broader extent in respect to fixtures erected for the purposes of trade, and the origin of it may be traced back to the dawnings of modern art and science. (c) Lord Ellenborough, in Elwes v. Maw, (d) went through all the cases from the time of the Year Books, and the court concluded that there was a distinction between annexations to the freehold for the purposes of trade or manufacture, and those made for the purposes of agriculture; and the right of the tenant to remove was strong in the one case and not in the other. It was held, that an agricultural tenant who had erected, for the convenient occupation of his farm, several buildings, was not entitled to remove them. Had the erections been made for the benefit of trade or manufactures, there would seem to have been no doubt of the right of removal. The strict rule as to fixtures, that applies between heir and executor, applies equally as between vendor and vendee, and mortgagor and mortgagee;1 and growing crops, manure lying upon the land, and fixtures erected by the vendor for the purpose of trade and manufactures, as potash kettles for manufacturing ashes, pass to the vendee of the land. (a) 2 Fixtures go along *346 * tor as assets; and that all other things annexed to the freehold descend to the heir or devisee. The chancellor, in House v. House, 10 Paige, 163, supposed the legislature here intended to put the executor or administrator upon the same footing with a tenant as to the right to fixtures. (c) 20 Hen. VII. 13, a. and b. pl. 24. The exception, in that case, was allowed in favor of a baker and a dyer affixing furnaces or vats, or vessels pur occupier son occupations. But the exception in favor of such trades was almost too liberal for the age; and we find, in the following year, 21 Hen. VII. 27, it was narrowed to things fixed to the ground, and not to the walls of the principal building. (d) 3 East, 38. The notes attached to this case, in Smith's Leading Cases in Law Library, N. S. vol. xxviii. are valuable. (a) Spencer C. J., in Holmes v. Tremper, 20 Johns. 30. Hare v. Horton, 2 Nev. & Mann. 428. Miller v. Plumb. 6 Cowen, 665. Kittredge v. Woods, 3 N. Hamp. 503. Despatch N. Hamp. 205. Oves v. Oglesby, 7 Watts, 106. Kirwan v. Latour, 1 Harr. & Johns. 289. In Durbourg v. Jones, 19 N. Y. 234, a ball-room erected by a tavern-keeper for the use of his guests, which rested on posts slightly imbedded in the ground and removable without injury to the freehold, was held to be a removable trade fixture. 1 The same rule is held to apply on a division between tenants in common. Parsons v. Copeland, 38 Maine, 537. 2 Bratton v. Clawson, 2 Strobh. 478. In this case it was held, that a cotton-gin fixed in its place passed to the purchaser. If put so as to be removed easily, and without damage, machinery does not pass. Farrer v. Chauffetêtes, 5 Denio, 527. But see Wilde v. Waters, 32 E. L. & Eq. 422. with the premises to a lessee, if no reservation be made at the time of the contract; (b) and the tenant must remove fixtures put up by him before he quits the possession on the expiration of his lease. (c) If not removed during the term, they become the property of the landlord. (d) 5 It has been strongly questioned by high authority, (e) whether erections for agricultural purposes ought not, in this country, to receive the same protection in favor of the tenant as those fixtures Though fructus industriales pass from the intestate to his personal representatives, yet, under a devise or conveyance of land, they pass to the devisee or vendee. The main mill-wheel and gearing of a factory, and necessary to its operation, are held to be fixtures and real estate, in favor of the right of dower as against the heir. Powell v. Monson and Brimfield Manufacturing Company, 3 Mason, 459. Such machinery will also pass to the vendee as against the vendor. Farrar v. Stackpole, 6 Greenl. 154. So, manufacturing machinery and fixtures will pass to a mortgagee, as part and parcel of the inheritance, in like manner as they pass to a vendee. Lord Hardwicke, in Ryall v. Rolle, 1 Atk. 175. Union Bank v. Emerson, 15 Mass. 159. Amos & Ferard on Fixtures, 189, 191. Voorhis v. Freeman, 3 Watts & Serg. 116. Despatch Line of Packets v. Bellamy Manu. Co. 12 N. Hamp. 205. They are parcel of the inheritance. Farrant v. Thompson, 5 B. & Ald. 826. But in Swift v. Thompson, 9 Conn. 63, machinery in a cotton factory attached to the building, so far as to keep the machinery steady, and which could be removed without injury to the building or the machinery, was held to be personal property, as respects creditors and purchasers. The case of Gale v. Ward, 14 Mass. 352, went also to the same point. Fixtures made by a mortgagor after the mortgage, become part of the realty as between him and the mortgagee, and cannot be removed. Walmsley v. Milne, 7 C. B. (N. S.) 115. It might be otherwise in the case of landlord and tenant. The mortgagor makes such improvements as owner, for the permanent benefit of the estate. Winslow v. Merchants' Ins. Co. 4 Metcalf, 306.