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factors in mining, prior appropriation gives superior rights and the same is true in some states in regard to milling operations. The right to divert streams for irrigation is also the subject of statutory enactment.

479. Surface waters.-Two distinct rules are known regarding the control of surface waters, such as drainage from rains. The rule most widely accepted is that surface water is a common enemy and that every one can get rid of it as best he can, provided, however, it is not converged into a stream and made to flood the land of an adjoining proprietor. Under this rule the owner of land at a high elevation may retain it on his property or permit it to flow to a lower level, and the owner of land at a lower level may fill in his land or build an embankment to ward off the water. Several states, including Illinois, Iowa, Louisiana and Pennsylvania follow the rule that every owner of land has the right to have surface water flow according to the natural contour of the surface of the land.

Percolating waters or those which flow in undefined streams under the surface of the ground may be taken, used, and disposed of by each owner, notwithstanding that the use by one may deprive a neighbor of a prior

use.

EXAMPLES

398. A digs a well upon his property and subsequently B, a neighbor, digs another well upon his property, thus cutting off A's supply. A has no remedy, but it is held in some states including New York that B may not sell his water as merchandise.

398a. A digs a well on his own property to procure oil and then sells the right to draw off the oil to B. A then digs another well on his own property one hundred feet away, which caused B's well to dry up. B has no remedy.

480. Special questions concerning ownership.-The rules applicable to percolating and subterranean waters generally govern percolating oil, and natural gas.

While, as has been said, water does not belong to the owner of the land on which it flows, if it congeals and forms ice it becomes subject to ownership, and prima facie is treated as real estate. But its owner may sell it as personalty, either before or after it is cut. After it has been cut and severed from the water it can be dealt with only as personalty. Ice which forms upon a stream or other body of water belonging to the state is public property and may be cut and removed by the first one who cuts it or parcels it off.

481. Vegetable products.-Vegetable products are divided into fructus industriales and fructus naturales. Those crops which require yearly sowing of seed and those which grow upon vines or shrubs springing up each year from old roots, but needing training and culture are called fructus industriales, while all others are classed as fructus naturales. Hops which require training upon poles or other supports, blackberries and strawberries, corn, potatoes, etc., have all been held to be fructus industriales.

Fructus industriales are regarded as personalty and the sale of the realty on which they are grown does not include such crops. Upon the death of the owner of the land they will go to the personal representative and not to the heir. If a person has an estate of uncertain duration which is terminated before the crops he has planted have ripened he may enter upon the land, cultivate and gather the crops, but if the tenancy is for a definite period his right to enter upon the land and cultivate or gather the crops expires at the end of the tenancy.

A sale of fructus industriales is governed by that provision of the statute of frauds which provides that the sale of personal property of $50 or more must be in writing, unless part of the purchase price is paid at the time of the contract or a part of the goods is delivered. The sale of fructus naturales is governed by that portion of the statute of frauds which applies to real

estate.

A sale of standing trees is a sale of realty and must be evidenced in writing by the provisions of the statute of frauds, while a license to enter upon land and remove trees or grass may be made orally. Trees blown or cut down and lying upon the land where they grew, in the absence of other peculiar circumstances, will pass with a transfer of the land.

482. Border trees.-Because standing trees are real property it is well settled that if the trunk of the tree be wholly on one person's property while the roots extend into another person's soil and the branches overhang it, the entire tree and all its fruits belong to the owner of the land upon which the trunk stands. The owner of the adjacent land, however, may cut off the branches and the roots at the dividing line, but he cannot turn them to his own use. Where the trunk of a tree stands on the dividing line, the tree and all its fruits belong to the owners of the adjacent land as tenants in common, and neither can lawfully remove or destroy it, but may use the branches and fruit on his side, if the use does not injure the trunk.

483. Fixtures.-A fixture is a chattel which has become permanently annexed to land and is regarded as realty. Two elements must be present to change a chattel into a fixture:

1. There must be actual or constructive annexation.

2. There must be an intent to make it a permanent part of the real property.

A key is a fixture because it is localized in use. In sawmills the various sized saws are generally regarded as fixtures. Storm windows, though taken down in summer, usually are fixtures. The intention is always gathered from the facts of the case and not from secret thoughts.

Three tests may be applied to determine whether a given article is a fixture or not:

1. Character of the annexation. If the thing cannot be removed it is usually regarded as a fixture. Thus, gas and water pipes are fixtures, while looms, though fastened to the floor of a factory by screws and cleats, are personalty.

2. Adaptability. If the thing is peculiarly attachable to its location or is made to order to fit some part of the realty it usually is regarded as a fixture.

A statue of Washington, hewn from the same stone as was used in making the house before which it stands, is a fixture, though it merely rests on the ground. Window screens, screen doors and shades are usually fixtures. Stock awnings are generally personalty while awnings made to order are usually regarded as fixtures. Gas fixtures and chandeliers are regarded as personalty; this probably is a survival of the law which applied to detached oil lamps. In apartment houses refrigerators may or may not be fixtures, depending upon their construction and that of the house in which they are located. Where machines are essential parts of a factory or mill they may be regarded as fixtures, though not fastened to the floor.

3. Interest or title which the annexor has.

(a) As between vendor and vendee, the courts usually

hold that a chattel annexed to real. property is a fixture and passes with a conveyance of the property to the vendee.

(b) As between landlord and tenant, the courts favor the tenant, and chattels annexed to the leased premises may usually be removed at or before the expiration of the tenant's term. This rule may even apply to buildings, but if buildings are put up in permanent fashion on permanent stone foundations they are fixtures and cannot be removed at the expiration of the tenant's term. After the tenant has moved out the presumption is against him and while he may remove mere chattels, anything that is in the nature of a fixture will be deemed abandoned.

(c) As between the heir and personal representative, the law favors the heir.

484. Rights of adjoining owners: fences and party walls. The common law rule was that cattle must be fenced in or otherwise restrained from wandering. In many states the common law has been changed especially in regard to railroads upon which a duty is placed of fencing their property against trespassing cattle. In some states common law has been made to give way to local rules and regulations. Many states have enacted statutes providing for the erection, repairing and preservation of division fences at the joint expense of neighboring owners.

The subject of party walls has become a very important one in large cities. Where a side wall of a building is entirely independent in form, but through time has come to depend more or less on an adjacent building, or where two buildings are erected whose side walls support each other, an easement may arise for continued support. The owner of property who intends to

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