortgaged it in fee to 
 B., and afterward erected certain buildings thereon, to 
 which, for the more convenient use of the premises in his 
 business of an innkeeper, brewer, and bath-proprietor, he 
 affixed a steam-engine and boiler, a hay-cutter, a malt-mill, 
 a corn-crusher, and a pair of grinding- stones. The articles 
 were all substantial!}" fixed to the premises, but were
 
 RULE IN BANKRUPTCY CASES. 651 
 
 capable of being removed without injury either to them- 
 selves or to the freehold. The engine was used to supply 
 water to the baths and to put the other machines in motion ; 
 and the whole were subservient to the business carried on 
 by A. The mortgagor continued in possession until 1858, 
 when he became bankrupt. The court held that his as- 
 signees were not entitled to claim the fixtures, but that they 
 passed to the assignee of the mortgagor as part of the free- 
 hold ( Walmslep v. Milne, 7 Com. B. B., JV. S., 118 ; S. C, 
 97 JEJng. C. L. R., 114). 
 
 It was shown in a preceding chapter that the mortgagee 
 need not be a legal mortgagee in order to be entitled to the 
 fixtures embraced in his mortgage ; and in bankruptcy 
 cases, he may be an equitable mortgagee, or even a mere 
 licensee under a covenant. Thus, in a case decided by the 
 English Court of Chancery in 1856, which was a suit for the 
 administration of the estate of one X., deceased, who had 
 been entitled to the lease of a certain quarry, and who had 
 mortgaged the same quarry by equitable deposit of the 
 leases without note or memorandum. The mortgagees 
 claimed that the produce of the tenant' s fixtures belonging 
 to the quarry which had been sold in the suit should be 
 paid to them on the ground that tliese fixtures were com- 
 prised in their mortgage. And Lord Romilly, Master of 
 the Rolls, gave judgment for the mortgagees accordingly, 
 remarking that under the general words of a legal mort- 
 gage they certainly would have appertained to the mort- 
 gagee as attached to the freehold ( Williams v. Emns, 23 
 Beav. B., 239). 
 
 And in a case decided by the Lords Justices in Chancery 
 in 1869, it appeared that an iron manufacturer made an 
 equitable mortgage of his rolling mills, of which he held a 
 lease, and shortly afterward became bankrupt. Besides 
 the fixed machinery, the mills contained the following 
 chattels used in the manufacture: 1. A large number of 
 duplicate iron rolls of various sizes made to be fitted into 
 the machine, and used for difi'erent sizes of iron ; some of 
 these were fitted to the machine, and had been used, and 
 others had not yet been fitted. 2. Straightening plates,
 
 652 LAW OF FIXTURES. 
 
 which were broad iron plates embedded in the floor for 
 straightening the iron when taken out of the furnace. 3. 
 Weighing machines, which were deposited in holes dug in 
 the earth and lined with brick- work, so that the weighing 
 plate was level with the surface of the ground, but which 
 were not fixed in the brick- work. 
 
 A special case, stating substantially the foregoing facts, 
 was submitted to the Commissioner of the Birmingham 
 Court of Bankruptcy, between the mortgagees and the 
 assignees, for decision. The Registrar was of opinion that 
 the rolls passed with the mills to the mortgagees, as being 
 part of the machinery, and so decided. From this decision 
 the assignees appealed. But the Registrar held that the 
 weighing machines and straightening plates did not pass ; 
 and the mortgagees appealed from this decision. The ap- 
 peal in respect to the rolls was first argued, and the Lords 
 Justices held, that such of the rolls as had been fitted to 
 the machines were fixtures, and passed to the mortgagees ; 
 but that such of the rolls as had not been fitted to it were 
 not fixtures, and belonged to the assignees ; and in this re- 
 spect the order of the Registrar was varied. 
 
 Sir G. M. Giffard, L. J,, gave the opinion, and among 
 other things, said : "With respect to the law, it is admitted 
 that where there is a mortgage of a factory, and part of the 
 machinery used in it is a fixture, that part passes. * * ^ 
 The dictum of Lord Cottenham in Fisher v. Dixon (12 
 CI. & F., 312), was that all 'belonging to the machine' 
 would pass, and I should say in this case the proper test to 
 lay down would be that the chattel must be 'something 
 which belongs to the machine as part of it.' 
 
 "Now, these machines were rolling machines, and there 
 appear to be connected with rolling machines parts which 
 beyond all doubt, are not fixed, in the strict sense of the 
 term ; but it is in evidence that if a machine is ordered, it is 
 sent with one set of rolls, and it is quite manifest that with- 
 out rolls the machine could not do any part of the work for 
 which it is made. One set of rolls clearly passes. But we 
 have here duplicate rolls, an^ with reference to them — I am 
 not speaking of rolls which can be considered as, in any
 
 RULE IN BANKRUPTCY CASES. 653 
 
 sense, unfinished, but of duplicate rolls which have been 
 actually fitted to the machine — I cannot see why, if one 
 set of rolls passes, the duplicate rolls should not pass also. 
 It comes, in fact, to this, that the machine with one set of 
 rolls is a perfect machine, but the machine with a duplicate 
 set is a more perfect machine. I think, therefore, that each 
 set of rolls belongs to the machine or part of it. * * * If it 
 were desired to reduce the question to an absurdity, it 
 would be to suppose a case of duplicate latch keys to a 
 door, and holding that one only should pass, and not the 
 other. The fact is, that whether there is one set of rolls or 
 a duplicate set, they are each part and parcel of the ma- 
 chine, and come within the term ' belonging to the machine 
 as part of it.' 
 
 "Then comes the case as to the different sizes of rolls. But 
 if the duplicates of the same size pass, it follows that the 
 rolls of different sizes pass, if they render the machine still 
 more perfect than if the rolls were all of the same size. 
 
 "Then we come to another different class of rolls, and there 
 I confess I differ with the Registrar who has given his 
 opinion in this case. I allude to those rolls which had been 
 • made for the purpose of being used in this machine, and 
 had been sent to the mill for that purpose, but had never 
 been fitted to the machine, and which required something 
 more to be done to fit them to the machine in order that 
 they might be used in it. I think that if a man mortgages 
 a machine, and afterwards, the machine itself being perfect, 
 and fitted with rolls and every thing else connected with it, 
 other rolls are sent for to be used with the machines, but 
 these rolls cannot be used unless and until they are fitted 
 to the machine, it would be going a long way to say that 
 the mortgagor should be compelled to fit those rolls to the 
 machine, and should be precluded from saying that they 
 do not form a part of the macliine. 
 
 "Therefore I am of opinion tliat, as regards the duplicate 
 rolls, as regards the rolls of different sizes, as regards all 
 the rolls which have been actually fitted to the machine, 
 they belong to the machine as part of the machine — they 
 are, in fact, essential parts of the machine. But I cannot
 
 654 LAW OF FIXTURES. 
 
 hold that the rolls, which have never been fitted to the 
 machine, and have never been used in the macliine, and 
 which require something more to be done to them before 
 they are fitted to the machine, belong to the machine, or 
 that they are essential parts of it." 
 
 The second appeal being argued, the court reversed the 
 decision below as regarded the straightening plates, and as 
 regarded the weighing machines the decision of the Regis- 
 trar was affirmed. Sir G. M. Giflfard, L. J., also delivered 
 the opinion upon this branch of the case, and, among other 
 things, observed: "I cannot agree to the suggestion of Mr. 
 Jessel, that because the mortgagor in this case was a lease- 
 holder and not a freeholder the articles which are fixtures 
 will not pass to the mortgagee. Whether he is a freeholder 
 or a leaseholder, the same rule clearly and indubitably would 
 apply, and the only questiqn is, whether the straightening 
 plates and the weighing machines are fixtures. 
 
 " With regard to the straightening plates, two cases were 
 cited. * * * It is only necessary to read some portions of 
 the evidence to show that these straightening plates are 
 clearly fixtures, and, in fact, just as much part of the floor 
 as any pavement would be, and, certainly, it would be 
 astonishing to me if an ordinary pavement were regarded 
 as a thing that could be removed by a mortgagor as against 
 his mortgagee. * * * Upon referring to this evidence I 
 must assume that the plates round the straightening plates 
 are part of the ordinary floor of the place, and that the 
 straightening plates are just as much part of the ordinary 
 floor as the plates around them. I look upon these straight- 
 ening plates as in the same position as a flagstone laid down 
 and let in, and certainly if any thing in the world is a fix- 
 ture I should conceive that a flagstone laid down and let in 
 would be a fixture. * * * I can have no doubt whatever 
 but that the straightening plates are fixtures. 
 
 "But, then, with regard to the weighing machines, I think 
 the case is wholly different. The evidence is clear that 
 weighing machines of this description are frequently put 
 upon wheels, and are so used. As regards these weighing 
 machines, it appears that where they are placed inside the
 
 RULE IN BANKRUPTCY CASES. 655 
 
 building the floor is prepared for tliem, and where they are 
 placed outside the soil is prepared for them ; that is to say, 
 a square receptacle is made and is bricked, and when that 
 square receptacle is made and bricked the weighing ma- 
 chine is placed in it, and may, of course, be taken out 
 again, for it is not fixed by nails, or by screws, or in any 
 other way. '-^ * * Suppose in this case a number of brick 
 floors had been made, into which it had been convenient to 
 put weights, beyond all doubt the weights would have been 
 fixtures. In the same way, if there had been a foundation 
 of granite for a camera or a large telescope, neither the 
 camera nor the large telescope would be a fixture. The 
 preparation of the soil does not make the machine a fixture, 
 nor does the fact of its being put into the receptacle so pre- 
 pared for it make it a fixture " {Ex parte Astbiiry, 4 CJian- 
 cery App. Cases, 630, 634-640). 
 
 It might be inferred from the principles laid down in some 
 of the cases, that when a tenant for years becomes a bank- 
 rupt, the articles and utensils which he has himself attached 
 to the demised premises, and which are removable by him 
 at the end of the term, will not pass absolutely to the 
 assignees like his other goods and chattels, or those in his 
 possession or disposition. There is no doubt, however, that 
 the assignees may lay claim to them on the ground of their 
 succeeding to the bankrupt's interest in the term; but if 
 they renounce the bankrupt's lease, it is conceived, they 
 will have no right to take the fixtures. And it may be 
 stated that the right of the assignees to such chattels as are 
 in the order and disposition of the bankrupt at the time 
 of the bankruptcy only extends to personal chattels, such 
 as pass by transfer and delivery, and the value of which 
 is not deteriorated by removal {Ex parte King, 4 Jurist, 
 510). And if a tenant be permitted by his landlord to 
 have possession of. fixtures subject to the landlord's right 
 of property in them, they do not pass to his assignees as be- 
 ing in his order and disposition ; on the contrary, he holds 
 them under a special contract which prevents them from 
 being in his power of disposition at all {Hitcliman v. Walton, 
 4.Mees. & Welsh. R., 414).
 
 656 LAW OF FIXTURES 
 
 Where a bankrupt was in possession of a factory, steam- 
 engine, and fixtures, under a contract to purchase the same, 
 and the day before he committed an act of bankruptcy he 
 requested the vendor to resell and pay himself, and the 
 vendor accordingly retook possession, and the man then in 
 charge of the property for the bankrupt agreed to continue 
 in charge of the property for the vendor ; the court held 
 that the steam-engine and fixtures were not in the order 
 and disposition of the bankrupt {Ex parte Watkms, 1 Bea- 
 con's H., 296). And where a mortgage was made of prem- 
 ises and machinery, which included a steam-engine, erected 
 for trade purposes and fixed to the freehold ; and the mort- 
 gagor continued in possession ; the court held, 1st, that the 
 steam-engine might be removed, 2d, that it was well mort- 
 gaged, and was not in the reputed ownership of the mort- 
 gagor {£Jx parte Lloyd, 1 Montagu & Ayr. B., 494 ; S. C, 3 
 JDea. &CUt R., 765). 
 
 Where a lessee erected trade fixtures firmly attached to 
 the freehold, but removable as between himself and his 
 landlord ; and then mortgaged the premises by way of de- 
 mise, by the same description as that in the lease to him, 
 and without referring to the new erections, the sum secured 
 being a floating balance limited to an amount greater than 
 the premises would be worth without the fixtures ; the court 
 held that the mortgagee was entitled to the fixtures {Ex 
 ■ 'parte Bentley, 2 Mon., Dea. cfc Be G. B., 591). And where 
 a bankrupt, becoming the owner as well as occupier of a 
 freehold cotton-mill, gave the petitioners an equitable mort- 
 gage upon it, " together with the steam-engines, and also 
 all and singular other the movable and fixed machinery and 
 steam-engines then in, upon, about, and belonging to the 
 said steam-mill and premises, or occupied or used there- 
 with," and the bankrupt continued in possession of the mill 
 and fixtures up to the period of his bjinkruptcy ; it was 
 held that all parts of the machinery and fixtures which 
 were so attached to the premises as to be legally affixed to 
 the freehold were not to be considered as goods and chattels 
 within the English Bankrupt Act, and that the assignees 
 had no right to them as against the equitable mortgagee
 
 ff 
 RVLE IN BANKRUPTCY CASES. 657 
 
 {Ux parte WUso7i, 4 Dea. & Cliii. H., 143 ; S. C, 2 Mont & 
 Ayr: R., 61). 
 
 So, it is quite evident that, independently of the construc- 
 tion put upon the words "goods and chattels" in the Eng- 
 lish Bankruptcy Statutes, as laid down in many of the 
 decisions, it is well established that property- affixed to the 
 freehold is not within the intent of such statute ; because 
 the possession of such property does not create a visible 
 ownership in the bankrnjjt, so as to procure him unmerited 
 credit. For creditors are not deceived by the possession of 
 property of this description ; and it differs from the case of 
 personal goods, where the possession and power of disposal 
 are the only evidence of ownership to which a creditor 
 can look. 
 
 And in respect to mortgages of real estate, it may be con- 
 cluded from the cases examined, that the mortgagee, with- 
 out this possession, is absolutely protected by his deed of 
 mortgage against the claims of the assignees or the trustees 
 in bankruptcy of his mortgagor. But for this purpose the 
 fixtures must be interests in real estate, and not chattels of 
 an exchangeable nature. For if they are the latter merely, 
 then the English case of Parsons v. Hind (14 W. B., 860), 
 hereinbefore referred to, and other like cases, might be 
 taken to apply ; and in that case, an actual taking of pos- 
 session of the premises by the mortgagee prior to the first 
 act of bankruptcy to which the first relates back is a sine 
 qua non to the mortgagee's protection, especially, if the 
 mortgage has not been filed or registered as required in cases 
 of mortgages of chattels. 
 
 In the application of the rule, a distinction has been in- 
 sisted upon in some of the cases, between fixtures which 
 are put up by a tenant, and those annexed by the owner of 
 the freehold to his own estate ; and it has been contended 
 that the former partakes so much of the nature of person- 
 alty that they ought to be considered goods and chattels 
 within the meaning of the bankruptcy act. This doctrine 
 has been admitted by some of the judges in the bankruptcy 
 courts ; at least in respect of trade fixtures erected by a 
 tenant, and which might be removed without damage to 
 
 83
 
 658 LAW OF FIXTURES. 
 
 the freehold. But on considering the true nature of fix- 
 tures, of whatever description, and that for whatever pur- 
 pose they may have been erected, they all alike change their 
 character by annexation, and participate in that of the 
 freehold, it seems difficult to understand the principle of 
 such g, proposition ; and certainly no such distinction has 
 been recognized in the cases disj)Osed of by the courts of 
 common law, and as a rule, the doctrine will not be allowed 
 to prevail. 
 
 By the United States Bankruptcy Act, the assignee of the 
 bankrupt has authority, under the order and direction of 
 the court, to redeem or discharge any mortgage or condi- 
 tional contract, or pledge, or deposit, or lien upon any 
 property, real or personal, Miienever payable, and to render 
 due performance of the conditions thereof, or to sell the 
 same subject to such mortgage, lien, or other incumbrances 
 (Act of 1867, § 14), Of course, in all these cases, it is im- 
 portant to understand just what is embraced in the incum- 
 brance, and in resjDect to fixtures, a knowledge of the 
 rules which govern that particular subject, will be impor- 
 tant oftentimes to enable the assignee to determine whether 
 the articles are or are not covered by the mortgage or 
 other lien. 
 
 Provision is also made, whenever it appears to the satis- 
 faction of the court that the title to any portion of the 
 estate, real or personal, which has come into the possession 
 of the assignee, or which is claimed by him is in dispute, 
 for a sale of the property in dispute, and the proceeds 
 therefrom disposed of under the direction of the court (Act 
 of 1867, § 25). 
 
 It has been decided that in a sale of the lease, good will 
 and fixtures of a grocery store, only such things (or their 
 accessories) as are constructively fastened to the freehold, 
 will pass to the purchaser of fixtures. And it was further 
 held that a purchaser of fixtures at such sale may make 
 claim upon the funds in the hands of the assignee for the 
 sale by the messenger of such articles as were properlj^ in- 
 cluded under the sale of fixtures {I/i re Hitcliings., 4 Bank- 
 ruptcy Mep., 125).
 
 RULE AS VARIED BY AGREEMENT. 659 
 
 The bankruptcy cases which have been considered, are 
 imi^ortant, not so much as precedents in questions arising 
 imder the bankruptcy laws, but as precedents in cases in- 
 volving the construction of written instruments, and for the 
 bearing which they contain upon the law of fixtures in gen- 
 eral. On account of this last consideration, the cases- are of 
 marked interest, as well in this country as in England, 
 
 CHAPTER XLIX. 
 
 LAW OP FIXTURES AS MODIFIED BY SPECIAL AGREEMENT OF THE PAR- 
 TIES DOCTRINE AS BETWEEN MORTGAGOR AND MORTGAGEE AND 
 
 MORTGAGEE AND ASSIGNEE IN BANKRUPTCY OF HIS MORTGAGOR 
 
 EXAMINATION OF THE CASES UPON THE SUBJECT. 
 
 It will be recollected that in a former chapter, the doc- 
 trine was asserted, that the general law of fixtures might, in 
 some cases, be varied by the agreement of the parties, and 
 some authorities illustrating the doctrine were there con- 
 sidered. In like manner, it may be affirmed, that the rights 
 of a mortgagee may be partially modified by some agree- 
 ment, either verbal or written, so that his claims to fixtures 
 may be affected, as between himself and the assignees in 
 bankruptcy of his mortgagor, or other claimants under the 
 mortgagor. 
 
 In a case decided by the English Court of King's Bench 
 in 1824, the rights of the parties to certain fixtures were de- 
 termined in view of a special agreenlent in respect to the 
 same. The action was trover for engines, cylinders, pumps, 
 whimsies, gins, railroads, and other implements belonging 
 to two collieries. From the evidence, it appeared that the 
 plaintiffs were the assignees in bankruptcy of one. X., who 
 had held two collieries as tenant to the defendant under a 
 lease, demising the said collieries, and also all engines, gins, 
 machinery, railroads, and other the implements and things
 
 660 LAW OF FIXTURES. 
 
 of the collieries, for the term of twenty-one years from the 
 1st of January, 1810. The lease contained a proviso for re- 
 entry in case the rent should be in arrear for the space of 
 thirty days ; and also a proviso that on the expiration or 
 other sooner determination of the said term the lessee 
 should yield up to the lessor all the engines, &c., of the 
 mill, he or his lessor paying to the other (as the case might 
 be) the difference in value of the machinery, &c., in the 
 mill at the date of the lease, and at the date of the deter- 
 mination thereof. Such difference to be ascertained by a 
 comparison of the inventories at these two dates. The bank- 
 rupt having failed to pay his rent, the lease became for- 
 feited, and the landlord recovered in ejectment in 1818, and 
 executed his writ of possession on the 9th of November, 
 1819. The bankrupt on the day following committed the 
 act of bankruptcy upon which his adjudication, was after- 
 ward founded. The plaintiffs, as assignees, claimed the 
 engines, &c., of the collieries as goods which were in the 
 order and disposition of the bankrupt, or at any rate they 
 were entitled to the difference of value between the engines, 
 &c., in the collieries at the time of the adjudication, and 
 the engines, &c., in them at the date of the lease. But the 
 court held that, as the tenant had determined the lease by 
 his own act, and had thereby rendered an inventory and 
 comparison of inventories impossible, the landlord had a 
 right, without any such valuation having been made, to re- 
 sume the possession of the fixtures, machinery, and other 
 effects used in the colliery upon the determination of the 
 demise by forfeiture ; and that such right of the landlord to 
 resume possession extended even to the new machinery 
 erected by the tenant during the term. The court also held 
 that the tenant never* had under this demise the possession, 
 order, or disposition of the fixtures or movable articles 
 within the meaning of the bankrupt act, but a mere quali- 
 fied right to use them during the term, and even during the 
 period between the judgment in ejectment and the execution 
 of the writ of possession {Scorer v. Himter, 3 Barn, cfc Ores. 
 R., 368 ', 8. C, 10 Eng. C. L. R., 115). 
 
 It should be stated, that it appears from the opinions of
 
 RULE AS VARIED BY AGREEMENT. 661 
 
 the Judges in the case of Storer v. Hunter., that the court re- 
 lied, to a considerable extent, on a usage which was proved, 
 of demising machinery with the collieries, the landlord re- 
 taining the right to it on the determination of the tenant's 
 lease ; for it was said that this usage rebutted the presump- 
 tion of a reputed ownership arising from the possession of 
 the articles. And it may be remarked, that in some of the 
 other decisions on the subject, the prevalence of a custom 
 in the neighborhood, of demising fixtures together with the 
 premises, or of selling them without reference to the free- 
 hold, has been adverted to by the judges as an ingredient in 
 their determinations. But it is apprehended that in the case 
 of Storer v. Hunter, the claim of the assignees could not 
 have been supported in any point of view ; for, according 
 to the general rule, the possession of the fixed articles 
 would not have created a reputed ownership, even if there 
 had been no usage in the case ; and because it appears from 
 the statement of the case, that before the act of bankruptcy, 
 the lease had been forfeited, and the term was at an end. 
 
 In a case decided by the English Court of Exchequer in 
 1840, in an action of trover for machinery, it appeared that 
 the plaintiffs were assignees in bankruptcy of X., who was 
 the lessor of the defendant for a term of fourteen years of 
 and in a certain fulling, scribbling, and carding mill, the 
 machinery in which mill was stated in the lease to have been 
 recently valued at a certain sum; and it was in and by the 
 lease covenanted and agreed that, at the expiration or other 
 sooner determination of the term, the machinery should be 
 again valued, and the lessor or the lessee should pay or should 
 receive to or from the other of them (according as the case 
 might be) the difference shown by the two valuations. The 
 plaintiff's as assignees declined to take the lease ; but they 
 required the defendant to appoint a person to make the 
 requisite valuation, and upon his refusal to do so, they ap- 
 pointed one themselves, who valued the machinery then in 
 the mill (most of which was stated to have been brought in 
 by the bankrupts) at a sum which exceeded the original 
 valuation. The plaintiffs thereupon delivered possession of 
 the premises to the defendant, and demanded of liim the dif-
 
 662 LAW OF FIXTURES. 
 
 ference between tlie two valuations. The defendant refused 
 to pay this difference ; and the plaintiffs afterward, having 
 demanded the machinery from him, commenced their action 
 for its recovery. The defendant relied upon the case of 
 Storer v. Hunter (3 Barn. & Ores. JR., 368), but Lord Abin- 
 ger, C. B., distinguished that case as one which the landlord 
 obtained possession under his contract, whereas in the pres- 
 ent case the landlord could only obtain possession under 
 his covenant, contained in the lease, which was put an end 
 to (by the bankruptcy and the assignees' disclaimer) before 
 he had obtained possession. Mr. Baron Alderson said : 
 "Our decision in this case will not infringe upon the law as 
 laid down in Storer v. Hunter. There, by tlie forfeiture, the 
 lease was put an end to, so as to dispense with the three 
 months' notice, which was to have been given for the pur- 
 pose of valuation ; and it was the same as if it had been 
 stipulated that the landlord should have the property in the 
 machinery at the end or other sooner determination of the 
 lease. There he took possession, and so the property vested 
 in him. But here the assignees had the possession dis- 
 charged of the covenants ; then, being so in possession, they 
 hand the goods over to the landlord, who refuses to make 
 any contract with them. Then, as they cannot have any 
 action of contract, they may have an action of trover in re- 
 spect of their property remaining in the goods while in his 
 hands" {Fairhuru v. Eastwood, 6 Mees. & Welsh. R., 519). 
 A late case decided by the Supreme Court of Indiana is in 
 point upon the branch of the subject now under considera- 
 tion, wherein it was decided that an agreement, made con- 
 temporaneously with the execution of a mortgage upon a 
 machine shop and the real estate upon which the same was 
 situated, together with the "appurtenances," that the pat- 
 terns, tools and movable fixtures of said shop should not be 
 regarded as real estate and embraced in said mortgage, but 
 should remain unincumbered personal proj^erty, was valid ; 
 that such agreement might control tlie character of movable 
 fixtures, as being realty or personalty ; and that subsequent 
 purchasers or mortgagees might be subject to, and have the 
 benefit of such agreement. And it was further held, that
 
 RULE AS VARIED BY AGREEMENT. 663 
 
 in suits between different claimants from the common gran- 
 tor, such agreement may be proved by parol {Frederick v. 
 Demi, 15 Lid. R., 357). 
 
 In a late case decided by the Supreme Court of New 
 Hampshire, it was held, that a house, erected by one man 
 upon the land of another, by his assent and upon an agree- 
 ment or understanding that the builder might remove it 
 whenever he pleased, did not become a part of^ the real es- 
 tate, but remained personal property. This is in accord 
 with the principle of the other cases ; and it was declared 
 that, in such a case, the owner of the building might enter 
 upon the land to remove it, within a reasonable time after 
 notice given so to do, without becoming a trespasser ; but if 
 he delays for an unreasonable length of time and then re- 
 moves the house, the court expressed the opinion that he 
 would be liable in trespass to the land, but not for the value 
 of the building. 
 
 The court also held that, if the owner of the land upon 
 which a building has been erected by another on an agree- 
 ment that it may be removed at his pleasure, sell the land, 
 such sal(* operates as a revocation of the license to continue 
 the building upon it ; although it was declared that such 
 sale would not affect the owner of the building until he had 
 notice of the sale, express or implied. Whether a pur- 
 chaser of the land without notice of the agreement referred 
 to acquires any interest in the building, the court queried, 
 and left the question undecided {Dame V. Dame, 38 iV. H. 
 
 B.. 429). 
 
 The same court held, substantially, in an earlier case, that 
 iron rails laid in the track of a railroad under an agreement 
 by which they were to remain the property of the party who 
 furnished them until paid for, could be held by tlje original 
 owner as against subsequent mortgagees of the road, who 
 had notice of the arrangement. But the opinion was inti- 
 mated that without notice such mortgagees would not be 
 affected by such an agreement, which, in reality, was de- 
 signed to have the effect of changing the natural and legal 
 character of the property from real to personal {Hamn v. 
 Emery, B3 if . H. R., 66).
 
 664 LAW OF FIXTURES. 
 
 In a case decided by the old Supreme Court of the State 
 of New York in 1841, it was held that, prima facie, a build- 
 ing erected by one person on another's land, is to be treated 
 as ^fixture, and a part of the realty; but if it was so erected, 
 with an understanding or agreement that it maybe removed 
 at any time, that it is then no part of the realty, but per- 
 sonal property ; especially when it is only slightly lixed to 
 the freehold. The building in controversy had been placed 
 upon land with the understanding, mentioned and trans- 
 ferred by the person who erected it, and the purchaser, while 
 occupying it, mortgaged it to secure certain moneys, and 
 the building was subsequently sold, subject to the mort- 
 gage. The court held that the latter purchaser of the build- 
 ing was not in a situation to insist, as against the mortgagee, 
 that it was a part of the freehold ; nor was he at liberty to 
 dispute the title of the mortgagor. 
 
 Co wen, J., delivered the opinion of the court, and said : 
 ''Prima facie, such a building would be a fixture, and would 
 not be removable. The legal effect of putting it on another' s 
 land, would be to make it a part of the freehold. But the 
 parties concerned may control the legal effect of any trans- 
 action between them, by an express agreement. * * * if 
 they agree, in terms, that a dwelling-house shall, as between 
 tliem, be considered strictly a personal chattel, it takes that 
 character. And so of any equivalent agreement, or under- 
 standing, which we think existed in this case between all 
 the parties concerned" {Smith v. Benson, 1 HilV s 7?., 176, 
 178, 179). The same conclusion, perhaps, might have been 
 reached in this case had the building been erected without 
 the agreement or understanding, proved by the evidence, in 
 respect to its removal. The fact that the purchaser took it 
 subject to the mortgage upon it, would be sutficient, of itself, 
 to estop him from questioning the validity of the mortgage, 
 as against the mortgagee. But the court expressly recog- 
 nize the doctrine under consideration, and the title of the 
 mortgagee would, perhaps, have been sustained, had the 
 property been sold to a purchaser having no knowledge of 
 the mortgage. 
 A case was decided by the present Supreme Court of the
 
 RULE AS VARIED BY AGREEMENT. 665 
 
 State of New York in 1852, wherein it appeared that a man 
 sold his farm, reserving, by parol, to a third party, the 
 right to sow thirty acres of the land with wheat upon shares, 
 his share to be one half, and the purchaser of the farm to 
 have the other half. The party sowed the wheat, and 
 soon thereafter mortgaged his interest in the crop ; that is, 
 the interest which he had "in and to about thirty acres of 
 fallow or wheat'' on the farm in question. The court held 
 that the mortgage bound the interest of the mortgagor in 
 the land, and in the wheat afterward put in under the 
 agreement. 
 
 Mr. Justice T. R. Strong, in giving judgment in. favor of 
 the mortgagee, said : " It is clear that Cogswell, at the time 
 of giving the mortgage, had a right to the use of the thirty 
 acres for the purpose of raising a crop of wheat, and having 
 one-half. * * -^ The owner of the farm, having permitted 
 hira to prepare the ground and sow the crop, was concluded 
 from denying his right. Having such an interest, I see no 
 good reason why the mortgage did not, upon its execution, 
 become a lien upon it. * * * This is not the case of a mort- 
 gage of property which the mortgagee did not own at the 
 time, but one of a mortgage upon an interest in property 
 which then belonged to the mortgagor" {Shuart v. Taylor^ 
 1 How. Pr. R., 251, 253). 
 
