What acts are preceding; and, 3dly, between landlord and tenant, where the rule has been relaxed to the greatest extent. deemed waste. The first exception which, after some struggles, (a) was made to the strictness of this rule, was in favor of Trade, and utensils set up in relation to it. Lord Holt accordingly held that a soap-boiler might, during his term, remove vats set up in relation to his trade.(b) Lord Hardwicke also twice determined that a fire engine erected by tenant for life to work a colliery, should be considered as personalty, the working of the colliery being not merely an enjoyment of the estate, but in some measure the carrying on of a trade.(c) Lord C. B. Comyns also made a similar determination as to the right of a tenant to remove a cider mill, (d) and the court of King's Bench, in Penton v. Robart, (e) as to varnish a house. Lord Kenyon had, in a case of nisi prius, extended the doctrine to buildings erected for the purposes of farming.(f) This part of the subject received great consideration in Elwes v. Maw, where the tenant had erected several out-houses at his own expense, for the more necessary and convenient enjoyment of his farm: the court held that he was not *entitled to remove them, though he left the premises in the exact state in which he found them.[1] (a) 42 E. 3, 6. 20 H. 7, 13, a. & b. 21 H. 7, 27. (b) Poole's case, Salk. 368. (c) Lawton v. Lawton, 3 Atk. 13. Lord Dudley v. Lord Ward, Amb. 113. (d) Cit. ib. (e) 2 East, 88. (f) Dean v. Allaly, 3 Esp. N. P. C. 11. [1] If one man erect buildings upon the land of another, voluntarily and without any contract, they become a part of the land, and the former has no right to remove them. Such buildings are prima facie part of the realty. A husband erected a dwelling-house and joiner's shop upon land belonging to his wife, and died. Held, as no binding contract, in regard to such erection, could have been made with the wife during coverture, the buildings belonged to her, and could not be applied to payment of his debts. Washburn v. Sproat, 16 Mass. 449; Smith v. Benson, 1 Hill, 176; Brown v. King, 5 Met. 173; Baltimore v. McKim, 3 Bland, 455. So if one man take another's timber wrongfully, and use it in erecting or repairing buildings upon his own land, it becomes his property; (Amos on Fixt. 9, n. a,) and the same rule applies where the timber consists of the materials of a building taken down by one man and belonging to another. Pierce v. Goddard, 22 Pick. 559. After a mortgage of land, with a dwelling-house thereon, to A. the mortga gor removed the building, used a part of the materials, with others, in erecting a house upon other land, and afterwards conveyed the land and building last Lord Kenyon, in the above noticed case of Penton v. Robart, What acts are alluded to the instances of gardeners and nurserymen in the deemed waste. neighborhood of the metropolis, whom he considered as en- Gardners and titled to take up the young trees and plants during the con named, for valuable consideration, to B. A. brings trover against B. for the new house and the materials used upon it. Held, such materials became a part of the freehold, and B. became the owner of them by the conveyance to him; and that the action would not lie. Pierce v. Goddard, 22 Pick. 559. On the other hand, there are many cases, where one man may own, as personal property, a building erected upon the land of another. Russell v. Richards, 2 Fairf. 371; Hilborne v. Browne, 3, 162; Jewett v. Partridge, ib. 243. A son, by permission, erected a house upon the land of his father, under the mutual expectation that the land would be devised to the son, but with no agreement that the father should own the house or be accountable for its value. Held, the house belonged to the son as personal property. Wells v. Bannister, 4 Mass. 514. A town-house was built on land of the town, under a contract with the builder, that the town should occupy a part of it at a certain rent, and have the right to purchase the house at an appraised value. Held, the house belonged to the builder as personal property. Ashmun v. Williams, 8 Pick. 402. Trespass for taking and carrying away the plaintiff's "small fish-house or camp," and burning up and destroying his "wooden camp or small house," upon an island in another state. The evidence showed, the injury was done to a building without a cellar, about nineteen feet square, used by the plaintiff and his men as a dwelling, in the spring, while catching salmon. Held, neither the declaration nor evidence showed the property to be real estate. Rogers v. Woodbury, 15 Pick. 156. A bathing-house was erected by an individual on piles driven into the bed of a navigable river, below low water mark, and afterwards mortgaged by him. Held, as he had no interest in the soil, the building was a chattel, and no equity of redemption remained in him, liable to be taken on execution. Marcy v. Darling, 8 Pick. 283. But a building so erected may be sold on execution as personal property, and the purchaser may legally enter on the land to remove it. The occupant has the right of passing over the close of the owner of the land, to and from the highway. Doty v. Gorham, 5 Pick. 487. Such building will pass by bill of sale, and not with a deed of the land; nor can it be extended upon, or recovered in a real action. Trover will lie for it, as for other chattels. But it may be validly attached, like real estate, without taking actual possession. Aldrich v. Parsons, 6 N. H. 555; 2 Fairf. 371; 8 Pick. 402; Stewart v. Lombe, 1 Brod. & B. 506; Tapley v. Smith, 5 Shepl. 