was almost entirely occupied with the government of real estates, which were the great source of political power, and the foundation of feudal grandeur. In consequence of this policy, a technical and very artificial system was erected, upon *341 which the several gradations of title to land depended.

*

Chattels were rarely an object of notice, either in the treatises or reports of the times, prior to the reign of Henry VI. (a) They continued in a state of insignificance until the revival of trade and manufactures, the decline of the feudal tenures, and the increase of industry, wealth, and refinement had contributed to fix the affections upon personal property, and to render the acquisition of it an object of growing solicitude. It became, of course, a subject of interesting discussion in the courts of justice; and being less complicated in its tenure, and *342 rising under the influence of a liberal commerce and more enlightened maxims, it was regulated by principles of greater simplicity and more accurate justice. By a singular revolution in the history of property and manners, the law of chattels, once so unimportant, has grown into a system which, by its magnitude, overshadows, in a very considerable degree, the learning of real

estates.

*

I. Chattel is a very comprehensive term in our law, and includes every species of property which is not real estate or a freehold. The most leading division of personal property is into chattels real and chattels personal. Chattels real are interests annexed to or concerning the realty, as a lease for years of land; and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person. (a) It is only personal estate if it be for a thousand years. (b) Falling below the character and dignity of a freehold, it is regarded as a chattel interest, and is governed and descendible in the same manner. It does not attend the inheritance, for, in that case, it would partake of the quality of an estate in fee.

There are, also, many chattels, which, though they be even of a

(a) Reeves's History of the English Law, vol. iii. pp. 15, 369.

(a) Co. Litt. 118 b. 2 Blacks. Com. 386.

(b) Co. Litt. a. Case of Gay, 5 Mass. 419. Brewster v. Hill, 1 N. Hamp. 350.

movable nature, yet being necessarily attached to the freehold, and contributing to its value and enjoyment, go along with it in the same path of descent or alienation. This is the case with the deeds and other papers which constitute the muniments of title to the inheritance; (c) and also with shelves and family pictures in a house, and the posts and rails of inclosures. (d) So, also, it is understood that pigeons in a pigeon-house, deer in a *343 park, and fish in an artificial pond, go with the inheri

tance as heir-looms to the heir. (a) But heir-looms are a class of property distinct from fixtures; and in modern times, for the encouragement of trade and manufactures, and as between landlord and tenant, many things are now treated as personal property which seem, in a very considerable degree, to be attached to the freehold. The law of fixtures is in derogation of the original rule of the common law, which subjected everything affixed to the freehold to the law governing the freehold; and it has grown up into a system of judicial legislation, so as almost to render the right of removal of fixtures a general rule, instead of being an exception. The general rule, which appears to be the result of the cases, is, that things which the tenant has affixed to the freehold for the purpose of trade or manufactures, may be removed, when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate, and which can be removed without losing their essential character or value as personal chattels. (b) The character of the property, whether personal or real, in respect to fixtures, is governed very much by the intention of the owner, and the purposes to which the erection was to be applied. Thus, things set up by a lessee, in relation to his trade, as fats, coppers, tables, and partitions,

(c) Lord Coke said that charters, or muniments of title might be entailed. Co. Litt. 20 a. In the Scotch law, a jewel or a picture may be entailed. 2 Bell's Com. 2. Her itable bonds and ground rents follow the freehold. 2 Ibid. 3. The tenant for life is prima facie entitled to retain the custody of the title-deeds, and the remainder-man is not entitled to call them out, except for some specific purpose. Shaw v. Shaw, 12 Price (Exch.) 163.

(d) Herlakenden's case, 4 Co. 62. Cooke's case, Moore, 177, pl. 215. Lyford's case, 11 Co. 50 b.

(a) Co. Litt. 8 a.

(b) Trappes v. Harter, 3 Tyrwhitt, 603. Cook v. Ch. T. Comp. 1 Denio, 92.

1 Hill v. Wentworth, 2 Wms. (28 Vt.) 428.

belonging to a soap-boiler, (c) may be removed during the term. The tenant may take away chimney-pieces, and even wainscot, if put up by himself; (d) or a cider-mill and press erected by him on the land, (e) or a pump erected by him, if removable without material injury to the freehold. (f) So, a building resting upon blocks, and not let into the soil, has been held a mere chattel. (g)3 A post wind-mill, erected by the tenant, (h) and machinery for spinning and carding, though nailed to the floor, (i) and copperstills, and distillery apparatus, and potash kettles, though * fixed or set on arches, (a) are held to be personal prop

344

(c) Poole's case, 1 Salk. 368. Kettles and boilers in a tannery, and stills in a distillery, are not fixtures, but personal property. 1 Missouri, 508. 3 Ibid. 207. On the other hand, iron salt-pans in salt-works erected by the tenant, and the pans resting on brickwork are not allowed to be removed, as being parcel of the works to be left in good repair. Mansfield v. Blackburne, 6 Bing. 426.2

(d) Ex parte Quincy, 1 Atk. 477.