 A case involving the principle under consideration was 
 decided by the Supreme Court of Wisconsin, wherein it ap- 
 peared that the owner of a steam-engine sold the same to a 
 party to be affixed to and used with real estate, and took 
 back a chattel mortgage to secure part of the purchase- 
 money ; and it appeared that the vendor of the engine ac- 
 tually consented that the same might be annexed to the 
 realty and assisted in the work of annexing it. Under these 
 circumstances, it was held that the chattel mortgage upon 
 the engine was inoperative, as against a prior equitable mort- 
 gagee of the real estate ; and the court laid down the rule, 
 that if a mortgagor place fixtures upon the mortgaged 
 premises, they become part of the freehold, and he cannot 
 remove them ; and further, if the mortgagor, with the con- 
 sent of the owner of personalty, annex the same to the free- 
 
 84
 
 666 LAW OF FIXTURES. 
 
 hold, the fixture cannot be removed, as against a prior 
 movtgsigee{Fran7da)idv.MouUo)i,6Wis. Ji., 1). 
 
 Ill 1835, the Supreme Court of Erroi's of Connecticut de- 
 cided a case, in which it appeared that a religious society 
 leased a lot of laud to a tenant for a term of years, with 
 liberty to erect thereon any suitable dwelling-house or other 
 tenement, in pursuance of which the lessor erected a house 
 on the lot and paid taxes on the building. The court held, 
 that by the terms of the agreement between the 'S(^ciety and 
 the tenant, the house was not a part of the land, there being 
 an ov/nership in the one distinct from that in the other. 
 
 Bissell, J., delivered the opinion, and said: "Here, by 
 the agreement between the parties, the buildings are not 
 considered as a part of the land, or as belonging to it. The 
 society derive their revenue from the ground rent alone. 
 They permit their lessees to put on what buildings they 
 please ; and by the terms of the lease, they have the power 
 of removing them at the end of the term. Thus, an interest 
 in the buildings is created entirely distinct from an interest 
 in the lands. The title to one remains in the society, wliile 
 the ownership of the other is vested in their lessees. * * ^t 
 The lease before us gives a license to the tenant, to erect 
 whatever buildings he pleases, and also the power of remov- 
 ing them. The buildings erected in pursuance o^ the license, 
 are treated as personal property, and are placed as com- 
 pletely under the control of the lessee, as any other personal 
 property which he might put upon the demised premises" 
 {Parker v. Reclfield, 10 Gonn. R., 490, 496, 497). And the 
 same court decided a case in 1848, in which it appeared that 
 a person erected a building upon the land of another, with 
 his own money, and for his own exclusive use, as discon- 
 nected from the use of the land, and with an implied under- 
 standing to that effect between the owner of the land and the 
 builder. The court held that, althougli the building was 
 permanently affixed to the freehold, it was nevertheless, un- 
 der the circumstances, to be considered as personal estate. 
 
 Ellsworth, J., in his opinion, said: " Wti are aware that, 
 the general principle of law is, that a building permanently 
 fixed in the freehold becomes a part of it — W\?iX 'prima facie
 
 RULE AS VARIED BY AGREEMENT. 667 
 
 a house is real estate, belonging to the owner of the land on 
 which it stands. But it may be personal estate, and, in our 
 iudgment, is so, where it is a conceded or established fact 
 that it was erected by the builder, with his own money, and 
 for his own exclusive use, as disconnected from the use ot 
 the land, and with the understanding of the owner of the 
 land and the builder, that it was thus erected, and is re- 
 movable at the pleasure of either ; and this, whether it was 
 on rollers, &c., or not. We know of no case opposed to 
 this view of the law. If a man sows upon his own land, the 
 crop is parcel of the land ; if he sows upon his neighbor s 
 land, with the agreement that the crop is to be his and re- 
 movable by him, it is not parcel of the land, but personal 
 estate The cases are parallel. So buildings, crops and 
 earth itself, sold to be separated from the land, are not 
 within the statute of frauds; for, by reason of the under- 
 standing and agreement of the parties, they have lost their 
 character, as parcel of the realty" {Curiiss v. Hoyt, 19 Conn. 
 R., 154, 164, 165, 166). . . 
 
 The Supreme Court of Ohio decided a case in 1863, wherein 
 it appeared that the owner, in selling his brewery, conveyed 
 the real estate by deed, therein describing the Premises by 
 metes and bounds, the consideration stated being $16,000, 
 and by bill of sale sold and transferred to the same person, 
 among other articles, the property in controversy, for the 
 consideration of $9,000, and received from the purchaser a 
 real estate mortgage, the description therein being the same 
 as in the deed, to secure the unpaid purchase-money. Ihe 
 purchaser subsequently executed chattel mortgages upon 
 the property included in the bill of sale. The court held 
 that the deed, bill of sale, and mortgage, having been exe- 
 cuted at the same time, and as parts of the same ti-ansac- 
 lion each should be held to have been designed by the 
 parties to perform its appropriate office in consummating 
 the sale; and that as between the vendor and the mort- 
 o-ao-ees in the chattel mortgages, under the agreement, as 
 evrdencedby said instruments, the property included m the 
 .bill of sale, was to be regarded as personalty {Fortman v. 
 ' Ooepper, 14 Ohio St. R., 558).
 
 668 LA W OF FIXTURES. 
 
 In a case decided by the Supreme Court of California in 
 1863, it appeared that the owner of a mill made a mortgage 
 thereof to a party, and afterward bought a steam-engine 
 and boiler upon credit, and gave the owner a chattel mort- 
 gage thereon to secure the purchase- money, and placed them 
 in his mill, attaching them to the realty. It was held that 
 the claim under the chattel mortgage was superior and prior 
 to the real estate mortgage over the engine and boiler. 
 
 Crocker, J., delivered the opinion of the court, and ob- 
 served : "After the execution of the Lombard mortgage, 
 the mortgagor took possession of the property, removed.it, 
 and set it up in the quartz mill. Did this act of the mort- 
 gagor, even though done with the knowledge and consent 
 of the mortgagee, divest the latter of a valid lien, fully 
 vested, and subject it to a prior lien on the mill ? Treating 
 the property described in the appellant's mortgage as real 
 estate, there is no doubt that when the boiler and engine 
 were attached to the realty, they became subject to his mort- 
 gage. * * * But it is equally clear that their mortgage was 
 no lien thereon before the propert}'" was so attached. We 
 are not aware of any rule of law or equity which will divest 
 the defendant Lombard of the priority of lien lawfully ac- 
 quired by him upon the property described in his mortgage, 
 by any means as are shown in this case" {Tlhhetts v. Moore, 
 28 Cal. B., 208). 
 
 A case was decided by the Supreme Court of Pennsyl- 
 vania in 1848, in which the doctrine that the question of 
 fixtures may be .determined by the agreement of parties, 
 was carried to a considerable extent. It appeared that, 
 under an execution issued on the only judgment then exist- 
 ing against a defendant, the sheriff levied upon, amongst 
 other property, two stills erected in the nsnal wa}^ in the 
 distillery of the defendant, which, with the consent and al 
 the request of the plaintiff and defendant in the said execu- 
 tion, the sheriff offered for sale as personal property, and 
 sold the same to the plaintiff in said execution. The court 
 held that the agreement of the plaintiff and defendant in 
 the execution, no other person tke?i having the right to ob- _ 
 ject, that tlie stills should be sold as personal property, dis-
 
 RULE AS VARIED BY AGREEMENT. 669 
 
 Densed with tlie necessity of determining whether they were 
 real or personal property, and that they passed by the sale 
 to the purchaser as personal property. _ 
 
 Roo-ers, J., delivered the opinion of the court, and, in 
 speaking of tlie position of the purchaser at the sheriif s 
 sale said • " By the sale as between him and the defendant 
 in tile execution, he became entitled to the still, f oHt is in 
 full proof that the sale was with the assent of y\ illiam 
 Noacre, who agreed it should be taken and sold as personal 
 property Now whether, in contemplation of law, it was 
 attached to the realty or not, as a fixture, is immaterial as 
 the parties agreed to consider it personal property. Ihis 
 dispenses with the necessity of determining whether it was 
 personal or real" {Piper v. Ifartin, 8 Penn. P., 206, 212). 
 A case was decided by the Supreme Court of Kansas, m 
 the year 1872, in which it appeared that the plaintiff built 
 a steam-engine for a mill, and, before it left their shop, took 
 a chattel mortgage upon it to secure the purchase-money, 
 with a stipulation that they might take possession of and 
 remove the engine, whether attached to realty or not. 
 The engine was set up in the mill, which had been previ- 
 ously mortgaged, and which was subsequently sold to the 
 defendant in the action on foreclosure of the mortgage. 
 The court held, that the intention of the parties, as evinced 
 by the chattel mortgage might be looked to as controlling 
 in the determination of the character of the property ; and 
 that the court below properly held that it remained personal 
 property, and subject to the chattel mortgage. 
 
 Kino-man, C. J., delivered the opinion of the court, and, 
 after slating the facts, and the guides for the determination 
 of the questions involved, observed : "Testing this case by 
 these principles, and we have no doubt that the decision of 
 the district court was correct. The engine when built, and 
 at the shop of builders, was unquestionably personal prop- 
 erty Under the light of adjudicated cases, and having no 
 regard to the terms of the chattel mortgage, it may well be 
 doubted whether it ever became a part of the realty as be- 
 tween vendor and vendee. ^- * * But when we consider the 
 purpose of the parties, as evinced by the mortgage, to make
 
 670 LAW OF FIXTURES. 
 
 the engine retain the character of a chattel, regardless of 
 the manner of its attachment to the mill, and as the mort- 
 gage violated no principle of law, wrought no injury to the 
 rights of any, and was in the interest of trade, we have no 
 doubt that the engine continued to be personal property. 
 * * * In this case the parties have declared that the engine 
 shall retain its character of personalty ; and the facts in the 
 case do not overcome the inference drawn from the contract. 
 It is not an inference drawn solely from the relation of the 
 parties, or the nature of the estate, but a positive stipula- 
 tion made by the parties. The intent is not inferred from 
 facts, or left in doubt. That intent was that the engine 
 should continue personal property, and we think it retained 
 that character" {Eaves v. Estes, 10 Kanses B., 314, 316- 
 318). Here the court seems to have put stress upon the fact 
 that the engine in question was mortgaged before it left the 
 shop of the builder, and before it became attached to the 
 freehold. This is a distinction that it is important to bear in 
 mind in the determination of cases of the class under con- 
 sideration in this chapter. 
 
 The editor of the Albany Law Journal, in his notes upon 
 the case of Eaves v. Estes, remarks : "Of course there was 
 no attempt to decide that parties can by any arrangement 
 between them make property either real or personal. It 
 was said in this case, as in Ford v. Cobh (20 N. Y. 348), that 
 the ordinary distinction between real estate and chattels 
 exists in the nature of the subject, and cannot in general be 
 changed b}^ the convention of the parties. Thus, it would 
 not be competent for parties to create a personal chattel 
 interest in a j)art of the separate bricks, beams or materials 
 of which the walls of a house are composed. Rights by 
 way of license might be created in such a subject, but it 
 could not be made claimable as chattels, -or subjected to the 
 general rules by which the succession of that species of 
 property is regulated. But it is otherwise with things 
 which, being originally personal in their nature, are attached 
 to the realty in such a manner that they may be detached 
 wdthout being destroyed or materially injured, and without 
 the destruction of, or material injury to, the things real
 
 RULE AS VARIED BY AGREEMENT. 671 
 
 with which they are connected, though their connections 
 with the land or other real estate is such that, in the ab- 
 sence of an agreement, or of any special relation between 
 the parties in interest, they would be part of the real estate" 
 (12 Albany Lam Journal, 177). 
 
 The Supreme Court of Maine decided a case some years 
 since, in wliich it appeared, tliat tlie owner of a saw-mill 
 and fixtures, mortgaged to tlie plaintiff in the action, "a 
 shingle machine and clap-board machine," fastened to the 
 saw-mill with "nails or spikes and keys." Six months 
 after the execution of the chattel mortgage, a judgment 
 was recovered against the mortgagor, upon which an execu- 
 tion was issued to the sheriff who levied the same upon the 
 saw- mill, and by virtue of the execution sold the same at 
 public sale to the defendant in the action. Thereupon, the 
 mortgagee demanded the machines of the purchaser of the 
 mill at sheriff's sale, and upon his refusal to surrender the 
 possession thereof, brought his action of trover to recover 
 tlieir value. The court held that the machinery was part 
 of the realty, and passed to the purchaser at the sheriff's 
 sale {Trnllv. Fuller, 28 Maine R., 545). 
 
 It will be observed that the machinery in the case of Trull 
 V. Fuller, was attached to the mill before the execution of 
 the chattel mortgage upon it ; whereas in some of the cases 
 examined, tlie jDersonal chattels were mortgaged, and after- 
 ward affixed to the freehold. The distinction is important. 
 
 A case was decided by the Supreme Court of Vermont in 
 1871, in which it appeared that the defendant in tlie action 
 sold machinery under a condition that it should remain the 
 property of the vendor, until the purchase price was paid, 
 but the machinery, consisting of a circular saw-mill and 
 saw, belts, water-wheel gearing, with shaft and box, and 
 drum-flanges, was of such a character that when it was put 
 in its place in the mill it would pass under a mortgage of 
 the mill as real estate, and the owner of the mill, subse- 
 quently to the annexation of part of the machinery, mort- 
 gaged the mill premises with the machinery to the plaintiff 
 in the action, who had no notice of the defendant's claim in 
 respect of the machinery as not yet being paid for. It was
 
 672 LAW OF FIXTURES. 
 
 held that the part of the machinery which had been fixed in 
 the mill passed to the plaintiff under his mortgage, his 
 equity as mortgagee without notice being paramount to the 
 equity of the unpaid vendor of the machinery ; but as re- 
 garded the other part of the machinery which was lying in 
 the yard of the mill but had not yet been put up in or an- 
 nexed to the mills, the plaintiff had no title to that under 
 his mortgage as against the defendant the unpaid vendor, 
 but only as against his own mortgagor, the owner of the 
 mill {Davenports. Shants, 43 Vt. R., 546). 
 
 And the same court disposed of an earlier case, where a 
 party erected a building for his own use upon. the land of 
 another, by virtue of a parol license from the owner of the 
 land, and the building was annexed to the freehold so as to 
 become a fixture. Subsequently the owner of the land ex- 
 ecuted a mortgage upon the premises to a party who had no 
 notice of the license mentioned, and upon default of pay- 
 ment of the money secured, the mortgagee foreclosed his 
 mortgage, and on the expiration of his decree of foreclosure, 
 entered into possession of the premises. It was held that 
 the mortgagee was entitled to the building as well as the 
 land, and might maintain tresj^ass against the person erect- 
 ing the building, if he then removed it. The court further 
 held, that one purchasing the title of the mortgagee after 
 the decree of foreclosure, but before possession w^as obtained 
 under the decree, would hold all the title to the building 
 which the mortgagee had, and was not afi'ected by his own 
 knowledge that the building was erected under such a 
 license. And further, that the mere fact, that the licensee 
 occupied the building, was not notice to the world of his 
 license or his claim of title thereunder, but merely of the 
 fact that he was in possession {Poioers v. Dennison, 30 Vt. 
 R.,152). 
 
 But perhaps the doctrine under consideration has never 
 been carried further than in the case decided by the Court 
 of Appeals of the State of New York in 1859, wherein it was 
 held that salt kettles bought and mortgaged to the seller as 
 personalty to secure the purchase-money, and afterward 
 affixed to the freehold, continued personalty as against a
 
 RULE AS VARIED BY AGREEMENT. 673 
 
 subsequent purchaser of the realty, who had no notice of 
 the facts, other than constructively from the filing of the 
 chattel mortgage. The case is quite fully stated in a pre- 
 vious chapter, but it may be added here, that the only agree- 
 ment in reference to the rights of the seller in the salt kettles, 
 was contained in an ordinary chattel mortgage, which was 
 filed as required in respect to mortgages as personal property, 
 and the court expressly considered the case in that light, 
 and as though the grantee of the real estate purchased the 
 land, and took a conveyance of it without any notice of the 
 claim to the kettles under the chattel mortgage {Ford v. 
 Cohh, 20 N. Y. ^., 344, 346). The other cases contained in 
 ante, chapter eight, substantiating the principle that the 
 general law of fixtures may be varied by -agreement of par- 
 ties, may be referred to uj)on the subject of this and the last 
 preceding chapters, and thus supersede the necessity of rep- 
 etition in this place. 
 
 From the authorities examined, it is obvious thkt the 
 courts are not entirely harmonious as to the extent to which 
 the doctrine of modifying the general law of fixtures by 
 agreement of parties, may be carried. The authorities, how- 
 ever, would seem to be unanimous that things, personal in 
 their nature, may retain their character as personalty, by 
 the express agreement of the parties to that effect, although 
 subsequently attached to the realty, provided that they are 
 attached in such a manner that they may be detached with- 
 out being destroyed or materially injured, and without the 
 destruction of, or material injury to the things real with 
 which they are connected. But some of the cases hold that 
 the rule would not obtain as against a subsequent grantee 
 or incumbrancer of the real estate to which the chattels were 
 afiixed, without notice of the agreement of the parties, that 
 they were to retain their character of personalty ; while a 
 majority of the cases, perhaps, do not regard the want of 
 such notice as controlling on the question, , And, in respect 
 to the character of the evidence required to prove the agree- 
 ment that the chattel shall retain its personal nature after it is 
 afiixed to the freehold, the cases are also somewhat at va- 
 riance. For example, in the case of Ford v. Gobi} (20 N. T. 
 
 85
 
 674 LAW OF FIXTURES. 
 
 JR., 344), the Court of Appeals of tlie State of New York de- 
 cided, that the execution of a chattel mortgage upon the 
 article before it was attached to tlie realt}^, without any 
 special agreement in resj^ect to it, was sufficient of itself, to 
 prevent the same from becoming a part of the realty. While 
 the Commission of Appeals of the same State subsequently 
 held, that chattels affixed to the freehold did not retain 
 their personal character, from the fact that a chattel mort- 
 gage executed before their annexation had been placed 
 upon them to secure the purchase price of the articles an- 
 nexed ( Voorhees v. McGinnis, 48 N. Y. JR., 278). It should 
 be stated, however, that the judge who delivered the pre- 
 vailing opinion in this case, labored to show that the articles 
 in question were originally intended, by the party who af- 
 fixed them, to be a permanent accession to the freehold, and 
 hence, were a part of the realty, upon the same principle 
 that bricks worked into the walls of a house 'become part of 
 the house. It may be suggested also, that there was a fact 
 in the case, which might very well have influenced the de- 
 termination of the question, though not noticed by the court : 
 namely, that some of the property was already attached to 
 the realty when the chattel mortgages were executed, and 
 one of the articles, the engine, had been attached, and was 
 temporarily away for repairs at the time of the*execution of 
 the chattel mortgages ; and the remainder, the boilers, were 
 procured to take the place of others which had been at- 
 tached before the chattel .mortgages were executed, and the 
 old ones were received in part paj'ment of the new. It does 
 not follow, therefore, that the case of Voorhees v. JMcGinnis 
 necessarily overrules the case of Ford v. Cohh, and it does 
 not purport to do so. 
 
 And in order to understand more fully the disparity of 
 the authorities upon the subject, it -should be noted that the 
 courts of other States have sometimes acted upon and ap- 
 proved the principles laid down in Ford v. Cobb, while in 
 other instances the case has not been entirely acquiesced in. 
 For example, in Brennan v. Wliitaker (15 Ohio St. JR., 446), 
 cited in a previous chapter, the Supreme Court of Ohio do 
 not acquiesce in the doctrine of Ford v. Cobb, to the extent
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 675 
 
 to which it is carried in that case. While in Eaves v. Kstes 
 {10 Kansas, 314), referred to in this chapter,' the Supreme 
 Court of Kansas, seem to recognize the case of Ford v. Cobb 
 to the fullest extent ; for, although there were special stipu- 
 lations in the chattel mortgage in that case in respect to the 
 engine in controversy, yet the court say, that under the 
 light of adjudicated cases, and having no regard to the 
 i^rms of the chattel mortgage, it might well be doubted 
 whether the articles ever became part of the realty, as be- 
 tween vendor and vendee. And in some of the cases, ex- 
 amined ; for instance, the case in 28 Maine, 545, the chattels 
 were already affixed to the realty before they were mort- 
 gao-ed as personalty, and are not, for that reason, authorities 
 ao-ainst the rule laid down in Ford v. Cobb. On the whole, 
 therefore, it is not quite safe to venture a decided opinion 
 as to whether or not, a simple chattel mortgage upon a chat- 
 tel before it is affixed to the freehold, will be eventually 
 held to be sufficient to prevent such chattel from becoming 
 a part of the realty, as against a bona fide purchaser or in- 
 cuhibrancer of the real estate, after the annexation of the 
 chattel. Upon that aspect of the question under considera- 
 tion, there is respectable authority both ways. 
 
 CHAPTER L. 
 
 LAW OF FIXTURES AS BETWEEN HEIR AND EXECUTOR OR ADMINISTRA- 
 TOR—GENERAL RULE IN SUCH CASES — DOCTRINE OF THE TEXT 
 WRITERS — EXAMINATION OF THE ENGLISH AUTHORITIES UPON THE 
 SUBJECT. 
 
 AiiOTHER class of persons between whom questions as to 
 fixtures not unfrequently arise, is that of executor or ad- 
 ministrator and the heir of a deceased person, whether 
 lessee or owner in fee. In respect to this class, Lord Ellen- 
 borough declared, in the great case of Elwes v. Maw (3
 
 676 LAW OF FIXTURES. 
 
 East's R. 51), that the rule "obtains with the most rigor in 
 favor of the inheritance, and against the right to disannex 
 therefrom, and to consider as a personal chattel any thing 
 which has been affixed thereto." Here it is evident that the 
 heir and tlie personal representative of the deceased equally 
 claim as volunteers, and they have therefore neither of them 
 any equity or ground of preference over the otlier. As be- 
 tween themselves, the law is plain, that according as the res 
 principalis or land goes to the one or to the other of them, 
 so does the res accessoria or fixtures go to the one or to 
 the other. 
 
 In some instances the question of fixtures between the 
 personal representative and the heir is measurably de- 
 termined by provisions of statute ; but it is essential to 
 understand the doctrine in the absence of statutory en- 
 actment. 
 
 It may be affirmed, that in the early periods of the law, 
 the rule was inflexible, that whatever was affixed to the 
 freehold, should descend to the heir as part and parcel of 
 the inheritance. As long ago as the reign of Henry VII,' in 
 England, questions between the executor and the heir as to 
 things set up by the owner in fee, came before the courts ; 
 and it was then clearly laid down, that the executor was 
 not entitled to any thing that was unconnected with the 
 testator's freehold. The early text writers, treating of the 
 respective claims of these parties, express themselves in ex- 
 act conformity with the principles of these ancient cases. 
 Swinburne, in his Treatise on Wills, in stating what matters 
 are to be put into the inventory of the executor, observes, 
 that "glass,' annexed to the windows of the house, is parcel 
 of the inheritance, and the executor shall not have it. The 
 like may be considered of wains.cot, howsoever it may be 
 affixed ; and if the executors should remove it, they are 
 punishable for the same. And not only glass and wainscot, 
 but any other such like things affixed to the freehold, or to 
 the ground with mortar and stone ; as tables dormant, beds, 
 bayes, mangers, &c., for these belong to the heir, and not 
 to the executor." 
 
 In Shephard's Touchstone, 469, 470, it is said that an ex-
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 677 
 
 eciitor or administrator "shall not have the incidents of a 
 house, as glass, doors, wainscot, and the like,. no more than 
 the house itself; nor poles, walls, staulks," &c. And 
 again, "tables dormant, furnaces of lead and brass, and 
 vats in a brew and dye-house, standing and fastened to the 
 walls, or standing in or fastened to the ground in the mid- 
 dle of the house (though fastened to no wall) ; a copper or 
 bed tixed to the house ; the doors within and without that 
 are hanging and serving to any part of the house, shall not 
 go to the executor or administrator to be divided and sold 
 from the house, albeit the executor or administrator have a 
 lease for years of the house, and by that means hath the 
 lease also. But if the glass be from the windows, or there 
 be wainscot loose, or doors more than are used, that are not 
 hanging or the like, these things shall go to the executor or 
 administrator." 
 
 In Noy' s Treatise, 9th edition, pages 144, 237, it is said : 
 "All chattels shall go to the executor, as vats and furnaces 
 fixed in a brew-house or dye-house by the lessee, but if 
 they be fixed by tenant in fee, the heir shall have them." 
 And again: "The heir shall have not only the glass and 
 wainscot, but any other of such like things affixed to the 
 freehold or ground, as tables, dormants, furnaces, vats in 
 the brew-house or dye-house." 
 
 Sir Michael Foster, an English writer of a later date, in 
 his Report of Crown Cases, in discussing the question 
 whether a cupboard or chest let into the wall is so far a part 
 of the house, as to make the breaking it open to be burglary 
 at common law, or an offence within the statutes respecting 
 house-breaking, considers that in general the annexation of 
 articles of the description mentioned makes them part of 
 the freehold, and the property of the heir ; though the rule 
 in criminal cases is otherwise, in favor em vitce, lie says : 
 "AVith regard to cupboards, presses, lockers, and other fix- 
 tures of the like kind, I think we must, in favor of life, dis- 
 tinguish between cases relative to mere property, and such 
 wherein life is concerned. In questions between the heir 
 or devisee and the executor those fixtures may with pro- 
 priety enough be considered as annexed to and parts of the
 
 678 LAW OF FIXTURES. 
 
 I'l'Heliold. Tlie law will presume that it was the intention 
 of the owner under whose bounty the executor claimeth, 
 that the}' sliould be so considered ; to the end that the house 
 might remain to those, who, by operation of law or by his 
 bequest, should become entitled to it, in the same plight 
 he put it, or should have it, entire and undefaced" {Crown 
 Cases, 109). 
 
 This rule of law with regard to annexations to the free- 
 hold, as between the representative of a deceased owner and 
 the heir, was observed with great rigor for a long period of 
 time. But this strictness, as in cases between certain other 
 parties, has, in later times, given way to a more liberal con- 
 struction in favor of the executor and the personal estate in 
 certain cases ; and a departure from the ancient rule, with 
 regard as well to fixtures put up for trade, as to those put 
 up for other purposes, has been recognized, to a certain ex- 
 tent, by several modern authorities which are entitled to 
 the higliest consideration ; although in some instances the 
 courts have hesitated to acquiesce in the propriety of this 
 departure from the general rule. 
 
 Judge Eedfield, in his excellent work upon the Law of 
 Wills, observes: " In regard to the law of fixtures, between 
 the heir and the executor, the construction has always been 
 more strict in favor of the inheritance. In this relation it 
 seems that nothing which was erected for permanent use 
 and advantage of the land, and wliich, at the time of its 
 erection, was intended to remain permanently upon, or at- 
 tached to, the soil, can ever be removed by the executor. 
 And the same rule, substantiall}^ obtains between grantor 
 and grantee, or vendor and vendee ; and equally between 
 mortgagor and mortgagee" (2 Redjield on Wills, 145, 146). 
 . The doctrine laid down by Judge Redfield would exclude 
 the principle upon which a relaxation in favor of trade is 
 founded, from the consideration of a case between the heir 
 and executor of the owner of the inheritance; and many 
 modern authorities justify this position. Passing over sev- 
 eral interesting cases decided by the English courts, it will 
 be profitable to consider at length a case decided by the 
 House of Lords in 1846. The case was an appeal from a
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 679 
 
 decree of the Court of Sessions of Scotland, in which the 
 following were the facts : 
 
 One Dixon, deceased, was an extensive coal and iron mine 
 owner, and was, at the time of his death, engaged in work- 
 ing mines ; some of which were his freehold property, hav- 
 ing been purchased by himself, while of the rest he was 
 tenant under leases for various terms. A very valuable 
 portion of his property consisted of engines, colliery uten- 
 sils, rails, &c., employed in the business he carried on; 
 After his death a question was raised whether these engines, 
 machinery, &c., were to be considered heritable property, 
 and to pass with the estate to the heir, or movable property, 
 and belonging to the executors. 
 
 The Lord Ordinary, before whom the cause was appointed 
 to be heard, referred it to one, and afterward to a second 
 referee, to report as to the nature of the property, &c. The 
 second referee decided all the machinery as capable of being 
 moved and replaced, but said that the removal would be 
 very expensive ; that it would more or less deteriorate the 
 value of the machinery ; that for that reason machinery was 
 often left by the tenant, and its value made a matter of ar- 
 rangement between him and the landlord ; and that some 
 parts, such as the steam-engine for pumping the mines, 
 must, if removed, be instantly replaced, or very serious 
 damage would arise to the mines. He also referred to the 
 practice of the country, and said, that the practice at coal 
 and iron works, similar to those of the deceased, was to re- 
 move the mechanism of the engine, and other machinery, 
 from one part of the premises to another, as occasion re- 
 quired. The practice, also, was for the tenant, at the ter- 
 mination of a lease, to remove the whole of such engines 
 and machinery, if not previously belonging to the landlord. 
 And in the event of the exhaustion of the mineral field, or 
 any permanent bar arising to tlie profitable Avorking of the 
 minerals, the whole of the engines and machinery was re- 
 moved by the tenant, or worker of the field, or by the pro- 
 prietor, if his property. 
 
 The case was afterward debated before the Lord Ordinar}^ ; 
 and accounts and inventories were put in, from which it
 
 680 LAW OF FIXTURES. 
 
 appeared tliat the steam-engines and rails were treated and 
 described by the testator as "movable property," but the 
 lands as heritable. 
 
 The Lord Ordinary referred the case as one of difhculty to 
 the Lords of the Second Division ; and their Lordships de- 
 termined to consult the Lords of the First Division, and the 
 permanent Lord Ordinary. The majority of the Lords 
 finally expressed the opinion to the effect, that the ma- 
 chinery that was fixed to the soil, and could not be used 
 without being so fixed for the profitable use of the land, was 
 heritable. 
 
 From this decision there was an appeal to the House of 
 Lords. On the hearing of the appeal, it was argued for the 
 appellant, that this machinery employed by the testator to 
 work the mines, was used by him in the course of his trade, 
 and, therefore, it fell within the principle of law, which in 
 favor of trade, treats such articles as personal property. 
 The case -of the cider-mill, and those of Lawton v. Laioton, 
 and Lord Dudley v. Lord Warde, were relied upon for es- 
 tablishing that proposition. Lawton v. Salmon was dis- 
 tinguished on the ground that the salt-pans were a necessary 
 part of the estate itself, which without the pans, would be 
 almost useless to the owner. They were accessories to the 
 necessary enjoyment of the inheritance; but the machiner}^ 
 in the present case was an accessory, not to the enjoyment 
 of tlie estate, but to the carrying on of the testator's trade ; 
 and the expressions of Lord Ellenborough in Elioes v. Mam, 
 as to a thing being an accessory to a matter of a personal 
 nature, were also cited. These cases have all been fully ex- 
 amined in previous chapters, and may be referred to for the 
 principles they lay down. 
 