12. The owner of the land will not gain a title to the building merely by the neglect on the part of the owner of the latter to occupy or claim it. A. erected a saw-mill on the land of B. with his permission. The building was sold to C. upon an execution against A., and B. afterwards sold the land to D. The building remained vacant three years, and D. made no objection to its being on the land. Held, the purchaser of the building had not waived his right to it. 2 Fairf. 371; Harris v. Gillingham, 6 N. H. 9; 5 Shepl. 12. Where one in possession of land bona fide as his own has erected buildings upon it; he or his grantee may remove them, without incurring any liability to the true owner of the land. Wickliffe v. Clay, 1 Dana, 591. nursery-men. deemed waste. What acts are tinuance of their term. This, if it be so, must be from the law implying an exception in favor of tenants of this description, as carrying on a species of trade.(a) The position, however seems doubtful and it would be advisable, that leases of property of this nature should contain a covenant enabling the tenant, before the expiration of his term, to remove young trees, hot-house frames, &c. Articles of or nament. The indulgence in favor of tenants for years, has been still further extended to articles of ornament which have been put up by him, as marble chimney pieces, pier glasses, hangings, wainscots, if fixed only by screws, and the like.(b) The removal of the articles ought to be before the expiration of the term; (c) but if the tenant is still in possession he may remove them though the term be expired.(d)[2] (a) 3 East, 45. (b) Beck v. Rebow, 1 P. W. 94. Ex parte Quincy, 1 Atk. 477. Lawton, sup. (c) Poole's case, Salk. 368. Fitzherbert v. Shaw, 1 H. B. 258. Lawton v. [2] In Walker v. Sherman, 20 Wend. Rep. 636, the cases arising under the law of fixtures are collected and commented upon by Judge Cowen, with great learning and ability. As between tenants in common and the owner of the fee, the doctrine of fixture making a part of the freehold and passing with it, is more extensively applied than between any others. As between tenant for life or years, and reversioner or remainder man, all erections by the former, for the purposes of trade or manufacture, though fixed to the freehold, are considered as his personal property, and as such may be removed by him during his term, or be made available to his creditors on a fieri facias. On his death they go to his executors or administrators; yet by a conveyance, they pass to the vendee. Fructus industriales, it is well known, always go on the owner's death, to the executor or administrator, not to the heir; whereas they are carried by a devise or other conveyance of the land to the devisee or vendee. Spencer's case, Winck's Rep. 51. Austin v. Sawyer, 9 Cowen, 39; Wilkins v. Vashbinder, 7 Watts, 378, and cases cited overruling Smith v. Johnson, 1 Pennsylv. Rep. 471 contra. The general rule is, that anything of a personal nature not fixed to the freehold cannot be considered as an incident to the law, even as between vendor and vendee. The English cases on this subject are most of them, well collected and arranged in Amos and Ferrard's Law of Fixtures, p. 1 ch. 1, p. 180, ch. 5, Am. ed. 1830. For some still later, see Gibbon's Law of Fixtures, 15, ch. 2. The American cases are mostly collected in 2 Kent's Com. 345, 3d ed. note c. Though generally it is not universally true, that they cannot be considered as incident unless they are affixed. A temporary dis-annexing and removal, as of a mill stone to be picked, or an anvil to be repaired, will not take away its character as a part of the freehold. Locks and keys are also considered as constructively annexed; and in this country it must be so with many other things which are essential to the use of the premises. The cases are almost uniformly hostile to the idea of mere loose mov If the tenant dig for gravel, lime, clay, brick-earth or slate, What acts are he commits waste; and in general digging in quarries for able machinery, even where it is the main agent or principal thing in prosecuting the business to which a freehold property is adapted, being considered as a part of that freehold for any purpose. To make it a fixture, it must not only be essental to the business of the erection, but it must be attached to it in some way at least, it must be mechanically fitted, so as in ordinary understanding, to make a part of the building itself. The question has been occasionally examined in the supreme court of the state of New York as between grantor and grantee, and in some other relations. The principal cases are: Heermance v. Vernoy, 1 John. Rep. 5; Cresson v. Stout, 17 Johns. Rep. 116, 121; Miller v. Plumb, 5 Cowen, 665; Austin v. Sawyer, 9 Cowen, 39; Raymond v. White, 7 ib. 219. None of them treat a personal thing as a fixture short of physical annexation; and some are peculiarly strong against the purchaser. The first related to a sale of land on which was a bark-mill and a stone for grinding bark, to be used in a tannery. The court said, "It seems to be the better opinion, that the mill was personal property: for the mill stone with the building covering it, was accessory to the tanning business, a matter of a personal nature. Taken upon that reason, a saw-mill or a gristmill would hardly have passed by such a conveyance; yet it has been settled ever since the Year Book, 14 Hen. 8, 25, that the stones of a grist-mill are a part of the freehold, though removed for the purpose of being picked; and they shall pass by a sale of the land. Amos & Ferrard on Fixtures p. 283. In Cresson v. Stout, Mr. Justice Platt expressed his opinion, that frames in a factory for spinning flax and tow, though fastened by upright pieces extending to the upper floor, and cleets nailed to the floor round the feet, neither of the machines being nailed