We see no reason why the case of the potash kettles, in 5 Vt. should not govern this, as to the iron boiler. It was set in a brickwork, resting upon a stone foundation placed upon the ground, and the floor of the building was simply laid up to it, and it was in no other way attached to the building. So in Hunt v. Mulanphy, 1 Missouri, 508, a kettle and boilers put up in a tannery, with brick and mortar, was held not to be a fixture. See, also, Reynolds, v. Shuler, 5 Cowen, 323, and Raymond v. White, 7 Cowen, 319, which was the case of a heater used for applying heat to tanners' bark, in vats and leaches. We think the four engines, used for grinding rags into pulp, cannot be regarded as a part of the paper-mill, or as annexed to it, so as to become a part of the realty. These were fixed in large oval tubs, in the usual way, the tubs standing on timbers, and the floor of the building scribed up to them, and the engines were carried and operated by means of a band connecting them with the iron shafting from which was communicated to the engines their motive power. There can be no ground to claim that the tubs in which they stood were a part of the realty, and the band was used to give the engines motion, and not for fastening them to the freehold. It could be slipped off, and put on, to give them motion, or arrest it, at the will of the operator, and they could be removed without injury to the building, or the engines. The case of Winslow v. Merchants' Insurance Company, 4 Met. 306, where it was held that a steam engine and boilers, and the machines for working iron, upon which they operated, were fixtures, and a part of the realty, is expressly put, so far as relates to the machines for working iron, upon the manner in which they were fitted and adapted to the mill. The words "fitted and adapted to the mill" seem to imply something more than being set down upon the floor, and fastened for convenient use but rather a peculiar adaptation and fitting to that particular location and mill. The building was a machine shop, and the steam engine furnished the motive power which moved the whole machinery in the several stories of the building, by means of connecting bands or otherwise. In regard to the case of Gale v. Ward, 14 Mass., C. J. Shaw, in 4 Metcalf, observed, "we do not think that an authority opposed to this opinion, because it is manifest that the Court, in that case, regarded the carding machines, though ponderous and bulky, as essentially personal property, which might have been attached and removed as the personal property of the owner, even though there had been no mortgage, and they had been erected by the owner, in his own mill, for his own use." Besides, so far as the steam engine was concerned, it may be said of the case in 4 Metcalf, it furnished the motive power for the whole building, and may be regarded as an appurtenant to the machine shop, as much so as the water of a grist-mill, or a paper-mill. The paper presses were kept in their places by means of cleats at the top, nailed to the floor, and at the bottom by iron screws, and by taking off the iron nuts they could be removed without injuring or disturbing the building. In regard to the iron frame in which the calender rolls stood, it seems that was simply kept in place by means of screws at the toes of the frame, connecting it with timbers upon which it stood, and the timbers made fast to the floor by means of spikes. This could be easily removed by unscrewing the toes of the frame. The rag-cutter stood in a wooden frame, standing on the floor, and was not otherwise confined. The trimming press was set also in a frame, and this only screwed to the floor. The machine for making paper was kept in place by means of cleats around it, nailed to the floor, and not otherwise fastened to the building. If we regard the iron boiler as personal property, most clearly the iron pipes connected with it only by screws and bolts, which the case says could be easily taken off, should be regarded in the same light. The iron shafting put up in the building for the purpose of turning and putting in motion the machinery, by means of hangers of iron bolted to the beams and sills of the building, we are disposed to regard as a constituent part of the mill. The shafting was necessary to communicate the motive power to the machinery, and should be regarded as part of the mill, as much as a water-wheel, by which a water-power is called into existence. Though the paper-mill was placed upon the premises subsequent to the execution of the mortgage, yet it would inure to the benefit of the mortgagee, and also carry with it all that can be regarded as incident to, or a component part of the mill, but the machinery and articles which the mortgagors placed in the building, to be used by them in their business as manufacturers of paper, and not permanently attached to the building or freehold in such a manner that they could not well be removed without material injury to the chattel or freehold, did not lose their personal identity as chattels and become a part of the realty. This, we think has long been the views of our Courts upon this subject. The result will be that, so far as the irons in question either constituted the whole, or were a part of the machinery, of such a description and character, they remained the personal property of the mortgagors, after the fire, the same as the machinery was before the fire, and the plaintiff's right of recovery should have been limited at least to the value of the iron which was used in construction of the building, such as nails, spikes, etc., and the iron shafting used for the purpose of putting and keeping the machinery in