Lapas attēli

such that the realty requires such a chattel to make it complete, though the chattel would be equally serviceable in many other places, as in the case of the saw in the mill; and in this class of cases the adaptability is not enough alone and of itself to determine in all cases whether the thing is still a chattel or is to be a part of the realty. If annexed by the owner of the mill it might pass without mention as a part of the mill, if he should sell the mill, mortgage it, or devise it by his will. On the other hand, if the same saw were put on the pinion by a lessee of the mill, for use during his term, he would undoubtedly have the right to take it with him when he left the premises; likewise, if the owner of the mill stole it, or bought it on contract that the title should not pass till he paid for it, the owner of the saw would undoubtedly have the right to take it from him notwithstanding the annexation, and this even against a creditor of the millowner who had taken the mill on execution against him. From what has been said it will be seen that in the great majority of cases the adaptability of the thing to use in connection with that part of the realty is only a fact to be considered in connection with the method of annexation and the interest in the chattel and land owned by the annexer. If a large number of parts go to make up a single machine, the character of each of the parts is usually determined by the character of the whole.

$ 104. Relations of the parties to the chattel and to the land. In most cases neither the manner of annexation, nor the adaptability of the chattel to the use of the land, nor both combined, are sufficient to remove the question from debate; and, therefore, resort is usually had to the presumed intention of the parties, indicated primarily by what would be most advantageous to the annexer and owner of the chattel, and modified by any agreements of the parties in interest in so far as they had a right to determine the matter without prejudice to the rights of others. This point is excellently illustrated by what was said in one case, in which the court held that one who had sold a boiler to a mortgagor to be put into the mortgaged mill was entitled to recover its value of the mortgagee after foreclosure, because the mortgagee refused to permit the seller to remove it, according to the agreement with the mortgagor that title should not pass till payment in full and that in case of default the seller might retake it. The court said:

The question may be decided by the presumed intent of the party making the annexation of the chattels. The law makes a presumption in the case of anyone making such an annexation, and it is different as the interest of the person in the land is different, that is, whether it is temporary or permanent. The law presumes, because the interest of a tenant in the land is temporary, that he affixes for himself with a view to his own enjoyment during his term, and not to enhance the value of the estate; hence, it permits annexations made by him to be detached during his term, if done without injury to the freehold and in agreement with known usages. The law presumes, because the interest of the vendor of real estate, who is the owner of it, has been paramount, that he has made annexations, for himself to be sure, but with a view to a lasting enjoyment of his estate, and for its continued enhancement in value. So the mortgagor of land is the owner of it, and has a permanent interest therein, and the law presumes that improvements which he makes thereon, by the annexation of chattels, he makes for himself, for prolonged enjoyment and to enhance permanently the value of his estate. These are presumptions of the intentions of the tenant alone, the vendor alone, and of the mortgagor alone; nor are they ordinarily concerned at all with the relation of the lands, or with the purpose of the landlord, or the vendee, or the mortgagee, though there may be cases in which the intention of both parties may be of effect, as where a mortgagee has loaned money with the understanding that it shall be applied to enhance the value of the estate by the addition of chattels in such manner. And they are but presumptions, which in all cases may be entirely done away with by the facts. It is recognized that the express agreement of a tenant may prevent him from exercising his right to detach his annexations; which is the same as to say that his agreement having shown that it was not his intention to remove them, the presumption of contrary purpose which would otherwise arise, is repelled.

The general rule governing the rights of parties in chattels thus annexed to the real estate rests, as it appears, upon the presumptions which the law makes of what their purpose is in the act of annexation. This presumption grows out of their relation to and interest in the land, and not from the relation or interest in it of others which may be opposite. And as the presumption of their purpose grows alone out of their relation and interest, it is repelled by whatever signifies a purpose different; not a different purpose in those holding a relation which may be hostile, but their own different purpose. Hence I conclude that the agreement of the owner of the land with the plaintiffs, as it did fully express their distinct purpose that these annexations of boiler and engines should not make them a part of the real estate, was sufficient to that effect without any concurrent intention of the defendants as prior mortgages” (2).

$ 105. Right of lessee for years and his assigns to remove fixtures. In view of the rules and considerations above mentioned, the most definite rule that can be formulated as to the right of the lessee and his assigns to remove fixtures annexed by them if the lessor or those claiming under him object, is, that if the fixture can be removed without substantial injury to the freehold, that is, leave the land in substantially the condition it was in before the fixture was annexed, the lessee may remove it. If the lessee does not like the lock on the door of the house and puts on another in its place or in addition, and the removal of the lock he has added would leave a hole in the door, or leave it in an unsightly condition, he cannot take the lock with him. This is because he will not be presumed to have intended to do an injury to the property of another, and he will not be permitted to do so even if he so intended. But, on the other hand, he is not under any obligation to equip the premises, in the absence of contract to that effect, and so may remove

(2) Tifft v. Horton, 53 N. Y. 377.

anything annexed by him if its removal will leave the premises in their original condition and the thing attached will not be substantially destroyed in removal. This was not always so; in the old English law, fixtures could not be removed by tenants; then an extension of a privilege to trade tenants to remove was allowed as an encouragement to trade; this was later extended to agricultural tenants; and finally was made general.

§ 106. Trade and agricultural fixtures. The right of tenants for years to remove their fixtures is shown by a celebrated case in the Supreme Court of the United States. In 1820 Van Ness leased a vacant piece of land to Pacard for seven years, at a yearly rent of $112.50, with a clause in the lease that the tenant should have the right to purchase at any time during the term for $1,875. Pacard went into possession, built a wooden house two stories high in front, a shed of one story, a cellar of stone or brick foundation, and a brick chimney. He was a carpenter by trade, dwelt in the house with his family, kept two apprentices in the house and workbenches and tools about, kept cows, and used the cellar and a spring therein for the milk to be sold. He erected a stable for his cows, out of planks fixed upon posts set in the ground. At the end of his lease he took down and removed from the lot all the material he had placed on the premises during his term. For this an action of waste was prosecuted against him by the lessor. The Supreme Court said:

The general rule of the common law certainly is that whatever is once annexed to the freehold becomes a part of it, and cannot afterward be removed, except by him

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