 For the respondent it was urged, that the machinery in 
 question rendered the land capable of profitable emplo}^- 
 ment, was erected for this sole object, and for the better en- 
 joyment of the estate. The case of Lawton v. Salmon was 
 much relied upon, and it was urged that the facts of the 
 cider-mill case were too imperfectly known to be considered 
 an authorit}^. It was, moreover, insisted, that the principle 
 of the convenience of trade applied only to cases where the
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 681 
 
 erections were not made for tlie better enjoyment of the 
 land, but merely for the purposes of trade ; and where such 
 erections were put up by persons having only a transitory 
 interest in the land, and where they are claimed by the 
 creditors of those persons. 
 
 The judgment was pronounced at a subsequent period. 
 Lord Brougham said, that, upon the fullest consideration 
 he had been able to give both to the English and the Scotch 
 authorities which were cited, he entirely agreed with the 
 majority of the court below. He observed: "Great reli- 
 ance w^as of course placed upon the case before Lord Hard- 
 wicke in our Court of Chancery here, and a similar case 
 which occurred in the Court of Exchequer, I think in Lord 
 Lyndhurst's time. But there was an attempt made to dis- 
 tinguish this case in principle from that, and to show that 
 there was another inconsistent decision in the cider-mill 
 case. Now it is a remarkable circumstance, that of that 
 case we have only a very indistinct and unsatisfactory re- 
 port. We have really nothing that can be called a record 
 of that case. It was cited in the case before Lord Hard- 
 wicke ; and I must also say, that if the cider-mill case is to 
 be taken as it is represented to us, as regards the substance 
 of the case and its result, my mind goes not at all with that 
 decision. It is contrary, undeniably, to the general princi- 
 ples of our law upon the subject ; and if the same question 
 were to arise to-morrow, with the circumstances which are 
 represented to have attended that case, it would not, in my 
 opinion, lead to the same result. Therefore I lay it out of 
 view. We have a most imperfect account of the circum- 
 stances, and above all, of the most material circumstances, 
 of how the mill was affixed to the soil. For if a cider-mill 
 be fixed to the soil, though it is a manufactory, and erected 
 for the purposes of a manufactory, if it is really solo infixum, 
 it is perfectly immaterial whether it is for the purpose of a 
 manufactory, or a granary, or a barn, or any thing else. It 
 is a fixture on the soil, and it becomes part of the soil. Can 
 any one say that one of the great brew-houses would belong 
 to the executor, because it is erected for a manufacture, and 
 wholly unconnected with the land^' His Lordship there- 
 
 86
 
 682 LAW OF FIXTURES. 
 
 fore recommended that the judgment of the court below 
 shouki be affirmed. 
 
 Lord Cottenham, after some preliminary observations, 
 said : ' ' The principal stress of the argument on the side of the 
 appellant, has been that this is to be protected, because it is 
 necessary for the. encouragement of trade that this property 
 should be considered as not belonging to the real estate, 
 but as belonging to the personal estate. The principle upon 
 which a departure has been made from the old law, in fa- 
 vor of trade, appears to me to have no application to the 
 present case. The individual who erected the machinery 
 was the owner of the land, and of the personal property 
 which he erected and employed in carrying on the works ; 
 he might have done what he liked with it ; he might have 
 disposed of the land ; he might have disposed of the ma- 
 chinery ; he might have separated them again. It was, 
 therefore, not at all necessary, in order to encourage him to 
 erect those new works which are supposed to be beneficial 
 to the public, that any rule of that kind should be estab- 
 lished, because he was master of his own land. It was quite 
 unnecessary, therefore, to seek to establish any such rule in 
 favor of trade as applicable here, the whole being entirely 
 under the control of the person who erected this machinery. 
 "If, therefore, this be clearly a question of real or per- 
 sonal estate, and if the rule, which in some cases has been 
 acted upon, of making a departure from the established 
 principle in favor of trade, has no application to tlie present 
 case, what does it come to ? Of course we throw out of con- 
 sideration all the cases which have arisen between landlord 
 and tenant, and between tenant for life and remainderman, 
 because the departure which has taken place there in some 
 cases has no application to the present case. Then the case 
 being simply this, the absolute owner of the land, having 
 erected upon and affixed to the freehold, and used for tlie 
 purpose of the beneficial enjoyment of the real property, 
 certain machinery, the question is, is there any authority 
 for saying, that, under these circumstances, tlie personal 
 representative has a right to step in and lay bare the land, 
 and take away all the machineiy necessarj' for the enjoy-
 
 . RULE AS BETWEEN IIEIR AND EXECUTOR. 683 
 
 ment of the land I Let us consider for a moment, if that is 
 the principle, to what extent it is to go. It is put by Lord 
 Cockburn (in the Court of Sessions) (ai:\d a very strong illus- 
 tjation it is), if the owner of the land should dig a well, 
 and erect machinery for the purpose of using that well, 
 is it competent to the personal representative to come and 
 take away that machinery, and leave the well useless? He 
 thinks it is not. Where is the distinction between the two 
 cases ? Such machinery is capable of being taken away with 
 very little, if any, damage to the land. Although, there- 
 fore, machinery is, in its nature, generally, personal prop- 
 erty, yet with regard to machinery, in a manufactory erected 
 upon the freehold for the enjoyment of the freehold, no- 
 body can suppose that that is the rule of law ; and so with 
 respect to other erections upon land. It is not neces- 
 sary to go beyond the present case, which is a case of ma- 
 chinery erected for the better enjoyment of the land itself. 
 The principle probably would go a great deal further ; but 
 it is more advisable to confine the observations I have to 
 make to the particular circumstances of this case. There is 
 no case whatever whicfi has been cited in which that doc- 
 trine has been recognized, except the one which has been re- 
 ferred to (the cider-mill case), as to which we really know 
 nothing except that at the Worcester Assizes, a good many 
 years ago, a cider-mill was held to belong to the personal 
 estate. Why it was so held, under what circumstances, 
 and whether it was a cider-mill fixed to the freehold or not, 
 we do not know. We know nothing except that this ma- 
 chine, called a cider-mill, was decided to go to the personal 
 representative. It is impossible to extract a principle of 
 law from a case of which we know so little as that. And 
 with that exception there is a uniform course of decisions, 
 whenever the matter has been discussed, in favor of the right 
 of the heir to machinery erected under the circumstances of 
 the present case ; and if the corpus of the machinery is to 
 be held to belong to the heir, it is hardly necessary to say, 
 that we must hold that all that belongs to the machinery, 
 although more or less capable, of being used in a detached 
 state from it, still if it belongs to the corpus, the article,
 
 684 LAW OF FIXTURES. 
 
 whatever it may be, must necessarily follow the same prin- 
 ciple, and remain attached to the freehold." His Lordship, 
 therefore, was of opinon that the judgment should be 
 affirmed. 
 
 Lord Campbell also concurred in the same view of the 
 case; and said, he "had no doubt in the world that the 
 property in dispute should go to the heir both upon reason 
 and upon precedent. That none of the arguments respect- 
 ing the benefit of trade at all apply to a question as between 
 heir and executor, in a case like this, where the owner of 
 the fee being the absolute owner of the land and of the ma- 
 chinery erected upon it, the whole of it is in him, and he may 
 dispose of it as he shall think fit for the benefit of the family. 
 
 "Then with reference to the authorities by which we are 
 bound ; whatever speculative notions we might entertain 
 with respect to propriety and expediency, if we entertained 
 a different opinion upon that subject, all the cases are quite 
 uniform both in England and in Scotland to show that such 
 property shall go to the heir. The only case the other way 
 which has been referred to is that of the cider-mill, where 
 tlie essential circumstance is left entirely in doubt, whether, 
 in fact, the mill was fixed to the freehold or not." 
 
 His Lordship then proceeds to show, that the cider-mill 
 might have been a m^re movable,^ by citing the following 
 instance ; he says : "We know that a cider-mill is not neces- 
 sarily affixed to the freehold, a familiar instance of which is 
 given in the Yicar of Wakefield ; where, when a match Avas 
 proposed between one of the Misses Primrose and young 
 Farmer Flamstead, Moses said, ' I hope that if my sister mar- 
 ries young Farmer Flamstead, he will lend us his cider-mill.' 
 I take it that the cider-mi*ll there was movable, and was not 
 affixed to the freehold, but might have been carried from the 
 farm of Farmer Flamstead to the vicarage of the Primroses." 
 
 The interlocutor was affirmed with costs {Fisher v. Dixon., 
 12 CI. and F. R., 312). 
 
 The decision of Lord Brougham in the case of Fisher v. 
 Dixon is stated in Clark's House of Lords Digest, at page 
 365, in these words : 
 
 "In the absence of any disposition by the absolute owner
 
 RULE AS BETWEEN HEIR ANJ) EXECUTOR. 685 
 
 of land of macliinery erected by him upon and affixed to the 
 freehold, it will go to the heir as part of the real estate. 
 Also, if the corpus of such machinery belongs to the heir, 
 all that belongs to that machinery, although more or less 
 capable of being detached from it, and more or less capable 
 of being used in such detached state, must also be considered 
 as belonging to the heir. Moreover, no distinction arises in 
 the application of this rule from the circumstance that the 
 land did not descend to, but was purchased by, the owner." 
 This decision may, therefore, be considered as a judg- 
 ment entirely in favor of heir as against the executor to the 
 extent of the general principle, that one of the two con- 
 flicting parties who takes the house, should also take such 
 of the fittings and furnishings of the house as are necessary 
 to complete the conception of it as a properly habitable 
 abode. The decision has often been followed in England, 
 and has been recognized as authority in this country, al- 
 though it has not always been interpreted in exactly the 
 same way, in some of its aspects, by the courts. But the 
 decision itself does not seem to have been shaken or ques- 
 tioned in any subsequent case. 
 
 In 1870, a very important case was decided by the Sheriff- 
 Substitute of Perthshire in Scotland, and subsequently, 
 upon appeal, by the Sheriff, which is given by Mr. Brown 
 in an appendix to his work on Fixtures, and which on ac- 
 count of its intrinsic value, as an authority and precedent, 
 may be properly referred to in brief, in this place. The 
 case involved the right to ornamental and other fixtures in 
 a mansion-house, and the grounds attached, left by a bar- 
 onet, who died leaving a will. The position of the parties 
 disputants, and the articles in controversy will appear in the 
 opinions, portions of which are extracted. The Sheriff- 
 Substitute in his judgment said : " There are few questions 
 in law of greater nicety and subtlety than that of fixtures. 
 The question assumes different aspects in different posi- 
 tions. It sometimes arises between an heir and an execu- 
 tor, and the state of the case may be further complicated 
 by the fact whether the last propiietor was so absolutely or 
 only in life-rent, and again whether the heir is one of line
 
 686 LAW OF FIXTURES. 
 
 or by destination. The question frequently arises between 
 landlord and tenant, and there, again, differences exist be- 
 tween an urban and an agricultural subject, and especially 
 where the last is for the purposes of trade and manufacture. 
 A third series of cases arise between heritable and personal 
 creditors seeking to attach articles on the ground. And a 
 last section of those cases are those arising between cred- 
 itors attempting to attach articles as the property of a ten- 
 ant in a question with the landlord. In all those branches 
 of the question there are of necessity other and important 
 elements beyond the mere fact of lixity or movability. No 
 doubt this last is the primary point in the inquiry. When 
 tlie article questioned cannot be removed without either 
 destruction or substantial injury to itself or to the heritage 
 with which it is connected, then there can be no doubt but 
 it must be held as fixed, seeing that by such dislocation and 
 annihilation loss must be suffered by one and benefit re- 
 ceived by neither party. But the reverse does not hold 
 equally sound, that what can be removed must of necessity 
 be movable. In point of fact, under the omnipotence of force, 
 it may be said that every article is subject to motion. In 
 some American cities houses are made to order and sent by 
 wagons to their selected site. So, too, well-grown trees are, 
 by mechanical appliances, uprooted with their surrounding 
 soil and jDlanted in other localities. The nice distinction 
 between conjunction with the tenement by driven nails and 
 screws appears to be a very flimsy element by itself to de- 
 termine the question. No doubt the construction of the 
 article is of primary importance, but then that must be 
 viewed in close connection with its object or destination 
 following on the intention of the party originally plac- 
 ing it. * * * 
 
 ' ' In the present case the parties stand in a very peculiar 
 position. The leading pursuer is heir of entail. The de- 
 fender has the twofoM character of being a disponee by deed 
 inter vivos, and also by a mortis causa settlement universal 
 legatee and executor of the late proprietor, who, it is not 
 disputed, erected or placed all, or at least most, of the arti- 
 cles in dispute in their present position. The solicitor for
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 687 
 
 tlie defender very ably argued that in this question tlie two- 
 fold title of liis client was very strong and that the pursuer, 
 the present proprietor in tail, very weak. He represented 
 the late proprietor as being a mere life-renter, and therefore 
 that he had.no interest to enhance the heritage; but the 
 reverse, to diminish it for the benefit of his executors at the 
 expense of the next heir of entail. The Sheriff-Substitute 
 cannot adopt this line of argument. The source or origin 
 of entail, and the argument for its continuation, is the per- 
 petuation of ancient families, and therefore it seems to fol- 
 low that each successive heir in the line must feel bound in 
 honor to preserve the estate in its integrity and entirety and 
 (as is of frequent occurrence) even to acquire new estate, and 
 place the same under the fetters of the olden entail. * * * 
 
 "The Sheriff-Substitute, on the whole, is therefore in- 
 clined to view the question, so far as regards the competing 
 titles for the subject in dispute, very much in the same light 
 as if the late proprietor, Sir William Drummond Steuart, 
 had been an absolute proprietor, and that the present peti- 
 tioner. Sir Archibald Douglas, held from him a separate 
 conveyance to the estate of Murthly, and the defender held 
 from the same proprietor a conveyance of the movables on 
 the same estate either generally or by specification. * * * 
 The late baronet succeeded to the ancestral estate in 1839. 
 All the articles in dispute (with but few exceptions) were 
 afterwards erectedor placed by him in the mansion-house 
 and grounds. It is notorious that he had at the time one 
 son wdio, in the event of his survivorship, would succeed to 
 the entailed lands. But that son, after reaching majority, 
 died some years before the death of his father. This is a 
 very important fact in the question of destination. It ex- 
 plains why Sir William at one time did so much to adorn 
 and enhance the value of the family seat, and after the death 
 of his son might desire to undo, so far as he could, his first 
 act, and increase the amount of his executory at the expense 
 of the heritage, now falling to a less near relative. 
 
 "The Sheriff-Substitute therefore accepts as a general 
 principle, that wherever he finds the articles such as a ten- 
 ant would at his own hand place in the house leased by him
 
 688 LAW OF FIXTURES. 
 
 for Ms own temporary convenience and enjoyment, and not 
 in considerable degree fixed to the tenement, such as would 
 entitle his landlord fo prevent their removal, then the de- 
 fender should prevail. But where any article is so far fixed, 
 and has clearly been originally placed to complete the arch- 
 itectural design and ornamentation of the manor-house and 
 grounds, and obviously intended to be permanent, though 
 perhaps it might be possible to dissever them without injury 
 to such, or to the tenement, but which separation would 
 clearly be injurious to the amenity of the place, whilst the 
 articles in their separate state would be little, if at all, 
 suited for any other locality, then, in their combined cir- 
 cumstances, the Sheriff- Substitute is of opinion that such 
 articles must remain where originally placed." In accord- 
 ance with these views the Sheriff- Substitute gave judgment 
 in respect of the several articles in dispute, and an appeal 
 was taken to the Sheriff. 
 
 On full examination of the case, the Sheriff gave judg- 
 ment as follows : 
 
 "On the death of Sir William Steu^rt the mansion-house 
 and grounds of Murthly passed at once to the heir of entail, 
 the pursuer, and along with them all articles which at the 
 time of the said event stood so. connected or attached to the 
 said mansion-house and grounds, as to be considered a part 
 of or accessory to the houses or grounds as fixtures, con- 
 trasted with the personal chattels or movables, as these 
 terms have been construed between heirs and executors. 
 The term fixtures is more broadly interpreted as between 
 heirs and executors than between landlord and tenant, the 
 principle of law being that the heir is not to receive the her- 
 itage in a dilapidated, or dislocated condition from the re- 
 moval of what has been so fixed to, or connected with, the 
 undoubted heritable property that its removal produces that 
 effect. From the opinion of Lord Chancellor Brougham in 
 the case of Fislier v. Dixon there seems to be no difference 
 in such questions, and therefore judgments and authorities 
 from England (where cases as to what constitutes a sufl[icient 
 attachment to the freehold or heritage, x^articularly in man-
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 
 
 689 
 
 sion-liouses, have been more frequent and more minutely 
 discussed) may be founded upon. 
 
 "Between heir and executor it seems not to be ot material 
 consequence by whom the heritable structure was erected, 
 or whether the subject formerly a movable or chattel was so 
 connected or attached thereto as to render it a fixture. 
 With regard to each article in dispute, therefore, the ques- 
 tion oi fixture or no fixture must be determined by its actual 
 condition at the time of Sir William's death, and not by 
 any supposed right of removal or alteration which he may 
 have possessed during his life. 
 
 "There is no question as to all the ordinary furniture, 
 whether useful or ornamental, including the pictures or mir- 
 rors hung in the ordinary way, on the walls ; and with regard 
 to those articles which the Sheriff- Substitute has found to 
 be fixtures, Mr. Rhynd in his elaborate report has accu- 
 rately described their condition and the mode m which tUey 
 are attached to, or connected with, the undoubtedly herita- 
 ble property * * ^ There can be no doubt that the walls ot 
 the mansion-house, and the plaster thereon, and stucco cor- 
 nices and ceilings are a part of the heritage ; and if these 
 walls are covered with paper, pasted or fastened thereon, 
 the paper is a fixture, and it is conceived that the same 
 would be the case if cloth, silk, or other material, even tapes- 
 try be used instead of paper as a fixed and permanent 
 covering of the walls. So, if the walls be covered with 
 wainscot, it is a fixture, whether the wainscot be Axed^to 
 the walls with screws or ordinary nails or otherwise. 
 
 "With regard to the out-of-door articles the Sheriff agrees 
 with the Sireriff-Substitute as to all of them, with the ex- 
 ception of the garden seats of wood and iron which Mr^ 
 Rhynd has reported to be movable, and which the Sheritt 
 finds it difficult to distinguish from chairs and sofas inside 
 the house. Had they been stone seats it would have been 
 different. With regard to the cupid and dolphin forming 
 an essential part of the fountain, there can be no doubt ; and 
 the iron column, with the statue of Minerva thereon, seems to 
 be as much a fixture as the bronze column, with the statue 
 on the top, in the Place Yandome in Paris, which, notwith- 
 
 87
 
 690 LAW OF FIXTURES. 
 
 standing that tlie Communists removed tliem, were obvi- 
 ously in the eye of the law, forming the principal feature 
 and ornament of the Place Yandome, All the vases form part 
 of the permanent ornament of the flower-garden and pleas- 
 ure-grounds according to the tasteful plan thereof, and their 
 removal would destroy the unity and effect of the said plan, 
 and leave deformed bases or holes where they had stood" 
 {Steiuart v. Douglas, Brown on Fixtures, 3d ed., App. A). 
 
 This case was evidently regarded, both by the Sheriff- 
 Substitute and the Sheriff, as being between parties analo- 
 gous to the English heir and executor, and it, therefore, 
 may be considered a case in point upon the branch of the 
 law now under discussion. 
 
 CHAPTER LI. 
 
 LAW OF FIXTURES AS BETWEEN HEIR AND EXECUTOR OR ADMINISTRA- 
 TOR EXAMINATION OF THE AMERICAN AUTHORITIES UPON THE SUB- 
 JECT DOCTRINE OF THE CASKS RULE IN THE STATE OF NEW 
 
 YORK — - GENERAL RULE IN RESPECT TO EMBLEMENTS RULE IN RE- 
 SPECT TO HEIR-LOOMS AND THE LIKE RULE IN RESfECT TO TREES, 
 
 FRUITS AND GRASSES RULE AS TO DEVISEES. 
 
 With respect to the law of fixtures as between the heir 
 and executor or administrator in the United States, it may 
 be affirmed as a general rule, that it is substantially the 
 same as in England ; and the English authorities upon the 
 subject are quite generally recognized by the courts in this 
 country. As a rule, the principle to be collected from the 
 American authorities is, that nothing which was erected by 
 the owner for the permanent use and advantage of the land, 
 and which at the time of its erection was intended to remain 
 permanently upon or attached to the soil can ever be re- 
 moved by the executor. And accordingly it is laid down, 
 that goods and chattels annexed to the freehold go to the
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 691 
 
 lieir, and not to tlie executor or administrator. And, in re- 
 spect to machinery and the like, where it is erected by the 
 freeholder, for the purpose of the beneficial enjoyment of 
 the land, the general rule is held to be, that it will go to the 
 heir as part of the estate; and all that belongs to the ma- 
 chinery, though capable of being -detached from it, and 
 being used in such detached state, will follow the corpus of 
 the machinery ; and even in regard to manufactures, the 
 rule in England, that all articles affixed to the freehold, 
 whether by screws, solder, or by any other permanent 
 means, or by being let into the soil, partake of the nature 
 of the soil, and will descend to the heir, is also recognized 
 in this country. And further, it may be affirmed, that the 
 rule of law by which fixtures are held less strictly when 
 erected for manufacturing j)urposes, is' held, as a general 
 principle, to have no apj)lication to fixtures erected by the 
 owner of the land in fee. That is to say, such may be said 
 to be the rule, where the general law has not been modified 
 by statutory enactment. 
 
 In some of the States, statutes exist prescribing what arti- 
 cles of fixtures shall be deemed assets and go to the executors 
 or administrators, and what annexations shall descend with 
 the freehold, to the heirs or devisees of a deceased owner of 
 the realty. For example, in the State of New York, it is 
 provided by statute, that things annexed to the freehold, or 
 to any building for the purpose of trade or manufacture, 
 and not fixed into the wall of a house so as to be essential 
 to its support, shall be deemed assets and shall go to the 
 executors or administrators, to be applied and distributed 
 as part of the personal estate of their testator or intestate, 
 and shall be included in the inventory thereof. And the 
 same provision is made with respect to the crops growing on 
 the land of the deceased, at the time of his death ; that is 
 every kind of produce, raised annually by labor and culti- 
 vation, excepting grass growing and fruits not gathered ; 
 such crops which are produced annually, by cultivation, 
 are also declared to be personalty, as between the heir or 
 devisee and the executor or administrator. While it is pro- 
 vided, that things annexed to the freehold, or to any build-
 
 092 ^^^ OF FIXTURES. 
 
 ing, shall not go to the executor, but shall descend with the 
 freehold to the heirs or devisees, except such fixtures as are 
 before enumerated to belong to the assets. And by way of 
 greater caution, it is enacted, tliat the right of an heir to 
 any property not enumerated in the sixth section, which, by 
 the common law, would descend to him, shall not be im- 
 paired by the general terms of that section (2 R. S., 82, 83 ; 
 Same, 2 N. Y. Stat, at Large, 84, 85, §§ 6, 7). 
 
 A very important decision was made by the late Chancel- 
 lor Wahvorth in 1843, in which the effect of these provisions 
 of the statute upon the general law of fixtures, as between 
 the heir and executor or administrator, was elaborately con- 
 sidered. It was held, that water- wli eels, millstones, run- 
 ning-gear, and bolting apparatus of a grist and fiouring 
 mill, and other fixtures of the same character, w^ere constit- 
 uent parts of the mill, and descended to the heir at law as 
 real property ; and did not pass to the executors or admin- 
 istrators of the deceased owner of the mill as a part of the 
 personal estate. 
 
 The Chancellor, in his opinion, said: "The claim to the 
 millstones, bolts, and other machinery in the flouring mill, 
 by the administrators in this case, is founded upon the sup- 
 position that the Revised Statutes have established the rule 
 that every thing annexed to a building which is used for the 
 purposes of trade, or of manufacture of any kind, and 
 which is not necessary to support the walls of the building, 
 goes to the personal representatives, and not to the heirs of 
 the owner, upon his death. * * * Previous to the adoption 
 of the Revised Statutes there was a distinction supposed to 
 exist in relation to what was to be considered a part of the 
 realty, as between landlord and tenant, and as between the 
 heir at law and the personal representatives. It was also 
 supposed that an outgoing tenant might be permitted to re- 
 move fixtures, of a particular description, placed by him 
 upon the premises for a special purpose, which as between 
 the heirs at law and the personal representatives of the owner 
 of the freehold would have descended to the heirs. But 
 the legislature, whether wisely or otherwise it is not for me 
 to decide, in adopting the provision here referred to, prob-
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 693 
 
 ably intended to put the executor or administrator upon tlie 
 same footing with a tenant as to the right to fixtures. Such 
 at least was the recommendation of the revisors ; as appears 
 from their note to the 6th section, in which this provision is 
 found(3i2. >S'., 639, 2^e6Z.) 
 
 " It was impossible, however, to define, m a short sentence 
 of three lines, wliat was to be considered a part of the free- 
 hold itself, and what was never fixtures or things, annexed 
 to the freehold for the purposes of trade or manufacture. 
 We must therefore still go back to the common law, and to 
 the decisions of the courts, for the purpose of ascertaming 
 what is a substantial part of the freehold, and what is a 
 mere fixture or thing annexed to such freehold. We must 
 also resort to the same sources of information to ascertain 
 what is to be considered a part of a building, and what is in 
 its nature mere personal property and only annexed to such 
 building temporarily for the purpose of trade or manufac- 
 ture And I think, in this case, it may be safely assumed 
 that" it could not have been the intention of the legislature 
 to authorize the personal representatives of the decedent, 
 who owned this grist-mill in fee at the time of his death, to 
 strip it of its water-wheels, millstones, bolting apparatus, 
 and running-gear ; leaving to the heirs at law the mere sides 
 or walls of the building, with its floors, partitions and root. 
 Such however, as I understand it, is the claim made by the 
 defendants in this case. For it is not stated in the answer 
 that there are any other fixtures in this grist-mill and 
 flourino--mill except machinery and other apparatus of that 
 characrer and description. Fixtures of the character here 
 claimed are not only convenient but essential to the proper 
 enioyment of the inheritance ; and are therefore as much a 
 part of the freehold as the building and water-power, which 
 with them constitute the mill. The claim of the defendants 
 to the fixtures must therefore be rejected ' ' {House v. House, 
 10P«/^6\?C7i. i?., 158, 162, 164). 
 
 The orio-inal note of the revisors, to which the Chancellor 
 referred in his opinion, was as follows : " It seemed impor- 
 tant- to oive information to executors, administrators and 
 appraisers, of the description of property which was com-
 
 694 LAW OF FIXTURES. 
 
 mitted to their charge. The decisions of the courts have 
 fluctuated in respect to some of the articles enumerated ; 
 and it is desirable that the law relating to them should be" 
 made as permanent as it can be by legislative authority. 
 
 "It has been supposed that the same legal character should 
 be given to an article, without reference to the j)arties in 
 controversy ; and that therefore certain fixtures which are 
 deemed chattels as between landlord and tenant, should be 
 considered in the same light as between executor and heir. 
 A reference to Toller's Treatise, at p. 198, and to Co wen's 
 Rep., 665, will exhibit the uncertainty of the law on this 
 point. It ought, at all events, to be definitely settled. 
 
 "For these reasons this section has been drawn with 
 great care, so as to enumerate those articles which are 
 likely to occasion doubt, to settle some disputed cases, and 
 and yet to include every thing which ought to be included 
 by the use of general terms, and at the same time to pro- 
 tect the heir" (3 H. S., Med., 639). 
 
 The intention of the legislature in adopting the provis- 
 ions of the statute above mentioned, would seem to be rea- 
 sonably certain. Apparently, at least, the intention was to 
 abolish the distinction, which had become well established, 
 between the rights of a tenant to remove certain kinds of 
 fixtures which he had himself annexed to the freehold of 
 the demised premises, and those of the heirs or devisees. 
 But the important and unexpected consequences which it 
 was seen would flow from such an interpretation have caused 
 the courts to hesitate ; and in the first case in which the pro- 
 visions of the statute w^ere really brought in question, in 
 that of House v. House (10 Paige's Cli. R., 158), the Chan- 
 cellor held, that the rules of the common law upon the dis- 
 tinction referred to, still prevailed ; and the same conclusion 
 seems to have been reached by the Court of Appeals of the 
 State of New York. 
 
 In a case decided in 1858, Johnson, Ch. J., in giving the 
 opinion of the court, said : "In House v. House (10 Paige, 
 158), the Chancellor had occasion to consider the statutory 
 provisions which have been cited, and he observes that it 
 was impossible, in a sentence of three lines, to define what
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 695 
 
 was to be considered as part of tlie freehold itself, and what 
 were fixtures or things annexed to the freehold for the pur- 
 poses' of trade or manufacture ; and that it was, therefore, 
 still necessary to resort to the principles of the common law 
 and to the decisions of the courts, in order to ascertain what 
 is a substantial part of the freehold, and what is a tiling an- 
 nexed thereto for the purpose of trade or manufacture. 
 These observations are certainly just ; for it is quite obvious 
 that the statute does not mean that the executor shall take 
 every thing not essential to the support of the walls of a 
 building, but that only such things are spoken of as are not 
 a constituent part of the freehold, or of the artificial struc- 
 ture erected on the land" {Murdock v. Giffard, 18 N. T. 
 Ji., 28, 32, 33). 
 
 In 1850, the Supreme Court of the State of New York de- 
 cided a case at Special Term, in which the doctrine of the 
 Chancellor as laid down in House v. House (10 Paige's Ch. 
 a., 158), was expressly approved, and it was held that all 
 erections connected with a cotton factory, and other mills 
 propelled by water-power, including the dams, water-wheels 
 and gearing, and machinery fastened to the ground or build- 
 ings, are prima facie a part of the realty, and descend to 
 the heir at law of the owner, upon his death, and do not 
 pass to his executors or administrators as a part of his per- 
 sonal estate. And the rule in the State of New York was 
 declared to be, that as between grantor and grantee, vendor 
 and vendee, mortgagor and mortgagee, and heir and per- 
 sonal representatives of the deceased, whatever is annexed or 
 afiixed to the freehold, by being let into the soil or annexed 
 to it, or to some erection upon it, to be habitually used 
 there, particularly if for the purpose of enjoying the realty, 
 or some profit therefrom, is a part of the freehold. 
 
