what engine. The offer made was as follows: To show that several engines on this road had insufficient sparks-catchers: that the engines of this road had repeatedly set fire to property and to vegetation along that part of the track very shortly before and very shortly after this occurrence; that sparks as large as a hickory nut escaped in large quantities from the engines, causing these fires; that, after this fire, what remained of the rags. and what was saved, were spread on the field, and watched day and night, and that they were set on fire repeatedly by the engines passing on this road. This offer was received to show by circumstantial evidence that the damage was done by some engine with an insufficient spark-arrester. The jury were to infer from the fact that many of the company's engines, about the time of this occurrence, shortly before and shortly after, emitted sparks of unusual size and quantity; that they were without sufficient spark-arresters; and that, upon consideration of all the evidence, the injury complained of resulted from some one of the engines thus imperfectly constructed. The offer was subsequently enlarged by adding to it a proposition to prove, not that the whole number of defendant's engines were defective, but that the defendant habitually used engines with defective spark-arresters. The offer, as a whole, was admitted, and in this court was assigned for error. In a per curiam opinion, this court held that there was no error in the admission of this offer. In Pennsylvania R. Co. v. Page (Pa.) 11 Cent. Rep. 424, the action was for burning the plaintiff's barn, 150 feet distant from the track. The evidence was that the company's trains had passed the barn shortly before the fire broke out, emitting cinders, smoke, and small sparks about the size of a pea. There was no evidence, direct or circumstantial, to justify the jury in finding that the sparks were of any larger size. It was further shown that the wind was blowing from the track towards the barn and that sparks had been known to have been blown that distance. It was not shown that any spark-arrester in use would effectually prevent the emission of sparks of this size. While the evidence was, perhaps, sufficient to satisfy the jury that sparks from the engine had caused the fire, there was no proof of any defect in the spark-arresters; on the contrary, it was shown they were in perfect condition. There was therefore no proof of negligence or mismanagement; and it was upon this ground that we said it would have been the duty of the court below, if a proper request had been made, to have instructed the jury to find a verdict for the defendant. The same rule of evidence is announced in Grand Trunk R. Co. of Canada v. Richardson, 91 U. S. 454, 23 L. ed. 356. The saw-mill, etc., of Richardson, the plaintiff, was burned on the 7th of June, 1870. The evidence tended to show that the fire was communicated from one of two engine belonging to the company, -the first, drawing a passenger train westerly, passing the mill about half past 1 o'clock in the afternoon; the other drawing a freight train easterly, passing it about 4 o'clock the same afternoon. One half to three fourths of an hour after the last mentioned train passed by the mill, the fire was discovered burning on the westerly end of a covered railroad bridge from which it was communicated to the saw-mill. The evidence of the plaintiff in error tended to show that the fire was not communicated by either of the engines complained of, but, on the contrary, from a constant fire at the end of their tram-way, about 163 feet down the stream, on the same bank of the river, maintained at the westerly end of the railroad bridge for the purpose of burning edg ings, sticking, slabs. and other waste material from the saw-mill. After the company had rested its case, Richardson was allowed to prove that at various times during the same summer, before this fire occurred, some of the company's locomotives in an unusual manner scattered fire in passing the mill and bridge, without showing either that those which it was claimed communicated the fire in question were among the number, or that they were similar in their make, state of repair, or management to said locomotives. The engines were unknown and unidentified. Mr. Justice Strong, in ruling upon this question, said: "The third assignment of error is that the plaintiffs were allowed to prove, notwithstanding objection by the defendant, that at various times during the same summer, before the fire occurred some of defendant's locomotives scattered fire when coming past the mill and bridge, without showing that either of those which the plaintiffs claimed communicated the fire was among