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rendered in favor of the respondent. Judgment was entered, from which this appeal was taken.
"In investigating a question of this kind, we cannot shut our eyes to the many changes that have been wrought by time in the fashion and character of household furnishings. Anciently mantels were uniformly built as a part of the house, and therefore became a fixture to the realty. The house was built with reference to the mantel, and the mantel with reference to the house. It was a part of the plans and specifications of the house, and could not have been moved without materially affecting, not only the appearance, but the real usefulness of the house. But advancing mechanical science and taste have evolved an altogether differently constructed mantel; and mantels such as are described by the testimony in this case are now constructed without reference to any particular house or particular fire-place. They are what are called “stock' mantels, and are sold separately, and made adaptive to any kind of house. They are, in fact, as much a separate article of merchandise as a bedstead or a table. So that, regarding the changed conditions in this respect, the rules of law must be changed and adapted to the changed character of the furniture. A few years ago, sideboards were constructed in, and were made a part of the house, and were of necessity fixtures; while now they are ordinarily separate pieces of furniture, and by common consent, are moved from house to house. The same advancement has been made in bath-tubs. The old-fashioned bath-tub that was sealed in, and actually made part of the bath-room, has largely given place to the more convenient bath-tub
that rests upon legs and can be attached to any heating system that happens to prevail in the house where it is used. And so with heaters and boilers. In this instance the boiler is in no way attached to the building except by the plumbing connections. It could be detached without in any way injuring the realty; and we see no reason why it should be considered a fixture any more than the ordinary stove which is connected by pipes to the boiler and to the plumbing system generally. One could be as easily detached as the other, and yet we think it has never been held by any court, or contended by anyone that a stove, though connected by pipes to the plumbing system, was a fixture which could not be removed.
The testimony shows that the building back of the mantels, or that portion of it which was concealed by the mantels, was plastered and calcimined, that for about three years the mantels were not fastened to the wall in any way, but supported themselves in the position they occupied; and that after that time they were fastened to the wall by screws, to render them more stable and keep them from toppling. The boiler and the bathtub were not placed in the building for several years after the mortgage was given.” Judgment affirmed.
§ 108. When removal must be made. The executor of the life tenant must remove his fixtures within a reasonable time after the death of the life tenant. The vendor must remove what he has a right to remove before he gives up possession to the vendee. The lessee for years must remove his fixtures before the end of his term; and the same is true of a tenant at will, he must remove before the end of the six months he has to quit after notice. Some courts have held that if a tenant for years takes a new lease without expressly reserving the right to remove his fixtures at the end of the new term, he has lost his right, unless he has taken the precaution to remove them at the end of the first term. Upon this point a very instructive and persuasive decision was rendered by the supreme court of Michigan, in which the opinion was given by Judge Cooley. The lessees had a lease for ten years with the express right to remove any of their fixtures at any time within thirty days after the end of the term. After they took possession and erected certain buildings the lessor gave a mortgage on the land; and at the end of the term a new lease was taken for five years and five months. In a suit by the mortgagee to foreclose, it was claimed that the tenants had abandoned their right to remove their fixtures by not removing them within the first term and thirty days and not reserving the right to remove them at the end of the second term. The court said:
“The right of a tenant to remove the erections made by him in furtherance of the purpose for which the premises were leased is conceded. The principle which permits it is one of public policy, and has its foundations in the interest which society has that every person shall be encouraged to make the most beneficial use of his property the circumstances will admit of. On the other hand, the requirement that the tenant shall remove during his term whatever he proposes to claim a right to remove at all is based upon a corresponding rule of public policy for the protection of the landlord, and which is that the tenant shall not be suffered, after he has surrendered the premises, to enter upon the possession of the landlord or of a succeeding tenant to remove fixtures which he might and ought to have taken away before. A regard for the succeeding interests is the only substantial reason for the rule which requires the tenant to remove his fixtures during the term; indeed, the law does not in strictness require of him that he shall remove them during the term, but only before he surrenders possession, and during the time that he has a right to regard himself as occupying in the character of tenant. But why the right should be lost when the tenant, instead of surrendering possession, takes a renewal of his lease is not very apparent. There is certainly no reason of public policy to sustain such a doctrine; on the contrary, the reasons which saved to the tenant his right to the fixtures in the first place are equally influential to save to him on a renewal what was unquestionably his before. What could possibly be more absurd than a rule of law which should in effect say to the tenant who is about to obtain a renewal: 'If you will be at the expense and trouble, and incur the loss, of removing your erections during the term, and afterwards bringing them back again, they shall be yours; otherwise, you will be deemed to abandon them to your landlord.' There are some authorities which lay down this doctrine.”
The court then quotes from another decision these words: “In reason and principle the acceptance of a lease of the premises, including the buildings, without any reservation of right, or mention of any claim to the buildings and fixtures, and occupation under the new letting, are equivalent to a surrender of the possession to the landlord.” He then adds: “This is perfectly true if the second lease includes the buildings; but unless it does so in terms or by necessary implication, it is begging the whole question to assume that the lease included the buildings as a part of the realty. In our opinion it ought not to be held to include them unless from the lease itself an understanding to that effect is plainly inferable" (6). Judgment was given for the tenant.