 Hand, J., in a very learned and elaborate opinion, reviews 
 the authorities upon the subject of fixtures, and among 
 others, the case of Walker v. Sherman (20 Wend. Ji., 658), 
 and in speaking of the opinion of Judge Co wen in that case, 
 observed: "In this opinion he suggests that, as between 
 heir and executor the Revised Statutes may have partially 
 altered the rule. And he adds, 'taken literally, it would
 
 696 LAW OF FIXTURES. 
 
 strip the heir of the wheels, gearing, and all otlier niacliinery 
 lixed in the ordinary way to a mill or manufactory inherited 
 b}^ heirs.! But this point was not argued; the case, "as we 
 have seen, being between tenants in common." Tlie learned 
 judge then examined the case of House v. House (10 Paige, 
 158), and several other authorities, both Ameiican and Eng- 
 lish, and said : "This review of the case is sufficient to show 
 what the law was before. And we have seen what construc- 
 tion Chancellor Walworth has put upon our statute. It is 
 difficult to see how any other can be given without doing in- 
 calculable mischief. This view of the law does no injury to 
 creditors ; for the real, as well as personal, property of the 
 decedent is held liable for all debts. But, if fixing into 
 the wall of a house so as to be necessary to the support of 
 the wall, is the test between heir and executor or adminis- 
 trator, then injury will be done to creditors by depreciation 
 and loss, as well as to heirs. Take the case of a flouring 
 mill erected for the purpose of manufacturing flour ; the 
 water-wheels, gearing, millstones and bolts, &c., must all 
 come away, and the mill be substantially rebuilt. If a saw- 
 mill, the destruction would be as complete. If a forge, its 
 heavy wheels and massive beams and hammers, anvil and 
 block, touch no walls, and three-fourths of the woiks must 
 be removed. A rolling-mill, with its ponderous machinery, 
 if possible, suffers more. A large portion of the parts re- 
 moved would be quite valueless elsewhere. The greatest 
 care and prudence, probably, would not prevent a sacrifice 
 of, at least, fifty per cent. Language should be ver}^ ex- 
 plicit and imperative, before it receives an interpretation so 
 disastrous in its consequences. Toller, to whom the revis- 
 ors refer, cites no case that maintains such doctrine {Toller, 
 199 ; 11 Vin., 167). That rule was never applicable between 
 the real and personal representatives of the owner in fee. 
 If we read 'things annexed to the freehold' for trade, &c., 
 without reference to the remainder of the paragraph, and 
 consider a building as distinct from the freehold, perhaps 
 the adminstrator may take from the heir, buildings. As be- 
 tween landlord and tenant for years, it has been held the 
 tenant could remove the building itself erected for the pur-
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 697 
 
 poses of trade ( Yan Ness v. Pacard, 2 Peters, 137). The 
 revisors say, the eighth section was inserted for greater cau- 
 tion. It saves the right of the heir to property not enumer- 
 ated in the sixth section, and which would descend to him 
 by the common law, from being impaired by the general 
 terms of that section. This, if it means any thing, limits 
 the section strictly to the enumeration. The seventh, which 
 was not reported by the revisors, taken literally, if we adopt 
 the same dividing line, would give to the heir every thing 
 annexed to the freehold not included in the fourth subdivis- 
 ion, as a mirror, &c., fastened to the wall (unless adjudged, 
 notwithstanding this praseology, to be furniture under the 
 ninth subdivision). And a tenant for years, or for life, or 
 an administrator, could remove nothing in any way an- 
 nexed to the freehold, or fixed to the wall of a building, 
 unless for trade or manufacture. 
 
 "It seems to me the legislature never intended these con- 
 sequences. This fourth subdivision, probably, applies to 
 those cases only, where the interests of the late occiipant 
 and the owner are adverse, or at least distinct ; as where the 
 present owner is not the real representative of the decedent. 
 The preceding parts of the section refer to such cases. And 
 the word ' things,' which has been held to refer to person- 
 alty {Cook V. Oakley, 1 P. Wms., 302), may here be re- 
 strained to articles ejusdem generis. * * -^ 
 
 "Technically, everything that has been completely an- 
 nexed to the freehold by the owner in fee, becomes, ipso facto, 
 a part of the freehold itself. * * -^ It seems to me that the 
 rule in this State, as between grantor and grantee, mort- 
 gagor and mortgagee, and heir and personal representative 
 of the deceased, still is, that whatever is annexed or affixed 
 to the freehold, by being let into the soil or annexed to it, 
 or to some erection upon it, to be habitually used there, 
 particularly, if for the purpose of enjoying the realty or 
 some profit therefrom, is a part of the freehold" {Buckley 
 V. Buckley, 11 Barh. P., 43, 59, 62, 63). 
 
 Judges have sometimes expressed themselves to the effect, 
 that the reasoning of the Chancellor in the case of House v. 
 House was not etirel}^ satisfactory to their minds ; but, at 
 
 88
 
 G98 LAW OF FIXTURES. 
 
 the same time, they have admitted that the judgment in tlie 
 case may be said to have become a rule of property, and 
 hence that it should not be disturbed without the greatest 
 consideration ; and the case is uniformly recognized as au- 
 thority. But, as before intimated, there can be no reason- 
 able doubt, but the legislature intended, by the provisions 
 of the statute mentioned, to put the executor or* adminis- 
 trator upon the same footing with a tenant, and to give him 
 in preference to the heir, such articles as a tenant might 
 hold against his landlord, although the courts seem to re- 
 strict the provisions to the precise things and circumstances 
 enumerated in the section of the statute. 
 
 In 1847, the Supreme Court of New York held, that a 
 pump and pipe, balance and scales, and a beer pump were 
 2Jrima facie personal projDerty, and could only descend to 
 the heir in consequence of being annexed to the freehold in 
 such a manner, and under such, circumstances, as to come 
 within the seventh section of the Revised Statutes relative to 
 the duties of excecutors, &c., in taking and returning inven- 
 tories. Wells, J., delivered the opinion of the court, and 
 after giving the provisions of the statute referred to, said : 
 "Whether the pump and pipe, balance and scales and 
 beer pump were annexed to the freehold at all ; or if so, 
 whether they were for the purpose of manufacture, does not 
 sufficiently appear hy the transcrij)t to justify this court in 
 interfering with the decree of the surrogate in that respect. 
 They were prima facie personal property, and could only 
 descend to the heir, in consequence of being annexed to the 
 freehold, in such a manner, and under such circumstances, 
 as to come within the seventh section. It was a question of 
 fact, which the surrogate could best decide ; as was also the 
 question whether they belonged to the intestate at tlie time 
 of his death" {Hovey v. Smith, 1 Barb, i?., 372, 376). From 
 the intimations in this case, and the reasoning of the court 
 in other cases, it is quite obvious that, whatever may have 
 been the intention of the statutes mentioned, executors and 
 admistrators in the State of New York, are far fiom being 
 upon an equal footing with tenants in respect to the fixtures 
 in general, which they ma}^ hold as against their landlord.
 
 RULE AS BETWEEN HEIR AND EXECUTOR. 699 
 
 The rule as regards certain annexations for purposes of 
 trade and manufacture, and growing crops, may be tlie 
 same in both cases ; but as to all other fixtures, probably, 
 the case of heir and executor or administrator, in New York 
 as elsewhere, will be treated as identical with grantor and 
 grantee, and mortgagor and mortgagee. 
 
 The Supreme Court of Maine, in 1854, reiterated the com- 
 mon law doctrine, that fixtures, and permanent improve- 
 ments of the freehold generally, made by a tenant for life,^ 
 or for years, go with the estate and descend to the heirs of 
 the owner. But when made by a tenant at will, or for a 
 term certain, and for his own use, by consent of the land- 
 lord, they remain the personal property of the tenant, and, 
 upon his decease, constitute a part of his estate. The court 
 further declared, that a tenancy by curtesy is created by 
 operation of law, and that no buildings erected upon the 
 estate by such tenant by consent of the wife, will thereby 
 become personal property ; that the law takes away her 
 power to contract with her husband {DoaTc v. Wisioell, 38 
 Maine R., 569). 
 
 In the State of Rhode Island, it is provided by statute, 
 that the main wheel, steam-engine, boilers and shafts, 
 whether upright or horizontal, drums, pulleys, and wheels 
 attached to any real estate for operating machinery, and all 
 steam-pipes, gas-pipes, water-pipes, gas-fixtures, and water 
 fixtures, attached to, and all kettles set up and used in any 
 manufacturing establishment, shall be deemed to be real 
 estate, when owned by the owners of the real estate to 
 which they are attached {R. I. Gen. Stat. 1872, ch. 39, §3). 
 This enactment is especially made applicable to the subject 
 of taxation, but it doubtless has its effect upon the question 
 of fixtures in the State, as that question may be supposed 
 to have been in the mind of the legislature at the time the 
 enactment was passed. 
 
 In 1810, the Supreme Judicial Court of Massachusetts 
 held, that corn or any other product of the soil, raised an- 
 nually, by labor and cultivation, is personal estate ; and 
 would go to the executor and not to tlie heir, on the decease 
 of the proprietor. It was, therefore, held to be liable to be
 
 700 L-^W OF FIXTURES. 
 
 seized on execution, and sold as other personal estate {Pen- 
 hallow V. DwigJU, 7 3Iass. B., 34). 
 
 In many of the States tliey have statutes expressly declar- 
 ing what shall be assets in the hands of the executor or 
 administrator, and what, in the nature of fixtures, sliall go to 
 to the heir or devisee upon the decease of the owner of the 
 property. In all these cases, of course, it will be necessary 
 to refer to the statute, in order to determine the question. 
 But, as a general rule, it may be affirmed, tlmt if an article 
 put up for ornament or convenience, or for trade or manufac- 
 ture, is so annexed to the freehold that the inheritance would 
 be greatly deteriorated by its severance, it must be consid- 
 ered as an essential part of the freehold, and the executor or 
 administrator will not be entitled to take it as part of the per- 
 sonal estate. While fructus industrlales, or ordinary fruits 
 of industry, usually go, on the owner' s death, to the executor 
 or administrator, and not to the heir: And in determining 
 what shall go to the executor or administrator, and what to 
 the heir, of things of the nature of fixtures, it will be well 
 to consult the previous chapters of this work in which fix- 
 tures in general are defined, and especially those chapters 
 in which the question is discussed as between vendor and 
 vendee, and mortgagor and mortgagee. 
 
 In England, questions respecting the title to* charters, 
 heir-looms, and the like, often arise between heir and exec- 
 utor, although they seldom occur in this countr}^ ; and yet 
 the subject may be briefly referred to in this place. 
 
 In general terms it may be said, that all charters, deeds or 
 other muniments of title to real estate, follow the land to 
 which they relate, and hence vest in the heir on the death 
 of the proprietor. And the same rule obtains in the case of 
 what is called heir-looms. An heir-loom is defined by Sir 
 William Blackstone to be a thing, " which by custom de- 
 scends to the heir, together with an house, and is neither 
 land nor tenement, but a mere movable''' (2 Black. Com. 17). 
 It is always some loose personal chattel, which would ordi- 
 naril}^ go to the personal representative of the deceased pro- 
 proprietor, except for a particular custom of the countr}^ ac- 
 cording to which, upon the death of tlie owner of the capital
 
 RULE AS BETWEEN EXECUTOR AND DEVISEE. 701 
 
 messuage with wMcli it lias continually gone, it descends 
 to the heir along with and as a member of the mhentance. 
 Likewise, a similar rule is applied to fish in a pond, deer in 
 a park, conies in a warren, and doves in a dove-house. 
 •These are all of a personal nature, and yet they accompany 
 the land and vest in the heir, and do not pass to the per- 
 sonal representative. So, also, things fixed to the freehold 
 of a church by a private individual with the consent ot 
 the society or authorities of the church, such as tablets, 
 monuments, tombstones, efhgies, and the like, though abso- 
 lutely affixed to the walls or fabric of the church, belong to 
 the heir in the manner oHieir-looms. 
 
 It has been before stated that certain vegetable products 
 of the earth, known as emUements, although they are an- 
 nexed to and growing upon the land at the time of the pro- 
 prietor' s death, as between his heir and executor or admin- 
 istrator, are considered as a chattel interest, and wi 1 pass 
 to the executor or administrator; while, in general, trees 
 and their fruit and produce of them, from their intimate 
 connection with the soil, follow the nature of their principal ; 
 and therefore, when the owner of the land dies, they de- 
 scend to the heir, unless they have been previously severed^ 
 And the same rule applies to hedges, bushes and shrubs and 
 artificial grasses ; for they are all the natural or permanent 
 profit of the earth, and are reputed parcel of the ground 
 whereon they grow; and yet the general rule may not be 
 recoo-nized in respect to emblements in some of the btates. 
 
 With respect to the transfer of fixtures by devise, it may 
 be stated as a rule, that where the testator devises the realty 
 all annexations thereto, which would pass to the grantor of 
 the land, will in like manner pass to the devisee. Iheretore 
 the devisee of land is entitled to all articles which are af- 
 fixed to the land, whether the annexation took place prior 
 or subsequent to the date of the devise; except that the 
 most of those articles which are held to be personal assets 
 in the hands of the executor, the devisee, as against the ex- 
 ecutor, would not be entitled to under a general devise of 
 the realty. Although it has been held by competent au- 
 thority, that the devisee of land is entitled to the emblements,
 
 702 LA W OF FIXTURES. 
 
 unless they are expressly bequeathed by the will to another ; 
 and this, doubtless, may be laid down as a general rule, to 
 which exceptions may exist, where the subject has been 
 modified by statute. A mere bequest of all tlie testator's 
 residuary personal estate to his executors does not entitle* 
 tlie latter to the emblements as against the devisee of the 
 land {Cooper v. WooUif, 5 WeeMy R., 790). The rule here 
 is different from that existing between the executor and the 
 heir ; for, as has been shown, where the deceased is seised 
 in fee simple of the land, his personal representatives are 
 entitled to emblements as against the heir. 
 
 So also with respect to the transfer of fixtures by devise, 
 it may be stated as a rule, that a testator may devise the 
 realty and fixtures thereto annexed, together, or the realty 
 and ordinary movable fixtures, separately ; provided tlie 
 testator die seized of an unqualified title to both the realty 
 and the fixtures. Under this general rule, therefore, the devi- 
 see of land will be entitled to all articles which are afSxed to 
 the land, whether the annexation takes place prior or subse- 
 quent to the date of the devise. For example, b}'^ a devise of a 
 house, all personal chattels which are annexed to the house, 
 and which are essential to its enjoyment, will pass to the 
 devisee. And in like manner, things that are constructively 
 annexed to the house, as the locks, keys and rings and the 
 like, will go to the devisee. And so of any other matter 
 that is incident to the principal thing, although it may be 
 distinct from it ; for example, it has been held, that, if the 
 owner of a mill take out one of the millstones to pick or 
 gravel it, and devise the mill while the stone is severed from 
 it, such stone shall pass with the mill for the reason that in 
 contemplation of law, it still remains parcel of the mill {Li- 
 forcVs Case, 6 Mod. H., 187). 
 
 This may be considered in general to be the rule, to which 
 an exception may exist in respect to fixtures put up for 
 trade, or for trade combined with other objects, or for orna- 
 ment or convenience. For, as such articles are considered 
 not to pass to the heir as part of the inheritance, but are 
 held to be personal assets in the hands of the executor, it 
 would seem to follow, that as between the executor and the
 
 RULE AS BETWEEN EXECUTOR AND DEVISEE. 703 
 
 devisee of the land, tlie devisee would not be entitled to 
 them under a general devise of the realty. It has been sup- 
 posed, however, that this point is not altogether free from 
 difficulty ; for although in ordinary cases the devisee takes 
 the land in the same condition as it would have descended 
 to the heir, yet, as has been before shown, the devisee of 
 land is entitled to emblements (which are very analogous to 
 fixtures), and may claim them as against the executor, 
 while, as between the heir and the executor, they go to the 
 executor as a part of the assets of the deceased. This doc- 
 trine is sometimes established by statute, but at common 
 law, crops growing on the land passed to the devisee. They 
 passed to the devisee upon the presumed intention of the 
 testator, that he who took the land should take the crops 
 which belong to it. Still, this may be rebutted by words in 
 the will which show an intent that the executor shall have 
 the crops ; and it has been thought by some judges, that 
 this distinction between the heir and devisee of the land in 
 this respect is capricious ; but the doctrine has never been 
 overruled {West v. Moore, 8 EasV s E., 339. And vide 
 Bradner v. Faulkner, 34 N. Y. R., 347). 
 
 . With respect to the language of a devise relating to fix- 
 tures, it should be observed, that where it is the intention of 
 a testator expressly to devise fixtures in separation from the 
 freehold, or that the devisee of the land should take all ap- 
 pendages belonging to the land, it is necessary to specify 
 the articles by some appropriate term or description ; al- 
 though certain words may have a more extended- operation 
 in ca'i-rying distinct and independent interests in a devise, 
 than it could in a deed. In the English Court of Cliancery, 
 in a case wherein it appeared, that a testator made a bequest 
 of his ''liouselioldfurniture;' it was held that fixtures con- 
 sisting of stoves, blinds, bell-pulls, and other articles gen- 
 erally considered as tenant's fixtures, and belonging to the 
 testator in a leasehold house occupied by him, would pass ; 
 and the Vice-Chancellor said the articles in question were 
 not less furniture because they were fixed to the house 
 {Paton V. Sheppard, 10 Sim. R., 186).
 
 704 LAW OF FIXTURES. 
 
 CHAPTER LII. 
 
 LAW OF FIXTUHKS AS BETWEEN TENANTS TN COMMON EXAMINATION 
 
 OF THE AUTHORITIES UPON THE SUBJECT DOCTRINE OF THE CASES 
 
 NATURE OF THE TITLK REQUIRED IN SUCH CASES. 
 
 It will be remembered tliat Lord EUenboroiigli in deliver- 
 ing the opinion in the great case of Elioes v. Maio (3 Easfs 
 R., 38), observed that questions respecting the right to what 
 are ordinarily called fixtures principally arise between three 
 classes of persons : 1st. Between different descriptions of 
 representatives of the same owner of the inheritance, viz., 
 between his heir and executor ; 2d]y. Between the execu- 
 tors of tenant for life or in tail and the remainderman or 
 reversioner ; 3dly. Between landlord and tenant. To these 
 three classes of persons between whom controversies re- 
 specting the right to fixtures more frequently arise, a fourth 
 has sometimes been added, namely, tenants in common who 
 are the owners of the fee. This is a relation of exceptional 
 occurrence in England, and rarely brought under the notice 
 of the courts in that country ; but constantly occurring in 
 the United States, under the laws regulating the descent of 
 real estate, and its equal partition among all the children of 
 the ancestor. 
 
 The rule in respect to the right to fixtures as between this 
 class of claimants was clearly laid down by the old Supreme 
 Court of the State of New York in 1839, in a case in which 
 a motion was made to set aside a report in partition, for the 
 reason that the commissioners had mistaken the character 
 of several articles of machinery belonging to a mill, consid- 
 ering them 2i^ personal property^ whereas they should have 
 been regarded as real estate. It appeared that the parties 
 to the action, plaintiff and defendant, were tenants in com- 
 mon, owners of the fee, seised in equal undivided moieties 
 of a certain factory and machinery therein, a house, barn 
 and twenty acres of land. The opinion of the court was 
 delivered by Justice Co wen, of whom it has been Justly re-
 
 RULE AS BETWEEN TENANTS IN COMMON. 705 
 
 marked, that his " untiring diligence, thorough research, ac- 
 curate discrimination, and sound practical views in the appli- 
 cation of general principles to particular cases, won for him 
 the high respect of the legal profession ; while the frank sim- 
 plicity of his character, and unaffected kindness of his heart, 
 endeared him to those who were admitted to his frendship." 
 
 The learned judge, in the opinion referred to, took occa- 
 sion to collect and review all the cases of importance in 
 relation to the Law of Fixtures, which had then come under 
 the cognizance of the courts of the United States, and illus- 
 trated them by references to the adjudged English cases, 
 and to the elementary works then extant ; and this opinion 
 has been regarded as a prominent constituent of the Ameri- 
 can Law of Fixtures. Upon the point under consideration, 
 the learned judge observed: "The question is one between 
 tenants in common, the owners of the fee ; and is, we think, 
 to be decided on the same principle as if it had arisen be- 
 tween grantor and grantee, or as if partition had been 
 • effected by the parties through mutual deeds of bargain and 
 sale. As between such parties, the doctrine of fixtures 
 making a part of the freehold, and passing with it, is more 
 extensively applied than between any others. * ^ * 
 
 "On the whole, I collect from the cases cited, and others, 
 that, as a general rule, in order to come within the opera- 
 tion of a deed conveying the freehold, whether by metes 
 and bounds of a plantation, farm lot, &c., nothing of a na- 
 ture personal in itself will pass, unless it be brought within 
 the denomination of a fixture by being in some way perma- 
 nently, at least habitually, attached to the land or some 
 building upon it. It need not be so fixed that detaching 
 will disturb the earth or rend any part of the building. I 
 am not prepared to deny that a machine removable in itself 
 would become a fixture frqm being connected by bands, or 
 in any other way, with the permanent machinery, though it 
 might be detached, and restored to its ordinaiy place, as 
 easily as the chain in Farrer v. StacTcpole. I think it 
 would be a fixture notwithstanding. But I am unable to 
 discover, from the papers before us, that any of the ma- 
 chines in question before the commissioners were even 
 
 8Q
 
 706 LAW OF FIXTURES. 
 
 slightly connected with the freehold, * * '* No authority 
 cited on the argument, nor any that I have seen, goes so far 
 as to say that mere loose and movable machines totally dis- 
 connected with, and making no part of the permanent ma- 
 chinery of a factory, can be considered a fixture even as 
 between vendor and vendee. We think the motion must be 
 denied with costs, and the report of the commissioners 
 is confirmed" {Walker v. Sherman, 20 Wend. B., 636, 638, 
 655, 657). 
 
 The commissioners in this case had held that the machin- 
 ery in question was to be treated as personal property, and 
 not subject to be divided by proceedings in partition ; and, 
 it not being shown that the same was in any manner affixed 
 or fastened to the building, or to the land, their report was, 
 for that reason, confirmed. But the importance of the case 
 under the point now discussed, lies in the fact that the doc- 
 trine was settled, that in controversies respecting fixtures 
 between tenants in common, the same are to be determined 
 on the x^rinciples applied as between grantor and grantee. 
 The property treated by the court as personal chattels, con- 
 sisted of two double carding machines, a picking machine, 
 spinning machine and looms. On the hearing before the 
 commissioners, it appears that it was admitted that all the 
 machinery affixed to the freehold was real estate, but it was 
 denied that machinery which was loose and movable was 
 so ; and the articles in question were in the factory, but not 
 in any way affixed or fastened to the buildings or lands. 
 Under these circumstances, the articles would not be con- 
 sidered as permanent fixtures as between vendor and vendee, 
 and therefore they were not subject to legal partition as 
 between tenants in common, owning the fee of the land on 
 which they were placed or used. 
 
 The same general doctrine wa§ recognized by the present 
 Supreme Court of the State of New York in a case wherein 
 it was held that real property, purchased for partnership 
 purposes, with partnership funds, and whicli remains after 
 paying the debts of the firm, and adjusting tlie equitable 
 claims of the different members of the firm, as between 
 themselves, is considered and treated as real estate. It ap-
 
 RULE AS BETWEEN TENANTS IN COMMON. 707 
 
 peared in this case, that a person, in right of his wife, be- 
 came a partner with others in the ownership of a cotton 
 factory and other mills, and in the management of the busi- 
 ness thereof, and received a proportionate share of the 
 profits from the time his wife became interested in the prop- 
 erty, until after her death. The court held, that this was a 
 sufficient seisin of the wife to consummate the estate by the 
 curtesy in the husband ; and further that the seisin of one 
 tenant in common is the seisin of the whole. And the prin- 
 ciple was expressly applied to the case between tenants in 
 common in respect to fixtures, as is applied as between 
 grantor and grantee, and mortgagor and mortgagee. The 
 property to be divided between the parties was real estate 
 owned by the partners at the time of the death of one of 
 the copartners, which was held to include the fixtures and 
 machinery annexed to the freehold, or which was usually 
 thereto attached. But the property was so situated and 
 the parties so numerous, that a partition was considered 
 impracticable without great prejudice to the owners, and so 
 a sale was directed and the proceeds divided {Buckley v. 
 BucUey, 11 Barh. i?., 43). 
 
 The rule in respect to fixtures as between tenants in com- 
 mon, adopted in the State of New York, has been followed 
 by the courts in other states. 
 
 The Supreme Court of Maine, in 1854, held that things 
 personal in their nature, such as belts, looms, carding ma- 
 chines, pickers, Jacks, spoolers and dressers, erected and 
 designed for a woolen factory, and placed therein by the 
 owner, although tliey may be taken away without detri- 
 ment to i^lie freehold, are, nevertheless, fixtures which ap- 
 pertain to the realty, and in a partition ordered among 
 tenants in common, may be divided as real estate. 
 
 Tenney, J., delivered the opinion of the court, and said: 
 "On the question, whether such machines, so situated, are 
 fixtures, so that they constitute a part of the real estate, the 
 authorities are far from being uniform, and no rule of uni- 
 versal application can be deduced from them, without con- 
 flicting with the doctrines found in some of the decisions 
 upon the subject.
 
 708 LAW OF FIXTURES. 
 
 " It was held in a leading case in England, Elwes v. Maw 
 (3 East, 38), after much consideration, that there was a dis- 
 tinction between annexations to the freehold, for the pur- 
 poses of trade and manufacture, and those made for the 
 purpose of agriculture, and that the right of removal by the 
 tenant, of tlie former, was much stronger than of the 
 latter. And it may be regarded as well settled, that an 
 article may constitute a part of the realty, as between ven- 
 dor and vendee, which would not under similar conditions 
 and circumstances be so treated as between landlord and 
 tenant (2 KenV s Com., Lecture, 35). 
 
 "The same distinction exists between the rights of the heir 
 and executor, in favor of the former ; and between the ten- 
 ant for life and the remainderman, or the reversioner. The 
 rights of the mortgagee to such additions made by the mort- 
 gagor, during his possession have been equally favored with 
 those of a vendee. * * * 
 
 "The case before us, differs in some respects, from the 
 classes of cases referred to, as this concerns the form and 
 duty of commissioners in making divisions of real estate 
 owned in common and undivided, by the parties. By the 
 judgment of partition each party i^ equally the owner of 
 the premises, and has equal rights therein, in the propor- 
 tion determined thereby. Whatever was in the 'Woolen 
 Factor}^' situated upon the land described, and used in the 
 appropriate business thereof, could not have been consid- 
 ered by the commissioners, to be temporary for one party 
 more than the other, and therefore cannot fall within the 
 principle applicable, as betw^een landlord and tenant. Hence 
 it is a case, where the doctrines which govern, a§ between 
 vendor and vendee, are to have their most extended in- 
 fluence. 
 
 ^ "Still, if one party had placed in the factory certain ar- 
 ticles, which were clearly personal in their nature, and under 
 no rule, became part of the realty, the commissioners were 
 not at liberty to regard them in the division, wiiich they 
 undertook to make. 
 
 "It has been held necessary, in order to constitute a fix- 
 ture, that the article should be let into, or connected to the
 
 RULE AS BETWEEN TENANTS IN COMMON. 709 
 
 land, or to substances previously connected therewith. * * * 
 By other authorities, it has been regarded necessary, in or- 
 der to give to chattels the character ol fixtures, and deprive 
 tliem of that which they had before the relation to the realty 
 commenced, that they be so hrmly fixed, that they cannot 
 be removed without injury to the freehold by the process of 
 removal {Farrar v. CJiauffetete., 5 Denio, 327). 
 
 "It cannot be denied, that physical attachment of certain 
 articles to the freehold, is a very uncertain and unsatisfac- 
 tory criterion. * * * Many articles, constituting essential 
 parts of the most prominent dwelling-houses, and without 
 which tlie buildings could not be comfortably occupied, may 
 be entirely removed with the greatest facility, and no injury 
 be occasioned to the portions remaining. * * * 
 
 "Mr. Dane remarks, 'it is very difficult to extract from 
 all the cases as to fixtures, in the books, any one principle 
 on which they have been decided, though, being fixed and 
 fastened to the soil, house or freehold, seems to have been 
 the leading one, in some cases, though not the only one.' 
 ' Not the mere fixing or fastening is alone to be regarded, 
 but the use, nature and intention {Abridg. of Amer. Law, 
 ml 3, p. 166).' * * * 
 
 "This court have repeatedly held, that certain articles, 
 not differing materially in their general character in refer- 
 ence to the question wliich we have considered, ceased to be 
 personal property, when used in connection with the real 
 estate for the purpose designed, in an appropriate manner 
 {Farrar V. Stac/qjole, 6 Green?/., 154; Trull v. Fuller, 28 
 Maine, 545 ; Corliss v. McLagln, 29 Maine, 115). No rea- 
 son is perceived for withdrawing the present case from the 
 doctrines of those previously decided, especially as authori- 
 ties in other States fully sanction the views here taken, al- 
 though in others, courts of the highest standing have come 
 to different conclusions" {Parsons \. Oopeland, 38 Maine 
 B., 537, 543-545, 548). 
 
 The question in the case last cited which was most labored 
 was, as to whether the articles in controversy were really 
 fixtures, and the court finding that they would be so re- 
 garded as between grantor and grantee, held that they were
 
 710 LAW OF FIXTURES. 
 
 fixtures as between tenants in common, and were subject to 
 proceedings in partition in connection with the freehoLl to 
 which they were annexed. There would really seem to be 
 no doubt from the authorities, that, as between tenants in 
 common, the general maxim of the law is recognized, that 
 what is annexed to the land becomes part of tlie land ; al- 
 though it is very difficult in these cases, as in otliers, to say 
 with precision what constitutes an annexation sufficient for 
 this purpose. This is a question which must depend on tl?e 
 circumstances of each case, and mainly upon the circum- 
 stances taken into the account where the question arises be- 
 tween grantor and grantee, and mortgagor and mortgagee. 
 When the article in question is no farther attached to the 
 land than by its own weight, it is generally to be considered 
 a mere chattel, although, in that case, if the intention is ap- 
 parent to make the article part of the land, it becomes part 
 of the land. This has been shown to be the rule in some 
 other cases, and the principle is applied to cases between 
 tenants in common. When, by the ordinary rule, the ar- 
 ticle will not be considered part of the realty, unless the 
 circumstances are such as to show that it was intended to be 
 part of the land, the onus of showing that it was so intended 
 lies upon the party who asserts that the article has ceased 
 to be a chattel ; and vice versa, where the article is prima 
 facte a fixture, the onus of showing to the contrary lies on 
 him who contends that it is a chattel. 
 