the number, and without showing that the locomotives were similar in their make, their state of repair, or management to those claimed to have caused the fire complained of. The evidence was admitted after the defendant's case had closed. But whether it was strictly rebutting or not, if it tended to prove the plaintiffs' case, its admission, as rebutting, was within the discretion of the court below, and not reviewable here. The question, therefore, is whether it tended in any degree to show that the burning of the bridge, and the consequent destruction of the plaintiffs' property, were caused by any of defendant's locomotives. The question has often been considered by the courts in this country and in England, and such evidence has, we think, been generally held admissible, as tending to prove the possibility and the consequent probability that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company;" citing Piggot v. Eastern Counties R. Co. 3 C. B. 229; Sheldon v. Hudson River R. Co. 14 N. Y. 218. 67 Am. Dec. 155; Field v. New York Cent. R. Co. 32 N. Y. 339: Webb v. Rome, W. & O. R. Co. 49 N. Y. 420, 10 Am. Rep. 389; Cleveland v. Grand Trunk R. Co. of Canada, 42 Vt. 449; Illinois Cent. R. Co. v. McCleland, 42 Ill. 358; Smith v. Old Colony & N. R. Co. 10 R. I. 22; Longabaugh v. Virginia City & T. R. Co. 9 Nev. 271. In Sheldon v. Hudson River R. Co., 14 N. Y. 218, 67 Am. Dec. 155, the plaintiff gave evidence which tended to show that the en- |tain or make proof of its identification from gines used by the defendants lacked some other engines of the company; but, to apparatus which was in use upou some other strengthen the inference that the burning of locomotive engines, and which rendered the the mill originated in sparks from this enlatter less liable to communicate tire to sub-gine, and to show habitual negligence of the stances at the side of the road than those officers and agents of the railroad company, which were without that apparatus; that he introduced evidence to show that other enshortly before the fire, sparks and tire had gines, of like appearance and construction, been thrown from the engines used by the frequently scattered fire in large quantities, defendants, in running their trains through and set other fires along the track, prior and the witness's premises, a greater distance than subsequent to the burning complained of. this building stood from the track of the Mr. Justice Lord, in delivering the opinion railroad; and that he had pickel up from of the court, said: "On account of this the track, after the passage of trains, lighted difficulty of identifying a passing engine, escoals more than two inches in length. It pecially at night-time, so as to make direct was argued by the defendants' counsel that proof of such negligence, and also for the the evidence was too remote and indefinite; reason, as stated by Mr. Thompson, that the that it did not refer to any particular engine, business of running railroad trains supposes etc. Chief Justice Denio, in delivering the a unity of management, and a general simiopinion of the court, said: "This argument larity in the construction of engines, the is not without force, but at the same time admission of evidence as to other and disI think is met by the peculiar circumstances tinct fires from the one alleged to have of this case. These engines run night and caused the injury is permitted. Nor is it day, and with such speed that no particular requisite that the testimony must also show note can be taken of them as they pass. that the engine which it is claimed caused Moreover, there is such a general resem- the fire was one of those which had preblance among them that a stranger to the viously or subsequently scattered fire along business cannot readily distinguish one from defendant's track, but it is enough, as was another. It will therefore generally happen shown, that it is similar in appearance and that when the property of a person is set on construction, and under the same general fire by an engine the owner, though he may management. Hence it is quite generally be perfectly satisfied that it was caused by held that evidence that sparks were frequentan engine and may be able to show facts ly ejected from passing engines, causing sufficient, legitimately, to establish it, yet fire along its track, on other occasions, is may be utterly ignorant what particular relevant and competent to show habitual engine did the mischief. It would be prac- negligence, and to strengthen and sustain tically quite impossible, by any inquiries, the inference that the fire originated from to find out the offending engine, for a large the cause alleged. As the plaintiff must proportion of those owned by