to the building, would not be considered as a part of the freehold. He thought, therefore, that they might be levied on, as personal property, under a fi. fa. against the owner. But the question was not finally decided. In the case of Swift v. Thompson, 9 Com. Rep. 63, the dictum of Platt, J, was followed with respect to cotton machinery, the posts of which were fastened to the floor by wooden screws set into the floor. By unscrewing, the machinery could be removed without injury to the building. Daggett, J. said: "we resort then, to the criterion established by the common law; could this property be removed without injury to the freehold ?" These views are sustained by the strong case of Gale v. Ward, 14 Mass. Rep. 352. There the owner of the freehold had carding machines in his woolen factory, not nailed to the floor, nor in any manner attached or annexed to the building, unless it was by the leather band which passed over the wheel or pulley, as it is called, to give motion to the machines. This band might be slipped off the pulley by hand, and it was taken off and the machines removed from time to time when they were repaired. Each machine was so heavy as to require four men to move it on the floor, and was too large to be taken out at the door, But it was so constructed as to be easily unscrewed and taken to pieces when removed by the deputy sheriff." He had levied upon them as being the personal property of the freeholder, entirely distinct from the realty. Parker, Ch. J. said: "They must be considered as personal property, because although in some sense attached to the freehold, yet they could easily be disconnected, and were capable of being used in any other building erected for similar purposes. It is true that the relaxation of the ancient doctrine respecting fixtures has been in favor of tenants against landlords; but the principle is correct, in every 64 deemed waste. Waste in mines, &c. What acts are stone, or mines of metal or coal, if they are not open at the time of the demise, is waste;(a) and if the tenant open a mine deemed waste. (a) 2 Rol. Ab. 815. Co. Lit. 53 b. point of view. But see Union Bank v. Emerson, 15 Mass. Rep. 159, and Whiting v. Brastow, 4 Pick. 310. Gale v. Ward, is questioned by Richardson, Ch. J. in Kettredge v. Woods, 3 New Hamp. Rep. 516. Some of the doctrine in McLintock v. Graham, 3 M'Cord, 553, was equally strong with that in Gale v. Ward. A still was fixed in rock furnace, which furnace was built inside and against the wall of a house that had been erected for the express purpose of a still. The whole stood on a tract of land sold under a fi. fa. against the owner, and the court said the still did not pass. But there was evidence of the still being excepted at the sheriff's sale, and sold to another; so that the question did not rest entirely on annexation. Besides, as to this point, the case was afterwards shaken by Faris v. Walker, 1 Bail. 540. Hutchinson, Ch. J. in Whetherbee v. Foster, 5 Verm. Rep. 142, denied that potash kettles set in brick arches with chimneys, are real estate. But he cited no authority. The case of Duck v. Braddylb, 1 McClel. 217; 13 Price 455, treats cotton machinery placed and fastened for the purposes of stability, by a tenant for years in a manufactory, as subject to be distrained by his landlord for rent, and to be taken in execution against him. This doubtless was so, under the peculiar circumstances of that case. Mr. Gibbons, remarks upon this case, (Gibbons on Fixtures, 20,) that such machinery would seem not to be a fixture, if fastened by bolts or screws, and capable of being removed and replaced without injury, either to the machinery or the building. But the question whether it should be deemed a fixture as between the owner of the freehold and his devisee or grantee, could not arise; and according to the report in Price, the court expressly refused to pass on the question of fixture; according to M'Clelland they silently omitted to notice the point. The case of Miller v. Plumb, 6 Cowen, 665, regarded an ashery; and the court recognized and acted on the general distinction that things fixed in any way to the freehold, e. g. potash kettles set in an arch of mason work with a chimney, though the arches were placed on a platform and not fastened to the building, would pass by a sale of the premises; but it was held that small kettles, not fixed in any way, though necessary for use in the ashery, would not pass. The distinction between the relation of vendor and vendee, tenant and landlord, was distinctly considered and recognized. See also, Reynolds v. Shuler, 5 Cowen, 323. The same distinction was held by Savage, C. J., in Raymond v. White, 7 Cowen, 319. The question there was, in respect to a heater used in a tannery, but in no way attached to the building. It was placed in a leach or vat, which latter was detached from the building, except that a small piece of board was tacked with nails to the vat and to the side of the building. But there was no necessity for fastening the vat, and the fastening was of no use, except to keep the side standing while the vat was put together." The question was really one between landlord and tenant. But Savage, Ch. J., said the heater could not be considered as part of the realty, even if the person who placed it had owned the tannery, 7 Cowen, 321. In Kirman v. Latour, 1 Harr and Johns. 289, the sheriff had sold under a fi. fa. against the owner, a house and lot with the appurtenances. This house was built for a distillery; and the implements necessary to carry on the business were on the premises at the time of the sale. In trover by the owner of these, the court held, that the pumps, cisterns, iron grating, door, distillery, and |