3 Dean v Biggs, 25 Hun, 122.

4 8 Vict. ch. 16, § 42.

5 Pickering v. Ilfracombe R'y Co. Law R 3 Com. P. 235.

6 Browne & Theobald's Railway Law, 88.

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§ 620. (d). Of the effect of express words of futurity-Appurtenances.—A railway company may, by express words of futurity, create a valid lien upon property subsequently acquired.1 A mortgage in such terms will cover a lease of another road afterward taken,2 the capital stock of another corporation thereafter purchased, and a subsequently constructed extension of the railway. A hotel built by a railway company to afford accommodations to its employees and passengers has been held appurtenant to the railway, and to be covered by a general mortgage containing words of futurity, although the company took its title thereto in the name of a trustee, for the express purpose of preventing the lien of the mortgage from attaching, and although the hotel was open to the general public as well as to passengers and employees.5 When property, to be afterward acquired by a railroad company, is mortgaged, the lien attaches to it as soon as it is acquired and as effectually as if it had been described specifically." It will not be presumed, however, that an after-acquired property clause was intended to cover property not properly appurtenant to the railway. A tract of woodland seven miles from the railway has been held not appurtenant thereto; and land designed for a canal basin has been considered, for the same reason, not within the terms of a general mortgage. But lands acquired for the erection of car-houses were held to be appurtenant, although never used for that purpose,

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the court saying that the case of a railway company holding more property than at present needed, is entirely different from those cases in which the company buys other property distinct from the road and its appurtenances, neither intended nor necessary for the present or prospective exercise of its franchises. A general mortgage, although containing words of futurity, does not cover property which, at the time of the execution of the mortgage, he railroad had no authority to hold." Property obtained by fraud is not covered by a mortgage of after-acquired property.12

1 Dunham v. Cincinnati etc. R. R. Co. 1 Wall. 254: Corey v. Pittsburgh etc. R. R. Co. 3 Phila. 173; Coopers v. Wolf, 15 Ohio St. 523; Ludlow V. Hurd, lisn. 552; In re General South American Co. 2 Ch Div. 337; In re Panama etc. Mail Co. 5 Ch. 318. See Willink v. Andrews, 16 I. R. C. L. 201. As to when the railroad mortgage attaches to subsequently acquired property, see further, Galveston etc. R. R. Co. v. Cowdrey, 11 Wall. 459; New Orleans etc. R. R. Co. v. Mellen, 12 Wall. 365; Scott v. Clinton etc. R. R. Co. 6 Biss. 535; Barnard v. Norwich etc. R. R. Co. 4 Cliff. 385; Dillon v. Barnard, 1 Holmes, 394.

2 Buck v. Seymore, 46 Conn. 156.

3 Williamson v. New Jersey etc. R. R. Co. 26 N. J. Eq. 398.

4 Texas etc. R'y Co. v. Gentry, 69 Tex. 625.

5 United States Trust Co v. Wabash etc. R'y Co. 32 Fed. Rep. 480. Cf. Mississippi Valley Co. v. Chicago etc. R. R. Co, 58 Miss. 896; 38 Am. Rep. 348, 350.

6 Parker v. New Orleans etc. R. R. Co. 33 Fed. Rep. 693.

7 Calhoun v. Memphis etc. R. R. Co. 2 Flip. 442; Seymour v. Canandaigua etc. R. R. Co. 25 Barb. 284; Mississippi Valley Co. v. Chicago etc. RR Co. 58 Miss. 896; 38 Am. Rep. 318, 350, and cases there cited; Morgan v. Donovan, 58 Ala. 241; Shamokin Valley R. R. Co. v. Livermore, 47 Pa. St. 465;, 85 Am. Dec. 552; Calhoun v. Paducah etc. R. R. Co 9 Cent. Law J. 65.