the company proceed with his evidence in the first inare constantly in rapid motion. The busi- stance, the fact that the defendant may be ness of running the trains on a railroad sup- able to prove the identity of the engine canposes a unity of management, and a general not have the effect to make the admission of similarity in the fashion of the engines and such evidence error. the character of operation. I think, therefore, it is competent prima facie evidence for a person, seeking to establish the responsibility of the company for a burning upon the track of the road, after refuting every other probable cause of the fire, to show that, about the time when it happened, the trains which the company was running past the location of the fire were so managed in respect to the furnaces as to be likely to set on fire objects not more remote than the property burned. It is presumed to be in the power of the company which is intimately related with all its engineers and conductors, to controvert the fact sworn to if it is untrue, or, if true in a particular instance, that it was not so in respect to the engines which passed the place at a particular time before the occurrence of the fire. The effect of the evidence would only be to shift the onus probandi upon the company, and that, under the circumstances of this case, seems to me to be unavoidable." In Field v. New York Cent. R. Co., 32 N. Y. 339, the court in speaking of this quality of evidence, says: "At all events, it showed that a practice was indulged in on the part of the company, about the time and near the place, which would have injured the plaintiff's property, rendering it prob able, to a certain degree, that the injury was attributable to that cause. We have quoted extensively from these authorities to show that the rule of evidence referred to, although, perhaps, comparatively new in its application in Pennsylvania, is the rule generally recognized in this country, not only by the text-writers, but by the courts. It may therefore be considered as settled in cases of this kind, where the offending engine is not clearly or satisfactorily identified, that it is competent for the plaintiff to prove that the defendant's locomotives generally, or many of them, at or about the time of the occurrence, threw sparks of unusual size and kindled numerous We may also refer to the case of Koontz v. fires upon that part of their road, to sustain Oregon R. & Nav. Co., 20 Or. 3, which was an or strengthen the inference that the fire origaction to recover damages for the destruction inated from the cause alleged. And as, of plaintiff's mill by fire falling from one in the case at bar, it is not definitely ascerof defendant's locomotives. What partic- tained to which of the four engines this fire ular engine this was the evidence did not was attributable, three of them being unaisclose, nor was the plaintiff able to ascer-known and unidentified, we cannot see how and fires set very shortly before and very shortly after the occurrence. In Sheldon v. Hudson River R. Co., supra, the inquiry was restricted to matters occurring about the time and near the place of the fire. In Koontz v. Oregon R. & Nav. Co. the offer was somewhat more extended in its effects, but we are of opinion that the rule should not be given greater latitude than we have given it. testimony of this character could be excluded. But the objective point of the inquiry is the condition of the passing engines at the time of the occurrence. It is a matter of little consequence what may have been their condition ten years or two years before that; for their precautions against fire, and the management of their engines, may have been greatly changed within that period. It does not follow because the company, in its official management, In the case at bar, the first offer received, may have been negligent in this respect at and which is the ground of the first specifia time so remote that it still remains so. cation of error, was as follows: "Plaintiff The habits of individuals may, in some offers to prove that the property of persons sense, be spoken of as fixed habits; but the along the line of defendant's road, which official control and management of the affairs passed the property of plaintiff, destroyed of a railroad company, as well as the various by the fire in question on August 10, 1888, devices used as precautions against danger, and within twelve miles of plaintiff's said are liable to frequent and radical changes. property, was repeatedly set on fire by unThe line must be drawn somewhere. This known and unidentified engines of the declass of testimony is exceptional in charac- fendant, and that the sparks causing said ter at the best, and is