mill, erected by the tenant,a and machinery for spinning, and carding, though nailed to the floor,b and copper stills, and distillery apparatus, and potash kettles, though *344 *fixed, or set on arches, are held to be personal property. On the other hand, iron stoves, fixed to the brick work of the chimneys of a house, 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. But in another case in the same court, between mortgagor and mortgagee, the possessor, on the termination of that relation, was allowed to take down and carry away buildings erected by him on the land, and standing on posts, and not so connected with the soil but that they could be removed without prejudice to it. The tenant may also remove articles put up at his own expense for ornament or domestic convenience, unless they be permanent additions to the estate, and so united to the house as materially to impair it, if removed, and when the revoval would amount to a waste. The right of removal will depend upon the mode of annexation of the article, and the effect which the removal would have upon the premises.f

« The King v. Londonthorpe, 6 Term. Rep. 377. See, also, The King v. Inhabitants of Otley, 1 B. & Adolph. 161. In Maine, this notion of moveable fixtures was carried so far as to allow an action of trover for a sawmill built by A. on the land of B., with his consent, when occupation was refused. Russell v. Richards, 1 Fairfield's Rep. 429. Tapley v. Smith, 18 Maine Rep. 12. S. P. So, in England, a wooden barn erected on a foundation of brick and stone, is not a fixture, and may be removed by the tenant, and trover will lie for it. Wansbrough v. Moton, 4 Adolp. & Ellis, 884.

b Creson v. Stout, 17 Johns. Rep. 116. Tobias v. Frances, 3 Vermont Rep. 425. Taffe v. Warnick, 3 Blackf. Ind. Rep. 111.

c Reynolds v. Shutter, 5 Cowen's Rep. 323. Raymond v. White, 7 Ibid, 318. Whetherbee v. Foster, 5 Vermont Rep. 136.

d Goddard v. Chase, 7 Mass. Rep. 432.

• Taylor v. Townsend, 8 Mass. Rep 411. But fixtures erected by the mortgagor are annexed to the freehold, and cannot be removed until the debt be paid. Butler v. Page, 7 Metcalf, 40.

↑ Buskland v. Butterfield, 2 Brod. & Bing. 54. In Burge's Com. on

Questions respecting the right to what are ordinarily called fixtures, or articles of a personal nature affixed to the freehold,& principally arise between *345 three classes of persons: 1. Between heir and executor; and there the rule obtains with the most rigour in favour of the inheritance, and against the right to consider as a personal chattel any thing which has been af fixed to the freehold. 2. Between the executor of the

Colonial and Foreign Laws, vol. ii. p. 6-31, the rules respecting fixtures, not only in the English law but in the civil law and the codes of other nations, are collected. See, also, Treatise on Fixtures, by Amos & Ferard, ch. 2. sec. 3, 4. This valuable treatise has collected the numerous cases on the subject of fixtures, and traced and stated the subtle distinctions arising therein, with clearness and accuracy. Under the head of ornamental fixtures, hangings, tapestry, and pier-glasses, marble or other ornamental chimney pieces, marble slabs, window blinds, and wainscots fastened with screws, have been included; and, under the head of articles put up by the tenant, for domestic use and convenience, and allowed to be removed during the term, are enumerated grates, stoves, iron backs to chimneys, fixed tables, furnaces, coppers, coffee-mills, malt-mills, jacks, cupboards, iron ovens, &c. Ibid. In the case of Blood v. Richardson, in the New-York superior court of common pleas, in 1831, the tenant was held to be entitled to remove a grate and other fixtures put up by him for his own accommodation; and in Gaffield v. Hapgood, 17 Pick. Rep. 192, a fire frame fixed in the fire-place was held to be a fixture removeable by the tenant during the term. The law of fixtures in its application to the relation of landlord and tenant, partakes of the liberal and commercial spirit of the times.

a It was said by the barons, in Sheen v. Rickie, Best's Exch. Rep. East. Term, 1839, that fixtures do not necessarily mean things affixed to the freehold. It only means something fixed to another, and which the tenant has the power of removing. But I apprehend that the ordinary meaning is the appropriate and legal meaning, and which is things fixed in a greater or less degree to the realty. It is clearly settled, said Baron Parke in Mixshall v. Lloyd, 2 Meeson & W. 459, that every thing substantially and permanently affixed to the soil, is in law a fixture. The principle thing must not be destroyed by the accessary, nor a serious injury inflicted to some important building, unless the building itself be only an accessary to the fixture, as an engine house, to cover it. The principle seems to be that the fixture must be adapted to the enjoyment of the realty, and more or less annexed to it.

The New-York Revised Statutes, vol. ii. p. 83. sec. 6, 7, 8, declare, that things annexed to the freehold, or to any building, for the purpose of

tenant for life, and the remainder-man or reversioner; and here the right to fixtures is considered more favourably for the executors. 3. Between landlord and tenant; and here the claim to have articles considered as personal property, is received with the greatest latitude and indulgence. 4. There is an exception of a broader extent in respect to fixtures erected for the purposes of trade, and the origin of it may be traced back to the dawnings of modern art and science. Lord Ellenborough, in Elwes v. Maw,b went through all the cases from the time of the Year Books, and the court concluded, that there was a distinction between annexations to the freehold for the purposes of trade or manufacture, and those made for the purposes of agriculture; and the right of the tenant to remove was strong in the one case, and not in the other. It was held, that an agricultural tenant who had erected, for the convenient occupation of his farm, several buildings, was not entitled to remove them. Had the erections been made for the benefit of trade or manufactures, there would seem to have been no doubt of the right of re

moval. The strict rule as to fixtures, that applies 346 between heir and executor, "applies equally as be

tween vendor and vendee, and mortgagor and mortgagee; and growing crops, manure lying upon the land, and fixtures erected by the vendor for the purpose of

trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support, go to the executor as assets; and that all other things annexed to the freehold, descend to the heir or devisee. The chancellor, in House v. House, 10 Paige, 163, supposed the legislature here intended to put the executor or administrator upon the same footing with a tenant as to the right to fixtures.

a 20 Hen. VII. 13. a. and b. pl. 24. The exception, in that case, was allowed in favor of a baker and a dyer affixing furnaces or vats, or vessels pur occupier son occupations. But the exception in favour of such trades was almost too liberal for the age; and we find, in the following year, 21 Hen. VII. 27, it was narrowed to things fixed to the ground, and not to the walls of the principal building.