 In 1875, the Supreme Court of Michigan held that ma- 
 chinery annexed in a substantial manner to a building is not 
 a fixture unless there is such unity of title to the realty and 
 the machinery that a conveyance of the realty would of ne- 
 cessity convey the fixtures also. If one owns unlike inter- 
 ests in the land and in the machiner}^, the latter must bo 
 considered personal estate. And it was declared, that a 
 thing cannot, as to an undivided interest therein, be real es- 
 tate, and as to another undivided interest, be personalty. 
 This is an interesting and important distinction. 
 
 Cooly, J., after stating the facts of the case, said: "An 
 examination of these facts will show that at no time has 
 there been unity of ownership of the land and the machinery
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 711 
 
 put into the building. Kauxman at the outset owned the 
 one without having an interest in the other, and no one of 
 the parties who subsequently acquired an interest had a 
 rio-ht in the land coextensive with his interest in tlie ma- 
 chinery All the time, therefore, the parties have had title 
 to the machinery distinct from their title to the land, and 
 this fact of itself is conclusive that the former was person- 
 alty For, to constitute a fixture, there must not only be 
 physical annexation in some form to the realty, but there 
 must be unity of title, so that a conveyance of the realty 
 would of necessity carry the fixtures also. Where the 
 ownership of the land is in one person, and of the thing 
 afiixed to it is in another, and in its nature is capable ot 
 sevreance without injury to the 'former, the latter cannot, m 
 contemplation of law, become a part of the former, but must 
 necessarily remaim distinct property, to be used and dealt 
 with as personal estate only. And the fact that the owner 
 of the thing affixed to the freeliold has also an undivided in- 
 terest in the latter, cannot render the former a fixture when 
 the interests are different in extent. A thing cannot, as to 
 an undivided interest therein, be real estate, and as to an- 
 other undivided intercut be personalty ; it must be one thing 
 or the other" {Adams v. Lee, 31 Mich, i?., 440-442). 
 
 CHAPTER LIU. 
 
 LAW OF FIXTDRKS IN RESPECT TO THE ROLLING STOCK AND OTHER APPEN- 
 DAGES OF A RAILWAY -EXAMINATION OF THE AUTHORITIES UPON 
 THE SUBJECT DOCTRINE OF THE CASES. 
 
 Another species of property remains to be examined in 
 connection with the law of fixtures; namely, that of the 
 rollino- stock and fixtures of a railroad. This is a subject 
 of practical and increasing importance, and has already 
 been the cause of considerable litigation. That is to say,
 
 712 LAW OF FIXTURES. 
 
 the question whether the rolling stock of a railroad is per- 
 sonal property, or to be deemed constructively annexed to 
 the road upon which it runs, so as in law to be regarded as 
 a fixture, and part of the realty, has often been tlie subject 
 of controversy before the courts, and the result of the adju- 
 dications is of considerable interest. 
 
 The authorities with respect to the characteristic nature 
 of the rolling stock of a railway are not entirely harmonious, 
 and perhaps the question can hardly be said to be authori- 
 tatively determined. In some instances there are local stat- 
 utes which have influenced the courts upon the subject, 
 and where none have existed, the courts do not seem 
 to be in perfect agreement. In the State of New York, sev- 
 eral cases have been decided in which the courts have 
 given opinions upon the question. The first in chronological 
 order was one decided by the Supreme Court in 1857, wherein 
 the question submitted for the judgment of the court, was 
 whether the judgment creditors of the Flushing Railroad 
 Company, by virtue of their several judgments and execu- 
 tions, and the levies made by the sheriff, acquired a lien 
 uj)on the property levied on as the property of said company, 
 superior in law to the claim of the pl&intiffs under and by 
 virtue of two prior mortgages, executed by the railroad 
 company .> Each of the mortgages was of all the pieces or 
 percels of land forming the track or roadioay of the com- 
 pany within certain specified points, being the termini of 
 the road, and all the lands occupied or to be occupied by the 
 company for depot hulldlngs, engine-liouses^ or other ac- 
 commodations for the business of the railroad, together 
 with the superstructure and buildings thereon, and also 
 all the rails and otlier materials used thereon or procured 
 therefor, inclusive of the iron rails purchased or to be pur- 
 chased, bridges, viaducts, culverts, fences, depot grounds 
 and buildings thereon, engines., tenders., cars, tools, ma- 
 chinery, materials, contents, and all other personal prop- 
 erty, together with tolls, rent, or increase to be had or 
 levied, and all franchises, rights, and prioileges of the 
 company. The mortgages were duly recorded as mortgages 
 of real estate, but were not filed as chattel mortgages.
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 713 
 
 The court held that as between the mortgagees and judg- 
 ment careditors the rolling stock was to be deemed fixtures, 
 and consequently that such a mortgage need not be filed un- 
 der the act of the legislature providing for the filing of chat- 
 tel mortgages to preserve the lien in certain cases. S. B. 
 Strong, J., delivered the opinion, and upon this question, 
 said: "The question submitted for our consideration is, 
 whi'ch has the prior, and (as the company is hopelessly in- 
 solvent, and all its franchises insufiicient to pay the mort- 
 gage bonds) the entire right to the property upon w^hich 
 the execution was levied; the plaintift's who are, or rep- 
 resent, the mortgagees, or the judgment creditors who, to- 
 gether with the sheriff, are the defendants in this action ? 
 
 "There is not at present any controversy between the 
 bondholders under the respective mortgages. If, therefore, 
 the property in question is to be deemed chattels, it is not 
 material to inquire whether the first mortgage could cover 
 only what belonged to the company when it was executed, 
 or whether there is any thing in the description or nature 
 of the property to render the security ambulatory, so that 
 like a policy of insurance on a stock of goods in a store, it 
 would include whatever might be comprehended within the 
 terms used, for the time being. If a mortgage can be made 
 to apply, either at law or in equity, to after-acquired prop- 
 erty, it would serve very 2:>roperly to give it that effect in 
 reference to the rolling stock of a railroad compan}^, as it 
 is subject to so many dilapidations, and subtitutions of new 
 for old. There are cases which have given that extended 
 effect to mortgages by railway companies, and I am inclined 
 to think that those decisions are right. * ^ * 
 
 "In this case the plaintiffs can clearly hold, under their 
 mortgages, the rolling stock of the company, if it consisted 
 of what are usually denominated fixtures. In conveyances 
 actually made by the parties, such as deeds from vendors 
 to vendees, and mortgagees, which are, in this respect, prop- 
 erly placed on the same footing, many subjects are deemed 
 fixtures which are not so in cases between landlords and ten- 
 ants, or where the title passes by operation of law. As be- 
 tween landlord and tenant, the more favorable consideration 
 
 90'
 
 714 . LAW OF FIXTURES. 
 
 is due to tlie latter, for many and obvious reasons. In volun- 
 tary conveyances the construction, in doubtful matters (and 
 many of tlie rules in relation to fixtures are verj^ uncertain), 
 is favorable to the grantees ; and rightly so, as the language 
 is that of the grantors, who are, or may fairly be presumed 
 to be, attentive to their own interests. When the title 
 passes by operation of law, the parties stand upon an 
 equality, and neither is favored to the disadvantage of tlie 
 other. As between heirs and executors, our Revised Statutes 
 provide (2 i?. S. 82, § 6) that things annexed to the free- 
 hold, or to any building, for the j)urpose of trade or manu- 
 facture, and not fixed into the wall of a house so as to be 
 essential to its support, crops growing on the land, and any 
 kind of produce raised annually by labor and cultivation, 
 excepting grass growing and fruit not gathered, shall be 
 deemed assets. Many of those articles would undoubtedly 
 pass to a vendee of the real estate, b}^ the common law, 
 which in that respect is not altered by the Revised 
 Statutes. They are not declared to be personal property 
 except in reference to the estate of deceased persons. The 
 descriptions are of course ina^Dplicable to the rolling stock 
 of a railroad company. In order to determine whether such 
 stock when fitted to, and placed and continually used upon, 
 the rails, may be deemed fixtures, as between mortgagor 
 and mortgagee, or are to be considered personal estate, I 
 have examined many authorities to ascertain whether there 
 are any clear and well settled principles which are appli- 
 cable to, and will control, that question. The authorities 
 are numerous, but they are by no means consistent as to 
 principles or their application. '^ * '^ 
 
 "The property of a railway company consists mainly of 
 the road-bed, the rails upon it, the depot erections, and the 
 rolling stock, and the franchises to hold and use them. 
 The road-bed, the. rails fastened to it, and the buildings at 
 the depots, are clearly real property. That the locomotives, 
 and passenger, baggage and freight cars are a part, and a 
 necessary part, of the entire establishment, there can be no 
 doubt. Are they so permanently and inseparably con- 
 nected with the more substantial realtv as to become con-
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 715 
 
 strnctively fixtures ? Railways being a modern invention, 
 and of a novel character, we have no decisions upon this 
 question, and those relating to a previous old and familiar 
 subject do not absolutely control us, although we must 
 necessarily resort to them as guides. * * * It may be that if 
 an appeal should be made to the common sense of the com- 
 munity it would be determined that the term 'fixtures' 
 could not well be applied to such movable carriages as rail- 
 way cars. But such cars move no more rapidly than do 
 pigeons from a dove cote or fish in a pond, both of which 
 are annexed to the realty. * * * It results from many cases 
 that it is not absolutely necessary that things should be 
 stationary in any one place or position in order that they 
 should be technically deemed fixtures. The movable quality 
 of those cars has frequently, if not generally, induced the 
 opinion that they are personal property. Hence railway 
 mortgages of the rolling stock have, as I understand, been 
 generally filed in the offices of the clerks of all the towns 
 through which the roads pass. That was undoubtedly the 
 more prudent course, as it saved any question as to the 
 character of the property. Even the learned counsel for 
 the plaintiffs has gone no further than to denominate the 
 cars 'quasi' fixtures. Public opinion, however, although 
 respectable in matters of fact, is an unsafe guide as to legal 
 distinctions. 
 
 " That railway cars are a necessary part of the entire estab- 
 lishment, without which it would be inoperative and value- 
 less, there can of course be no doubt. Their w^heels are 
 fitted to the rails ; they are constantly upon the rails, and 
 except in cases of accidents, or when taken off for repairs, 
 nowhere else ; they are not moved off the land belonging to 
 the company ; they are peculiarly adapted to the use of the 
 railway, and in fact cannot be applied to any other pur- 
 pose ; they are not like farming materials, and possibly the 
 machinery in factories, and many of the movable appliances 
 to stores and dwellings, the objects of general trade ; they 
 are permanently used on the particular road where they are 
 employed, and are seldom, if ever, changed to any other.
 
 716 LAW OF FIXTURES 
 
 Many of these are strong characteristics of tiie realty ; some 
 of them liave often been deemed conclusive. * * * 
 
 " If railway cars were used in any other place than upon 
 the lands of the company, or for any other purpose than in 
 the transaction of its business, or were constructed in such 
 shape, and so extensively, as to become objects of general 
 trade, or were not a necessary part of the entire establish- 
 ment, I might consider myself compelled by the weight of 
 authority to decide, that as they are not physically annexed 
 to what is usually denominated real estate, they must be 
 deemed personal property. But as each and all of these 
 characteristics or incidents are w^anting, the considerations 
 which I have mentioned, or to which I have alluded leading 
 to an opposite conclusion, require us to determine that they 
 are included as fixtures, or necessary incidents, in a convey- 
 ance of the real estate" {The Farmers'' Loan and Trust 
 Company v. Hendrickson, 25 Barb. B., 484, 486-489, 493, 
 494, 496). 
 
 The opinion of Judge Strong, in the case in the 25th Bar- 
 bour, is published in extenso in the work of Judge Redfield 
 on the Law of Railways, in respect to wiiich the learned 
 author remarks : "This opinion is certainly plausible, and 
 it is impossible to say that the views here maintained will 
 not, or may not, ultimately prevail. There is no doubt, 
 Justice and convenience in such a view. But it seems to us 
 somewhat of a departure from the general law of fixtures in 
 this country, and at variance with generally received no- 
 tions upon that subject, at present when carried to the ex- 
 tent of declaring the rolling stock of a lailway a fixture. 
 As between the mortgagor and mortgagee, and all subse- 
 quent incumbrancers having knowledge of the prior deed, 
 there is no difficulty in allowing the rolling stock of a rail- 
 way to constitute part of the mortgage of the road, and thus 
 to include the renewals of such stock from time to time, and 
 even additions. But it is not easy to comprehend how a 
 locomotive engine and train of cars is any more a fixture 
 than any other machine operated by steam, or than a 
 stage coach even" {2Bedf. Laio of Railways^ 483, 484, 
 Atli ed., in not is).
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 717 
 
 Judge Redfield very correctly understands that the court 
 in the case criticised, placed their decision upon the ground 
 that the rolling stock of the railway in controversy was 
 part of the realty, and it is readily conceded that the posi- 
 tion is not tenable upon the theory that the locomotives and 
 cars were fixed to the soil. But it by no means follows that 
 because they ar.e not physically attached to the land, they 
 may not be deemed a part of the real estate. Doves in a 
 dove cote are no more fixed to the land to which they be- 
 long, than the locomotives and cars, and yet they are often 
 held to be parcel of the realty ; and it may also be 
 suggested that the case of the Farmers' Loan and Trust 
 Company v. Hendrickson has been frequently referred to 
 with approval, both in the State and Federal Courts. 
 
 The question was next presented to the Supreme Court of 
 the State of New York in 1858, when a directly opposite 
 conclusion was reached to that in the case in 25th Barbour ; 
 the court holding that as between mortgagees and judgment 
 creditors or purchasers, the rolling stock of a railway com- 
 pany — such as locomotive engines, tenders, passenger, 
 freight or other cars, shop-tools and machinery — is personal 
 property, and will not pass as real estate^ or fixtures, under 
 a mortgage executed by the company. Greene, J., in a 
 long and well considered opinion, among other things, said : 
 " The most important question in this case remains to be 
 considered. That question relates to the nature of the 
 property known as the rolling stock of the company, in- 
 cluding its engines and cars of various kinds and the prop- 
 erty described as shop-tools, machinery, &c. ; all of which 
 is used, in one way and another, in the operations of the 
 railroad ; and so far as the title to this class of property is 
 involved in the case, it turns upon the question whether, 
 such property is personal property or fixtures ; or, to state 
 the question in a simpler form and so as to present its pre- 
 cise legal aspect in a clear light, and the opposing views of 
 the parties in plainer contrast, whether it \^ personal ot real 
 property. If such property, after it is purchased for the 
 use of the company and put upon its road, is ipsofacto^ so 
 affixed to the realty as to become, in judgment of law, a
 
 718 LAW OF FIXTURES. 
 
 part of the realty, tlie lien of the mortgage attached to the 
 propert}^ in question, as fast as it was acquired, and the 
 plaintiffs are entitled to it, without regard to the time of its 
 acquisition. -^^ * * The property in question then, as has 
 already been stated, is either personal or real property, and 
 the plaintiffs' title depends upon the decision of the ques- 
 tion as to which class the property belongs to. 
 
 " As an original question, I confess I should find it diffi- 
 cult to suggest a plausible ground of doubt in relation to it. 
 None of the property in dispute is or can be affixed or at- 
 tached to the real estate for any purpose for which it was 
 intended to be used ; nor indeed, without entirely defeating 
 that purpose, within any sense of those terms as they are 
 used as distinctive tests of the difference between personal 
 property and fixtures. The engines, cars, &c., composing 
 the rolling stock, it is well known, are manufactured for 
 sale to the different roads in the process of construction and 
 in operation throughout the country. They are as well 
 adapted for use on one road as another of the same width 
 or guage as the road for which they were built or on which 
 they are in use; and partly worn stock of this kind is 
 frequently sold from roads on which it has been used, 
 for the purpose of replacing it by new and improved ma- 
 chinery. -^ * * 
 
 " The case of The Farmers' Loan and Trust Company y. 
 Hendrickson (25 Barh., 484), is directly in point and in 
 favor of the plaintiff's position. It is a decision of a Gen- 
 eral Term of this court upon a case submitted by the parties 
 without action. The case does not show what points were 
 presented by counsel, or how elaborately the merits were 
 argued. But the opinion delivered by Mr. Justice Strong 
 shows that the case was thoroughly considered by him. 
 And as the decision was concurred in by his associates, it 
 should be received with the same respect here, as a decision 
 made by us, and should not be overruled, except under the 
 same circumstances that would induce us to review and 
 overrule our own decision. * * * 
 
 "The learned judge who delivered the opinion came to 
 the conclusion that the rolling stock was fixtures and passed
 
 RVLE AS TO ROLLING STOCK, ETC. OF RAILWAYS. 719 
 
 as necessary incidents in a conveyance of real estate. It 
 will be apparent, on a careful reading of the opinion, that 
 tlie fact of the necessity of the rolling stock to the employ- 
 ment of the road exercised a great, and I think it fair to 
 say, a controlling influence upon the decision. Indeed I 
 think, upon a careful examination, it will be found that 
 every other circumstance alluded to by the learned justice 
 as a distinguishing feature between personal property and 
 fixtures, exists rather in imagination than in fact. * * * 
 The plain, practical and wise rule laid down by Justice 
 Co wen (20 Wend., 636), has been uniformly received as au- 
 thority and cited with almost unanimous approbation in 
 every case that has arisen since that time — and while it 
 may be questionable whether it has always been correctly 
 applied, there is no question that its soundness has always 
 been recognized by our courts, and that it has been profess- 
 edly applied by them. If there have been departures from 
 it in particular cases, those cases, instead of tempting us 
 further astray, should admonish us of the necessity of ad- 
 hering more rigidly to it, as each succeeding departure, 
 each additional exception, furnishes a new illustration of 
 the value of the simplicity and certainty of the rule Such 
 then is the settled general rule of law in relation to fixtures. 
 
 " It is virtually conceded by the learned judge whose opin- 
 ion has been so often referred to, that this kind of railroad 
 property does not come within the general definition of fix- 
 tures ; that is, that it is not annexed or attached to the free- 
 hold, as the general rule on that subject requires it to be. 
 If this is true of such property in general it is peculiarly so 
 of the property in controversy. * * * 
 
 '^The rolling stock, shop-tools and machinery not afiixed 
 to the realty, being personal property, and the plaintiif's 
 mortgage not having been tiled as a chattel mortgage, it 
 is void as against creditors, as a conveyance of personal 
 property." 
 
 Grover, J., in his opinion, said : "Before the act provid- 
 ing for the consolidation of several railroad companies into 
 the New York Central Railroad, the engines and cars of any 
 one of those several companies were suitable, and frequently
 
 720 I^^'^^ OP FIXTURES. 
 
 used, on the entire route from Albany to Buffalo. This 
 shows that engines and cars upon railroads cannot be re- 
 garded as fixtures because they are adapted to use upon the 
 particular road of the company owning them, and not else- 
 where. I do not think much force can be attached to the 
 argument that they are not articles of commerce. How 
 the fact may be, I am unable to state, but I think the en- 
 gines and cars of railroad companies are sold as often as 
 farmers sell or exchange their plows. * * * 
 
 "In my opinion, engines, cars, &c., are not fixtures, but 
 personal property ; and the defendant Patchin acquired a 
 title to them by his purchase under the execution against 
 the railroad company" {Stevens v. Buffalo & New YorTc 
 City R. R. Co., 31 Barh. R., 590, 596-598, 602, 603, 605, 606, 
 612, 616, 618, 619). 
 
 In the year 1859, the same court decided, at Special Term, 
 that the mortgage of a railroad company of its railroad, real 
 estate, chattels and franchises, did not cover the rolling 
 stock of the corporation, because it was not a part of the 
 realty. Mr. Justice Allen, who decided the case, observed : 
 ''Murdoch v. Gifford (18 N. Y. R., 28), reaffirms and ap- 
 plies the doctrine of Walter v. Sherman, and holds that 
 looms in a woolen factory, connected with the motive power 
 by leathern bands, not otherwise annexed to the building 
 than by screws holding them to the floor, which kept them 
 steady while working, and which could be removed without 
 injury to themselves or to the building, are chattels, and not 
 a part of the realty. If that case was well decided (and it 
 was well considered, and at least is binding upon me), then 
 but little of the property in controversy here was or is a 
 part of the realty, and covered by the mortgage. The looms 
 are distinguishable from the cars and rolling stock in this, 
 that they were permanently placed, although not strongly 
 affixed, while the rolling stock of the road was incapable of 
 permanence, or of being affixed or annexed in any one place, 
 but was intended for locomotion. Its whole use is in its 
 locomotive facilities. The term by which it is ordinarily 
 designated, 'rolling stock,' implies the reverse of annexation 
 and a permanent fixture. ^ ^ * The locomotives, therefore,
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 721 
 
 and all the other rolling stock of tlie company — all tlie 
 stock, materials, rails, ties and other things on hand for 
 using or repairing the road, the platform scales, and all the 
 loose tools and implements levied upon, and' all the articles 
 not constituting a part of the road-bed, or firmly affixed to 
 the land or some building wMck is itself a fixture, mcludmg 
 such articles as are usually denominated chattels, but which 
 are annexed by a screw or the like to some building, and 
 which can be removed without detriment to the building — 
 were properly seized by the sheriff" (Beardsley y. The On- 
 tario Bank, 31 Barh. R., 619, 635, 636). 
 
 The question again came before the Supreme Court of the 
 State of New York, at Special Term in 1866, when the doc- 
 trine of the last case cited was expressly approved, and in 
 accordance therewith, it was held that the rolling stock of a 
 railroad company did not become a part of the realty, 
 although the stock passed in that case by the mortgages in 
 question, as specially named, but not as part of the realty. 
 Sutherland, J., decided the case, and said : "In my opinion, 
 the engines and cars of a railroad are not so affixed to the 
 road that they can be called fixtures thereof, without intro- 
 ducing a new principle into the law of fixtures. They can- 
 not properly be said to be fixed to the track ; they can be 
 lifted off the track and put on it again, by simply overcom- 
 ing the law of gravity, and without any injury to the track 
 oiM-ails. They are not stationary, and are not intended to 
 be. Their use is in being moved rapidly from one end of 
 the road to the other, and frequently on and over a succes- 
 sion of roads. We can take judicial notice of what every- 
 body knows, that sometinies they run and Jump off the 
 track. * * * The railroad company probably intends tliat 
 its rolling stock, and the farmer, that his farming imple- 
 ments, shall be used on the railroad and farm, until used 
 up ; but this intended permanent local use of the farmer 
 doe's not make his plows, and reaping and mowing mii- 
 chines fixtures'' {Bementv. PlattsburgJi & Montreal Rail- 
 road Company, 47 Barb. R., 104, 107, 108). 
 
 The case was taken to the General Term by appeal, and 
 the judgment at Special Term was affirmed in 1868, Judge 
 
 91
 
 722 LAW OF FIXTURES. 
 
 Ingraham giving the opinion, in which he said : " I am not 
 prepared to say that I accede to the opinion delivered at the 
 Special Term in this case that the rolling stock in all cases 
 is to be considered as personal property, and does not pass 
 under a mortgage of the road and its appurtenances. But 
 it seems to me that there is another principle to be applied 
 to this case which will render it not very material whether 
 in a case where the conveyance is only of the realty, the 
 rolling stock could be included. 
 
 "It is found by the referee, and conceded, that the mort- 
 gage is sufficient to include in the mortgaged property the 
 rolling stock ; and it must also be conceded that such was 
 the intent of the parties." 
 
 George G. Barnard, J., concurred in the opinion of Ingra- 
 ham, J., and Sutherland, J., observed: "I concur in the 
 conclusion that it was not necessary to file the mortgage as 
 a chattel mortgage, but I remain of opinion that the rolling 
 stock of a railroad cannot be regarded as a fixture" {Hoyle 
 V. Plattshurgh & Montreal Railroad Company, 51 Barb. 
 JR., 45, 63, 64). 
 
 The case was then carried to the Court of Appeals where 
 the judgment appealed from was reversed by the Commis- 
 sion of Appeals in June, 1873, Johnson, C, writing the pre- 
 vailing opinion, but the conclusion was reached, that the 
 rolling stock of a railroad is not part of the realty, but re- 
 tains its character as personal property. The learned Com- 
 missioner, in the course of a well considered and elaborate 
 opinion, said : " Looking now at the rolling stock of a rail- 
 road, it is originally personal in its character, it is subservi- 
 ent to a mere personal trade, the transportation of freight 
 and passengers. The track exists for the use of the cars 
 rather than the cars for the use of the track. There is no an- 
 nexation, no immobility from weight, there is no localiza- 
 tion in use. * ^ ^ Taking it, then, to be the law, that rolling 
 stock of a railroad does not become part of the realty so as 
 to pass by a conveyance of the land as part thereof, the next 
 question is whether the law of 1833 requires a mortgage of 
 such proi3erty to be filed w^here no change of possession 
 takes place."
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 723 
 
 Reynolds, C, gave a dissenting opinion, but he did not 
 differ with the prevailing opinion as to tlie character of the 
 property. In concluding, the learned Commissioner said : 
 " But as to the question whether the rolling stock of a rail- 
 road company is to be regarded as fixtures or not, I have a 
 decided opinion that they cannot be considered as any part 
 of the company's real estate" {Hoyle v. The Plattsburgh & 
 Montreal R. R. Company, 54. N. Y. R., 314, 324, 326, 334). 
 
 And the Court of Appeals decided a case also in the year 
 1873, in which it was expressly held that the rolling stock 
 owned and used upon its tracks by a railroad company is 
 personal property, and as such is liable to be seized and sold 
 for the collection of a tax against the company. Grover, J., 
 delivered the opinion, in which all the judges concurred, 
 wherein he observed : "The question is presented, free from 
 embarrassment, whether cars, while owned and used by the 
 company upon its track, were real estate or personal prop- 
 erty. My conclusion is that they were personal property, 
 and, as such, liable to be seized and sold for the collection 
 of a tax against the company" {Randall y. Elioell^ 52 iV. 
 Y. R., 521, 525). 
 
 So the rule may be considered settled in the State of New 
 York, that the rolling stock of a railway company is per- 
 sonal property and not a part of the realty. But the result 
 of the examination of the qu(?stion by the different courts, 
 and the profound learning of the opinions reported, will be 
 of service in determining the question in other States, and 
 also be useful in the determination of the general question 
 of fixtures, as well in New York as elsewhere. The decis- 
 ions in the other States are not always in accord with the 
 rule as settled in New York. 
 
 In 1860, the Supreme Court of Illinois decided that fuel, 
 office furniture, material for gas lights, and all other de- 
 taclied property of that kind, belonging to a railway com- 
 pany, not like road equipments, designed for the continued 
 use of the road, was personalty, and that corporations, as 
 well as individuals, could only mortgage such property by 
 conforming strictly to the statute in reference to chattel mort- 
 gages, and for the same time. And it was further held that
 
 724 LAW OF FIXTURES. 
 
 such property acquired subsequent to the execution of a 
 chattel mortgage was not lield by the mortgage. But the 
 opinion contains an intimation that the rolling stock of the 
 company would be regarded as fixtures. Property of the 
 description first mentioned had been seized upon an execu- 
 tion against the mortgagor, and the mortgagee brought the 
 action^to restrain the sale of it. Walker, J., delivered the 
 opinion of the court, and observed: "We shall first ex- 
 amine whether fuel and office furniture, when owned by a 
 railroad company, is real estate, and tlie company thereby, 
 not required, in executing a mortgage on such articles, to 
 comply with tlie chattel mortgage law. It is too plain a 
 principle to require argument or reference to authorities, 
 that there is a marked difference between real and personal 
 estate. All commentators and judicial determinations on 
 the subject, have held that real estate embraces such things 
 as are permanent, fixed and immovable, and which cannot 
 be carried out of their places, as lands and tenements, 
 while personal property is defined to be goods, money, and 
 all other movables which may attend the person of the 
 owner, wherever he may think proper to go. While, how- 
 ever, these broad and well defined distinctions are univer- 
 sally acquiesced in and enforced, both in this country and 
 Great Britain, as being elementary, and lying at the very 
 foundation of our system of jurisprudence, there have been 
 and are still some exceptions, such as trade fixtures and 
 emblements on the one hand, and heir-looms on the other. 
 
 " This property, as all must perceive, is not permanent, 
 fixed and immovable, but is detached and separate from the 
 road and its lands. * * * As between individuals, such prop- 
 erty has never been regarded as real estate or fixtures, but 
 has, in all conditions and under all circumstances, and for 
 every purpose, been regarded as, what it simply is, personal 
 property. These distinctions are so plain and familiar, that 
 every class of men, in their business affairs, act upon and 
 conform to them. If, as between individuals, a court were 
 to announce a contrary rule, it would startle every class of 
 men as now and unheard of in our system of jurisprudence. 
 
 "Our legislature has failed to declare such property, when
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 725 
 
 owned by incorporate bodies, to be real estate, nor does any 
 rule of the common law make such a distinction in its favor. 
 The common law, as it heretofore existed and now exists, 
 with all its expansive nature, and its adaptation to new and 
 varying circumstances of a community, has always .been ap- 
 plied to bodies politic and corporate, as it is to individuals. 
 All their exemptions from its operation, are found in their 
 charter, or in the general statutes of the State. The charter 
 of this company grants no such immunity from its opera- 
 tion, and no general law of the State has given such bodies 
 the right to hold personal property as real estate. Nor has 
 it ever been held that because personal property is conven- 
 ient, or even necessary to the enjoyment of real estate, that 
 it should for that reason, be held and treated as such. * ^ * 
 Such has never been claimed for individuals, and no reason 
 is perceived in justice, or upon principle, why corporate 
 bodies have any higher or greater claims to such exemptions. 
 They are unquestionably, outside of their charter privileges, 
 entitled to the benefit of the rules of law, as an individual, 
 but to nothing more. 
 
