they should be removed; second, the liability to repair all injuries caused by their removal. As to the first point, the common period of limitation was established as early as the time of Henry VII., so far as concerns landlord and tenant, namely, before the tenant's term expires. So long as the term lasts, or at least before the tenant quits possession, he may take away the fixtures; but if he suffers them to remain on the premises afterwards, they become the property of the landlord or reversioner.1 Down to Lord Kenyon's time, the tenant's right was considered to be strictly limited to his term. But Lord Kenyon suggested that this rule had its foundation in a presumed abandonment on the tenant's part; which presumption might be overthrown by the fact that he remained beyond the expiration of his term instead of quitting and leaving the fixtures behind him.2 The rule therefore, as afterwards modified, became, that the tenant might remove fixtures for his term, and for such further period of possession as he held the premises under a right still to consider himself as tenant. The exact meaning of this expres sion is not quite clear; one may remain over as a tenant at will after his lease expires and thus prolong his right; but certainly an outgoing tenant cannot enter for the purpose of severance and removal after his term has expired, and a new tenant is let into possession besides. It behooves one who holds under a term of years, therefore, to use caution, lest he become deprived of his privilege through his own default; and whether he means to renew the lease and acquire a fresh interest in the premises, or to leave his 1 Year Book, 20 Henry VII. fo. 13, pl. 24. See Taylor Landl. and Ten. 5th ed. § 551 and notes; Lee v. Risdon, 7 Taunt. 191; Elwes v. Maw, 3 East, 38; Lyde v. Russell, 1 B. & Ad. 394; Pemberton v. King, 2 Dev. 376; Gaffield v. Hapgood, 17 Pick. 192; Preston v. Briggs, 16 Vt. 124; Beers v. St. John, 16 Conn. 322; Haflick v. Stober, 11 Ohio St. 482; Hill Fixtures, 2d ed. 50-59; Dubois v. Kelley, 10 Barb. 496; 64 Fed. 939. 2 Penton v. Robart, 2 East, 88. 8 Ib.; Weeton v. Woodcock, 7 M. & W. 14; Lewis v. Ocean Co., 125 N. Y. 341; Morey v. Hoyt, 62 Conn. 542. See Roffey v. Henderson, 17 Q. B. 574. 4 Leader v. Homewood, 5 C, B. N. s. 546. See Taylor Landl. and Ten. § 551; Mason v. Fenn, 13 Ill. 525; Merritt v. Judd, 14 Cal. 59; Davis v. Moss, 38 Penn. St. 346; Burk v. Hollis, 98 Mass. 55. fixtures behind, to be bought by the incoming tenant, after he has quitted possession, prudence suggests that he comes seasonably to a distinct written understanding with his landlord, unless custom gives him the right.1 For the rule appears to be that the lessor takes title to all fixtures which an outgoing tenant leaves without reserving the right of removal.2 But where the tenant holds under an uncertain term or contingency, as for life or at will, or upon the happening of a particular event, he or his representative may exercise the privilege of removing fixtures within a reasonable time after his term has ended.3 § 128. Liability to repair Damages caused by removing Fixtures. As to the second point, namely, the tenant's liability to repair all injuries caused by the removal of his fixtures, the court observes in Foley v. Addenbrooke: "The only rule we can lay down is, that these lessees had a right to remove them, doing as little damage as possible, and leaving the premises in a state fit to be used for a similar purpose by another tenant."4 Not only should the article removed be such as can be taken away without the destruction or serious injury of the freehold, but the premises should be left in as 1 See Taylor Landl. and Ten. §§ 552, 553; Miller v. Baker, 1 Met. 27; Thresher v. East London W. W., 2 B. & C. 608. 2 See, for an instance where this rule was applied notwithstanding the lessor's apparent permission, Josslyn v. McCabe, 46 Wis. 591. It is not enough to have merely detached the thing before the term ends. Stokoe v. Upton, 40 Mich. 581. See Clarke v. Howland, 85 N. Y. 204. But while the tenant's right to remove a fixture does not usually extend beyond his term or possession, the right may be extended by agreement with his landlord. Torrey v. Burnett, 38 N. J. L. 457. And if the landlord agrees to sell the fixture for the tenant's benefit, but fails to do so, the tenant has a reasonable time to remove it after possession is surrendered. Ib. Where a new lease is accepted with covenants to deliver up in as good condition" as the same now are," &c., the lessee should be careful to have an express reservation as to fixtures already on the premises. Watriss v. Cambridge Bank, 124 Mass. 571; Loughran v. Ross, 45 N. Y. 792. As to a trustee in bankruptcy disclaiming a lease, see Ex parte Stephens, 7 Ch. D. 127. 3 Weeton v. Woodcock, 7 M. & W. 14; Haflick v. Stober, 11 Ohio St. 482; Lawton v. Lawton, 3 Atk. 13. And see, as to bankrupt, Stansfield v. Portsmouth, 4 C. B. N. s. 120. 