[*11] being subject to a right of removal, does not affect the nature t acquires by being incorporated with the realty. It is true, that 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 these, and other like general expressions, may consistently with the principle 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. In the case of Lee v. Risdon, (a) the view here taken of the nature of fixtures is stated to be the true one; and the Court, in that case, considered that they constitute essentially a part of the freehold, and until the moment of their severance are in no respect distinguishable from the rest of the land. Moreover the principle of several late decisions is in conformity with this view of the subject. (b) *From the observations that have been offered in the preceding pages, the reader will probably be of opinion, that the use of the term fixtures, in the sense in which it is adopted in the definition, is attended with some convenience; inasmuch as it serves to distinguish a species of things which are subject to a very peculiar right of property, and which manifestly require some appropriate appellation. Indeed the application of the term, indiscriminately, to all chattels affixed to land, serves to point out their physical character only, and has no reference to any legal rights that may attach to them. And with respect to its application to those things which cannot legally be removed after annexation, there appears to be And see the second part of the Fixtures are frequently compared in 5 Bar.& Ald. 828. 1 Atk. 175. (a) 7 Taunt. 190(b) See chap. v. post. treatise, respecting the forms of action. respect of their freehold character to trees. the less necessity for giving a name to them, because the right of property in these cases is precisely of the same nature as that which is exercised over every part of the freehold. It should, however be observed, that the term fixtures is used by the courts, and amongst the text writers, without much precision; and it is difficult to determine in which of the above senses it is most frequently employed. Having now described the general nature of the species of property to which it is proposed to apply the denomination of fixtures, it is intended, in the ensuing chapters to consider by what persons, and under what circumstances, the right of removal may be exercised and enforced. *CHAPTER II. OF FIXTURES, AND THE RIGHT TO REMOVE THEM AS BE- Section 1. Of the Right of a Tenant to remove Trade Fixtures. Section 4. Of the Right of a Tenant to remove Fixtures for Ornament Section 5. Of the Time when a Tenant may remove Fixtures, as affect ed by the Nature and Duration of his Interest in the Pre mises. Section 6. Of the Effect of Contract and the Terms of the Tenancy in respect to the Fixtures. [ *13] SECTION I. Of the Right of a Tenant to Remove Trade Fixtures. It was observed in the preceding chapter that there existed in certain cases, and in favour of particular individuals, a right of severing and removing personal chattels which have been affixed to the freehold. And this right, it was said, prevailed over the claims of other persons, who, by reason of their interest in the land, would have had a property in the articles, and might have prohibited their removal, if they were to be considered in all respects like other parts of the freehold. In nearly all the cases relating to the doctrine of fixtures, the conflicting rights of *individuals to some particular article had been the subject of dispute, where the one party has claim ed 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. fixtures. Questions respecting the right to fixtures have principally Parties claiming arisen between three classes of persons. First, between landlord and tenant. Secondly, between the executors of tenant for life, or tenant in tail, and the remainder-man or reversioner. Thirdly, between the personal representative and the heir of the deceased owner of the inheritance. (a) It is proposed to investigate the law relating to fixtures by considering, in the first place, the respective claims of these three classes of individuals. And it is thought expedient to examine these claims separately, and according to the order here mentioned because, many of the rules on which the doctrine of fixtures is established, will be found not to be alike applicable to each of the classes of persons, and therefore to consider them under one general head would lead to a confused and inaccurate view of the subject. between landlord The present chapter will, therefore, treat of the doctrine of Law of fixtures fixtures in the case of landlord and tenant; that is to say, of and tenant. the property which a tenant continues to possess, and the right of removal that belongs to him, when he has, during his term, *annexed any matter to the soil which may be considered a fixture according to the definition given in the preceding chap ter. [*14] Now it is obvious that the respective claims of the landlord and the tenant may be affected by the nature and the terms of the contract that has been entered into between them. In (a) Elwes v. Maw, 3 East, 51. 1 H. Blac. 260, in notis, order, however, to obtain a correct view of the general principles on which the law of fixtures depends, it is necessary to consider the rights of these parties independently of any private agreement. 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; and the consideration of this part of the subject will be fully entered upon hereafter. For the present purpose, therefore, it must be supposed that nothing is found in the terms of the demise controlling the general right of the tenant in regard to fixtures, and that there exists between the parties nothing but the mere relation of landlord and ten ant. General rule as to annexations by a tenant. [*15] 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 regarded as the rule in ordinary cases. It is, that whenever a tenant has affixed any thing to the demised premises during his term, he can never again sever it without the consent of his landlord. The property, by being annexed to the land, immediately belongs to the freeholder: the tenant, by making it 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 afterwards. It *therefore falls in with his term, and comes to the reversioner as part of the land. (a) Relaxed in mo- A strict observance of this rule, which appears originally to dern times. have admitted of no distinction, whatever may have been the object of the annexation, or the intention of the party in making it, must have been attended with great hardship and injustice to tenants; and it may be supposed that early endeavours were made to obtain a relaxation of it. In progress of (a) Co. Lit. 53, a. 4 Co. 64. Herlakenden's case. Moore, 177. 3 East, 51. See ante p. 6, 9. |