 " It is only since railroad mortgages have come to be dis- 
 cussed, that any attempt has been made to treat what are 
 individually and palpably personal chattels as any thing 
 else, and even then, when ingenuity had exhausted itself, in 
 endeavoring to show, that fuel and office furniture and the 
 like, Avere real estate, or in equity, should be treated as 
 such, for the benefit of mortgagees, the result has proved a 
 signal failure. In the absence of any common law rule, or 
 statutory enactment making these articles real estate, we 
 must hold, whether they be owned by a railroad company, 
 or an individual, that they are personal property, and as 
 such, are subject to all its incidents. To hold otherwise 
 would be to violate elementary principles, recognized and 
 acted upon wherever the common law exists. * * * 
 
 "That these incorporations, when they mortgage their 
 road, tracks and franchises, thereby mortgage all of their per- 
 sonal fixtures, such as the road equipments for their con- 
 tinued use and connected with them, we have no doubt. 
 And by such a mortgage, all future additions to it; of the
 
 726 LAW OF FIXTURES. 
 
 same permanent nature, being an incident to the real estate, 
 must become subject to the mortgage, as do improvements 
 to other real estate mortgaged by individuals. So of repairs 
 to personal property of the road legally mortgaged, and not 
 designed for daily consumption. But that fuel, office fur- 
 niture, stationery, materials for light, and all other detached 
 projoertj^ of that character is personalty, we have no hesita- 
 tion in determining. * * * To hold otherwise would, it seems 
 to me, involve us in an absurdity, if followed to its inevita- 
 ble consequences, that we are not prepared to adopt, for 
 the purpose of ruling against what might appear to be a 
 hardship in a particular case. Whenever the law is warped 
 for such a purpose, it must terminate in absurdity, and lead 
 to the perpetration of great injustice" {Hunt v. Bullock, 23 
 III. JR., 320-322, 327, 328). But the same court held at the 
 same term, that rolling stock, rails, ties, chairs, spikes, and 
 all other property brought upon the realty of a railway 
 company, if intended to be attached thereto, is covered by a 
 mortgage thereof. 
 
 Caton, C. J., observed : " We are not departing from the 
 common law rule, when we hold that the rolling stock and 
 material provided for the repair of the track, are a part of 
 the real estate. It is not necessary in all cases that things 
 should be actually affixed to the freehold, in order to con- 
 stitute a part of it for the purpose of transfer and sale. 
 Take the case of millstones, which are' constantly being 
 taken up and sharpened. * ^ * So of various kinds of ma- 
 chiner}'-, as a screw or cutting engine, or lathe. ^ * * AH of 
 these are necessary to make the complete machine, and 
 would pass by a sale of the factory as being a part of it, 
 but with no more propriety than is the rolling stock a part 
 of the railroad. No road can be complete without its ma- 
 chinery, any more than would a cotton or grist-mill" 
 {Palmer v. Forbes, 23 III. R., 300). 
 
 In 1862, the Court of Appeals of Maryland decided, in a 
 case where it appeared that a railway company mortgaged 
 its line of road, its tolls, and its revenues, that the mort- 
 gage covered all the rolling stock and fixtures whether mov- 
 vable or immovable, essential to the production of tolls and
 
 RULE AS TO ROLLING STOCK, ETC., OF RAILWAYS. 727 
 
 revenues {State v. Nortliern Railway Comjyany, 18 Md. 
 M., 193). 
 
 A case was decided by tlie Supreme Court of tlie United 
 States in 1864, wherein one of tlie questions decided in the 
 inferior court was, that rolling stock in a railway is a fix- 
 ture, and the question was argued before the appellate court 
 with great abilit}^ ; but the point was appareutl}^ one not 
 necessary to be specifically passed upon, and is not discussed 
 in the prevailing opinion, but the decision is not inconsist- 
 ent with that idea although the decree was aflarmed. Mr. 
 Justice Nelson, however, delivered a dissenting opinion in 
 which Clifford and Field, JJ., concurred, wherein he said: 
 " We agree that the rolling stock upon this road covered by 
 the several mortgages, and as respects any other valid liens 
 upon the same, is inseparably connected with the road ; in 
 other words, is in technical language a fixture to the road, 
 so far as in its nature and use it can be called a fixture. But 
 it is a fixture extending over the entire track of the road 
 from Milwaukee to La Crosse. It is not a fixture upon any 
 particular division or portion ; but attaches to every part 
 and portion" {Minnesota Company v. St. Paul Company, 
 2 Wallace's B., 609, 644). 
 
 Under the circumstances, it might very plausibly be infer- 
 red, that the judgment in the case in the Supreme Court of 
 the United States cited, was rather afiirmative of the doc- 
 trine that the rolling stock of a railroad is a fixture, and 
 part of the realty ; but the case was examined by the Com- 
 mission of Appeals of {jlie State of New York in Hoyle v. 
 Plattshitrgh & Montreal Railroad Company (54 N. Y. R., 
 314), and the opinion was expressed, that the question had 
 been so decided by the District Court in another suit, the de- 
 cree in which bound the parties then before the court in the 
 case referred to, and concluded there that the point could not 
 then be adjudicated ; so that the case could not be regarded 
 as an authority one way or the other upon the question. 
 
 In an able note to that case, however, the subject of fix- 
 tures is fully discussed, and the conclusion arrived at, that 
 rolling stock of a railway is a fixture, and will pass under a 
 general conveyance of the road. On tlie whole, therefoi-e.
 
 728 LAW OF FIXTURES. 
 
 it may be affirmed, that the doctrine is authoritatively set- 
 tled in the State of N^ew York, that the rolling stock of a 
 railroad company is personal property, and not a fixture ; 
 while in Illinois, Maryland, and some other States, the 
 rule is settled the other way. So the precise question can- 
 not be regarded as definitively settled until it shall have 
 been squarely decided by the Supreme Court of the United 
 States. 
 
 CHAPTER LIV. 
 
 THE RULE IN RESPECT TO THE TRANSFER OF FIXTURES AS SUCH 
 
 EXAMINATION OF THE CASES UPON THE SUBJECT EFFECT OF THE 
 
 STATUTE OF FRAUDS UPON CONTRACTS FOR SALE OF FIXTURES 
 
 RULE IN RESPECT TO THE SALE OF FIXTURES UPON EXECUTION 
 
 RULE IN RESPECT TO THE DISTRAINABILITY OF FIXTURES. 
 
 The rules with respect to the transfer of fixtures as be- 
 tween vendor and vendee, and mortgagor and mortgagee, of 
 the realty, have been stated in previous chapters ; but it is 
 necessary to consider briefly the doctrine relating to the sale 
 of fixtures, as sucJi, irrespective of the transfer of the real 
 estate to which they are attached. And here it may be 
 affirmed as a rule, that things by their annexation to the 
 land lose their character of goods and chattels, and j^et the 
 right to fixtures is not an interest in laud. It would seem 
 to follow, therefore, as a corollary from this proposition, 
 that fixtures which a party has the right to sever and take 
 away from the land, might be transferred by the same means 
 and forms that personal chattels of equal value might be 
 passed from one party to another ; and the better opinion 
 is in accordance with this view. The question is more fre- 
 quently involved in controversies respecting the validity of 
 sales of fixtures in connection with the Statute of Frauds, 
 and it is the general impression, perhaps, that fixtures are 
 not an interest in land within the meaning of the Statute of
 
 RULE IN RESPECT TO TRANSFER OF FIXTURES. 729 
 
 Frauds, so as to require a note or memorandum in writing 
 under such statute. 
 
 A quotation i'rom the hist edition of Williams' Saunders' 
 Reports, upon this subject is as follows : "Damages may 
 be recovered in trespass for taking fixtures, describing 
 them as goods and chattels. However, until severed from 
 the freehold they are not goods and chattels at all, but 
 parcel of the freehold. But the tenant may sell the right 
 to remove them ; * * * and such a sale is not a sale of any 
 interest in land, so as to require a memorandum in writing 
 under the fourth section of the Statute of Frauds" {2 Wil- 
 liams'' JSawid. J?., 656). 
 
 When the contract relates to a transfer of fixtures together 
 with the land, of course, it falls within the provision of 
 Statutes of Frauds, requiring a memorandum in writing ; 
 and in such a case any agreement for the sale or valuation 
 of the fixtures, although it may be of a chattel interest only, 
 must doubtless be in writing, and executed according to the 
 formalities required by the statute. But when fixtures are 
 sold in contemplation of an immediate severance, and the 
 contract takes place between parties who do not transfer 
 any interest whatever in the land, as between an outgoing 
 tenant at the expiration of his term and the incoming tenant 
 under a new demise, the authorities seem to hold that no 
 other formalities need be observed than in the transfer of 
 ordinary goods and chattels. For in this case the subject 
 of the contract is, in the view of the parties, a bare chattel. 
 A case decided by the English Court of Exchequer in 1887, 
 is an authority in point upon this subject. In that case a 
 tenant a few days previous to the expiration of his tenancy, 
 agreed with his landlord, and at his request to leave fix- 
 tures, the latter engaging to take them at a valuation ; the 
 tenant accordingly gave up possession of the premises with 
 the fixtures to the landlord ; and the fixtures were after- 
 ward valued by brokers on each side at above £10 ; and 
 they signed the appraisement. The court held that under 
 these circumstances this was not a sale of any interest in 
 land, within the Statute of Frauds. Parke, B., in the course 
 of his judgment, said : "The term fixtures has now acquired 
 
 92
 
 730 LAW OF FIXTURES. 
 
 the peculiar meaning of personal chattels which have been 
 annexed to the freehold, but which are removable at the 
 will of the person who has annexed them." And it would 
 even seem, that in this case the court considered that a note in 
 writing was not necessary as upon a sale of goods above £10, 
 under the section of the English Statute of Frauds then in 
 force, which required the sale of goods above that amount in 
 value to be in writing, when there was neither payment nor de- 
 livery {Hallen v. Bunder, 1 Crompton, Jerms &Ros. B., 266). 
 So in a case decided at Msi Prlus upon the Northern Cir- 
 cuit of England, it was held by Cress well, J., that a verbal 
 agreement for the sale by a reversioner of trade fixtures in 
 the possession of a tenant by whom they had been erected, 
 but to whom they had been demised with the premises, was 
 a valid transaction, and not within the Statute of Frauds. 
 This case, however, has sometimes been doubted as author- 
 ity. The fixture sold was a steam-boiler, and so far as the 
 case held that such an article, being a trade fixture, would 
 pass to a purchaser under a parol agreement, and that a 
 deed was not in such a case necessary, it is in accordance 
 with the rule laid down in other cases of binding authority 
 {Petrie v. Daioson, 2 Car. & Kir. P., 138). 
 
 And in a case decided by the Court of Queen's Bench, 
 during the present year, 1876, the general doctrine w^as 
 expressly recognized, in which it appeared, that the tenant of 
 premises having become bankrupt, the trustee sold the ten- 
 ant's fixtures on the premises to the plaintiii", and he sold 
 them to the defendant, the landlord. There was no agree- 
 ment in writing, and the value of the fixtures was above 
 £10. The defendant refused to pay for the fixtures, and an 
 action was brought to recover the purchase price. The 
 court held that the sale was not within section 4 of the Stat- 
 ute of Frauds as the sale of an interest in laud, nor within 
 section 17 as the sale of goods and chattels ; and that, there- 
 fore, the action was maintainable {Lee v. Gas/cell, L. P., 
 1 Q. B. i>., 700 ; 8. C, 14 All). L. J., 396). 
 
 The doctrine that fixtures sold witliout the realty will 
 pass by the same instrumentalities and forms as ordinary 
 goods and chattels, is also sanctioned by the American
 
 RULE IN. RESPECT TO TRANSFER OF FIXTURES. 731 
 
 authorities. The Supreme Judicial Court of Massachusetts 
 decided in 186B, that a house built upon the land of another, 
 with his consent, is personal property, and may be sold by 
 jriarol. 
 
 Chapman, J., gave the opinion, and said: "It has been 
 decided by this court in several cases that, if a man builds 
 a house on land which is not his own, by consent of the 
 owner, the house is personal property. * * * It remains 
 separate from the freehold by virtue of the agreement be- 
 tween the parties. As the agreement relates to personal 
 property, it may be made by parol" {Curtis v. Riddle, 7 Al- 
 len' s JR., 185, 187). And the same distinguished court held 
 in 1866, that buildings which are sold without the land on 
 which they stand, with the intention of all parties to sever 
 them from the land, pass to the purchaser, with a right to 
 remove them as personal property within a reasonable time, 
 and to sell them to whom he pleases {Shaw Y. Carbrey, 13 
 Allen's i?., 462. And vide Park v. Baker, 7 ih., 78). On 
 the contrary, in some respects, the Philadelphia Court of 
 Common Pleas, decided in 1858, that fixtures are part of the 
 realty, and need not, therefore, be manually delivered, 
 as goods and chattels must be, to render the sale valid 
 against creditors. Hare, J., said: "The machinery was 
 fastened to the floor of the building, and propelled by mo- 
 tive power derived from a steam-engine in the basement ; it 
 was, therefore, unquestionably a fixture, in the liberal sense 
 in which the term is used in Pennsylvania. Viewed as a 
 fixture, there was obviously no necessity for that manual 
 tradition which is requisite when goods and chattels are in 
 question. The transfer here was from a tenant to his land- 
 lord, as security for the rent, and possession could not have 
 been given,. without surrendering the term, or taking the 
 machinery to pieces, and thus rendering the premises use- 
 less for the purx)ose for which they were rented" {KnigJit 
 V. The Bank, 3 Philadelphia P., 138). 
 
 It does not appear whether the machinery in this case 
 passed by a written instrument or otherwise, and the real 
 question decided was only in respect to the validity of the 
 transfer of the fixtures as against the creditors of tlie ven-
 
 732 LAW OF FIXTURES. 
 
 dor. The case does not necessarily militate against tlie doc- 
 trine that fixtures may not be sold without the realty, in the 
 same way that goods and chattels are transferred. 
 
 The ordinar}^ cases of emblements are generally regarded 
 as analogous to those of fixtures ; and in those cases, it is 
 always held that the crops constituting emblements may be 
 transferred in the same manner that goods and chattels may 
 be sold. The Court of King's Bench of England held in 
 1809, that a contract by the owner of a close cropped with 
 potatoes, made on the 21st of November, to sell to the de- 
 fendant the potatoes at so much a sack ; the defendant to 
 get them out of the ground immediately ; was not a contract 
 for any interest in land within the English Statute of Frauds 
 then in force, but the same as if the potatoes, which had 
 done growing and were to be taken up immediately, had 
 been sold in a warehouse from whence they were to be re- 
 moved by the defendant {Farher v. Staniland, 11 EasV s 
 Ji., 362). And the same doctrine was laid down in a case 
 decided by the Court of Exchequer, thirty or forty years 
 later, wherein it appeared that the defendant in the month 
 of June agreed to sell to the plaintiff the potatoes then 
 growing on a certain quantity of land of the defendant at. 
 digging-up time (October), and to find diggers. The court 
 held that this was not a contract for the sale of an interest 
 in land within the statute of frauds {Saintbury v. Mat- 
 thews, 4 Mees. & Welsh. Ji., 343). And the doctrine was 
 even' more emphatically recognized in a case decided by the 
 Court of Queen's Bench in 1839, wherein it appeared that 
 the plaintiff and defendant orally agreed, in August, that 
 the defendant should give <£45 for the crop of corn on the 
 plaintiff's land, and the profit of the stubble afterward ; that 
 the plaintiff was to have liberty for his cattle ^to run with 
 defendant's ; and that the defendant was to have some pota- 
 toes growing on the land, and wliatever lay grass was in the 
 fields; the defendant was to harvest the corn, and dig up 
 the potatoes ; and the plaintiff was to pay the tithe. The 
 court held, that it did not appear to be the intention of the 
 parties to contract for any interest in land, and the case was, 
 therefore, not within the statute of frauds, but a sale of
 
 RULE IN RESPECT TO TRANSFER OF FIXTURES. 733 
 
 goods and chattels, as to all but the lay grass, and, as to 
 that, a contract for the agistment of defendant's cattle 
 {Jones V. Flint, 10 Adolph. & M. jR., 753; ^S: C, 37 JSng. 
 a L. B., 217). 
 
 So also the same distinguished court held in a case de- 
 cided in 1826, that a verbal agreement made on the 2oth of 
 September for the sale of a then growing crop of potatoes, 
 was not a contract or sale of any lands, tenements, or her- 
 editaments, or any interest in or concerning them within the 
 statute of frauds, but a sale of goods, wares, and merchan- 
 dise. The effect of tlie cont]*act was declared to be, to give 
 the buyer a right to all the potatoes which a given quantity 
 of land should produce, but not to give him any right to the 
 possession of the laud ; he was merely to have the potatoes 
 delivered to him when their growth was complete. But the 
 reasoning of Lord Ellenborough, in the case of Parker v. 
 Staniland, supra, was approved, where he says: "If this 
 had been a contract conferring an exclusive right to the 
 land for a time, for the purpose of making a jirotit of the 
 groioing surface, it would be a contract for the sale of an 
 interest in or concerning lands, and would then fall unques- 
 tionably within the range of Crosby v. Wadsioorth (6 East, 
 602). But here is a contract for the sale of potatoes at so 
 much j)er acre ; the potatoes are the subject-matter of sale ; 
 and whether at the time of sale they were covered with earth 
 in the field, or in a box, still it was a sale of a mere chattel." 
 The court considered that Lord Ellenborough' s judgment 
 proceeded upon the ground that if the contract gave to the 
 vendee no right to the land so as to enable him to make a 
 prolit of the growing surface, then it was not to be regarded 
 as giving him an interest in the land, but merely in a chat- 
 tel, and this doctrine was adopted {Evans v. Moberts, 5 
 Barn. & Ores. B., 829 ; 8. C, 12 Eng. C. L. R., 377). And 
 there is a variety of English cases in which a distinction is 
 made between the sale of growing crops and the sale of an 
 interest in land, and the matter would seem to be well es- 
 tablished, although Lord Abinger remarks, that no general 
 rule is laid down in any one of the cases that is not contra-
 
 734 LAW OF FIXTURES. 
 
 dieted by some other {Rodwell v. PhilUps, 9 Mees. c& Welsh. 
 B., 501). 
 
 But the general doctrine" is recognized by the American 
 courts. The old Supreme Court of the State of New York 
 laid down the rule in 1828, that wheat growing upon the 
 ground was a mere chattel, and that the property in it 
 would pass by parol and without writing, as the statute of 
 frauds did not apply to such a case. And that when one 
 sells his crop by parol, and afterward conveys the land, the 
 conveyance will not carry the title to the crop {Austin v. 
 Sawyei\ 9 Cow. ^., 39). And the present Supreme Court 
 of the State held in 1862, that hops, growing and maturing 
 .on the vines, which are produced by the annual cultivation 
 of the owner, are personal chattels within the meaning of 
 the statute of frauds, and as such are subject to sale like 
 other personal property {Frank v. Harrington., 36 Barb. JR., 
 416). And the same court held in 1868, that, although hop 
 roots, when rooted in the ground, are a part of the real estate 
 of the proprietor of the soil, and will pass to the purchaser, 
 by a conveyance of the land, and to the heir, by inheritance ; 
 yet where the plaintiffs agreed by parol to deliver to the 
 defendant a quantity of hop roots, at a future time, at a speci- 
 fied price per bushel, this agfeement was not to sell, or pur- 
 chase, an interest in real estate, but was an executory contract 
 by the plaintiffs to purchase for, or to sell and deliver to, the 
 defendant an article of merchandise, which, when delivered, 
 would be personal property, and was, therefore, not within 
 the statute of frauds requiring such agreement to be in 
 writing. But the court do not express an opinion as to how 
 the case would be, had the agreement been to deliver such 
 hops from a given yield where they were then growing 
 {Webster v. Ziely, 52 Barb. R., 482). 
 
 The Supreme Court of Errors of Connecticut decided a 
 case in 1809, in which the rule was declared, that a contract 
 for the sale of things annexed to the freehold, but which are 
 capable of separation without violence, and by the terms of 
 the contract are to be separated, is not within the statute of 
 frauds {BostwicJc v. Leach, 3 Day'' s R., 476). And the 
 Supreme Judicial Court of Massachusetts decided in 1840,
 
 RULE IN RESPECT TO TRANSFER OF FIXTURES. 735 
 
 tliat an oral agreement for the sale of mulberry trees grow- 
 ing in a nursery and raised to be sold and transplanted, to 
 be delivered on the ground where they are growing, upon 
 payment therefor being made, is not a contract for the sale 
 of an interest in or concerning lands, within the statute of 
 frauds ; and further, that a license to enter upon land, and 
 remove trees therefrom, passes no interest in the land, and, 
 though not in writing, is valid, notwithstanding the statute 
 {Wliitniarsli v. Wallier^ 1 Met. R., 313). And the same 
 court extended the rule even further in a case decided in 
 1842, wherein it was held ^that a contract for the sale of 
 growing wood and timber to be cut and removed by the 
 purchaser, is not a contract for the sale of any interest in or 
 concerning lands within the Massachusetts Statute of Frauds 
 {ClaJllnY. Carpenter, 4: Met. Ji., 580). 
 
 But it is generally held that growing trees, fruit and grass, 
 are parcel of the land, and are, therefore, within the statute 
 of frauds, and cannot be sold or conveyed by parol. This 
 question was carefully examined and deliberately settled in 
 a case decided by the old Supreme Court of. the State of 
 New York in 1845, wherein it was held, that an agreement 
 for the sale of growing trees, with a right to enter on the 
 land at a future time and remove them, is a contract for the 
 sale of an interest in lands, and to be valid must be in 
 writing. The distinction was taken in this respect, between 
 growing trees, fruit or grass and other natural products of 
 the earth on the one hand, and growing crops of grain and 
 other annual productions raised b}^ cultivation of the earth 
 and the industry of man on the other. The former were 
 held to be parcel of the land, and a contract in writing is 
 required to make a valid transfer ; the latter was declared 
 to be personal chattels and not within the statute {Green v. 
 Armstrong, 1 Demo'' s B., 550). And to the same effect is 
 the ruling in a case decided by the present Supreme Court of 
 the same State in 1847 ( Wai'ren v. Leland, 2 Barb. ^.,613, 
 and vide The Bank of Lanslnghurgli v. Crary, 1 ii>., 542). 
 
 The decisions are not uniform in respect to the rule which 
 should distinguish between real and personal property, 
 within the meaning of the statute of frauds. But it may
 
 736 ^^^ ^^ FIXTURES. 
 
 safely be affirmed, that in all cases wliere fixtures or other 
 annexations to real estate, belong to one party, and the 
 realty to another, such fixtures or other annexations may 
 be sold, transferred, and dealt with, in the same manner 
 precisely, as in the case of personal chattels of the same 
 nature. 
 
 Akin to the subject now under discussion, is that in re- 
 spect to the transfer of fixtures by a sale upon execution or 
 other legal process ; and in respect to this, it may be briefly 
 remarked, that it was formerly considered that things an- 
 nexed to the freehold were not liable to be taken in execu- 
 tion, like the movable goods and chattels of the debtor. 
 But this rule of law has given wa}^ to a more liberal con- 
 struction in favor of creditors in modern times ; and for 
 their benefit, fixtures are now held to be so far in the nature 
 of personal chattels, that in all cases where they belong to 
 a party who has the right to sever them and carry them 
 away, against the will of the owner of the realty to which 
 they are annexed, they may be seized and removed by 
 virtue of a .writ of fieri facias or other similar process 
 against the owner of the fixtures. This doctrine is often 
 laid down by judges in their opinions in cases referred to in 
 other parts of this work, and the bare statement of the 
 rule, theA?fore, is all that is necessary here. Sometimes, 
 however, the rule would seem to be applied only in cases 
 of trade utensils, and a distinction taken on this particular 
 ground. But it is now generally understood that the rule 
 is the same with respect to other fixtures, whether put up 
 for ornament or any other purpose, and that all are alike 
 to be considered as goods and chattels for the benefit of ex- 
 ecution creditors. 
 
 Another subject in connection with the transfer of the 
 title to fixtures may as well be referred to in this place. 
 And that is, the distrainability or non-distrainability of an- 
 nexations to the freehold. . It was an established rule of 
 law in early times, that the fixtures put up by a tenant were 
 not distrainable by his landlord for rent ; and the rule held, 
 not merely in respect of such things as became, by annexa- 
 tion, parcel of the inheritance, and are not afterward sever-
 
 DISTRAINABILITY OF FIXTURES. 737 
 
 able but it applied to fixtures of whatever nature or con- 
 struction, and whether put up for trade or for any other 
 purpose The reason of the rule was, that fixtures savor 
 of tlie realty ; and the right to distress is confined^to per- 
 sonal chattels. A distress at common law is merely in the 
 nature of a pledge or security, and not of execution or 
 satisfaction ; and the reason of the original exemption ot 
 fixtures from distress is supposed to be, that they could not 
 be severed from the freehold without detriment, and, there- 
 fore could not be restored to the owner in the same condi- 
 tion' in which they were taken. But the old rule in respect 
 of annexations to the freehold, has been very much relaxed 
 by modern determinations, as between landlord and tenant, 
 and with it there has come a modification of the rule m re- 
 spect to distress. And yet the decisions of the courts upon . 
 the subject are by no means harmonious ; in fact, they are 
 apparently confiicting, some of them recognizing the dis- 
 trainability of fixtures and some of them refusing to recog- 
 nize it. ^ ^ n r\ ^ 
 
 A case was decided by the English Court of Queen s 
 Bench in 1841, wherein it was held that "a kitchen range, 
 a register stove, a copper, and also grates," annexed to the 
 freehold in the ordinary manner, and admitted to be ' fix- 
 tures- removable by the tenant," were of the class that was 
 not distrainable for rent, for the reason that they were 
 things which, from the nature of them, could not after pay- 
 ment of the arrears of rent, be restored again to the tenant 
 in their original plight and condition -thereby recognizing 
 the principle which lay at the foundation of the original 
 rule upon the subject {Barley v. Harris, 1 Adolph. & M. 
 B., N. S., 895 ; S. C, 41 Bug. C. L. R., 828). 
 
 On the other hand, the English Court of Exchequer de- 
 cided in 1851, that certain ''cotton-spinning machines, fixed 
 by means of screws, some into the wooden fioor, some into 
 lead which had been poured in a melted state into holes m 
 stones, for the purpose of receiving the screws," were in no 
 sense part or parcel of the freehold, and on that account, 
 were not exempted from distress ; moreover, that they were 
 capable, after being removed, of being restored again m the 
 
 93
 
 738 LAW OF FIXTURES. 
 
 like plight and condition ; and on that account also, they 
 were held to be lawfully distrainable {Hellawell v. East- 
 wood, 6 Welsby, Hiirlstone & Gordon's B., 295). 
 
 And. the question of the distrainability of fixtures was 
 considered by the English Court of Queen's Bench in 1870, 
 in a case wherein it appeared that a landlord distrained 
 three railways connected with a coal mine which was de- 
 mised to the tenant, one within the mine, one traversing the 
 coal-yard, and the third running along the waste land of a 
 certain manor from the mine to a junction with the Llanelly 
 railway. The plaintiff contended that the distress was 
 wholly illegal, the railway in question being fixtures and 
 not distrainable. The defendant on the contrary contended 
 that the railways being chattels were lawfully distrainable. 
 Mr. Justice Mellor delivered the judgment of the court, 
 and, among other things, said : " In the present case, we have 
 not to consider the law which is applicable to fixtures as 
 between the different descriptions of representatives of the 
 same owner of the inheritance ; neither have we to consider 
 under what circumstances fixtures may be removed, either 
 under express contract or in favor of trade, or what fixtures 
 may be taken under a writ of fi. fa.; but the simple ques- 
 tion is, did these railways, notwithstanding such annexation 
 as existed in the present case, retain the character of per- 
 sonal chattels, for if they did not, they are not liable to be 
 distrained for rent. * * * 
 
 " We think it must be taken as a fact, that the railways 
 in question were constructed for the better enjoyment of 
 the colliery, and were so far permanent that they were in- 
 tended to remain on the premises as auxiliary to the work- 
 ing of the mines, at least until the expiration of the term, 
 and were so constructed and fixed not for their better use 
 as chattels, but as a substitute for the natural surface of 
 the ground, along which it would have been impracticable 
 to have worked the trains." The result was, that the court 
 held the articles to be fixtures and not legally liable to be 
 distrained for rent {Turner v. Cameron, L. R.,6 Q. B., 306 ; 
 S. a, 18 Weekly Reporter, 544). 
 
 It has sometimes been considered that there is an appar-
 
 DISTRAINABILITY OF FIXTURES. 739 
 
 ent compromise in tlie law of distress established by the 
 three English cases last examined ; but it is readily discov- 
 ered that neither case attempts to lay down any different 
 rule than that which has generally been recognized m re- 
 spect to the distrainability of fixtures, or to change the 
 state of the law upon tlyit subject. The general rule ot 
 law may still be considered to be, that things affixed to the 
 freehold cannot be distrained for rent so long as they re- 
 main attached to the realty. But if the articles have been 
 separated from the freehold by the tenant or his agent, even 
 though they may still remain upon the demised premises, 
 they may be subject to be distrained for rent as the per- 
 sonal property of the tenant {Vide Reynolds v. ^huler, 5 
 Cow a 323). Although fixtures may in certain cases be 
 taken in execution under a fieri facias, it does not follow 
 that they may be distrained for rent in similar circum- 
 stances of annexation to the realty. The articles may not 
 be distrainable because not capable of being severed, and 
 afterward restored in the same plight in which they were 
 before severance. An execution differs from a distress, be- 
 cause there it is not contemplated that the things taken will 
 in any event be restored. If the fixtures are of such a na- 
 ture and so attached to the realty that they are capable of 
 bein'o- removed and refixed without injury, and so restored 
 in the same plight, there might be reason for holdmg that 
 they are distrainable; but the courts do not seem to have, 
 as yet, carried the rule of distrainability of fixtures to that 
 extent in any case where that precise point was necessary 
 to the decision ; although the inference is strong, that the 
 court in Hellawell v. Eastwood were prepared to sustain 
 that position, had it been requisite in the determination of 
 the case.
 
 740 i^^ O-P FIXTURES. 
 
 CHAPTER LV. 
 
 REMEDIES PROVIDED IN RESPECT TO FIXTURES ACTIONS IN THE NA- 
 TURE OF WASTE AND IN TROVER ACTIONS IN FORM EX CON- 
 TRACTU EQUITABLE RELIEF BY INJUNCTION THE CRIMINAL LAW 
 
 IN ITS APPLICATION TO FIXTURES CONCLUSION. 
 
 It now only remains to consider the means by wliicli the 
 right to fixtures may be enforced, and the remedies pro- 
 vided by law in cases where the right is infringed; and 
 upon this subject, some general statements will be sufficient 
 to enable the reader to comprehend all that is requisite in 
 ordinary practice. 
 