8 Dinsmore v. Racine etc. R. R. Co. 12 Wis. 640.

9 Shamokin Valley etc. R. R. Co. v. Livermore, 47 Pa. St. 465; 85 Am. Dec. 552.

10 Hamlin v. European etc. R'y Co. 72 Me. 83.

11 Randolph v. New Jersey etc. R. R. Co. 28 N. J. Eq. 49. See Coe v. New Jersey etc. R. R. Co. 31 N. J. Eq. 105.

12 Field v. Post, 38 N. J. Eq. 346; Williamson v. New Jersey etc. R. R. Co. 28 N. J. Eq. 277; 29 N. J. Eq. 311; Frazier v. Frederick, 23 N. J. Eq. 162.

§ 621. (e). Of fixtures.-Articles which have become affixed to the realty, thereby partaking of its

nature, whether acquired before or after the execution of a general mortgage of the real estate of the company, are subject to the sien thereof.1 There is much apparent conflict in the decisions with respect to what articles should be regarded as fixtures. The general rule is that the object, the effect and the mode of annexation must be all taken into consideration. And these are questions for the jury, whose finding cannot be set aside unless clearly erroneous.3 Whatever is the rule applicable to locomotives and cars and loose property susceptible of separate ownership and of separate liens, and to real estate not used for railroad purposes, as to their being unaffected by a prior mortgage given by a railroad company, covering after acquired property, it is well settled that bridges, and articles such as rails which become affixed to and a part of a railroad covered by a prior mortgage, will be held by the lien of such mortgage in favor of bona fide creditors, as against any contract between the furnisher of the property and the railroad. Old rails are held to be fixtures and covered by a mortgage even after they have been taken up, if proper management would require their being recast. So also new rails not yet laid down are held to be fixtures.7 Fuel is not held to come under the head of fixtures. Machinery for making nails has been held to be a fixture and to pass with a workshop under a general mortgage; but tools and implements attached to the realty are not considered as fixtures,10 nor furniture in depots," nor office furniture," nor an iron safe.13 Generally, whatever is placed in a building to carry out the purpose for which it was erected and permanently to increase its value for

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occupation and use, although it may be removed without injury to itself or to the building, becomes a part of the realty as between mortgagor and mortgagee, and cannot be removed or otherwise disposed of while the mortgage is in force.14

1 Porter v. Pittsburg etc. Co. 120 U. S. 267, 283.

2 Southbridge Savings Bank v. Mason, 147 Mass. 500; Smith Paper Co. v. Servin, 130 Mass. 513; McConnell v. Blood, 123 Mass. 47; 25 Am. Rep. 12; M Laughlin v. Nash, 14 Allen, 136; 92 Am. Dec. 741.

3 Southbridge Savings Bank v. Mason, 147 Mass. 500; Montgomery v. Pickering, 113 Mass. 230; Reed v. Reed, 114 Mass. 372.

4 Porter v. Pittsburg etc. Co. 122 U. S. 267, 283, citing Fosdick v. Schall, 9) U, S. 235, 251; Dillon v. Bernard, 21 Wall. 430, 440; United States V. New Orleans R. R. C, 12 Wall. 32, 335; Galveston R. R. Co. v. Cowdrey, 11 Wall. 45), 430; 482; Dunham v. Railroad Co. 1 Wall, 254.

5 Salem Bank v. Anderson, 75 Va. 250.

6 Lehigh etc. Co. v. Central R. R. Co. 35 N. J. Eq. 379.

7 Wutjen v. St. Paul etc. R. R. Co. 40 Hun, 529; Palmers v. Forbes, 23 Ill. 301. But see Farmers' Loan & Trust Co. v. Commercial Bank, 15 Wis. 455; 82 Am. Dec. 68). Cf. Farmers' Loan & Trust Co. v. Commercial Bank, 15 Wis. 465; 82 Am. Dec. 639; Farmers' Loan & Trust Co. v. Cary, 13 Wis. 119; Dinsmore v. Racine etc. R. R. Co. 12 Wis. 649; also, Brainerd v. Peck, 31 Vt. 496.