4 Foley v. Addenbrooke, 13 M. & W. 196, per Pollock, C. B. See Grady Fixtures, 2d ed. 253. good plight and condition after removal as before annexation, so far as practicable; and it is generally understood that the party removing must repair the damages sustained.1 If any unnecessary and wanton damage has been done, and the premises are left in such a state that they cannot be conveniently applied to the same purpose as before, the tenant is liable.2 An action for § 128 a. Rights of Action, etc., in General. damages against the aggressor will lie in favor of a mortgagee whose security is impaired by the wrongful removal of things permanently attached which passed under the mortgage; and prior to such removal he may bring a bill in equity to restrain the threatened waste.3 § 129. Transfer of Fixtures; Various Incidents. -It is questionable whether the tenant has a complete property in fixtures whilst they are attached to the soil. Except as to his right of removal, these seem to be and to remain part of the realty; and unless this right of removal is exercised within a suitable period, they pass with the land. But the right of removal itself, though of a peculiar nature, partakes rather of the character of a chattel than an interest in real estate. This right may be transferred; or it may be made available by creditors. But, as in landed interests, if the tenant grants or mortgages his fixtures, he cannot afterwards defeat this act by a subsequent voluntary surrender. When rightfully severed, the fixtures become chattels. But meantime trover does not lie for them; nor replevin; nor assumpsit as "for goods sold and delivered." 1 Taylor Landl. and Ten. § 550; Avery v. Cheslyn, 3 Ad. & E. 75; Whiting v. Brastow, 4 Pick. 311; Kirwan v. Latour, 1 Har. & J. 289. See Hare v. Horton, 5 B. & Ad. 715. Sometimes there are statutes on this subject; e.g. 14 & 15 Vict. c. 25, § 3. The rule as respects their * See Taylor Landl. and Ten. 5th ed. § 549 and n.; London Loan, &c. Co. v. Drake, 6 C. B. N. s. 798; Overton v. Williston, 31 Penn. St. 160. 5 London Loan, &c. Co. v. Drake, 6 C. B. N. s. 798. 6 Mackintosh v. Trotter, 3 M. & 2 Per Pollock, C. B., Foley v. Ad- W. 184; Lee v. Risdon, 7 Taunt. 188; denbrooke, 13 M. & W. 199. 245. 3 Lavenson v. Soap Co., 80 Cal. Taylor Landl. and Ten. § 549, n.; McAuliffe v. Mann, 37 Mich. 539. sale on execution is somewhat peculiar. And they are considered subject to liens on the soil to which they may have been attached.2 In American practice, and especially where the annexation to the realty is very slight, the owner of fixtures may hold the owner of the soil liable for a conversion when the latter refuses to allow him to enter and remove them. Things which are strongly affixed are not attachable as personalty as between the debtor and his creditors.4 5 Facts may establish the waiver, in any case, of a controverted claim to fixtures. And a tenant who has a right to remove certain erections as fixtures at the end of his term may, by remaining under a new lease inconsistent with this right, debar all removal accordingly." § 130. Various Examples as to Things which might appear Real or Personal; Turpentine, Sap, Peat, etc. Before passing from the general consideration of property of a mixed description, which has occupied our attention thus far under the leading heads of heirlooms, emblements, and fixtures, we shall do well to notice a few more examples of things which in some respects might appear real, yet in others personal. Turpentine, sugar-maple sap, and the like products of a tree, in a state to be dipped up, are personal and not real property; and this, although the flow is directed into boxes cut in the tree itself; for it has ceased to be part of the tree.7 Peat cut for fuel, lying on land, is personal property.8 § 131. Various Examples continued; Buildings on Another's Lands. - We have observed under what circumstances an erection by mutual assent upon another's land becomes or fails to become part of the real estate and is owned accordingly. The civil law upon this subject appears to have 11 Arch. Pract. 12th ed. 655; Taylor Landl. and Ten. § 549, n.; Rice v. Adams, 4 Harring. 332. 2 Gray v. Holdship, 17 S. & R. 413; Schaper v. Bibb, 71 Md. 145. On dissolution of firm, partners may treat fixtures as personal property. Seeger v. Pettit, 77 Penn. St. 437. 8 See 30 Minn. 56, 59; Walker v. Schindel, 58 Md. 360. + 57 Vt. 432; 70 Cal. 3; 64 Fed. 939. 5 Foster v. Prentiss, 75 Me. 279. • Hedderich v. Smith, 103 Ind. 203. 7 Branch v. Morrison, 5 Jones, 16. 8 Gile v. Stevens, 13 Gray, 149. See also § 53, supra. Old rails, the refuse material of a fence which has been removed, are of course personalty once more. 57 Vt. 641. 9 Supra, p. 136, n. differed from the common law and to have applied a more equitable principle. For while, according to the common law, a person who, through ignorance of his title, or by mistake, builds upon the soil of another, must forfeit the house, and can claim nothing for the materials or labor he furnished; the civil law under such circumstances made the owner of the soil pay the value of the materials and labor to the builder, or he could not insist upon retaining the house. But the general rule of the civil law was, that, if a person builds upon another's land, the house follows the property in the soil, unless it can be easily removed; while if he builds the house knowingly, he is presumed to have given his materials and labor to the owner of the soil.1 Even at the common law the presumed dedication of an owner's materials to the owner of the land which in theory deprives the former of his property is so disputed by the facts in some instances that our modern courts disincline to apply the rule of forfeiture to the owner of materials.2 Furniture, etc. § 132. Various Examples continued; Pews, Organs, Church Pews in churches are treated by the Continental jurists as immovable property.3 So the law of England considers them as a parcel of the freehold; belonging, as it is said, to the incumbent, although the use of them is in those who have the use of the church. And ecclesiastical writers in that country discriminate between parson and parishioners, in determining the right to the materials of seats in various instances. But in the United States, land and materials alike belong usually to the organized society of the church, in the first instance, whose officers sell or let the pews from time to time to individuals; and while, in the absence of statute provisions, pews partake of the nature of realty, they are in some States made personal property |