 In early times, the usual remedy to which the owner of 
 the inheritance resorted for redress in cases of injuries to 
 the freehold by his tenant, was the action of waste, or the 
 means provided by the law of waste, and this practice is 
 not unusual in modern times ; if not in name, by something 
 which is substantially the same. It was held to be equally 
 waste to damage or remove a personal chattel which had 
 been annexed to the freehold, as where the substance of 
 the freehold itself was impaired. The action of waste was 
 in its nature a mixed action ; real, because on a judgment 
 against the defendant the plaintiff recovered the land wasted ; 
 and personal, because the plaintiff was entitled to recover, 
 in the same action, his damages for the injuries caused by 
 the waste. But this action has long since been abolished in 
 England and in most of the American States, and the same 
 redress is obtained in a different form ; frequently by an 
 action on the case in the nature of waste, but always by a 
 method adapted to the redress of the same species of injury 
 to the freehold, and by a process much more easy and ex- 
 peditious than the old writ of waste. In England, and 
 many of the States, the different forms of action have been 
 virtually abolished, and the legal and equitable remedies 
 in respect to fixtures are all enforced without regard to the 
 particular form of the action. 
 
 Fixtures, while annexed to the land, partake of the na-
 
 REMEDIES IN RESPECT TO FIXTURES. 741 
 
 ture of the realty, and the action in respect to them will 
 naturally be governed by the same rules which apply in or- 
 dinary actions for injuries to the freehold ; and when sev- 
 ered from the realty, fixtures again assume the nature and 
 characteristics of personal chattels, and the action in re- 
 spect to them will be governed by similar rules which apply 
 in ordinary actions relating to the personalty. When the 
 injury is such that the estate is forfeited, possession of the 
 realty and fixtures may be obtained by the action of eject- 
 ment, or other action appropriate for the recovery of lands. 
 When the fixtures are damaged by the trespass of a wrong- 
 doer, the remedy may be by the ordinary action quare 
 claiLSum /regit, and where the fixtures after being sev- 
 ered are carried away, the proper remedy is by action of 
 trespass de honis asportatis. And the Supreme Court of 
 New Hampshire has held, that a tenant and landlord may 
 both maintain actions at the same time for injuries done to 
 an estate ; the tenant, for the interruption of his possession 
 and the diminution of his profits ; and the landlord, for the 
 more permanent injury to his property. But, in a suit by 
 a landlord, not in possession, for damages done to his es- 
 tate, it was declared, that the declaration should give a cor- 
 rect'description of his title, and the injury received, and his 
 interest in the property should be stated according to the 
 facts {George v. Flsk, 32 N. H. R., 32). But it is well 
 settled that none can maintain an action of trespass quare 
 clausum f regit, except he who is in possession of the land. 
 Thus one who is disseised can maintain trespass for no act 
 subsequent to that which ousted him from the premises, 
 until he re-enters, and then he may sue for all the interme- 
 diate acts of trespass. Thus also one who has leased his 
 lands for years, or even at will, cannot maintain trespass 
 against a stranger, for any injury to the possession, while 
 in the actual occupation of his tenant (r«y/Zor v. Toionsend, 
 8 Mass. B., 411). And yet, the landlord has a complete 
 remedy for his injuries in another form of action, so that 
 the ends of justice are seldom defeated, whether in respect 
 to fixtures or any other species of property. 
 ' When a tenant, under color of the law of fixtures, wrong-
 
 742 LAW OF FIXTURES. 
 
 fully severs from the freehold articles put up by himself 
 during the term, or which have been demised to liim to- 
 gether with the premises, the landlord cannot, pending tlie 
 term, support an action against him as for trespass to real 
 property. ]S"eitlier can trover be maintained by the tenant 
 against the owner of the demised premises after he has re- 
 sumed possession, for property not detached from the free- 
 hold, which was not annexed by the owner. A tenant may 
 remove his fixtures during his term. His right to remove 
 his fixtures may be sold under an execution against him ; 
 but while the fixtures remain attached, they are part of the 
 freehold. These propositions are settled by abundant au- 
 thority {Vide Overton v. WUllston, 31 Penn. R., 155, and 
 cases cited). But, as has been before intimated, if a fixture 
 be wrongfully detached from the realty, the thing detached 
 becomes the personal property of the owner of the soil, 
 and he may, in general, maintain trover or replevin for the 
 same {Harlan v. Harlan, 15 Fenn. R., 507). And it has 
 been held, that, when a tenant at will wrongfully severs fix- 
 tures from the realty, the landlord may maintain an action 
 of trespass against him for the wrongful act, because it is 
 said that the term is put an end to by the severance. The 
 general rule is, that the reversioner may sustain the action 
 of trespass de bonis asportatis against a tenant in posses- 
 sion pending a lease, for the removal of things which, the 
 tenant, either from the circumstances of tlieir having been 
 devised to him, or for any other reason, has no right to 
 sever and take away. And so a tenant, although the prop- 
 erty in fixed articles may belong to the landlord by the 
 terms of the demise or otherwise, may maintain this action 
 against a stranger who wrongfully removes them ; for dur- 
 ing the term he has a special propert}^ in tliem {Hitchman 
 V. Walton, 4 Mees. & Welsh. R., 409 ; Boy dell v. McMi- 
 cTiael, 1 C. M. R. R., 177). 
 
 In a very early case before the English Court of King's 
 Bench, it is said that the court agreed, that "if a lessee for 
 years cuts down timber trees and lets them lie, and after 
 carries them away, so that the taking and carrying away 
 be not as one continued act, but that there be some time for
 
 REMEDIES IN RESPECT TO FIXTURES. 743 
 
 the distinct property of a divided chattel to settle in the 
 lessor, that an action of trespass m et armis would lie in 
 such case against the lessee ; and that in such case felony 
 might be committed of them ; but not when they were taken 
 and carried away at the same time " ( TJdal v. TJdal^ Aleyri's 
 B., 82). From this it might be inferred that an action of 
 trespass cle horns asportatls for the removal of fixtures after 
 their severance, could be maintained in a case where the 
 severance and removal are one continued act. But this is 
 a matter of no great moment, for the reason, that the courts 
 are quite uniformly getting to administer justice between 
 the parties to the action, independent of technical forms, 
 which in no way affect the merits of the question at issue. 
 And the Supreme Court of the State of IN'ew York decided 
 in 1855, that by the severance of machinery and other fix- 
 tures from a mill, the same became personal property, and 
 the pwners might recover damages for the wrongful deten- 
 tion thereof ; and this doctrine was held in a case wherein 
 the claim was made by the owner of the realty, from which 
 the fixtures had been wrongfully removed {Gardner v. Fill- 
 lay, 19 Barh. R., 317). And the same court held in 1860, 
 that, if articles, before being detached, were fixtures, the 
 person having the title to the realty can, in case of their re- 
 moval by another, sue for the specific recover}^ of the things 
 themselves, or in trespass for the damages to the freehold. 
 It was said that a tort feasor has no right to complain of the 
 form of the remedy ; nor is the owner of fixtures, of which 
 the chief vaUie may be its immediate employment on the 
 premises, to be debarred of legal process of its immediate 
 reception for the purposes of such employment {Lajlin v. 
 Griffiths, 35 Barb. R., 58, 62). 
 
 Early in the present centurj^, a case was decided by the 
 English Court of Common Pleas, wherein, Dallas, C. J., is 
 reported to have proposed the question, whether an action 
 of trover could be maintained for trees cat down and car- 
 ried away at the same time {Clark v. Calmrt, B. Moor^ s R., 
 107). Perhaps the subsequent detention of the article in a 
 chattel state, after its severance from the freehold, may be 
 thought to amount to a conversion, for which an action of
 
 744 LAW OF FIXTURES. 
 
 trover might be sustained. Certainly a very sliort interval 
 between the acts of severing and taking away the fixture, 
 would be sufficient to remove an objection so very technical 
 in its nature. And, as before suggested, courts do not 
 stand so much upon forms at present as formerly. And 
 yet in these cases, in practice, it may be found a useful 
 precaution, to make a demand of the property previous 
 to bringing the action, because a refusal after demand would 
 be deemed evidence of a new conversion. When this is 
 practicable it is wise to take the precaution, although an 
 action, in some form, would lie for the wTongful severance 
 and carrying away a fixture from the freehold without a 
 demand for its return. In 1822, the English Court of King's 
 Bench held, in the case of landlord and tenant, where cer- 
 tain mill machinery had been demised with the mill for a 
 term, and the tenant himself, without permission of his land- 
 lord severed the machinery from the mill, which was after- 
 ward seized and sold under an execution against the tenant, 
 that the property in the machinery instantly vested in the 
 landlord, when separated by the wrongful act of the tenant ; 
 and therefore, that the landlord was entitled to bring trover 
 for the property against the purchaser even during the con- 
 tinuance of the tenant's term {Farrant v. Thompson^ 5 
 Barn, cfc Aid. B., 826). 
 
 In cases where the tenant has the privilege of removing 
 his fixtures, from the demised premises, he may be made 
 liable to the landlord or reversioner for injury to the realty 
 by the act of removal. It was declared by the court, in a 
 leading English case, decided in 1844, "that the lessees 
 have a right to remove them (certain articles of fixtures re- 
 ferred to), doing as little damage as possible, and leaving 
 the premises in a state fit to be used for a similar purpose by 
 another tenant." So it would be but reasonable, if a tenant 
 remove a fixture for the purpose of substituting one for his 
 own, that he should restore the former article, or substitute 
 a similar one for it, on removing his own {Foley v. Adden- 
 hrooke, 13 Mees. & Welsh. R., 174). And it seems that if 
 the fixtures are not the property of the reversioner, an ac- 
 tion will still lie for the damage done in removing them ;
 
 REMEDIES IN RESPECT TO FIXTURES. 745 
 
 provided the damage was wanton or unnecessary {Hare v. 
 Horton, 5 Barn. & Adolph. B., 715; >S'. C, 27 Eng. C. 
 L. R., 160). 
 
 In the case of Hitchman v. Walton (4 Mees. & Welsh. M., 
 409), before referred to, it was held, that the mortgagee of a 
 lease was entitled to declare in case as reversioner, and to 
 recover in trover against the assignees of the tenant (who 
 had become bankrux)t) for the removal of fixtures ; and this, 
 although by the terms of the lease, all the fixtures were to 
 be left for the landlord at the end of the term. And it has 
 frequently been found convenient in practice to adopt the 
 action of trover, for the purpose of joining it with an action 
 on the case in the nature of waste. But, with the practice 
 now more generally prevailing, there is no difiiculty in so 
 framing the pleadings as to recover in the same action for 
 the damages to the freehold and the conversion of the fix- 
 tures. If the action is brought by the tenant against a 
 stranger for the damage to the freehold, the recovery, of 
 course, will inure to the benefit of the reversioner. 
 
 Cases often arise in which the action in respect to fixtures 
 may be in form ex contractu. Indeed, the right of transfer 
 and disposition of fixtures frequently depends upon or grows 
 out of the particular stipulation of parties, which can only 
 be enforced in an action upon the contract ; and so also the 
 right of property in fixtures depends in numerous instances 
 upon express or implied agreements by which the general 
 law of fixtures is modified or controlled. This has been 
 abundantly shown in previous pages. For example, a ten- 
 ant, by reason of the special terms of his lease, may be 
 restricted from removing articles which, by the general law 
 of fixtures, he would be entitled to take away. So an in- 
 jury committed by a tenant to things fixed to the freehold 
 may, in some cases, be regarded as an un tenant-like use of 
 the demised property, which would amount to a breach of 
 an implied contract under which the premises are held. And 
 there are also cases where agreements are made between 
 landlords and tenants, respecting the purchase and valua- 
 tion of fixtures at the beginning or end of a lease. In these 
 
 94
 
 746 LAW OF FIXTURES. 
 
 cases, wliere litigation arises between the parties, the action 
 will be in form ex contractu. 
 
 The practice in the various forms of action in which the 
 remedy in respect to fixtures is presented, is the same as in 
 other cases where the same form of action may be proper. 
 And it may also be affirmed as a rule, that the action in 
 respect to fixtures may be brought within the same time 
 after the action accrues, as is limited for the bringing of 
 other actions of a similar nature. This is regulated by stat- 
 utes of limitation existing in the several States. 
 
 But, not only may the parties have an action at law for 
 redress for injuries in respect to fixtures, they may in some 
 cases seek relief in a court of equity. And, indeed, it often 
 happens that the consequences attending the injuries to real 
 property are of such a nature, that the damages recoverable 
 in an action at law are very inadequate to compensate for 
 the loss incurred. Besides, the redress by action at law for 
 injuries done to the freehold by the removal of fixtures, is 
 of a remedial nature and slow as well as inadequate in its 
 results. The courts of equity, therefore, are frequently the 
 most desirable in which to seek relief in these cases, where 
 a beneficial remedy is provided of a preventive nature, by 
 which the injury may be. anticipated and prevented. This 
 equitable interposition of equity consists in restraining a 
 person from committing waste, either tlireatened, or which 
 may be in the act of committing, by means of an injunc- 
 tion, which is a proliibitory mandate issuing by order of a 
 court of equity {Yide Keogli v. Daniell, 12 Wis. i?., 163). 
 
 There are a great variety of cases in which a court of 
 equity will interfere by injunction, but the power is in- 
 volved in cases relating to fixtures, more generally to re- 
 strain waste, in favor of the reversioner of tlie demised 
 estate, and is founded on privity of estates, although there 
 are occasions in which an injunction will be granted against 
 a stranger, who threatens to commit a ti-espass upon the 
 freehold of an irreparable nature ; but the remedy is not 
 applicable to a case of a common trespass which is only con- 
 tingent and temporary. And the relief by injunction will 
 not be granted on slight or uncertain grounds, and it njust
 
 REMEDIES IN RESPECT TO FIXTURES. *j4c7 
 
 be made to appear that there has been actual waste, or 
 some act from which the intention to commit waste is fully 
 evinced {Vide Gibson v. Sinitk, 2 Atk. Ji., 183 ; Jackson v. 
 Cater, 5 Ves. R., 688 ; Hanson v. Gardiner., 7 ih., 309). 
 The princix^le of injunctive relief against a tort seems to be, 
 that wherever damage is caused or threatened to property, 
 admitted or legally adjudged to be the plaintiff's, by an act 
 of the defendant admitted or legally adjudged to be a civil 
 wrong, and such damage is not adequately remediable at 
 law, an injunction may issue against the commission or 
 continuance of the wrong, and in conformity with this rule, 
 the Superior Court of the City of New York declared in 
 1869, that these conditions were essential to injunctive relief 
 against trespass : First — admission or adjudication of plain- 
 tiff's rights ; second — admission or adjudication of the de- 
 defendant's wrong ; and third — inadequacy of a remedy at 
 law {Gentil v. Arnaud, 38 How. Pr. R., 94). But both the 
 Supreme Court and the Court of Appeals of the State of 
 New York, have held, that under the Code of Procedure of 
 that State, it is not necessary, as preliminary, to granting 
 relief by injunction, to settle the right by action at law, even 
 when the right is doubtful {Corning v. The Troy Iron and 
 Nail Factory, 4.0 N. Y. R., 191 ; Pollitt v. Long, 58 Barh. 
 R.), 20. And yet the authorities all agree, that, in cases re- 
 lating to fixtures, as well as others, the power of a court of 
 equity to issue preliminary injunctions, ought to be exer- 
 cised with exteme caution, and only in very clear cases. In 
 a certain sense an interlocutory injunction is in the discre- 
 tion of the court ; yet the discretion is not arbitrary or 
 capricious, but is regulated by well established and familiar 
 rules of practice. A preliminary injunction should not 
 be granted unless the injury is pressing and delay -danger- 
 ous. A clear right, free from reasonable doubt, should be 
 shown to authorize a preliminary interference of the court. 
 But the remedy is, notwithstanding, very proper, to be 
 adopted in cases relating to fixtures ; especially by a re- 
 versioner for the purpose of restraining a tenant for years 
 or for life, who intends or rather threatens to sever things 
 from the freehold under a claim arising out of the law of
 
 748 LA W OF FIXTURES. 
 
 fixtures ; and, indeed, more particularly, when a tenant at 
 the expiration of his term insists on a right of taking away 
 substantial buildings which the owner of the land contends 
 are not within the privilege of removal. 
 
 A case was decided by the English Court of Chancery in 
 1869, in which it appeared that a lease had been made to an 
 oil-refiner of some land, "and also the erections and build- 
 ings there already erected and built, or to be erected and 
 built thereon," and the lessee covenanted to deliver up at 
 the end of the term, "pumps, pipes, cisterns, and other 
 things which then were or at any time during the said term 
 shall be, fixed or fastened to the freehold of the premises, 
 or belong thereto." Lord Romilly decided that the fix- 
 tures were irremovable, that the general words included 
 the trade fixtures of the oil factory ; and he granted an in- 
 junction to restrain the purchaser of boilers supported by 
 brick-work from removing them and other trade fixtures 
 {Bidder v. Trinidad Petroleum Company, 17 WeeJcly H., 
 153). And yice-Chancellor AVood granted a perpetual in- 
 junction against the removal of greenhouses built in a 
 garden, and constructed of wooden frames fixed with mor- 
 tar to foundation walls of brick- work, which were claimed 
 as fixtures by the plaintifl's, the owners of the freehold, 
 against two of the defendants, under a deed for th^ cred- 
 itors of the other defendant, the former occupier of the 
 house and garden ; the trustees having adver.tised for sale 
 the greenhouses, the pits or frames, and the heating ap- 
 paratus, but he held the pipes of a heating apparatus, 
 which were connected with tlie boiler by screws, were re- 
 movable {Jenkins v. Gitting, 2 John. & Hem. R., 620.* 
 But vide Syme v. Harvey., 24 Scotcli Sess. Cases, 202). 
 
 With respect to the criminal law in its application to fix- 
 tures, it may be stated that at common law, this species of 
 property is not the subject of larceny. The reason is, that 
 to constitute larceny there must be a felonious taking and 
 ii2a-vymg?iW2uy \\iQ personal goods oi another ; and fixtures, 
 being attached to the freehold, cannot be regarded as per- 
 sonal goods. This doctrine is explained by Sir William 
 Blackstone in his Commentaries, thus: "Lands, tenements
 
 REMEDIES IN RESPECT TO FIXTURES. 749 
 
 and hereditaments (either corporeal or incorporeal), cannot, 
 in their nature, be taken and carried away. And of things 
 likewise that adhere to the freehold, as corn, grass, trees 
 and the like, or lead upon a house, no larceny could be 
 committed by the rules of the common law ; but the sever- 
 ance of them was, and in many things is still, merely a 
 trespass ; which depended on a subtlety in the legal notions 
 of our ancestors. These things were parcel of the real es- 
 tate ; and be the subject of theft, being absolutely fixed 
 and immovable. And if they were severed by violence so 
 as to be changed into movables, and at the same time by 
 one and the same contrived act, carried off by the person 
 who severed them, they could never be said to be taken 
 from the proprietor, in this their newly acquired state of 
 mobility (which is essential to the nature of larceny), being 
 never, as such, in the actual or constructive possession of 
 any one, but of him who committed the trespass. He could 
 not, in strictness, be said to have taken what at that time 
 were the personal goods of another, since the very act of 
 taking was what turned them into personal goods" (4 
 Black. Com., 232). This is, undoubtedly, the rule of the 
 common law, although, if -a thief should sever fixtures 
 from the realty, and let them remain after they are removed 
 any length of time, then the removal of them becomes a 
 felony, if he comes back and takes them ; and this, at com- 
 mon law {Lee v. JRlsdon, 7 Taunt. M., 190). 
 
 But the legislatures of the several States, as a general 
 thing, have enacted special statutes to afl'ord protection to 
 property fixed to the freehold, where from its nature, it 
 would be particularly exposed to theft or injury. For ex- 
 ample, in the State of New York it is provided by statute, 
 among other things, that every person who sliall wilfully 
 commit any trespass by severing and carrying away from 
 any freehold, any property or thing attached thereto, of the 
 value of twenty-five dollars or less, under such circum- 
 stances as would render the trespass a larceny if the thing 
 so severed or carried away was personal property, shall 
 upon conviction, be adjudged guilty of a misdemeanor, and 
 shall be punished by imprisonment in a county jail not ex-
 
 750 LAW OF FIXTURES. 
 
 ceeding six months, or by a fine not exceeding one hundred 
 and fifty dollars, or by both such fine and imprisonment (2 
 B. S., 693, § 15; 2 Siat at Large, 715). 
 
 And it is probable that similar enactments exist in most 
 of the American States ; so that property in fixtures would 
 seem to be measurably well protected both by the criminal 
 and the civil law. The several statutes may be consulted 
 when cases arise, and it is, therefore, unnecessary to dwell 
 upon the subject at greater length in this place. And here 
 the discussion of the whole subject of the Law of Fixtures 
 is brought to a close.
 
 ALPHABETICAL INDEX 
 
 A 
 
 ABANDONMENT, page. 
 
 of fixtures, pass to landlord, when, 417-419, 42G, 434. 437, 438, 440 
 
 ACCESSORIES, 
 
 what are, and the rule in respect to, 284, 291, 292, 319 
 
 are regarded as chattels, when, 488 
 
 ACCESSORY BUILDINGS, 
 
 law of fixtures in respect to, 92, 189 
 
 ACTION, Vide Remedies. 
 ADAPTATION, 
 
 test in case of fixtures, when, 61, 101, 104-113 
 
 ADMINISTRATOR, Vide Executor and HEm. 
 AGREEMENT, 
 
 may vary law of fixtures, when, 129-146, 614, 659-675 
 
 be proved by parol when, 662, 663 
 
 effect of in case of buildings, 663, 673 
 
 emblements, 664, 665 
 
 machinery, 671, 672 
 
 doctrine of the authorities in respect to, 673-675 
 
 AGRICULTURAL ERECTIONS, 
 
 law of fixtures in respect to, . . 53, 69, 75, 156, 166, 219, 220, 271-317, 505 
 
 principles applied to, 282, 310 
 
 held to be movable when, 303-308, 314, 315 
 
 regarded as of a mixed nature, , 320 
 
 ALLUVION, 
 
 law of fixtures in respect to, 87, 88 
 
 ANNEXATION, 
 
 to the freehold, law of fixtures in respect to, 36, 39, 42, 57-63, 147 
 
 origin of tlie general rule in respect to, 44 
 
 constructive when, 58 
 
 rule when made by strangers, 83-85, 88 
 
 under license, 90 
 
 rule in respect to, modified by agreement, when, 129-140 
 
 as between landlord and tenant, 159-169 
 
 for purposes of trade, tenant's interest in, 169-270 
 
 regarded as part of the realty when, 185, 226-228 
 
 movable nature of, how determined, 390, 391
 
 752 ALPHABETICAL INDEX. 
 
 ASSETS, PAGE. 
 
 law of fixtures in respect to, 676-678 
 
 what are is sometimes determined by statute, 691, 700 
 
 under the New York statutes, 691-699 
 
 pump and pipe, balance and scales, and beer pump, are, when, 698 
 
 growing crops are when, 699, 700 
 
 emblements of all kinds are when, 701 
 
 ASSIGNEE, 
 
 rights of in biankruptcy cases, 633-659 
 
 stills, vats and the like, pass to when, 633-637 
 
 hydraulic presses pass to when, 649, 650 
 
 rolls for rolling machine pass to when, 653, 654 
 
 weighing machines pass to when, 654, 655 
 
 rights of in bankruptcy cases affected by agreement when, 659-663 
 
 B 
 
 BANKRUPTCY, 
 
 law of fixtures in case of, 195-197, 305, 633-659 
 
 who are traders in cases of, 333-335 
 
 rule in cases of in respect to stills, vats, and the like, 633-637 
 
 engines and boilers, 637, 638, 644, 645 
 
 650, 651 
 
 machinery, 639, 640, 648, 650-655 
 
 buildings, 643, 643 
 
 equitable mortgages, 644, 647 
 
 hydraulic press, 649-653 
 
 trade fixtures, 656 
 
 rule under United States act, 658, 659 
 
 in cases of may be varied by agreement when, 659-663 
 
 BARNS, 
 
 movable when, 63, 65, 66, 179, 180, 359, 300, 394-396, 549 
 
 part of realty when, 476, 477 
 
 BELLS, 
 
 movable as between landlord and tenant, when, 166, 167, 371, 418 
 
 held to be part of realty when, 411, 413, 539 
 
 BOWLING-ALLEY. 
 
 regarded as a trade fixture when, 330, 348 
 
 BOILER, 
 
 movable when, 334 
 
 Vide Engine and Boiler. 
 BUILDINGS, 
 
 regarded as movable when, 76-81, 134, 144, 186-189, 316-333, 339, 330 
 
 340-343, 345, 346, 351-354, 361-309, 301-308, 451, 453 
 
 part of realty when, 73-94, 134, 135, 310, 365, 388, 408, 409 
 
 413, 415, 474, 480, 481 
 
 accessory to realty when 374-376 
 
 movable by agreement of parties when, 666, 667
 
 ALPHABETICAL INDEX. 753 
 
 . PAGE. 
 
 CANDELABRA, „„. 
 
 do not constitute part of realty, wlien, 
 
 CANDLESTICKS, . 395-397 
 
 law of fixtures in respect to, 
 
 CARDING-MACHINES, 550-55O 
 
 pass by conveyance of realty when ' '^ 
 
 regarded as personal chattels when, 
 
 'for railways, held to be part of realty when, 711-717, 726 727 
 
 not to be part of realty when, '>■ '-''^^ 
 
 law of fixtures in respect to not fully settled, 727, 738 
 
 CHANDELIERS, gg^ 
 
 no part of the realty when, 
 
 CHARTERS, „r.Q 
 
 . pass by conveyance of the realty when, 
 
 CHATTEL MORTGAGE, 
 
 when preferred to other claims in respect to fixtures, 665, bbt-bi6 
 
 CHIMNEY-PIECES, • 
 
 movable by tenant when, ■ 360-363, 372-374, dbJ, dJ4 
 
 CIDER-MILL, Q 3Q3 
 
 movable nature of considered, ••• ''"^ - . > 
 
 regarded as accessory to the realty when, 
 
 species of trade when, • • '„. " . 
 
 settled rule in respect to questioned, • 293, 394, 681-b«4 
 
 COMMON LAW, q^, 
 
 rule applied in case of fixtures when, 54, 55, '^-' ^«' ^^ 
 
 fixtures not subjects of larceny, by, 
 
 CONSERVATORY, ..365-367 
 
 law of fixtures m respect to, 
 
 CONSTRUCTION, ioq iqa 4^7 et sea 
 
 of covenants in respect to fixtures explained, ]^^J^:^7'' 't 
 
 lease in respect to fixtures examined, 201-203, 370, 455^83 517 
 
 writing between vendor and vendee, ' 
 
 no occasion for when language of writing is plain, _ • ^ 55» 
 
 of writings between mortgagor and mortgagee '703 
 
 devises in wills, 
 
 CONVEYANCE, 547-558 
 
 construction of in relation to fixtures, 
 
 CORNICE, ggg 339 394 
 
 movable by tenants when, 
 
 COTTON-GIN, 529-531,619,620 
 
 law of fixtures in respect to, 
 
 COUNTING-ROOM, 232 
 
 regarded as trade fixture when, 
 
 CRIMINAL LAW, 748-750 
 
 remedy bv in case of fixtures when, 
 
 95
 
 754 ALPHABETICAL INDEX. 
 
 CURTESY, PAGE. 
 
 tenant by must not commit waste when, 503 
 
 CUSTOM, 
 
 may affect right to fixtures when, 264, 482 
 
 manure when 342 
 
 D 
 
 DEEDS, 
 
 pass with conveyance of land when, 57, 700 
 
 what will pass by, 705 
 
 Vide Construction, Grantor and Grantee. 
 DEER, 
 
 pass with the realty when, 701 
 
 DEFINITION, 
 
 of the term fixtures 35^3, 56, 207, 549, 550 
 
 trader under bankrupt laws, •. 322 
 
 life renter and fiar, 333 note 
 
 heritable and personal creditor, 333 nbte. 
 
 fixed furniture, 371 
 
 dilapidation, 509 
 
 heir loom, 700 
 
 DEVISE, 
 
 fixtures pass by when, 701, 702 
 
 general rule in respect to, 702, 703 
 
 rule of construction in case of, 703 
 
 DEVISEE, 
 
 may take fixtures when, 702 
 
 DILAPIDATION, 
 
 doctrine in respect to in ecclesiastical cases, 506-516 
 
 definition of, 509 
 
 what is so regarded, 509, 510 
 
 nature of waste which constitutes, 510 
 
 lay rule in respect to, 516-518 
 
 DISTILLER, 
 
 annexations of, regarded as chattels, when, 63, 64 
 
 DOVES, 
 
 pass with the realty when, _ 701 
 
 DOWER, 
 
 rights of tenant in as to fixtures, 503, 623-626 
 
 tenants in may not commit waste when, , 503, 504 
 
 E 
 
 ECCLESIASTICAL ANNEXATIONS, 
 
 rule of law in respect to 505-516 
 
 regarded as similar to fixtures of life tenants, 506, 507 
 
 ECCLESIASTICAL PERSONS, 
 
 law of fixtures in respect to, 505-516
 
 ALPHABETICAL INDEX. 
 
 755 
 
 PAGE. 
 
