ures.

CHAPTER VI.

FIXTURES.

§ 111. Fixtures the most Important of Exceptional Classes -The remaining species of personal chattels of an exceptional or bordering character to be considered is that of fixtThis is the most important of all; for while heirlooms and emblements, or chattels vegetable, give rise to little controversy in our courts, the law of fixtures undergoes a constant discussion. So numerous and so conflicting are the cases which involve disputed points under this head, that we shall better occupy our time in separating the subject into its proper divisions, and studying out the elementary principles, than in ranging side by side the hundreds of English and American precedents, seemingly in conflict, which are to be found in the reports, and which multiply with every year. For it must be understood at the outset that decisions as to fixtures, applying, as they do, legal principles to matters of science and art, blend law and fact in close proportions, and constitute a collection of judicial verdicts, reaching from century to century, more than anything else. We have a catalogue of miscellaneous things-machinery, kettles, furnaces, salt-pans, and the like to attest the progress of architecture and the useful arts rather than of jurisprudence. § 112. Origin of Fixtures; Definitions. The very word "fixtures" is of doubtful meaning, though we use it constantly. It is of modern origin, and not to be found in the ancient law-books at all. The old rule was that, if the tenant or occupier of a house or land annex anything to the freehold, neither he nor his representative can afterwards take it away, upon the maxim quicquid plantatur solo, solo

1 See Sheen v. Rickie, 5 M. & W. 175; Wiltshear v. Cottrell, 1 E. & B. 674,

cedit.1 But as society progressed, and tenants for lives or for terms of years began to affix valuable and expensive articles to the freehold, either for their more convenient or luxurious occupation, or for the purposes of trade, the injustice of denying to the tenant or temporary occupier the right to remove them at his pleasure, and deeming them practically forfeited to the owner of the fee by the mere act of annexation, became apparent to all. A new rule sprang up, which both courts of law and equity treated with favor; namely, that the temporary owner or occupier of real property or his representative, might, as against the permanent owner or successor to the soil, disannex and remove certain articles, although annexed by himself to the freehold. These articles have been denominated "fixtures," and it is to such articles that the word is at this day commonly applied.2

Fixtures, then, are defined as those personal chattels which a temporary occupier has annexed to the land, and which he or his representatives may afterwards sever and remove against the will of the owner or successor to the freehold. And the practical question as to appendages of this sort is, whether they are to be considered as in this respect part of the real estate, or treated as personal property; for the latter are movable, and the former are not. But some, with a nicer regard for the distinctions of etymology, apply the term "fixtures" quite differently; namely, to those articles which, by being annexed to the real estate, become part of it, so as to be incapable of removal without the owner's permission. In the very definition of this word, then, is found a fruitful source of confusion; and we must try to distinguish between these two opposing meanings as carefully as possible. Indeed, we think it would be as well to designate fixtures simply as those chattels, annexed in a

manner to the ground, concerning which the right to remove might be in controversy between the temporary occupier or his representatives and the owner of or successor to the freehold.

§ 113. Character of the Annexation to Land. The primary consideration, as to a fixture, is that of the physical affixing or annexing to the freehold. What is an annexation to land sufficient to bring a chattel within the rule of fixtures? For, manifestly, if I as a tenant set tables and chairs and other furniture in a house, I have the right to take them away at the end of my term, because they were chattels personal, first, last, and always. But if build a cooking-range, or insert an iron safe into the walls, it is otherwise; and the doctrine of fixtures may be invoked to determine between the landlord's rights and now The object and purpose of the annexation ought to be considered in all cases of fixtures; and we shall see in thre course of our present investigation that the law is more or less liberal, according as it appears that the chattel was affixed for purposes of trade, for purposes of ornament, for domestic purposes, and

so on.