motion, and such iron, if any, as was per manently fixed or fastened to the building so as to be annexed to and become a part of the realty, according to the foregoing views. Whether it was of any importance that the plaintiff should have taken the actual possession of these irons, after the fire, so as to perfect and keep good his title, as against the creditors of the mortgagors is a point not made in the case, and one which we have not considered, and much less decided. Judgment reversed and cause remanded. INSURANCE REMOVING THE PROPERTY FROM THE BUILDING IN WHICH IT IS INSURED WILL AVOID THE POLICY AS TO SUCH PROPERTY BRADBURY V. FIRE INSURANCE ASSOCIATION LIBBEY, J. These actions are on fire policies, and being substantially alike were tried together and come to this court in one report. The first four policies insure a certain sum on the plaintiff's "frame stable building, occupied by assured as a hack, livery and boarding stable, situated on the north side of Court street, Auburn, Maine," and "five hundred dollars on his carriages, sleighs, hacks, hearses, harnesses, blankets, robes and whips contained therein." The fifth does not insure the building, but insures fifteen hundred dollars on the same kinds of personal property "stored in the private frame stable occupied by assured and situated near east side of Main street, Auburn, Maine." The loss claimed by the plaintiff is for damages by fire to a hack not in his stable named in the policies at the time of the damage, but in a repair shop of one Litchfield, on another street about one-eighth of a mile distant, where it had been removed the day before the fire without the knowledge or consent of the defendant, and it is admitted that the board rate for insurance on Litchfield's repair shop and contents was one per cent. more than on the plaintiff's stable on Court street. The damage to the hack by fire while at Litchfield's shop is admitted, and no question is made as to the sufficiency of the notices. The only contention between the parties is, whether the insurance attached to and followed the plaintiff's carriages, hacks, etc., when removed from his stable to another place for repairs or some other temporary purpose, or was limited to such carriages only as were at or in the stable named at time of loss or damage. Upon this question there appears some conflict among the authorities. The general rule stated by text writers and held by the general current of decided cases is, that place where the personal property insured is kept is of the essence of the contract, as by that the character of the risk is largely determined, and the property is covered by the policy only while in the place described. Wood on Ins., p. 110; Blodgett on Fire Ins., p. 22; Eddy Street Iron Foundry v. The Hampden S. & M. F. Ins. Co., 1 Cliff. 300; Annapolis & Eldridge R. R. Co. v. Baltimore Ins. Co., 32 Md. 506; Fitchburg R. R. Co. v. Charleston M. F. Ins. Co., 7 Gray 64. The following cases are cited as establishing an exception to the general rule and as sustaining the plaintiff's contention. Everett v. Continental Ins. Co., 21 Minn. 76; Holbrook v. St. Paul F. & M. Ins. Co., 25 Minn. 229; McClure v. Girard Ins. Co., 43 Iowa, 349; Longueville v. Western Ins. Co., 51 Iowa, 553; Lyons v. Providence Washington Ins. Co., 13 R. I. 347. We think a careful examination of all these cases will show that the chattels insured are so described in the policy that they can be identified without reference to the building or places where they were kept, and the court held that the words "contained in" a certain building, or kept in a certain building or place, was a part only of the description of the chattel, and if from its nature, character or ordinary use, the parties must have understood that it was to be out of the building or place a part of the time in ordinary use, the policy should be held to cover it while so out. This is going to the verge in construing the language used by the parties in a contract, when, ordinarily, it does not bear such meaning. But this case does not appear to us to be within the authority of those cases. The policies in suit do not insure a particular carriage or hack by any description by which it can be identified without reference to the stable. They do not insure all the plaintiff's carriages, hacks, etc., used in his livery business, contained in the stable described. It cannot be held that they cover only such carriages, hacks, etc., as were contained in the building named at the date of the policies. From the nature of the plaintiff's business, it must have been in the contemplation of the parties that the chattels named might be changed from time to time during the year, some sold, some worn out, some destroyed by accident, and others put in to take their places. The policies are similar to an insurance of a shop-keeper on his stock of goods in his shop, or of a railroad company on its rolling stock on its road, constantly changing. In such case the property insured can be ascertained only from the place of business named. Lyons v. Providence Washington Ins. Co., 13 R. I. 347, Eddy Street Iron Foundry v. Hampden S. & M. F. Ins. Co., 1 Cliff. 300; Ring v. Phoenix Assurance Co., Mass. N. E. R. V. 5, No. 14, P. 387. The policies insure such of the plaintiff's carriages, hacks, etc., as are contained in his stable at the time of loss. We can see no other way of identifying the property covered by the policies. It cannot be that the policies should be so construed that they will cover a hack once put into the stable and then taken out, wherever it may be. The language of the contract is not apt to embrace such a risk. The risk might thus be |