(e) Holmes v. Tremper, 20 Johns. 29. Wadleigh v. Janvrin, 41 N. Hamp. 503. (ƒ) Grymes v. Boweren, 4 Moore & P. 143. 6 Bing. 437.

(g) Naylor v. Collinge, 1 Taunt. 21.

(h) The King v. Londonthorpe, 6 Term Rep. 377. See, also, The King v. Inhabitants of Otley, 1 B. & Adol. 161. In Maine, this notion of movable fixtures was carried so far as to allow an action of trover for a saw-mill built by A on the land of B, with his consent, when occupation was refused. Russell v. Richards, 1 Fairfield, 429. Tapley v. Smith, 18 Maine, 12, S. P. So, in England, a wooden barn, erected on a foundation of brick and stone, is not a fixture, and may be removed by the tenant, and trover will lie for it. Wansbrough v. Maton, 4 Adol. & Ell. 884.

(i) Cresson v. Stout, 17 Johns. 116. Tobias v. Francis, 3 Vermont, 425. Taffe v. Warnick, 3 Blackf. (Ind.) 111.

(a) Reynolds v. Shuler, 5 Cowen, 323. Raymond v. White, 7 Ibid. 319. Wether- 1 bee v. Foster, 5 Vermont, 136. Ford v. Cobb, 20 N. Y. 344.

2 Mansfield v. Blackburne, turned upon the construction of the instrument under which the tenant had set up the salt-pans, and not upon the law of fixtures. In Lawton v. Salmon, 1 H. Bl. 259, note, salt-pans were held to belong to the inheritance as between heir and executor. * It was held in Blethem v. Towle, 40 Maine, 310, that a cistern standing on blocks in the cellar, is a fixture. And see Pullen v. Bell, 40 Maine, 314.

✦ But a colossal statue resting by its own weight on a permanent pedestal is a fixture. Snediker v. Warring, 2 Kernan, 170. So gas-pipes in the street. Gas Co. v. Thurber, 2 R. I. 15. A fence built on another's land without leave. Wentz v. Fincher, 12 Ired. (N. C.) 297. Sheds on posts must be removed within the term, or they will vest in the landlord. Beckwith v. Boyce, 9 Mo. 560. A tenant was allowed in Missouri to remove an hydraulic press, fixed in the ground, walled up with solid masonry, and nailed to the building, it being necessary to the business for which he occupied the building. Finney v. Watkins, 13 Mo. 291. See Vanderpoel v. Van Allen, 10 Barb. (N.Y.) 157, in which articles attached by leathern belts were held to be chattels and not fixtures. Dubois v. Kelly, 10 Barb. (N. Y.) 496. Wiltshear v. Cottrell, 18 Eng. L. & Eq. 143. Hill v. Wentworth, 2 Wms. (28 Vt.) 428. If a building be blown down by a tempest, its fragments are not by that act converted into personalty, but pass with the realty to a purchaser at a sheriff's sale. Rogers v. Gillinger, 30 Penn. 185.

erty.1 On the other hand, iron stoves, fixed to the brickwork of the chimneys of a house, have been adjudged to pass with the house, as part of the freehold, in a case where the house was set off on execution to a creditor. (b) 2 But in another case, in the same court, between mortgagor and mortgagee, the possessor, on the termination of that relation, was allowed to take down and carry away buildings erected by him on the land, and standing on posts, and not so connected with the soil but that they could be removed without prejudice to it. (c) The tenant may also remove articles put up at his own expense for ornament or domestic convenience, unless they be permanent additions to the estate, and so united to the house as materially to impair it, if removed, and when the removal would amount to a waste. The right of removal will depend upon the mode of annexation of the article, and the effect which the removal would have upon the premises. (d) 8

(b) Goddard v. Chase, 7 Mass. 432.

(c) Taylor v. Townsend, Mass. 411. But fixtures erected by the mortgagor are annexed to the freehold, and cannot be removed until the debt be paid. Butler v. Paige, 7 Metcalf, 40.