8 Hunt v. Bullock, 23 Ill. 320. Contra, Coe v. McBrown, 22 Ind. 252. 9 Delaware etc. R. R. Co. v. Oxford etc. Co. 33 N. J. Eq. 452. 10 Lehigh etc. Co. v. Central R. R. Co. 35 N. J. Eq. 379; Williamson v. New Jersey etc. R. R. Co. 29 N. J. Eq. 311; S. C. 28 N. J. Eq. 277.

11 Lehigh etc. Co. v. Central R. R. Co. 35 N. J. Eq. 379.

12 Hunt v. Bullock, 23 Ill. 320. As to office furniture, see, also, Raymond V. Clark, 43 Conn. 129; Ludlow v. Hurd, 1 Disn. 552.

13 Titus v. Mabee, 25 Ill. 257.

14 Southbridge Savings Bank v. Mason, 147 Mass. 500. In the note to this case many of the decisions are collated; none of them, however, are in relation to railway property.

§ 622. (f). Of rolling-stock.-Rolling-stock is generally held to be so affixed to a railway as to pass under a general mortgage thereof;1 and where this is the rule, it is not subject to levy and sale under the execution of a judgment obtained by unsecured creditors of the company. But in New York, and several of the other American States, rolling stock is held to be personal property; and in Illinois, the State constitution ordains that the

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rol'ing-stock of railways shall be deemed personal property. This, however, is held not to change the rule that a general mortgage with words of futurity will cover rolling-stock acquired before the rights of unsecured creditors attached." The lien of a mortgage having once attached to rollingstock, continues, notwithstanding its removal on account of a change in the gauge of the railway." By foreclosure of a mortgage on one division of a railroad, which is prior to any liens on other divisions, an interest in any right to use rollingstock bought out of common funds of the company, placed and used upon the entire line for the common benefit, and of which no division has ever been made, will pass to the purchaser of that division. A mortgage does not cover the rollingstock of a third person, which has been placed upon the mortgaged railway under a contract with the company then operating it.

1 Minnesota Co. v. St. Paul Co. 6 Wall. 142; Buck v. Memphis etc. R. R. Co. (Tenn.) 4 Cent. L. J. 430.

2 Gue v. Tidewater Co. 24 How. 257; Phillips v. Winslow, 18 Mon. B. 431; 68 Am. Dec. 729; Macon etc. R. R. Co. v. Parker, 9 Ga. 377; Youngman v. Elmira etc. R. R. Co. 65 Pa. St. 276; Shamokin Valley R. R. Co. v. Livermore, 47 Pa. St. 465; 85 Am. Dec. 552; Coney v. Pittsburgh R. R. Co. 8 Phila. 173.

3 Hoyle v. Plattsburgh etc. R. R. Co. 54 N. Y. 314; 13 Am. Rep. 595; Randall v. Elwall, 52 N. Y. 521; 11 Am. Rep. 747; Stevens v. Buffalo etc. R. R. Co. 31 Barb. 590: Williamson v. New Jersey Southern R. R. Co. 29 N. J. Eq. 311; reversing S. C. 28 N. J. Eq. 277; Boston etc R. R. Co. v. Gilmore, 37 N. H. 410; Coe v. Columbus etc. R. R. Co. 10 Ohio St. 372; 75 Am. Dec. 518.

4 Scott v. Clinton etc. R. R. Co. 6 Biss. 529.

5 Scott v. Clinton etc. R. R. Co. 6 Biss. 529.

6 Hamlin v. Jerrard, 72 Me. 62.

7 Milwaukee etc. R. R. Co. v. Milwaukee etc. R. R. Co. 6 Wall. 742. See, also, Milwaukee etc. R. R. Co. v. Soutter, 2 Wall. 609.

8 Hardesty v. Pyle, 15 Fed. Rep. 78. See, also, Meyer v. Johnston, 53 Ala. 237; Wood's Railway Law, 1624.

§ 623. (g). Of earnings.-The earnings of a railway should be devoted first to the payment of current