in determining whether the right to take away, under the law of fixtures, shall or shall not be granted in a particular case. Thus, the nature of the thing in question; the use to which it is put; its adaptiveness to a temporary or permanent enjoyment of the freehold; the situation of the party making the annexation; the intention of such party, and to some extent that of the owner of the land, too; an intention which is either fairly mutual or sustained by the character of the annexation. The contract of these parties may sometimes aid in solving difficulties of this sort; so may a local custom which both are presumed to have regarded. The probable injury to the freehold in case of a removal, and, on the other hand, the advantages likely to accrue if the thing is suffered to remain, enter also as proper elements into consideration. And, finally, the specific purpose or object of the annexation must be regarded; whether for the purpose of trade, or for agriculture, or for ornament and convenience, or for the general improvement of the estate; or, as sometimes happens, for all these combined. Few decisions, therefore, can be considered of absolute authority in succeeding cases, even where the fixtures are of a similar denomination. Every case depends, more or less, upon its own special and peculiar circumstances.1

§ 118. Situation of Contending Parties; Various Classes. The leading principles which relate to the law of fixtures are usually classified according to the situation of the con

1 See Walmsley v. Milne, 7 C. B. N. S. 115; 1 Wms. Ex'rs, 6th ed. 688; Wood v. Hewett, 8 Q. B. 913; Mather v. Fraser, 2 Kay & J. 536; Grady Fixtures, 12-14; Hill Fixtures, 20-29, and cases cited, passim; Crippen v. Morrison, 13 Mich. 23; Walker v. Sherman, 20 Wend. 639; 3 Dane Abr. 156; 2 Smith Lead. Cas. 217. Longcontinued localization alone does not make a personal chattel become realty. 31 N. J. Eq. 181. As to permitting oral statements to modify a written contract in determining whether a thing was understood to be a fixture, see 51 Wis. 123. One may by acts

and conduct estop himself from asserting that the things are part of the real estate, as by executing a chattel mortgage thereof. Corcoran v. Webster, 50 Wis. 125; Griffin v. Ransdell, 71 Ind. 440.

Things fixed in the ground are not personalty in the sense of being a subject of larceny. It is necessary that the act of taking away should not be one continuous act with the act of severance or other act by which the thing becomes a chattel. Bovill, C. J., in L. R. 1 C. C. 315. And see supra, § 100.

tending parties. And Lord Ellenborough, in the important case of Elwes v. Maw, mentions three classes of cases, where disputes may arise: first, between heir and executor; second, between life-tenant and the remainder-man or reversioner; third, between landlord and tenant. Let us consider these classes in order. But questions of this same sort arise in other instances: as between vendor and vendee, mortgagor and mortgagee, and personal representative and devisee.

§ 119. Right to remove Fixtures as between Heir and Executor. — And, first, of the right to remove fixtures, as between heir and executor; presuming that the person who owned and annexed the chattels has meantime died. Here the rule obtains with the utmost rigor in favor of the soil, and against the right to disannex and carry away. The heir has been a great favorite of the common law from the earliest times. And Sheppard's Touchstone, one of the most accurate of the old treatises, lays it down that "an executor or administrator shall not have the incidents of a house, as glass, doors, wainscot, and the like, no more than the house itself;" and among such incidents it enumerates "glass windows annexed with nails or otherwise to the windows, the wainscot fixed by nails, screws, or irons put through the posts or walls, tables dormant, furnaces of lead and brass, and vats in a brew and dye house, standing and fastened to the walls, or standing in and fastened to the ground in the middle of the house (though fastened to no wall), a copper or lead fixed to the house, the doors within and without that are hanging and serving to any part of the house."2 But if the glass be out of the windows, or there is loose wainscot, or doors more than are used that are not hanging, or the like, these things go to the executor or administrator.3

The strictness of the ancient rule in this respect was afterwards modified to some extent in the case of fixtures wholly or in part essential to trade. The earliest mentioned instance of this sort is the celebrated but somewhat apocryphal case

13 East, 38. See 2 Smith Lead. Cas. 240.

2 Shep. Touch. 469, 470.

8 Ib. 470; Amos & Fer. Fixtures, 154 et seq.; Wentw. Ex'rs, 62.

of the cider-mill, tried before Chief Baron Comyns; nowhere reported, though frequently alluded to in later years. Here it would seem that the mill was deep in the ground and fastened to the freehold; yet it was held to be personal property; probably because it was a species of trade fixture. Hardwicke, Kenyon, Ellenborough, and Buller afterwards lent, as it would seem, the additional weight of their names to authority so weighty. But Lord Mansfield, in the case of certain vessels which were used in salt-works, and known as salt-pans, decided in favor of the heir "on the reason of the thing and the intention of the testator." By this decision the cider-mill precedent received a great shock. But a still more fatal blow came when the House of Lords decided the case of Fisher v. Dixon, which went up on final appeal within the recollection of lawyers still living. Here the deceased, who had been engaged in working mines, left at his death a valuable property, consisting of engines, colliery utensils, rails, &c., employed in his business. Upon full argument it was decided that the property went to the heir and not the executor. Lords Brougham, Cottenham, and Campbell, all of whom delivered opinions in this case, alluded to the cider-mill precedent, but only to show their contempt for its authority. And the doctrine they laid down was that the encouragement to trade is not applicable to questions ordinarily arising between heir and executor with respect to fixtures. And such may be pronounced the latest English rule for all cases of this nature. In this country the rule is by no means so definitely settled; but the law in this respect is doubtless quite strict, save where, as in New York, the legislature has interposed on behalf of the executor.4

Concerning ornamental fixtures, as between heir and executor, the rule, though anciently strict, has varied some

1 See Lawton v. Lawton, 3 Atk. 14; Lord Dudley v. Lord Warde, Ambl. 114; Elwes v. Maw, supra; Bul. N. P. 34; Dean v. Allalley, 3 Esp. N. P. 11.