In order to constitute annexation, within the rule of fixtures, it is necessary that the article in question be let into or united with the land, or to substances previously connected therewith. It is not enough that it has been laid upon the land and brought in contact with it; the law requires more than mere juxtaposition; as, that the soil shall have been displaced for the purpose of receiving the article, or that the article shall be cemented or otherwise fastened to some fabric previously attached to the ground.1 Thus, in Culling v. Tuffnal, a tenant had erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but not let in; and Lord Ellenborough, commenting upon the case afterwards, observed that these things were not to be considered fixtures at all; meaning, of course, that

11 Wms. Ex'rs, 6th Eng. ed. 2; Amos & Fer. Fixtures, 2; Mather v. Fraser, 2 Kay & J. 536; Cook v.

Whiting, 16 Ill. 480. A large wagon in a sugar mill is simply personal property. 54 Kans. 300.

But it

there had been no original annexation to the soil.1 would appear that whenever a chattel has become perfectly connected with the freehold, either by being let in, or cemented or otherwise permanently united to some erection, it becomes part of the freehold itself. To apply this principle to any particular state of facts is, however, a matter of some difficulty. Distillers' vats, supported upon brickwork and timber, but not let into the ground, and vats standing on frames of wood, have been pronounced mere chattels, by courts both in England and this country, while stills let into the ground are made subject to the law of fixtures. Cisterns, again, though standing on blocks in the cellar, or resting only against the walls, have been subjected to the law of fixtures; yet they are sometimes permitted to be carried away. Portableness and the ready capability of being taken away without injury favor a disannexation.

1 Elwes v. Maw, 3 East, 51; commenting upon Culling v. Tuffnal, Bull. N. P. 34.

22 Smith Lead. Cas. 241 et seq., and American notes; Hill Fixtures, 2d ed. 22-24.

3 Horn v. Baker, 9 East, 215; Reynolds v. Shuler, 5 Cow. 323; Burk v. Baxter, 3 Mo. 207.

4 Blethen v. Towle, 40 Me. 310; Bainway v. Cobb, 99 Mass. 457; Wall v. Hinds, 4 Gray, 256. And as to a heavy carding machine, see Deal v. Palmer, 72 N. C. 582.

Portable hot-air furnaces set in pits prepared for them in the cellar, as though placed permanently, are part of the realty; so, also, pipes leading from the furnaces to the chimney. Stockwell v. Campbell, 39 Conn. 362 ; Thielman v. Carr, 75 Ill. 385. Cottongin stands, put up after the usual manner, pass as realty. Richardson v. Borden, 42 Miss. 71; Smith v. Odom, 63 Ga. 499. So with waterwheel and gearing put into a mill for permanent use, Lapham v. Norton, 71 Me. 83; or the essential machinery of an ore-bank, Ege v. Kille, 84 Penn.

St. 333; cf. Dobscheutz v. Holliday, 82 Ill. 371; or any machinery permanent in character and essential to the purposes of the premises, Green v. Phillips, 26 Gratt. 752; McConnell v. Blood, 123 Mass. 47; 127 Mass. 542; Stokoe v. Upton, 40 Mich. 581; 38 Mich. 30; Lyle v. Palmer, 42 Mich. 314. See In re Richards, L. R. 4 Ch. 630; Longbottom v. Berry, L. R. 5 Q. B. 123; 7 C. P. D. 328. This may include a gas-manufacturing machine, Morrison v. Berry, 42 Mich. 389; Johnson v. Wiseman, 4 Met. (Ky.) 357; 11 N. J. Eq. 84; or fixed and permanent platform scales, Arnold v. Crowder, 81 Ill. 56. The manner of attachment and fastening is not always decisive in such cases. Snedeker v. Warring, 12 N. Y. 170; 99 Mass. 457.

But "gas-fixtures" screwed upon gas-pipes, mirrors, pictures, &c., are movables. Jarechi v. Philharmonic Society, 79 Penn. St. 403; McKeage v. Hanover Fire Ins. Co., 81 N. Y. Towne v. Fiske, 127 Mass. 125; 10 Rich. 135; 33 Penn. St. 522; § 122. See Connor v. Squiers, 50 Vt. 680.

38;

§ 114. Modern Tests with Reference to Fixtures. But this incident of annexation to the