 ECCLESIASTICAL PERSONS-ca«ii««e(Z. ^^^ 
 
 when not liable for waste ^in_'il 5 
 
 duties of respecting parsonage property, 
 
 EFFIGIES, riQ^ 
 
 set up in cliurclies, property in, 
 
 ELWESY.MAW, 271-292 
 
 examination of case of, 
 
 is a leading case in respect to agricultural erections, -i(^ noie 
 
 principles of the case exclude agricultural erections from tenant s ^^^ 
 
 privilege '279-283 
 
 case of criticised 284-292 
 
 approved, ^ "" 
 
 adhered to by the English courts, • • • • • • • • -• 
 
 American courts, 299-dUl, dlU 
 
 ""Z^ofSures ..aspect. 4S4, 480. .U. 0.,, TO. ^.-Va5 
 
 rule in respect to may be modified by agreement when, 6b4, b05 
 
 as between executor and heir, '^1 
 
 . f 732-735 
 
 transfer oi, 
 
 ENGINES AND BOILERS, . 
 
 law of fixtures in respect to, 2dd, ^6% ^w, --i-, ti^, -^o 
 
 ^"^"^'ITi'ef in courts of in respect to fixtures, ' 248, 249, 746-748 
 
 '^^'^' when ttures may be taken on, 1G4, 240, 243, 244, 416, 626, 627 
 
 EXECUTOR AND DEVISEE, «01-708 
 
 law of fixtures as between, ' 
 
 EXECUTOR AND HEIR, 675-700 
 
 law of fixtures as between, ' 
 
 in England, 675-690 
 
 general rule in respect to fixtures as between 676-678, JOl-JO^ 
 
 machinery between, 679-685, 691 
 
 ornamental fixtures, between, 685 
 
 law of fixtures between in the United States, • • • 690-700 
 
 sometimes regulated by statute,. . . C91, 09^, 7UU 
 
 in New York, 691-698 
 
 in respect to trade annexations, 698, 699 
 
 F 
 
 FENCES, ^^„ ^nr\ -loo 
 
 regarded as part of the realty when, i io, lou, 
 
 FISH, ^01 
 
 pass with the realty when, 
 
 FIXED FURNITURE, ^^^ 
 
 definition of the term, 
 
 """"■^fer;! nature of 83, 84. 00, 70. 74-70, 153-164, .584, 740, 741 
 
 to what class of property they hetog -^ -^ ■^-- ^^- ^^ 
 
 definition of " '
 
 756 ALPHABETICAL INDEX. 
 
 FIXTURES— confi/me^Z. . page. 
 
 physical attacliment to freehold necessary to constitute, when, 36, 42, 47, 
 
 56, 59, 60, 61, 198 
 
 requisites to constitute, 38, 41, 42, 198-201, 707, 709-711 
 
 movable nature of, 39, 40 
 
 different kinds of, 41, 46 
 
 foundation of the law of, 43, 76 
 
 history of the changes in the law of, 43-56 
 
 law of as between heir and executor, 46, 47, 49, 50, 54, 171, 177, 181, 182 
 
 185, 224, 285, 675-700 
 
 law of in respect to furnaces, 47, 49, 178, 174, 758, 381, 609 
 
 ornanmental annexations, 46, 75, 357-395 
 
 dyer's vats, 47, 418, 633-630 
 
 trade fixtures, 47^9, 54, 55, 120, 121, 125, 156 
 
 169-270, 314, 563-568, 698, 699 
 
 Dutch barns, 48 
 
 wainscot,... 49, 290, 358, 359, 361, 362, 882, 888, 394 
 general law of as between landlord and tenant, 49, 52-54, 64, 69, 81, 124 
 
 142, 148-404, 411, 412 
 rule of as between tenant for life and remainderman,. . . . 49, 54, 213-215 
 
 483-505 
 in respect to agricultural erections,.. 53, 69, 75, 156, 166, 219, 220 
 
 271-317, 505 
 
 manner of annexation to constitute, 56-73 
 
 ancient rule in respect to annexation 57 
 
 constructive annexation when sufficient, 57 
 
 attached by gravitation alone, when sufficient 57-59 
 
 the best rule in respect to manner of annexation, 59, 60 
 
 law of in respect to manure 60, 340-357 
 
 rule of in respect to loose machinery, 61 
 
 tests by which to determine, 61, 68, 71, 72, 74, 75, 100-128, 242, 247 
 
 270, 709 
 
 law.of in respect to machinery, 61, 64, 66, 68, 70, 82, 103, 105, 106 
 
 111-114, 121, 122, 135, 136, 140-144, 223, 233, 242, 268 
 325, 326, 522, 523, 539, 540, 550, 623, 624, 691, 704-707 
 
 law of in respect to wind-mills, 66-68, 549 
 
 bark-mill, 69, 70 
 
 proper subject of replevin when, 70 
 
 law in respect to removal of, 73-83, 140, 141, :154, 161, 162, 165, 185, 186 
 198-200, 238, 239, 248, 814, 315, 417-455, 488, 490 
 
 general considerations in respect to, • 74, 75 
 
 law of in respect to buildings, 76, 81, 124, 144, 186-189, 216-222 
 
 229, 230, 240-242, 245, 246, 251-254. 261-266, 268, 269 
 274-276, 288, 408, 409, 413, 415, 474, 480, 481, 666, 667 
 
 law of in respect to mines, 78 
 
 pass by conveyance of the realty when, ... 78, 82, 129-131, 167, 399, 400 
 
 law of in respect to annexations by stranger, 83, 85, 88 
 
 line trees, 85 
 
 casual annexations, 85, 87
 
 ALPHABETICAL INDEX. 757 
 
 FIXTURES— contimied. '^^'^^^ 
 
 law of in respect to alluvion, 87, 88 
 
 • annexations by license, 90-94 
 
 tortiously severed, 95-100 
 
 law of as between mortgagor and mortgagee, 126, 134-140, 167, 226, 338 
 
 415, 559-633 
 
 law of may be varied by agreement when, 129-146, 614, 659-675 
 
 law of in respect to railway appendages, 144-140, 599, 600, 711-728 
 
 different classes between whom questions in respect to arise, . . . 147, 148 
 
 685, 686 
 
 may be taken on execution, when, 161, 164, 240, 243, 244, 416, 626. 
 
 ^ 627, 739 
 
 not distrainable when, 164, 736-739 
 
 effect of Statute of Frauds in respect to, 168, 729-732 
 
 law of as applied in bankruptcy cases, 195-197, 203-205, 322-325 
 
 633-659 
 construction of writings in respect to, 201-203, 370, 455-483, 517, 547-558 
 of a mixed character, the rule in,. . . 210, 236, 237, 376, 283, 314, 317-340 
 
 treated as personal chattels when, 223 
 
 law of in respect to erections for ornament, 224, 357-895, 494-497 
 
 manufacturers, 225-228 
 
 law of in respect to steam-engines and boilers, . . . 233, 234, 240, 242, 411 
 ^ 484-486 
 
 equity affords relief in respect to when, • • . 248, 249, 746-748 
 
 law of in respect to gas-fittings 235-237, 247. 382, 383, 385-402, 404 
 
 windows, 291, 355, 383, 385, 405 
 
 gardeners and nurserymen, 327-339 
 
 greenhouses and the like, 328, 329, 509 
 
 chimney-pieces, 360-362, 372, 382 
 
 conservatories, 365-367 
 
 pumps 367, 368, 413, 414, 555, 698, 699 
 
 cornices 368, 369 
 
 statues, 375-379 
 
 water-pipes, 383, 402-404 
 
 some miscellaneous cases of, '^ tit 
 
 law of in respect to emblements 484, 486, /b2-735 
 
 tenants in dower, 503, 504, 623-626 
 
 ecclesiastical annex;ations, 505-516 
 
 law of as between vendor and vendee, 519-546 
 
 in respect to portable mills, 521 
 
 cotton-gins, 529-531,619,620 
 
 heir-looms '^^ 
 
 law of as between executor and devisee, |l^^~3^^ 
 
 tenants in common, 704-/11 
 
 transfer of independent of the realty 728-731, 735, 736 
 
 ^. . \ . 740-750 
 
 remedies m repect to, • ^^ 
 
 by criminal process, 74b-/oO 
 
 statutory provision for protection of, • "^49, 750
 
 758 ALPHABETICAL INDEX. 
 
 FREEHOLD, page. 
 
 fixtures become part of when,. . . 76, 116-119, 224, 226-228, 409, 410, 598 
 method of annexation to, to constitute part of, .'. . 56, 63, 69, 78, 104, 623 
 
 trees are part of when 81 , 330, 331 
 
 fences are part of when, 62, 116, 130, 133 
 
 rule in respect to annexations to may be varied by agreement when, 
 
 129-146, 614, 659-675 
 
 coppers and furnaces part of when, 361 
 
 conservatories part of when, 365-367 
 
 mortgaged fixtures become part of when, 598, 608, 609 
 
 railway appendages are part of when, 599, 600, 611-728 
 
 spinning machines are no part of when, 737, 738 
 
 FRUIT, 
 
 regarded as part of the freehold when, 735 
 
 FURNACE, 
 
 law of fixtures in respect to, 47, 49, 173, 174, 358, 361, 381, 609 
 
 part of freehold when, 361 
 
 G- 
 
 GARDENERS, 
 
 may take away their produce when, 327, 328, 330-839 
 
 not remove strawberry beds 330 
 
 GAS-FIXTURES, 
 
 movable when, 235-237, 247, 382, 395^02, 404 
 
 rule in respect to gas-pipes 382, 383 
 
 gas-fittings, 395-402, 404 
 
 description of gas-fittings, 396 
 
 method of using the gas, 396 
 
 rights of vendees in respect to, 402 
 
 GASOMETER, 
 
 law of fixtures in respect to, 641-643 
 
 GAS STOVES, 
 
 movable when, 396, 397 
 
 GATE, 
 
 declared a fixture when, 60 
 
 GIN, 
 
 for cleaning cotton, law of fixtures in respect to, 529-531, 619, 620 
 
 GRAIN, 
 
 growing in field, transfer of, 332-334 
 
 GRANTOR AND GRANTEE, 
 
 law of fixtures between, 129-133, 399, 400, 519-546 
 
 rule in respect to gas-fixtures between, 402 
 
 GRASS, 
 
 regarded as part of freehold when, 735 
 
 GREENHOUSE, 
 
 movable when, 328, 329, 460, 461 
 
 right of incumbent of rectory in, 509 
 
 GRIST-MILL, 
 
 movable when, 521
 
 ALPHABETICAL INDEX. 759 
 
 H 
 
 HANGINGS, I'AGE. 
 
 movable when, 358, 359, 364 
 
 HEDGES, 
 
 when on line, property in, 85 
 
 HEIR-LOOM, 
 
 definition of, 700 
 
 rule of law in respect to, 700 
 
 HEIR AND EXECUTOR, 
 
 law of fixtures in respect to 46, 675-670 
 
 in England, 675-690 
 
 general rule respecting fixtures between, 676-678, 701, 703 
 
 machinery between, 679-685, 691 
 
 ornamental fixtures between, 685 
 
 in the United States, 690-700 
 
 sometimes regulated by statute, .... 691 , 692, 700 
 
 in New York, 691-698 
 
 HOT-HOUSE, 
 
 law of fixtures in respect to, 331, 338-340 
 
 HOUSES, Vide Buildings. 
 HUSBANDRY, 
 
 rule in respect to erections for purposes of, 53, 69, 75, 156, 166, 219, 220 
 
 271-317, 505 
 HYDRAULIC PRESS, 
 
 regarded as a chattel when, v 649, 650 
 
 HYDRAULIC PUMP, 
 
 movable when, 253 
 
 I 
 
 IMPEACHMENT OF WASTE, 
 
 effect of exemption of clause in lease, 500-503 
 
 tenant exempt from when, 501 
 
 liable to when, , 503 
 
 INCUMBENT, 
 
 of rectory, law of fixtures in respect to, '. 505-516 
 
 liable for waste when, 508 
 
 duties of in respect to the property,, 510-515 
 
 INJUNCTION, 
 
 may be invoked in case of fixtures, when, 746-748 
 
 nature of the remedy by, 746, 747 
 
 INNKEEPER, 
 
 a species of trader, when 120, 121, 219, 220, 309 
 
 INTENTION, 
 
 of parties, a test of fixtures when, 75, 114-128, 242, 650
 
 760 ALPHABETICAL INDEX. 
 
 J 
 
 JIBS, PAGE 
 
 description of, 64 
 
 law of fixtures in respect to, 64, 65 
 
 K 
 KEYS, 
 
 parcel of the freehold, when, 58, 702 
 
 pass by devise of building when, 702 
 
 KILNS, Vide Lime Kilns. 
 
 L 
 LAND, 
 
 comprehends what, 33 
 
 Vide Freehold, Realty. 
 
 growing trees, fruit and grass part of when, 735 
 
 LANDLORD AND TENANT, 
 
 law of fixtures as between, 49, 52-54, 64, 69, 81, 124, 142, 148-404 
 
 411, 412 
 rule in respect to trade fixtures as between, 48, 49, 54, 55, 120, 121, 125 
 
 156, 169-270, 314, 563-568 
 
 general rules in respect to annexations as between, 149, 150 
 
 exceptions to general rule in respect to annexations as between, 
 
 150-153, 155 
 
 when the peculiar riglit to fixtures arises between, 153, 154 
 
 right of removal of fixtures as between, 73-83, 140, 141, 154, 161, 162 
 165, 185, 186, 198-200, 238, 239, 243, 314, 315, 317^55, 483, 490 
 
 nature of 'fixtures which may be removed as between, 154-158 
 
 question of fixtures as between, how determined, 157, 158 
 
 adjudicated cases in respect to fixtures between 169-369 
 
 trade fixtures as between, 169-270 
 
 agricultural fixtures as between, 271-317 
 erections of a mixed nature as between, 
 
 317-356 
 gardeners and nurserymen as between, 
 
 331-339 
 
 farm manure as between, 340-356 
 
 fences as between, 356, 357 
 
 annexations for ornament as between, 
 
 357-395 
 
 gas apparatus as between, 395-403 
 
 water apparatus as between, .... 402-404 
 of miscellaneous fixtures as between, 
 
 404-416 
 rule respecting fixtures as between may be affected by terms of de- 
 mise, 455-482 
 
 custom, 482, 483 
 LARCENY, 
 
 fixtures not subject of at common law, 748, 749
 
 ALPHABETICAL INDEX. 761 
 
 LAY DILAPIDATIONS, ^ ff ^^ 
 
 law of fixtures in respect to, Olb-51« 
 
 LEASE, 
 
 construction of in respect to fixtures, ^00-4»». 
 
 LICENSE, 
 
 annexations to freehold under when movable, JU-J* 
 
 Vide Buildings. 
 LIGHTNING RODS, 
 
 pass by deed of realty when, 
 
 LIME KILN, 
 
 law of fixtures in respect to, 1^1' l^-' 
 
 LOCKS AND KEYS, 
 
 parcel of freehold when 58, 702 
 
 pass to devisee of realty when, '""^ 
 
 LOOMS, 
 
 law of fixtures in respect to,. . . 206, 207, 572,-577, 590, 591-601, 617-619 
 
 rule in respect to as between tenants in common, 707 
 
 M 
 MACHINERY, 
 
 no part of realty when loose, "^ 
 
 law of fixtures in respect to, 61, 64, 06, 68, 70, 82, 103, 105, 106, 111-114 
 
 121, 122, 135, 136, 140-144, 223, 233, 242 
 
 268, 325, 326, 522, 523, 539, 540, 550, 623 
 
 624, 691, 704-707 
 
 rule in respect to as between landlord and tenant, 223, 233, 242, 268 
 
 325, 326 
 
 heir and executor, 679, 685, 691 
 
 tenants in common, 704-707 
 
 MANUFACTORIES, 
 
 law of fixtures in respect to, 225-228 
 
 Vide Machinery, Looms. 
 MANURE, 
 
 treated as a fixture when, 60,340-351,353-855 
 
 custom may affect the right to when, 342 
 
 held to be movable when, -^ ^^^ 
 
 treated as a chattel when 352, 355, 356 
 
 right to may be modified by agreement, 353, 354 
 
 MILL CHAINS, 
 
 belong to the realty when, ^^> ""' 
 
 MILLSTONE, 
 
 part of realty, though detached, when, 57 
 
 MILLS, 
 
 rule in respect to annexations to, biy-iO 
 
 no 
 pass to grantee of realty when, "^ 
 
 regarded as fixtures when, 119, 256-258 
 
 movable when, ~"^'^ 
 
 MINES, 
 
 pass to grantee of land when, *° 
 
 96
 
 762 ALPHABETICAL INDEX. 
 
 MIXED FIXTURES, page. 
 
 what are so regarded, 210, 818, 320 
 
 general rule in respect to, 236, 237, 276, 314, 317-329 
 
 when agricultural annexations are treated as, 283-317 
 
 rule for determining what are, 320, 321 
 
 example of, 321 
 
 rule of applied to gardeners and nurserymen 327-340 
 
 gas-pipes, 382, 383 
 
 MONUMENTS, 
 
 in cemetery, regarded as realty, 57 
 
 MORTGAGEE, 
 
 regarded with favor by the courts when, 586-588 
 
 rights of after foreclosure of mortgage, 596, 597 
 
 in annexations after execution of mortgage, 612 
 
 as against chattel mortgagees, 612-614 
 
 not favored by the courts when, 621-626 
 
 dower preferred to when, a 623-626 
 
 right of as against execution creditors, 626, 627 
 
 may lose right by previous agreement when, 666 
 
 Vide Mortgagor and Mortgagee. 
 MORTGAGEE AND ASSIGNEE, 
 
 in bankruptcy cases, law of fixtures in respect to, j 647-659 
 
 principles governing in bankruptcy cases as between, 657 
 
 law of fixtures modified by agreement as between 659-662 
 
 MORTGAGOR AND MORTGAGEE, 
 
 rule in respect to fixtures as between, 120, 559-633 
 
 general principles relating to fixtures as between, 559, 020, 621, 623 
 
 627, 628 
 
 when fixtures pass to mortgagee as between, 559-589 
 
 rule respecting machinery as between, 561, 502, 579-581, 588, 591 
 
 597-599, 001, 002, 606, 612-616, 619, 020 
 
 when fixtures do not pass as between, 502, 041 
 
 rule in respect to trade fixtures as between, 563-568 
 
 equitable deposit as between, 568, 569 
 
 looms m factory as between, 572-577^ 000 
 
 registering mortgage as between, 577, 578, 588, 632, 633 
 
 engines and boilers as between, 187, 588-590, 593 
 
 594, 600, 010-012, 014-017 
 mortgage carries fixtures as between when, . . 591-593, 595, 596, 601-616 
 rule in respect to rolling stock of railway as between, . . 599-601, 011-628 
 
 for determining question of fixtures as between, 008, 009 
 
 furnaces pass by mortgage as between when, 009 
 
 nursery trees and the like pass by mortgage as between when,. . 010-612 
 
 law of fixtures may be affected by agreement as between when 614 
 
 659-675 
 
 in respect to looms as between, 017-019 
 
 cotton-gins as between, 019, 020 
 
 partnership property as between, 020 
 
 general principles respecting fixtures as between, 020, 021
 
 ALPHABETICAL INDEX. 
 
 763 
 
 MORTGAGOR AND MOUTQ AQEE-co7Umued • 
 
 cases in which mortgagee not favored as between, 6.1 b.b 
 
 statutes sometimes affect fixtures as between, ^g^_^^^ 
 
 dower attaches as between when, R07_fiS-^ 
 
 rule as between when mortgagor retains possession, b.7-bd^ 
 
 in respect to bankruptcy cases, TcAnoK 
 
 emblements, 664,665 
 
 N 
 may take away trees and shrubs 
 
 o 
 
 NURSERYMEN, ^^^^ 327,335-338 
 
 ORNAMENTAL ANNEXATIONS, ^^ ^^^^^ 
 
 law of fixtures in respect to, *»' "^' ' ^^^ 
 
 test of fixtures in cases of, ; -• •••• * * ' ' "059 gg^ 
 
 rule in respect to wainscot and chimney-pieces 49, 390, 0I8, o5J, Jb^ 
 
 , , 368, 369 
 
 cornices movable by tenant wlien, 375-379 
 
 general rule in respect to ■ • • 007 
 
 when the rule in cases of trade fixtures apply to, -^ ^^^ 
 
 class of which are held to be movable ^^^^^ 
 
 rights in of tenants for life and in tail, ^ ^^^ 
 
 ecclesiastical persons, 
 
 OUTGOING TENANT, Vide Tenant. 
 
 P 
 
 PADLOCKS, 311 
 
 belong to the realty when, 
 
 PARTNER, .... 706, 707 
 
 rule relating to fixtures between, • 
 
 PERSONAL PROPERTY, 33 
 
 consists of what, 37-40, 59, 60 
 
 regarded as fixtures when, ^^ 
 
 fixtures become, when, ggg^ ggg 
 
 may become part of realty when, •• • • 
 
 Vide Fixtures. 
 
 PHYSICAL ANNEXATION, ^ 393 ^^^ 
 test in respect to fixtures when, . 61, 68, 71, 7^ i% io, ^ ^ ^ ^^^ 
 
 re-arded as uncertain as test of fixtures 
 
 PIPES, Vt^^ GAS-FIXTUKES, WATEK-FIXTUKES. 
 
 PORTABLE MILL, 53I 
 
 movable when, 
 
 "property, 83 
 
 general division of, ' 33 
 
 real, what constitutes, ' ' ' * " 33 
 
 personal, what is • 582 
 
 incidents in respect to, .••••.•■•• ' ; ; ' ' '^j ' " ' .'."... 582, 583 
 
 possession of in one and reversion in another when,
 
 764 ALPHABETICAL INDEX. 
 
 PUMP, PACK. 
 
 movable by tenant when .' 367, 368, 413, 414, 698, 699 
 
 pass by deed of the realty when 555 
 
 R 
 
 EAILWAY APPENDAGES, 
 
 law of fixtures in respect to, . .' 144-146, 599, 600, 711-728 
 
 pass by mortgage of road when, 711-717, 723-737 
 
 cases in respect to not harmonious, 71 3 
 
 held to be fixtures when 712-717, 723-727 
 
 some decisions in respect to criticised, 716 
 
 held not to be fixtures when, .' 717-723 
 
 question in respect to unsettled, 727, 728 
 
 REAL PROPERTY, 
 
 in what it consists 33, 44 
 
 rule in respect to accessions to, 284, 291, 292, 319 
 
 buildings regarded part of when, .• 664 
 
 railway appendages regarded part of when, 711-717 
 
 not regarded part of when, 717-723 
 
 REALTY, 
 
 fixtures part of when, 42, 59, 224, 226, 228, 426, 433-435, 440, 503 
 
 503, 695 
 
 annexations to become part of when 57-63, 147 
 
 constructively affixed become part of when 58 
 
 fences are part of when, , 116 
 
 padlocks are part of when, 311 
 
 Vide Freehold. 
 REMEDIES, 
 
 in case of fixtures explained 740-750 
 
 by action of waste, 740 
 
 trespass, 741-743 
 
 trover, 743, 744 
 
 assumpsit, 745, 746 
 
 in cases of fixtures by proceeding in equity, 746-748 
 
 the criminal law, 748-750 
 
 REMOVAL OF FIXTURES, 
 
 considerations in respect to, 74 
 
 rules in respect to,.. 74-83, 140, 141, 154, 161, 163, 165, 185, 186, 198-200 
 
 238, 239, 243, 314, 315, 417-455, 483, 490 
 
 when terms of lease certain, 417-427 
 
 lease has been forfeited, 427, 431, 448, 449 
 
 rule in case of annexations by license 428, 429 
 
 surrender of lease, . . . ; 429-433, 443-444 
 
 renewed lease, 436-439, 446, 447, 452 
 
 voluntary termination of demise, 451 
 
 uncertain term, 453, 454 
 
 interference by landlord, 454, 455 
 
 special demise, 455-483
 
 ALPHABETICAL INDEX. 765 
 
 REPLEVIN, • PAGE. 
 
 remedy in case of fixtures wlien, 70 
 
 ROLLING STOCK, 
 
 of railways, held part of road when, 712-717 723-737 
 
 not i^art of road when, 717-723 
 
 s 
 
 SALE OF FIXTURES, 
 
 requisites of to be effectual, 728-731, 735, 736 
 
 need not be in writing when, 709 
 
 effect of statute of frauds in respect to, 729-733 
 
 general doctrine in respect to, 730 
 
 rule in respect to similar to that of chattels, 730-731 
 
 SALT-KETTLES, 
 
 held as part of the realty when, 672, 673 
 
 SALT-PANS, 
 
 movable when, 49 
 
 regarded as part of realty when, 192, 193, 276, 377 
 
 SALT-WORKS, 
 
 accessories to the realty when, 50 
 
 SCALES, » 
 
 movable when, 698, 699 
 
 SCONCES, 
 
 law of fixtures in respect to, • 395 
 
 SEA WEED, 
 
 treated as fixture when, 60 
 
 SHED, 
 
 movable when, 48^ 359^ 360 
 
 SHELVES, 
 
 part of the realty when, 530, 531 
 
 SHRUBS, 
 
 movable when, 337, 335-337 
 
 regarded, as part of the realty when, 338 
 
 STATUE, 
 
 held not to pass with the realty when, 58 
 
 to be part of the realty when, 59, 375-379 
 
 STATUTE OF FRAUDS, 
 
 effect of in case of sale of fixtures, 168, 739-732 
 
 STATUTES, 
 
 to protect fixtures, 749, 750 
 
 STEAM-ENGINES, 
 
 affixed to land for mining purposes movable when, 46 
 
 Vide Engines and Boilers. 
 
 STILLS, 
 
 movable when, 211, 212, 258, 259 
 
 pass by deed of realty when, 532 
 
 regarded as fixtures under bankruptcy act when, , 63, 637
 
 766 ALPHABETICAL INDEX. 
 
 STONE SLABS, pa«k- 
 part of the realty when, 60 
 
 STONES, 
 
 used to lock fence, fixtures when, 60 
 
 STOVES, 
 
 regarded as movable when 396, 397, 523, 52 1 
 
 for burning gas, movable when 396, 397 
 
 held to pass by deed of the realty when, 524 
 
 STRANGERS, 
 
 law of fixtures in respect to erections by, 83-85, 88 
 
 SUN DIAL, 
 
 regarded as part of freehold when, 58, 59 
 
 T 
 
 TENANT, 
 
 may take away his fixtures when, 49, 52-54, 64, 69-81, 124, 143, 154-158 
 
 178, 185, 186 
 time within which his fixtures must be removed, 73-83, 140, 141, 154 161 
 
 162, 165, 185 
 
 nature of his property in fixtures, 159-169 
 
 remedies of in respect to fixtures, 163, 740-750 
 
 fixtures of may be seized on execution when, 161, 164, 240, 243, 244, 416 
 
 626, 627, 739 
 
 not distrainable when, 164, 736-739 
 
 may take away trade fixtures when, 169-270, 493 
 
 for life, rights in respect to fixtures, 213-215, 483, 484, 486, 489, 491-493 
 
 503, 699 
 
 rights of in respect to manure made on demised land, . . 343, 344, 354, 355 
 
 ornamental annexations, . . . 224, 357-395, 494^^97 
 
 may take away chimney-pieces when, 360 
 
 in tail, law of fixtures in respect to, 492, 494-505 
 
 for years, may not commit waste when, 517, 518 
 
 may not remove fixtures when, 552, 553 
 
 in common, law of fixtures in respect to, 704^711 
 
 TENANT FOR LIFE, 
 
 right of, in respect to fixtures,. . 213-215, 483, 484, 486, 489, 491-493 
 
 503, 699 
 general rule of fixtures in respect to,.. 483, 484, 486, 489, 491-493, 503 
 
 right of in trade fixtures, • 498 
 
 ornamental annexations, 494-497 
 
 may not commit waste, when, 499-501 
 
 common law doctrine in respect to, 699 
 
 TENANT FOR YEARS, 
 
 may not commit waste when, 517, 518 
 
 Vide Landlord and Tenant. 
 TENANT IN TAIL, 
 
 law of fixtures in respect to, 492-505 
 
 right of, in trade fixtures, 493
 
 ALPHABETICAL INDEX. 767 
 
 TENANT IN TAIL— contimied. page. 
 
 right of in ornamental annexations, 494-497 
 
 who is regarded as such 497 
 
 TENANTS IN COMMON, 
 
 law of fixtures as between, 704-711 
 
 rule as to machinery between, 704-707 
 
 principle governing fixtures as between same as between grantor 
 
 and grantee, , '^' 
 
 rule between in respect to looms and the like 707 
 
 unity of title requisite in case of fixtures when 710, 711 
 
 TEST IN. RESPECT TO FIXTURES, 
 
 mode of annexation to the realty, 61, 68, 71, 73, 74, 75, 100, 393 
 
 intention of parties relating to annexation, 75, 114-128 
 
 adaptation of annexation to place, 101, 104-113, 894 
 
 understanding of parties as evinced by agreement 139-146 
 
 effect of removing annexation on freehold, 894 
 
 custom may be when, ^"^^ 
 
 THRESHING MACHINE, 
 
 movable when, *" '' ~'9° 
 
 TITLE DEEDS, 
 
 pass by conveyance of the realty when, 57, 700 
 
 general rule in respect to, '^'^^ 
 
 TRADE FIXTURES, 
 rule in 
 
 principles applicable to, 367-370, 375 
 
 TREES, 
 
 part of the freehold when, 81, 330, 331 
 
 rule in respect to when on boundary line, 85 
 
 tortiously severed, 97, 98 
 
 may be removed by nurserymen when, 337, 335-338 
 
 rule in respect to as between heir and executor, 701 
 
 transfer of, "34, 735 
 
 TRIP HAMMER, 
 
 held to be part of the realty when, 409, 410, 543 
 
 V 
 
 VARNISH HOUSE, 
 
 regarded as a trade fixture when, 48 
 
 VATS, . 
 
 regarded as movable when • • ^7, 418 
 
 rule in respect to under bankruptcy act, 633-636 
 
 VAULTS, 
 
 regarded as movable when, • 40o-407 
 
 part of realty when, 407,408 
 
 VENDEE, 
 
 regarded as tenant in respect to fixtures when, 349, 350, 414 
 
 held not to be a tenant when, 409, 410 
 
 Vide Vendor and Vendee.
 
 768 ALPHABETICAL INDEX. 
 
 VENDOR AND VENDEE, page. 
 
 law of fixtures in respect to, 519-546 
 
 general rule in respect to fixtures as between, 520, 524, 528, 534, 537, 553 
 
 certain inquiries in respect to fixtures as between, 520 
 
 rule between in respect to counters and shelves, 521 
 
 portable grist-mill, 521, 522 
 
 machinery, 522, 527-529, 532, 545, 546 
 
 stoves ; 523-525 
 
 engines and boilers, 526 
 
 fence rails, 528 
 
 as against chattel mortgage, 528 
 
 in case of a cotton-gin, 529-531, 533 
 
 growing grain, 531, 532 
 
 stills, 532 
 
 when fixtures will pass by conveyance as between, 533-538, 550-552, 554 
 
 rule between in respect to hop-poles, 538 
 
 nursery trees, 538, 539 
 
 timber trees, 539 
 
 manure, .• 543 
 
 windows, 543 
 
 statues, 544 
 
 gas fixtures, 544 
 
 construction of certain conveyances between, 547-558 
 
 general rule in respect to qualified when, 553 
 
 VENETIAN BLINDS, 
 
 regarded as fixtures when, 60 
 
 V 
 
 w 
 
 WAINSCOT, 
 
 law of fixtures in respect to, 49, 290, 358, 359, 361, 362, 364, 382 
 
 388, 394 
 
 WASTE, 
 
 definition of, 372, 391 
 
 when tenant is liable for, 389 
 
 for life is liable for, 499-501 
 
 WATER FIXTURES, 
 
 rule of law in respect to, 383, 402-404 
 
 WIND-MILL, 
 
 regarded as a mere chattel when, 63 
 
 movable when, 66-68 
 
 not a tenement when, , 296 
 
 WINDOW BLINDS, 
 
 regarded as fixtures when, 60 
 
 WINDOWS, 
 
 part of the realty when, 291, 358, 383, 384, 405
 
 LAW LIHX .s 
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