ELWES v. MAWE.

MICH. 43 G. 3.—K. B.

REPORTED 3 EAST, 38.]

A tenant in agriculture, who erected, at his own expense, and for the mere necessary and convenient occupation of his farm, a beast-house, carpenter's shop, fuel-house, cart-house, pumphouse, and fold-yard wall, which buildings were of brick and mortar, and tiled, and let into the ground, cannot remove the same, though during his term, and though he thereby left the premises in the same state as when he entered. There appears to be a distinction between annexations to the freehold of that nature for the purposes of trade, and those made for the purposes of agriculture and better enjoying the immediate profits of the land, in favour of the tenant's right to remove the former: that is, where the superincumbent building is erected as a mere accessary to a personal chattel, as an engine; but where it is accessary to the realty, it can in no case be removed.

THE declaration stated that the plaintiff was seised in fee of a certain messuage, with the out-houses, &c. and certain land, &c. in the parish of Bigby, in the county of Lincoln, which premises were in the tenure and occupation of the defendant as tenant thereof to the plaintiff, at a certain yearly rent, the reversion belonging to the plaintiff; and that the defendant wrongfully, &c. intending to injure the plaintiff in his hereditary estate in the premises, whilst the defendant was possessed thereof, wrongfully and injuriously, and without the license and against the will of the plaintiff, pulled down divers buildings, parcel of the said premises, in his, the defendant's, tenure and occupation, viz. a beast-house, a carpenter's shop, a waggon-house, a fuelhouse and a pigeon-house and a brick wall, enclosing the fold-yard, and took and carried away the materials, which

were the property of the plaintiff, as landlord, and converted them to his, the defendant's own use; by reason whereof the reversionary estate of the plaintiff in the premises was greatly injured, &c. The defendant pleaded the general issue. And at the trial at the last Lincoln assizes a verdict was found for the plaintiff, with 607. damages, subject to the opinion of the court on the following case:

The defendant occupied a farm, consisting of a messuage, cottages, barn, stables, out-houses, and lands, at Bigby, in the county of Lincoln, under a lease from the plaintiff for twenty-one years, commencing on the 12th day of May 1779; which lease contained a covenant on the part of the tenant to keep and deliver up in repair the said messuage, barn, stables, and out-houses, and other buildings belonging to the said demised premises. About fifteen years before the expiration of the lease the defendant erected upon the said farm at his own expense a substantial 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 wall 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 foundations, 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. The question for the opinion of the Court was, Whether the defendant had a right to take away these erections. If he had, then a verdict to be entered for the defendant; if not, the verdict for the plaintiff to stand.

This case was first argued in Easter term last by Torkington for the plaintiff, and Clarke for the defendant; and again in this term by Vaughan, Sergt. for the plaintiff, and Balguy for the defendant.

For the plaintiff it was argued that the removing the buildings in question was waste at common law, and that this case did not fall within any of the exceptions, which

ance.

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 severed again without the consent of the owner of the inheritAccordingly, glass windows, wainscot, benches, doors, furnaces, &c., though annexed by tenant for years for his own accommodation, could not be removed by him again. Co. Litt. 53 a. The principle on which this was founded was the injury which would thereby arise to the inheritance from disfiguring the walls of the mansion; though some of these things were in their nature personal chattels, supplying the place of mere movable utensils and furniture. But it never was questioned but that buildings let into the soil became part of the freehold from the very nature of the thing. This was decided so long ago as Hil. 17 Ed. 2, 518, in a writ of waste against a lessee, who had built a house and pulled it down during his term. And Co. Litt. 53 a, which is to the same purpose, goes further and says, that even the building of such new house by the tenant is waste; but that is denied in Lord Darcy v. Askwith (a); though that also (a) Hob. 234. agrees that the letting down of such new house built by the tenant himself would be waste. So taking down a stone wall, or a partition between two chambers, is waste. 10 Hen. 7, 2 pl. 3. It does not, indeed, appear by that book, whether those erections had been before made by the tenant himself; but they were so taken to be by Meade J. in Cooke v. Humphrey (b). All this is confirmed by Lord Coke at the end of Herlakenden's case (c), where it is said to have been adjudged in C.B. that glass fastened to the windows, or wainscot to the house, by the lessee, cannot be removed by him: and that it makes no difference in law whether the fastening of the latter be by great or little nails, screws, or irons put through the posts or walls (as had been then of late invented), or in whatever other manner it was fastened to the posts or walls of the house. In all these cases the rule as between landlord and tenant seems to have followed that between heir and executor, founded upon the reason first mentioned: and no innovation upon the strict rule seems ever to have been admitted, except in the case before Lord C. B. Comyns, (d), at Nisi Prius, of the cyder mill, which he held should go to the executor, and not to.

