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land, evidence cannot show that it was Peter Robinson; but if there be John Smith the father and John Smith the son, it can show which of them is meant.
So the boundaries may be obscure or uncertain; and while evidence cannot put new boundaries into a deed, it may make those which are there certain. So boundaries may be inconsistent. The farm may be said to contain so many acres, and to measure five hundred rods from such a boundary to such a boundary in a northwest direction. But there may be no boundary in that direction, and the distance from one bound to the other may be four hundred and six hundred rods, in a northnorthwest direction, and the farm may contain more or fewer acres than the description. In such a case evidence may show, if it can with reasonable certainty, just what the bounds actually are, as certain trees, or posts, or rocks. And if the boundaries are made certain they will control distances, directions, and con tents, unless the discrepancies are so great as to show either fraud on one part or the other, or that the parties labored under some mistake, and could not have agreed in their minds one to sell and the other to buy the same farm; for this agree ment of minds is in law the very essence of a contract. If the number of acres enters into the description, it is com mon to add, "be the same more or less." This guards effect ually against any inaccuracy. But without it, the failure in the number of acres would not avoid the deed, unless it was so large as, with other circumstances, to show fraud. If there be ever so much fraud, the fraudulent party cannot take advantage of it, and only the defrauded party can. If the seller says the farm contains so many acres when he knows it does not, and then points out the boundaries accurately and truly, the buyer is without redress, because he has the means of correcting the misrepresentation.
2. CONTENTS.-The rule of law is, and for many centuries has been, that whosoever owns land owns all there is above it and all there is below it; or as the old phrase ran, everything up to the sky and everything down to the center.
Of course all buildings and everything fairly belonging to the buildings go with the farm. But then comes the question, what
does belong to them? The answer is given by the rules of law as to fixtures.
3. FIXTURES.-They are everything which is fixed or fastened to the land. And if anything be fastened to the land, whatever is fastened to that thing is fastened to the land. Thus: A house rests on a stone foundation sunk into the ground; but the doors and windows of the house are fastened to the house, and therefore they are fastened to the land; and the blinds belonging to the windows and the locks and keys to the door, though moveable and for the time removed from them, and some other things of like kind not fastened to the house, are fixtures, and go with the house as that goes with the land. The cases are almost innumerable which have risen upon the question whether this or that thing is a fixture. Before attempting to show how this question has been answered, it may be well to state that many things are fixtures when a house is sold, so that the seller of the house cannot retain them, which would not be fixtures to the hirer of the house if he put them in; and when his lease expired he could, therefore, take them away with him.
In general, whatever the owner of the farm fastens to the ground or to a building, or uses constantly with it as an appurtenance to it, is a fixture, and he sells it when he sells the farm. But whatever a hirer buys or makes to use with the farm, and fastens to the ground or building, if he fastens it in such a way that he can remove it and leave the land or building in as good order and condition as before, he may remove and take away.
Of course the parties, whether buyer or seller, or hirer or lessor, may make what bargains they like about any fixture. The law of fixtures comes in only where they make no bargain.
A. Things held not to be removable by an outgoing tenant.— Barns and sheds fixed in the ground, statues erected on a per manent foundation as an ornament to the ground, chimney. piece not ornamental if it be fastened to the wall, closets affixed to the house, conservatory substantially affixed, fuel-house, hearths, hedges, pigeon-house, pump-house, wagon-house, boxborders not belonging to a gardener by trade, fruit trees not belonging to a nurseryman. These last two illustrate a rule of much force and frequent application, namely: that a tenant of
land which he hires to carry on a business there may add things as a part of his business and take them away, which things he would be obliged to leave if they were not con nected with his business.
B. Things held to be removable by an outgoing tenant.-Barns, stables, out-houses and sheds resting on logs or rollers, because this showed them to be affixed to the land only temporarily. Ornamental chimney-pieces, fire-frame, furnaces, cooking stove, gates, looking-glasses, trade fixtures generally.
There are two rules to be remembered, of almost universal force. One is that the outgoing tenant who has attached to the land or placed upon the premises anything which he cannot remove and leave the buildings or the land in as good condition as before, must leave that thing behind him.
The other is that an owner of land who attaches to his land or building almost any of the things which a tenant may remove, when he sells the land or building sells that thing, unless he expressly reserves a right to remove it.