only admissible be- fires, emitted by the said engines, exceeded cause the ordinary sources of proof are in- a hickory nut in size, to be accompanied by accessible, and direct evidence impracticable. evidence of experts showing that engines The rule should not, therefore, be carried throwing sparks of the size of a hickory beyond the necessity which justifies its ad- nut either did not use the most approved mission. If at or about the time when fires spark-arresters in general use, or if they did, are alleged to have been set by locomotive the spark-arresters used were permitted to engines, unknown by number or other means become defective and out of repair, or were of identification, the company is shown to negligently managed by those in charge of have been habitually negligent in the equip- them." This offer, it will be seen, was ment or management of its engines, or of wholly without limit as to time. The tes many of them, this is a circumstance to be timony received under it was, in some inconsidered in connection with others, not stances, confined to two or three months, only in determining the origin of the fire, in some to six months, and in some the tesbut in deciding whether or not the company timony was general, and in such form as not was, at the time, in this as in many other to indicate to what period of time it referred. instances, negligent in failing to provide The second offer was: "To prove that many suitable precautions against danger. If of the locomotive engines of the defendant many of the company's engines, at or about which it cannot identify, and which passed the time, are without sufficient spark arrest- the plaintiff's mill frequently during a peers, and frequent fires are kindled in con-riod of six months preceding the fire, habitusequence, it may well be inferred, in view of the effectual character of mechanical inventions of its kind, not only that the fire in question originated from this cause, but that it occurred from the habitual negligence of the company in failing to provide sufficient spark-arresters. Reasonable latitude must, of course, be allowed. The purpose of such proofs would be defeated if they were confined to the exact or precise time of the occurrence. In Stranahan's Case the court admitted proof of the extent to which the various locomotives of the company threw sparks on or about the 9th (6th) of November, 1867, when the fire occurred. In Gowen v. Glaser the inquiry was as to sparks thrown | ally threw sparks of the size of a hickory nut, or larger," etc. We are of opinion that the admission of these offers was error. The examination should be confined to the negligent operation of the engines of the company at or about the time of the fire, with such reasonable latitude, before and after the occurrence, as is sufficient to enable such proofs to be practicable. What has been said disposes of the first, second, and third assignments of error. The remaining as signments are without merit and are dismissed. The judgment is reversed, and a venire facias de novo awarded. 306 NEW YORK COURT OF APPEALS. (May 24, 1892.) A building or permanent fixture attached to the freehold is not the subject of conveyance as personalty by the owner of the freehold. 1 Washb. Real Prop. 5, and cases cited. The parol agreement of reservation was inconsistent with the warranty deed. It must be void. Taylor v. Millard, 42 Hun, 364, aff'd 28 N. Y. S. R. 694; Wiseman v. Lucksinger, 84 N. Y. Y. 419, 26 Am. Rep. 612; Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652. The terms of the deed could not be changed by parol. APPEAL by plaintiff from a judgment at 31, 38 Am. Rep. 479; Pierce v. Keator, 70 N. the General Term of the Supreme Court, Fifth Department, denying his motion for new trial on case and exceptions heard at General Term in first instance after verdict in favor of defendants, at a Circuit Court for Cayuga County in an action brought to recover damages for the alleged wrongful removal of a barn from the plaintiff's real estate. Reversed. The facts are stated in the opinion. The barn was built by the person, who at the time of building the barn, owned the lot on which the whole of the barn stood; on its erection under such circumstances, it became and remained a part of realty. 