3 East's Rep. 38. The notes attached to this case in Smith's leading cases in Law Library, N. S. vol. 28, are valuable.

346 trade and manufactures, as potash kettles for manufacturing ashes, pass to the vendee of the land,a Fixtures go along with the premises to a lessee, if no reservation be made at the time of the contract; and the tenant must remove fixtures put up by him before he quits the possession on the expiration of his lease. If not removed during the term, they become the property of the landlord.d

a Spencer, Ch. J., in Holmes v. Tremper, 20 Johns. Rep. 30. Hare v. Horton, 2 Neville & Manning, 428. Miller v. Plumb, 6 Cowen's Rep. 665. Kirwan v. Latour, 1 Harr. & Johns. 289. Kittridge v. Woods, 3 N. H. Rep. 503. . Despatch line of Packets v. Bellamy, 12 N. H. Rep. 205. Oves v. Oglesby, 7 Watts, 106. Union Bank v. Emerson, 15 Mass. Rep. 159. Though fructus industriales pass from the intestate to his personal representatives, yet under a devise or conveyance of the land they pass to the devisee or vendee. The main mill wheel and gearing of a factory, and necessary to its operation, are held to be fixtures and real estate in favour of the right of dower, as against the heir. Powell v. Monson and Brimfield Manufacturing Company, 3 Mason's Rep. 459. Such machinery will also pass to the vendee as against the vendor. Farrar v. Stackpole, 6 Greenleaf's Rep. 154. So, manufacturing machinery and fixtures will pass to a mortgagee, as part and parcel of the inheritance, in like manner as they pass to a vendee. Lord Hardwicke, in Ryall v. Rolle, 1 Atk. Rep. 175. Union Bank v. Emerson, 15 Mass. Rep. 159. Amos & Ferard on Fixtures, 189. 191. Voorhis v. Freeman, 2 Watts & Serg. 116. Despatch line of Packets v. Bellamy, 12 N. H. Rep. 205. They are parcel of the inheritance. Ferrant v. Thompson, 5 B. & Ald. 826. But in Swift v. Thompson, 9 Conn. Rep. 63, machinery in a cotton factory attached to the building, so far as to keep the machinery steady, and which could be removed without injury to the building or the machinery, was held to be personal property, as respects creditors and purchasers. The case of Gale v. Ward, 14 Mass. Rep. 352, went also to the same point. Fixtures made by a mortgagor after the mortgage, become part of the realty as between him and the mortgagee, and cannot be removed. It might be otherwise in the case of landlord and tenant. The mortgagor makes such improvements as owner for the permanent benefit of the estate. Winslow v. Merchants' Ins. Co., 4 Metcalf R. 306.

b Colegrave v. Dios Santos, 2 Barnw. & Cress. 76.

• Gibbs, Ch. J., in Lee v. Risdon, 7 Taunt. Rep. 183. Ex parte Quincy, 1 Atk. Rep. 477. 2 Barnw. & Cress. supra. Poole's case, 1 Salk. Rep. 368. Penton v. Robart, 2 East's Rep. 88. White v. Arndt, 1 Wharton,

91. 2 Meeson & W. 460. S. P.

d Lyde v. Russel, 1 B. & Adolphus, 394. The French law coincides VOL. II.

33

It has been strongly questioned by high authority,a whether erections for agricultural purposes ought not, in this country, to receive the same protection in favour of the tenant as those fixtures made for the purposes of trade, manufactures, or domestic convenience. They may be necessary for the beneficial enjoyment of the estate, and the protection of its produce; and public policy and the interest of the owner of the soil, are equally promoted by encouragement given to the tenant

to cultivate and improve the estate. In Whiting *347 v. Braston,b the agricultural tenant received *a lib

eral application of the exception in favour of the removal of fixtures. He was allowed to remove from the freehold all such improvements as were made by him, the removal of which would not injure the premises or put them in a worse plight than they were in when he took possession. The case of Holmes v. Tremper, may also be referred to, as containing a just and enlarged view of the subject; and the tenant was allowed to remove a cider mill and press erected for his own use. But the same policy of encouraging and protecting agricultural improvements, will not permit the outgoing tenant to remove the manure which has accumulated upon a farm during the course of his term.d

with the English in respect to fixtures made for embellishment. The tenant may remove them, provided they can be removed without being destroyed, and without deteriorating the premises. Lois des Batimens, par Le Page, tom. ii. p. 190. 205.

Middlebrook v. Corwin, 15

It would seem to be the or take away the manure. Gibbons on Dilapidations,

a Lassell v. Reed, 5 Greenleaf's Rep. 222. Wendell, 169. Daniels v. Pond, 21 Pick. 367. law in England for the outgoing tenant to sell Reberts v. Barker, 1 Crompt. & Meeson, 809. 76; but a special usage sometimes obliges the offgoing tenant to leave the manure upon the land. In North Carolina the outgoing tenant, when there is no custom or covenant to the contrary, has a right to the manure