(d) Buckland v. Butterfield, 2 Brod. & Bing. 54. In Burge's Com. on Colonial and Foreign Laws, vol. ii. pp. 6-31, the rules respecting fixtures, not only in the English law but in the civil law and the codes of other nations, are collected. See, also, Treatise on Fixtures, by Amos & Ferard, ch. 2, secs. 3, 4. This valuable treatise has collected the numerous cases on the subject of fixtures, and traced and stated the subtle distinctions arising therein, with clearness and accuracy. Under the head of ornamental fixtures, hangings, tapestry, and pier-glasses, marble or other ornamental chimney-pieces, marble

1 So, also, gas fixtures and stools. Lawrence v. Kemp, 1 Duer, 363. Wall v. Hinds, 4 Gray, 756. Montague v. Dent, 10 Rich. Law (S. C.) 135. A pump put into the well by the tenant. McCracken v. Hall, 7 Port. (Ind.) 30. Sinks and water-pipes. Wall v. Hurd, 4 Gray, 256. Trees in a nursery as between tenant and landlord or landlord's mortgagee with notice of tenant's claim. King v. Wilcomb, 7 Barb. (N.Y.) 263. Apparatus for generating gas, and the gasometer as between landlord and tenant are removable during the term, but between heir and executor, grantor and grantee, or mortgagor and mortgagee, belong to and pass with the realty. Hays v. Doane, 3 Stockt. Ch. 84. And engines supplying motive power and connecting machinery are, and the working machinery connected therewith, according to particular circumstances of adaptation and mobility, may be, subject to the same rules. Winslow v. Merchants Ins. Co., 4 Metcalf, 306. Murdock v. Gifford, 18 N. Y. 28. Crane v. Brigham, 3 Stockt. Ch. 29.

2 Tuttle v. Robinson 33 N. Hamp. 104.

3 If the tenant mortgage his removable fixtures, he cannot, by surrender of his term, defeat the mortgagee's right to remove the fixtures. London, &c., Loan Co. v. Drake, 6 C. B. (N. S.) 798. See, further, as to the operation of a mortgage of land on trade fixtures, Cotton v. Nutter, 2 Mont. Dea. & De G. 725; Broadwood v. McNiel, 1 do. 631; Bentley v. West, 2 do. 591; Trull v. Fuller, 28 Maine, 545.

Questions respecting the right to what are ordinarily called fixtures, or articles of a personal nature affixed to the *345 freehold, (a) principally arise between three classes of per

sons: 1. Between heir and executor; and there the rule obtains with the most rigor in favor of the inheritance, and against the right to consider as a personal chattel anything which has been affixed to the freehold. (b)2 2. Between the executor of the tenant for life, and the remainder-man or reversioner; and here the right to fixtures is considered more favorably for the executors. 3. Between landlord and tenant; and here the claim to have articles considered as personal property is received with the greatest latitude and indulgence.3 4. There is an exception of a

slabs, window-blinds, and wainscots fastened with screws, have been included; and, under the head of articles put up by the tenant for domestic use and convenience, and allowed to be removed during the term, are enumerated grates, stoves, iron backs to chimneys, fixed tables, furnaces, coppers, coffee-mills, malt-mills, jacks, cupboards, iron ovens, &c. Ibid. In the case of Gaffield v. Hapgood, 17 Pick. 192, a fire-frame fixed in the fire-place was held to be a fixture removable by the tenant during the term. The law of fixtures, in its application to the relation of landlord and tenant, partakes of the liberal and commercial spirit of the times.

(a) It was said by the Barons, in Sheen v. Rickie, Best's Exch. Rep. East. Term, 1839, that fixtures do not necessarily mean things affixed to the freehold. It only means something fixed to another, and which the tenant has the power of removing. 5 Mees. & W. 175, S. C. But I apprehend that the ordinary meaning is the appropriate and legal meaning, and which is, things fixed in a greater or less degree to the realty. It is clearly settled, said Baron Parke, in Minshall v. Lloyd, 2 Mees. & W. 459, that everything substantially and permanently affixed to the soil, is in law a fixture. The principal thing must not be destroyed by the accessary, nor a serious injury inflicted to some important building, unless the building itself be only an accessary to the fixture, as an engine-house, to cover it. The principle seems to be, that the fixture must be adapted to the enjoyment of the realty, and more or less annexed to it.

(b) The New York Revised statutes, vol. ii. p. 83, sec. 6, 7, 8, declare that things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the wall of the house, so as to be essential to its support, go to the execu

Stoves not standing in their places at the time of a levy, but put away for the summer in a garret, are not fixtures. Aliter, if standing in their places where used. Blethem v. Towle, 40 Maine, 310.

See Pickerell v. Carson, 8 Iowa, 544, where "fixtures" are defined as chattels annexed to the freehold and removable against the will of the owner of the land, and "appurtenances" are discriminated from fixtures, as being things belonging to a principal thing and passing as incident to it.

* Buckley v. Buckley, 11 Barb. (N. Y.) 43. Tuttle v. Robinson, 33 N. Hamp. 104. Martin v. Roe, 40 Eng. L. & Eq. 68.

3 A building called a "shanty" held to be a part of the freehold. Fisher v. Saffer, 1 E. D. Smith (N. Y.) 611.