1 Washb. Real Prop. 5; Voorhees v. McGinnis, 48 N. Y. 283; Buckley v. Buckley, 11 Barb. 63. Between vendor and vendee the mode of annexation is not the controlling test. Mc Rea v. Central Nat. Bank of Troy, 66 N. Y. 495. Everything annexed to the realty, whether by physical attachment, or by adaptation of the article to the proper use of the property, becomes a part of it, and cannot be removed without the consent of the owner. Tyler, Fixtures, 104, 105; McRea v. Central Nat. Bank of Troy, 66 N. Y. 489; Reid v. Kirk, 12 Rich. L. 54; Fisher v. Saffer, 1 E. D. Smith, 611; Ombony v. Jones, 19 N. Y. 239. By the common-law whatever is affixed to the freehold becomes a part of it, and cannot be removed by the vendor. Gardner v. Finley, 19 Barb. 320; Snedeker v. Warring, 12 N. Y. 170; 2 Bouvier, Law Dict. 508, 509. Mott v. Palmer, 1 N. Y. 572. A contract for the sale of any interest in lands is void unless in writing. 4 N. Y. Rev. Stat. 8th ed. p. 2589, § 8. The word "land" is comprehensive in its import, and includes many things besides the earth we tread on, as water, grass, stones, buildings, fences, trees, and the like. 1 Shep. Touch. by Preston, 91; 1 Inst. 4;. 1 Preston, Estates, 3; 2 Bl. Com. 17, 18; 4 N. Y. Rev. Stat. 8th ed. p. 2461, § 10; Green v. Armstrong, 1 Denio, 554. A parol sale or gift of buildings is a mere license. 1 Washb. Real Prop. 632; Cronkhite v. Cronkhite, 94 N. Y. 328; People v. Fields, Lans. 244; Fisher v. Saffer, 1 E. D. Smith, 611: Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479. A man will not be allowed to allege or prove a fact to be different from what he has asserted it to be in his own deed. The Duchess of Kingston's Case, 3 Smith. Lead. Cas. 9th Am. ed. p. 2107; Huzzey v. Hefferman, 3 New Eng. Rep. 325, 143 Mass. 232; Knight v. Thayer, 125 Mass. 25; Russ v. Alpaugh, 118 Mass. 369, 19 Am. Rep. 464; Greg. ory v. Peoples, 80 Va. 355; 1 Greenl. Ev. § 275; Stephen, Dig. Ev. 260. A.reservation must be equal to a grant, that is, under the same form and solemnities. 3 Washb. Real Prop. 443. A parol reservation of any part of the grantpremises is void under the Statute of Frauds. Every building is an accessory to the soiled and is therefore real estate. 1 Cruise, Dig. title I, 46; 1 Bouvier, Law Dict. 268. Every grant of land carries by necessary legal construction buildings, houses, and trees standing thereon. McRea v. Central Nat. Bank of Troy: 66 N. Y. 489; Boone, Real Prop. 306, 307; 3 Washb. Real Prop. 391; 3 Kent, Com. 401; 2 Bouvier, Law Dict. 40; Warren v. Leland, 2 Barb. 618; Ombony v. Jones, 19 N. Y. 240. Every grant shall be conclusive against a grantor. 4 N. Y. Rev. Stat. 8th ed. § 143. A grantor cannot be permitted to limit the effects of his deed by a proof of parol reservation of the fixtures. Elwes v. Mawe, 3 East, 38, 2 Smith, Lead. Cas. 9th Am. ed. p. 1463; Noble v. Bosworth, 19 Pick. 314. 3 L. R. A. 33; Hill v. Munday (Ky.) 4 L. R. A. 674; 2 Washb. Real Prop. 441. Messrs. Payne & O'Brien, for respond ents: Parties may, by agreement at the time of annexation, preserve the character of personalty to chattels annexed to the land. Mott v. Palmer, 1 N. Y. 564: Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Voorhees v. McGinnis, 48 N. Y. 278. The question whether property so annexed to the freehold or as under ordinary rules to a part of the realty, may be severed so as to become personalty, depends upon the intention of the parties. Chase, Bl. Com. p. 224, notes; Sheldon v. Edwards, 35 N. Y. 279. The parties may by agreement at any time re-impress the character of personalty on chattels already annexed to the land. As to the effect of an agreement between the parties, see especially the notes to Col'amore v. Gillis and Overman v. Sasser, supra. 8 Am. & Eng. Encyclop. Law, title Fixtures, pp. 58-62. In all cases where courts have held such an agreement void as against a subsequent purchaser the bona fides of such purchaser has clearly appeared. Stevens v. Rose, 13 West. Rep. 765, 69 Mich. 259; Tyson v. Post, 10 Cent. Rep. 712, 108 N. Y. 217; McLauglin v. Lester, 4 N. Y. S. R. 852. Here was a completed gift by Mrs. Gilbert of her two thirds of the barn in question. The gift was executed because there was all the delivery of which the article was capable-a surrender of possession and dominion. Such an agreement if executed is valid, al- | 1886, Mrs. Sherwood, by an ordinary warranty though made by parol, and is binding upon all deed, conveyed the lot to Mrs. Eunice Nellis, parties except the bona fide purchaser without and at the time of that conveyance Mrs. Nelnotice. lis was informed by parol that Mrs. Clough owned the barn, and that it did not pass. the 8th day of November, 1888, Mrs. Nellis, by an ordinary warranty deed, conveyed the lot to the plaintiff, and at the time of that conveyance he was informed by parol that the barn belonged to Mrs. Clough, and did not pass with the conveyance. After he had purchased the lot, Mrs Clough informed him that she claimed the barn, and intended to move it from the lot, and he told her not to move it. After that the defendants moved the barn from the lot, and then the plaintiff brought this action to recover