2 Fisher v. Dixon, 12 Cl. & Fin.

312.

And see Wood, V. C., in Mather v. Fraser, 2 Kay & J. 536. 3 Ib.

4 See 2 Kent Com. 345 and n.; House v. House, 10 Paige, 157; 2 N. Y. Rev. Stats. §§ 6-8; Fay v. Muzzey, 13 Gray, 56; Tuttle v. Robinson, 33 N. H. 104.

what; with, perhaps, an increasing liberality towards the executor. A distinction appears to have been early taken in chancery between pictures and mirrors fastened in the ordinary manner, and such as were so let into the wainscot that the house must come to the heir "maimed and disfigured" by their removal.1 Furnaces, though purchased with the house, and hangings, though nailed to the wall, were allowed to be taken away in cases decided as long ago as the beginning of the last century.2 And Lord Hardwicke and others relaxed in favor of ornamental chimneypieces, tapestry, iron backs to chimneys, and the like, which might be taken without injuring the fabric of the house. But contrary dicta are to be found in several modern instances; and the common-law courts seem to have favored the inheritance more than the courts of chancery. 4

§ 120. Right to remove Fixtures as between Life-Tenant and Remainder-man, etc.— Next, of the right to remove fixtures as between life-tenant and the remainder-man or reversioner. Here the law favors the soil rather less, and the representative desiring to disannex rather more. Yet there is little authority for our guidance here, save so far as analogy furnishes the rule.5

1 Cf. Cave v. Cave, 2 Vern. 508, and Beck v. Rebow, 1 P. Wms. 94; 1 Wms. Ex'rs, 6th ed. 695.

2 Squier v. Mayer, 2 Freem. 249. 3 See Dudley v. Warde, Ambl. 113; Harvey v. Harvey, 2 Stra. 1141; 1 Wms. Ex'rs, 6th Eng. ed. 696.

4 See 2 Smith Lead. Cas. 246, 247; Winn v. Ingilby, 5 B. & Ald. 625; Colegrave v. Dios Santos, 2 B. & C. 76. A heavy stove connected with brickwork, held to pass to the heir. Tuttle v. Robinson, 33 N. H. 104. As to manure produced on the premises and fit for use in the course of husbandry, the heir is favored against the executor, even though the manure be piled and not incorporated with the soil. Fay v. Muzzey, 13 Gray, 53. But the manure of a livery stable is rather to be treated as assets, being

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more in the nature of merchandise. Fay v. Muzzey, Ib. See also Snow v. Perkins, 60 N. H. 493.

5 Two cases of this sort came before Lord Chancellor Hardwicke; and in both of them he permitted a steam or fire engine, erected in a colliery, to go as assets to the executor of a lifetenant. The "case," he observes, 66 being between executor of tenant for life or in tail and a remainderman, is not quite so strong as between landlord and tenant, yet the same reason governs it, if tenant for life erects such an engine." Dudley v. Warde, Ambl. 113. And see Lawton v. Lawton, 3 Atk. 13. This doctrine has since been commended as sound by Lord Mansfield and others. See Lawton v. Salmon, 1 H. Bl. 260, n.; Elwes v. Maw, 3 East, 54; 2 Smith 145

§ 121. Right to remove Fixtures as between Landlord and Tenant. - As between landlord and tenant, the right to remove fixtures is still further relaxed; and the old rule, that whatever is affixed to the soil belongs to the soil, here admits of numerous exceptions. It is observable that, unlike the former instances, a tenant pays for his occupation and has himself put in the fixtures. Whatever the law allows to be removed in the two former classes of cases may unquestionably be removed in the present class; and now let us see how much more liberally the tenant's right is regarded.

The tenant's right to remove articles annexed for trade purposes was asserted as early as the time of the Year Books.2 But the earliest positive authority in point is Poole's Case, decided before Lord Holt in Queen Anne's reign; which has since been recognized in a series of modern decisions. Here a soap-boiler had set up certain vats, &c., upon the premises occupied by him; and it was held that during the term he might well remove such as he had set up in relation to trade, and this, too, by the common law (and not by virtue of any special custom) in favor of trade and to encourage industry; further, that there was a difference between what the soap-boiler erected to carry on his trade, and what for completing the house, as hearths and chimney-pieces, which last were not removable. This case was followed by many others, which asserted the same general policy in favor of trade, and applied it in a similar manner. Among the later adjudications, in England and this country, to a like result, are to be found those of a baker's oven; salt-pans; factory machines; cider-mills;

Lead. Cas. 245; Amos & Fer. Fixtures, 128. But where articles, such as tapestry and marbles, belonging to one tenant for life, remain on the premises detached at his death, the next tenant for life cannot, by attaching them to the freehold, prejudice or affect the rights of his successors. D'Eyncourt v. Gregory, L. R. 3 Eq. 382.

1 Gray, J., in Bainway v. Cobb, 99 Mass. 459.

2 See 2 Smith Lead. Cas. 240, citing 42 E. III. fo. 6; 20 H. VII. fo. 13. 8 1 Salk. 368, 2 Anne.

4 See Lawton v. Salmon, 1 H. Bl. 260, n.; Elwes v. Maw, 3 East, 54; Dean v. Allalley, 3 Esp. N. P. 11; Fitzherbert v. Shaw, 1 H. Bl. 528; Penton v. Robart, 2 East, 90; 2 Smith Lead.