(b) Moor, 177.

(c) 4 Rep. 63, 4.

(d) Cited in Lawton v. Law

ton, 3 Atk. 13. 16.

34.

(*) See Wiggles

worth v. Dalli

son, ante, vol. i.

el notas.

the original are

'pur occupier son occupa

tion."

the heir; but upon what particular grounds does not appear: (a) Bull, N. P. and the case of Culling v. Tufnal (a), before Lord Ch. J. Treby, at Hereford, in 1694, where a barn erected by a tenant upon pattens and blocks of timber, lying on but not let into the ground, was holden to be removable by the tenant: but even there he relied on the custom of the country in favour of the tenant, with reference to which it might be presumed that he and his landlord had contracted.* The only established exception (which the plaintiff's counsel admitted was as old as the rule itself), is in favour of trade, with respect to articles annexed to the freehold for the purpose of carrying on trade and manufactures. In 20 Hen. 7, fo. 13, pl. 24, an heir brought trespass against executors for taking away a furnace fixed to the freehold with mortar, and the taking was holden tortious. But it was there said “that if a lessee for years set up such a furnace for his own advantage, or a dyer his vats and vessels to carry on his busi(b) The words in ness (b), during the term he may remove them: but if he suffer them to be fixed to the land after the end of the term, then they belong to the lessor; and so of a baker." Then follows, "It is no waste to remove such things within the term by any." But this is said to have been against the opinions before mentioned, and to have been doubted in the 42 Ed. 3, p. 6, pl. 19, whether it were waste or not. It is clear, therefore, from the whole of the passage, that the only generally admitted exception was in favour of traders, which is shown by the examples of the dyer and baker affixing vessels pur occupier son occupations: and that at least it was doubtful whether the same privilege extended to others affixing to the freehold similar articles. And the exception is the more remarkable because at that early period agriculture must have been of much greater importance to the state than trade. This distinction was continued in later times. In Poole's case (c), M. 2 Ann. in an action on the case by a lessee against the sheriff of Middlesex, who had taken in execution the vats, coppers, tables, partitions, and pavement, &c. of an under lessee, a soap-boiler, which he had put up as fixtures for the convenience of his trade, Lord C. J. Holt held that during the term the soap-boiler might well remove the vats set up in relation to trade, by the common law; but that there was a difference between what he

(c) Salk. 368.

ors.

did to carry on his trade, and what he did to complete the house; as hearths, and chimney-pieces; which he held not removeable. The next case was Cave v. Cave (a), in 1705, (a) 2 Vern. 508. where the Lord Keeper held that not only wainscot, but pictures and glasses put up in the place of wainscot, should go to the heir and not to the executor, to prevent the house being disfigured. Then followed Lawton v. Lawton (b); (b) 3 Atk. 13. where it was decreed by Lord Hardwicke C. that a fire engine erected for the benefit of a colliery by the tenant for life should be considered as personal estate, and go to his executor, and not to the remainderman, in favour of creditBut there it was proved to be customary to move such an engine; that in building the shed for its security holes were left for the ends of the timber to make it more commodious for removal; and that it was very capable of being removed. The evidence relied on by the other side was that it could not be removed without tearing up the soil and destroying the brick-work. But Lord Hardwicke considered the brick-work there as a mere accessory to the engine, which in its own nature was a mere personal moveable chattel. One reason, he said, which weighed with him was, that it was a mixed case, between enjoying the profits of the land and carrying on a species of trade; and considering it in that light, it came near the instances of furnaces and coppers in brewhouses. That decision was in 1743. In ex parte Quincy (c), in 1750, where the principal question was, (c) 1 Atk. 477. whether the utensils of a brew-house passed by a mortgage of the brew-house with the appurtenances; it is said that a tenant may, during the term, take away chimney pieces, and even wainscot; but the latter is observed to be a very strong The same was before said in Lawton v. Lawton, with this difference, that it was there said of wainscot fixed

case.

only by screws, and of marble chimney-pieces. This opinion

may have proceeded as it did in Beck v. Rebow (d), upon (d) 1 P. Wms. the consideration that matters of this sort were merely orna- 94.

34.

mental furniture, and not necessary to the enjoyment of the freehold. The case of Lord Dudley v. Lord Ward (e), in (e) Ambl. 113, 1750, was like that of Lawton v. Lawton, on the authority and Bull. N. P. of which it was decided. There Lord Hardwicke recognized the general rule, with the single exception as between landlord and tenant, that fixtures annexed by the latter for