for the value of so much of the barn as stood upon his lot, and claimed to recover treble damages. The barn was a wooden structure, worth less than $200, and rested upon four large stones at the corners, and smaller stones at other places. Upon the trial the plaintiff objected to the parol evidence given by the defendants to show the parol reservation of the barn at the times of the several conveyances of the lot. But the court overruled the objections, and received the evidence. The court below held that the evidence was competent; that the barn, after the conveyance by Mrs. Clough to her daughter, became and remained personal property, and that she had a lawful right to remove the same, and judgment was entered, upon the verdict in favor of the defendants. 8 Am. & Eng. Encyclop. Law, title Gift, p. 1315; 2 Kent, Com. *439. It was allowed to stand upon the lot in question, first by the license of Mrs. Gilbert and afterwards by the license of subsequent grantees. Under that license they could remove the barn. Dubois v. Kelly, 10 Barb. 496. The rule excluding parol evidence to contradict or vary a deed is only applied in controversies between the parties to the deed. It can have no application in suits by or against per sons who are not parties to the deed, and in no way connected therewith. 1 Greenl. Ev. § 279, and cases cited; Abbott, Trial Ev. p. 464; Austin v. Sawyer, 9 Cow. 39; Me Master v. North America Ins. Co. 55 N. Y. 234; Tyson v. Post, 10 Cent. Rep. 712, 108 N. Y. 217. Earl, Ch. J., delivered the opinion of the court: We think a few plain principles of law require a reversal of this judgment. This barn, at the time of the conveyance by Mrs. Clough to Mrs. Gilbert, was a part of the realty, and there could be no parol reservation of it. The grantor could no more reserve the barn by parol than she could reserve trees growing The material facts in this case are as follows: upon the land, or a ledge of rocks, or a mine, Prior to March 29, 1884, Adaline Clough owned or a portion of the soil. As between the granta lot of land in the city of Auburn, upon which or and grantee, it is very clear that the grantthere was a small barn, and on that day she con- or would not have been permitted to show veyed the lot by an ordinary warranty deed to that the barn was reserved by parol, as that the defendant Robie Clough, who owned the evidence would have contradicted the deed, adjoining lot on the northerly side of the lot which was absolute in form. If the grantor thus conveyed. On the 1st day of April, 1884, had removed the barn, the grantee could have Robie Clough, by an ordinary warranty deed, sued her for trespass, and she could not have conveyed the same lot to her daughter, Mary defended by showing a parol reservation of the Gilbert, with the exception of a strip six feet barn. If it had been claimed in such a suit by twelve rods, reserved from the northerly that it was part of an oral agreement or reserside of the lot. About one third of the barn vation that the barn should not pass, that fact was upon the strip thus reserved, and thus the could not have been shown, as it would have dividing line between the two lots after that contradicted the deed. The deed contained conveyance ran through the barn, leaving covenants of warranty which covered the enabout one third thereof upon the land of Robie tire title to the real estate, and the grantor Clough and two thirds thereof upon the land could not in such a suit have shown by parol of Mary Gilbert. At the time of the execution that any part of the real estate was not covered of the deed by Robie Clough to Mrs. Gilbert, by the covenants. So, too, if it be claimed and immediately thereafter, she said to Mrs. that what was said by Mrs. Gilbert to Mrs. Clough and her husband: "Now, pa and ma, Clough immediately after the deed was delivthe barn is yours. There can nobody inter ered constituted a parol gift of the barn to her fere with you;" and Robie Clough and her father and mother, the gift could not be operhusband have ever since been in the occupancy ative, because the barn at that time was a part of the barn. On the 28th day of October, of the realty. It had never been severed from 1886, Mrs. Gilbert, by an ordinary warranty the realty, and had never been, by any acts of deed, conveyed the lot to Julia M. Sherwood, the parties or the owners, made personal propand at the time of that conveyance Mrs. Shererty; and the parol gift could not be upheld wood was informed that the barn belonged to of a portion of the_real_estate without violatMrs. Clough, and there was a parol reservationing the Statute of Frauds. The one third of of the same. On the 1st day of November, the barn which rested upon the lot owned by |