4. MANURE.-If a man sells his farm he sells with the farm all the manure upon it, whether it be spread on the fields or is heaped up in the barn-yard or cellar.
If he lets his farm to another, the hirer takes the manure, unless the lessor reserves the right to take it away, and when the lease expires and the land returns to the owner, the manure goes with the land.
The owner of a farm may undoubtedly, before he sells it, remove the manure or sell it separately, if he does this openly and not secretly, and not in such a way as to deceive and cheat the buyer of the farm. What the right of the outgoing tenant is may not be so certain. But it may now be considered as the law of this country that a tenant who has occupied a farm on a lease, and whose lease is about to expire, cannot sell or remove the manure, but it goes with the farm to the owner.
5. ROCKS, STONES, SOIL.-These belong wholly to the owner of the land, and whoever buys it buys an absolute right to them. No man can take away a pebble or a spoonful of earth without a breach of the law. This is obvious, for if a man could take one spoonful he could take many, and that might be a cartload
And if he might take a pebble, he might take the rocks. These must belong to the owner of the land.
6. ADJOINING ROADS.-If one's farm is bounded by a road, and there are no restrictions or reservations in the deeds through which he derives title, he owns to the middle of the road, subject only to the right of the public to use it as a road, or, as it is called, their right of way; subject also to whatever rights the law of the State gives to surveyors of roads and highways, or other officers. Thus, he owns the grass on the road, and may take stone or gravel from the road as freely as from any part of the farm, provided he fills the vacant places with equally good road material and leaves the road in as good condition as before.
When the owner of a farm owns to the middle of the adjoining road he has all the rights to the land consistent with the public right of way. He may plant trees on the sidewalk if per mitted by proper authority, or unless they obstruct the use of the road, and they remain his property. Officers charged with the care of roads may remove them, but individuals are liable for their wanton destruction. If one fastens his horse to the trees, and the horse injures the trees, the man who tied him there is liable.
The owner of a farm cannot put any permanent structure on an adjoining road, nor keep his carts and sleds there nor pile his wood there, and if he does he is liable to anyone who suffers an injury from running against them while traveling over the highway.
7. TREES. Of course the owner of a farm buys and owns all the trees upon it if at the time of the sale they were blown down and lie on the ground, but not if they have been cut for sale or fuel. There have been some cases in courts turning upon the question what are his rights if his trees hang over his neighbor's fields, and what are his neighbor's rights.
In the first place his neighbor owns his land absolutely, and all that is above and below it. Therefore he may cut away every bough and twig which comes over his land. And he may dig down close to the line of his land and cut away every root that comes into his land. But how is it as to the fruit which grows upon their branches? This fruit, like the branches
themselves, belongs to the owner of the tree. His neighbor may cut the branches away, and they may fall on his ground, but he has no right to them. The original owner loses no prop. erty in them, but has a right to enter peaceably upon the land where they lie and take the fallen boughs away. So he retains his property in the fruit, and may enter upon the land where it lies, and gather it and take it away. Such, we think, are the conclusions to be derived from the best adjudication and the best reasoning on the subject.
TRESPASSING ON THE FARM.
I. WHO IS A TRESPASSER.-The right of an owner of a farm to its entire possession is so absolute in law that nobody can set foot upon it, by day or night, against the owner's will, with. out committing what the law calls a trespass, or a breach of the law for which he is answerable. A man's house, says the old maxim, is his castle, as effectually protected by the law as a castle by its walls and battlements. If a stranger goes at proper hours only upon the roads and paths of the farm, although they are not public, they are so far open that one who walks on them without evil design and without doing harm, and without express prohibition of some kind, would be held to have in some sort the owner's permission. But one who walks on the grass, or perhaps anywhere but on the roads or paths, is n trespasser, if without express permission.
2. OF THE RIght of the FARMER TO ORDER A TRESPASSER OFF FROM HIS LAND. His right to do this is unquestionable. But suppose that he gives such an order and the trespasser will not go. What can the farmer do? Then the owner of the farm, or of any lot of land, however small, has an equally unquestionable right to put him off forcibly if the trespasser will not go peaceably. But how much force may the owner use? The answer to this question is distinct and certain so far as the law goes, but there may be some difficulty in the actual application of the rule. The rule of law is, that the owner of the land may, in order to expell the trespasser, "put his hands gently upon him." But then the question comes