* (b) Colegrave v. Dias Santos, 2 Barn. & Cress. 76. (c) Gibbs C. J., in Lee v. Risdon, 7 Taunt. 188. Ex parte Quincy, 1 Atk. 477. 2 Barn. & Cress. supra. Poole's case, 1 Salk. 368. Penton v. Robart, 2 East, 88. White v. Arndt, 1 Wharton, 91. 2 Mees. & W. 460, S. P. (d) Lyde v. Russel, 1 B. & Adol. 394. The French law coincides with the English in respect to fixtures made for embellishment. The tenant may remove them, provided they can be removed without being destroyed, and without deteriorating the premises. Lois des Batimens, par Le Page, tom. ii. pp. 190, 205. (e) Van Ness v. Pacard, 2 Peters U. S. 137. 3 As machinery used in a building and attached to it. Sparks v. State Bank, 7 Blackf. 469. Murdock v. Harris, 20 Barb. (N.Y.) 407. McKim v. Mason, 3 Md. Ch. 186. Parsons v. Copeland, 38 Maine, 537. But see Vanderpoel v. Van Allen, 10 Barb. 157; Godard v. Gould, 14 Barb. 662; Cope v. Romeyne, 4 McL. 384; Teaff v. Hewitt, 1 Ohio, 511; Waterfall v. Penistone, 37 E. L. & Eq. 156. 4 Gardner v. Finley, 19 Barb. (N. Y.) 317. 5 But if the tenant hold over as tenant, after the end of his term, he may remove them. Dubois v. Kelly, 10 Barb. (N. Y.) 496. Or, if there be an oral agreement, by which the tenant was to have the right of removal at a subsequent day. McCracken v. Hall, 7 Ind. 30. made for the purposes of trade, manufactures, or domestic convenience. They may be necessary for the beneficial enjoyment of the estate, and the protection of its produce; and public policy, and the interests of the owner of the soil, are equally promoted by encouragement given to the tenant to cultivate and improve the estate. In Whiting v. Brastow, (f) the agricultural * 347 tenant received a liberal application of the exception in favor of the removal of fixtures. He was allowed to remove from the freehold all such improvements as were made by him, the removal of which would not injure the premises, or put them in a worse plight than they were in when he took possession. The case of Holmes v. Tremper (a) may also be referred to as containing a just and enlarged view of the subject; and the tenant was allowed to remove a cider-mill and press erected for his own use. But the same policy of encouraging and protecting agricultural improvements will not permit the outgoing tenant to remove the manure which has accumulated upon a farm during the course of his term. (b)3 (f) 4 Pick. 310. (a) 20 Johns. 29. (b) Lassell v. Reed, 6 Greenl. 222. Middlebrook v. Corwin, 15 Wendell, 169. Daniels v. Pond, 21 Pick. 367. It would seem to be the law in England for the outgoing tenant to sell or take away the manure. Roberts v. Barker, 1 Crompt. & Mees. 809. Gibbons on Dilapidations, 76; but a special usage sometimes obliges the offgoing tenant to leave the manure upon the land. In North Carolina, the outgoing tenant, when there is no custom or covenant to the contrary, has a right to the manure made by him on the farm, provided he takes it away before he removes. Smithwick v. Ellison, 2 Ired. 326. In the case of Walker v. Sherman, 20 Wendell, 636, Mr. Justice Cowen gave an elaborate examination of the English and American authorities on the subject of fixtures, and the decision in the case was, that the machinery in a woollen factory, being movable, and not in any manner affixed or fastened to the building or land, and yet material to the performance of the factory in certain departments of its work, was personal property, as between tenants in common and owners of the fee. The question was decided on the same principle as if it had arisen between grantor and grantee. The learned judge con 1 Rails made into fence are fixtures, and pass to a vendee. Mott v. Palmer, 1 Comst. 564. Rails not in a fence are no part of the realty. Robertson v. Phillips, 3 Iowa, 220. 2 See Wiltshear v. Cottrell, 18 E. L. & Eq. 142; Ombony v. Jones, 21 Barb. (N. Y.) 520; S. C. 19 N. Y. 234. 3 See, also, Goodrich v. Jones, 2 Hill, 142; Kittredge v. Woods, 3 N. Hamp. 503; Parsons v. Camp, 11 Conn. 525. But manure made in a livery stable was held to belong to the lessee, as the reason of the rule in the case of farms did not apply. Plum ner v. Plummer, 10 Foster, 558. The civil law was much more natural and much less complicated in the discrimination of things than the common law. It divided them into the obvious and universal distinction of things movable and immovable, or things tangible and intangible. The movable goods of the civil law were, strictly speaking, the chattels personal of the common law. Whatever was fixed to the freehold perpetui usus causa, was justly deemed a part of the res immobiles of the civil law. (c) 5 II. Property in chattels personal is either absolute or qualified. Absolute property denotes a full and complete title and dominion over it; but qualified property in chattels is an exception to the general right, and means a temporary or special interest, liable to be totally devested on the happening of some particular event. A qualified property in chattels may subsist by reason of the nature of the thing or chattel possessed. The elements of air, light, and water, are the subjects of qualified property by occupancy; and Justinian, in his Institutes, (d) says, they are common by the law of sidered that the ancient distinction between actual annexation and total disconnection was the most certain and practical, and he collected from the cases, as far as their subtlety and inconsistency would admit of any general conclusion, that nothing of a nature personal in itself would pass as a fixture, unless it be in some way habitually or permanently attached or fixed to the freehold. There are likewise constructive fixtures which, in ordinary understanding, make part and parcel of the land or building; such as rails on a fence, stones in a wall-fence, and Venetian blinds, and locks and keys to a house, &c.1 (c) Taylor's Elem. of the Civil Law, 475. (d) Inst. 2, 1, 1. On the same principle, hop-poles in use on a hop-farm were held to pass with the soil, the hop growing from a perennial root. Bishop v. Bishop, 11 N. Y. 123, and in the same case it was held that their quality of realty was not affected by their temporary removal and stacking, that being according to the course of hop culture. And generally the temporary severance of fixtures, whether actually or only constructively annexed, works no alteration of their legal character. Wistow's case, 14 H. 8, 25, b. cited in Liford's case, 11 Co. 50. Queen v. Wheeler, 6 Mod. 187. Wadleigh v. Janvrin, 41 N. Hamp. 503. In Palmer v. Forbes, 23 Ill. 301, the rolling stock of a railroad was held to be part of the realty, but the contrary doctrine was maintained in New York, in Stevens v. Buffalo & N. Y. City R. 31 Barb. (N. Y.) 590, and Beardsley v. Ontario Bank, ibid. 619. This question in another case went to the Court of Appeals, but was not decided, the court, as it is understood, not being agreed, whether the law requiring chattel mortgages to be filed in certain offices was applicable to railroad and other like corporations. In California, the machinery and apparatus used in gold-digging and mining is held to be governed by the received law as to fixtures, although the title to the mines is in the U. S. and not in the occupants. Merritt v. Judd, 14 Cal. 59. nature. He who first places himself in the advantageous 348 enjoyment of a competent portion of either of them, cannot lawfully be deprived of that enjoyment; and whoever attempts to do it, creates a nuisance for which he is responsible. (a) Animals feræ naturæ, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property; but when they are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under protection of law as any other property, and every invasion of it is redressed in the same manner. (b) The difficulty in ascertaining with precision the application of the law arises from the want of some certain determinate standard or rule, by which to determine when an animal is feræ vel domita naturæ. If an animal belongs to the class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is then clearly a subject of absolute property; but if he belongs to the class of animals which are wild by nature, and owe all their temporary docility to the discipline of man, such as deer, fish, and several kind of fowl, (c) then the animal is the subject of qualified property, and which continues so long only as the tameness and dominion remain. It is a theory of some naturalists that all animals were originally wild, and that such as are domestic owe all their docility and all their degeneracy to the hand of man. This seems to have been the opinion of Count Buffon; and he says that the dog, the sheep, and the camel, have degenerated from the strength, spirit, and beauty of their natural state, and that one principal cause of their (c) Doves are held to be animals feræ naturæ. Commonwealth v. Chase, 9 Pick. 15. If kept in a dove-cote, with liberty of egress, they may be subjects of larceny. Regina v. Cheafor, 8 Eng. L. & Eq. 598. 1 Though not strictly within the scope of the text, it may be well to mention, that the owner of a domestic animal is not, in general, liable for an injury committed by such animal, unless it be shown that he had notice of its vicious propensity. Van Leuven v. Lyke, 1 Comst. 515. S. C. 4 Denio, 127. If he has such knowledge, it is held that no negligence in the keeping of the animal need be proved. May v. Burdett, 9 Ad. & El. (N. S.) 101. Card v. Case, 5 Man., Gran. & Scott, 622. Buckley v. Leonard, 4 Denio, 500. The owner of bees is not primâ facie liable for injuries committed by them. Earl v. Van Alstine, 8 Barb. (N.Y.) 630. Brinckerhoff v. Starkins, 11 Barb. (N.Y.) 248. The owner of a dangerous animal keeps him at his own risk, without reference to care or negligence. McCaskill v. Elliott, 5 Strobh. 191. |