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they still continue attached to the freehold. Still, if the owner is injured in respect to his rights therein, while this annexation continues and while he is still in possession of the land, the wrong should be considered an injury in respect to his possession of the realty, and trover for the fixture will not lie.' But all fixtures become personalty when severed, whether the act of severance is rightful or wrongful."

1 Minshall v. Lloyd, 2 M. & W. 450; Mackintosh v. Trotter, 3 M. &. W. 184. Where ice already formed is sold by the land owner, the buyer may have trover against a third person who takes it away. The ice, in such case, is to be regarded as personalty. Higgins v. Kusterer, 41 Mich. 318; see Richards v. Gauffret, 14 N. E. Rep. 535 (Mass.)

In the rules respecting fixtures we note the gradual departure from notions which had their origin in a system which had little in common with modern enterprise and thrift. As has already been said, land formerly was of chief importance; commerce was subordinate to martial prowess. The Jew, who best represented the movable property of the country, prudently hid his jewels and his gold in his unpretending and mean habitation, or secreted them upon his person sewed into the old clothes which appeared to express misery and poverty. His wealth did not make him respected, but he was despised for the qualities which produced it, and when the master of the sword found his debt to the Jew usurer falling due, it might be a question whether he should be paid in coin or in blows; whether he should be robbed and driven from the land, or spared as a necessary but hated convenience. The idea grew up very slowly that the non-landowner, who would make his industry available by the improvement of lands, should be encouraged to do so

by saving to him an ownership in the buildings he attached to the soil. The old idea recognized but faintly a distinct ownership in the shop which the tenant put upon the land, and if it was at all of a substantial nature, the landlord would be likely to claim it as having become a part of the soil by being affixed to it. A hundred years ago it was scarcely settled that an agricultural tenant might remove his fixtures at the end of his term, and the idea was still prevalent that to entitle any tenant to retain as personalty the structure he put up for use in connection with the realty, he should abstain from putting it on foundations that seemed to be perma. nent. With the vast increase in personal property which has taken place within a century, the artificial distinctions between realty and personalty are being gradually put aside or modified, and those only are strictly adhered to which have solid grounds for their support. Cities grow upon leased grounds, and substantial structures for houses and shops are, as between landlord and tenant, the personal estate of the latter. The house becomes a part of the land if affixed to the land by the owner, because then the inference of intent to make it so is irresistible, but it does not become a part of it when affixed by the tenant, because the difference in ownership of house and land will prevent the merger which is necessary to their becoming one in contemplation of law. The tenant's sup

*Betterments. The laws known as betterment or occupy- [*433} ing claimant laws, establish a peculiar species of property in those entitled to the benefit of their provisions. The purpose of these laws is to do equity as between the party who has erected buildings of a permanent character, or made other improvements, upon lands which at the time he supposed were his own, but which are recovered by another on claim of paramount title. At the common law the owner, in recovering the land, would become entitled to the improvements also. The laws mentioned have changed this by requiring the owner, after establishing his title, to pay for the improvements as a condition of being put in possession, and by confirming the occupant in possession, if payment is declined. While the right of election remains, the right of the occupant has some of the qualities of a lien and some of a conditional title; but his remedies for wrongs would obviously be those of an occupant of the realty.

Sidewalks, etc. Sidewalks constructed by the owner of urban property in front of his lot, or curbstones, etc., planted there by him, are his property, whether the title to the soil in the street is in him or not. While a sidewalk remains it is a part of the realty; but when any such structure is taken up, the materials become personalty, and trespass de bonis or trover will lie if the city authorities, or individuals, unlawfully appropriate them."

Right to Crops. Growing crops are presumptively the property of the owner of the soil; but this is only a presumption, and often proves to be unfounded. A more general rule is that growing crops are the property of the person who [*434] rightfully has planted and grown them. Therefore, crops grown by a tenant are his property. He may sell or mortgage them as such while they are growing, and he may harvest and appropriate them when ripened. The exception to this general statement is this: that if the tenant shall sow or plant

posed intent to keep separate as personal chattels the boards, the bricks, etc., which he builds into the house, is respected and is conclusive.

1 Rogers v. Randall, 29 Mich. 41. * Muzzey v. Davis, 54 Me. 361. See Rogers v. Randall, 29 Mich. 41.

3 Doremus. Howard, 23 N. J. 390; Brown v. Turner, 60 Mo. 21; Clark v. Harvey, 54 Penn. St. 142; Fobes v. Shattuck, 22 Barb. 568. If tenant surrenders possession during term, the crops pass to the landlord. Shahan v. Herzberg, 73 Ala. 59.

crops which, in the ordinary course of nature, will not ripen dur ing his term, he will lose them. If the rule were otherwise, he would be enabled, by his own act and without the consent of the lessor, to prolong beyond the duration of his term his possession of the land planted.' But where the duration of the lease is uncertain, as where it is a lease at will, or for the life of some person designated, or its duration depends upon some contingency, and it is terminated otherwise than by the voluntary act of the tenant himself, the tenant or his personal representative is entitled to the growing crops as emblements, and may enter upon the land to cultivate them and to remove them when ready for harvest. The landlord, if he refuses to recognize this right and excludes him, is liable on the special case; and if he harvests the crop and appropriates it to his own use, he may be sued either in trespass or trover for the value. So one who sows crops on the land of another under a license has rights after the license is revoked corresponding to those of a tenant at will whose estate has been terminated by the landlord. Where crops are raised "on shares," the owner of the land and the person raising them are tenants in common of the crop until it Trees, *plants and

[*435] has been harvested and divided.

1 Bain v. Clark, 10 Johns. 424; Harris v. Carson, 7 Leigh, 632; Kingsbury . Collins, 4 Bing. 202. So if tenant is bound to know that his landlord's title will be lost under execution sale before ripening. Wheeler . Kirkendall, 67 Ia. 612. But see Hecht v. Dettman, 56 Ia. 679. It makes no difference that lease was for a year with privilege of three if tenant abandons within first year. Dircks v. Brant, 56 Md. 500. In Pennsylvania the outgoing tenant owns the waygoing crop. Shaw o. Bowman, 91 Penn St. 414.

2 Bevans v. Briscoe, 4 Har & J. 139; Davis v. Thompson, 13 Me.209; Davis . Brocklebank, 9 N. H. 73; Orland's Case, 5 Co, 116. See Towne v. Bowers, 81 Mo. 491; Dobbins v. Lusch, 53 Ia. 304; King v. Foscue, 91 N. C. 116; Hendrixson v. Cardwell, 9 Bax.

389; Felch v. Harriman, 13 Atl. Rep. 418 (N. H.)

3 Stewart v. Doughty, 9 Johns. 108; Forsythe. Price, 8 Watts, 282; Robinson v. Kruse, 29 Ark. 575; Harris v. Frink, 49 N. Y. 24.

Smith . Jenks, 1 Denio, 580; Jencks . Smith, 1 N. Y. 90. Harris v. Frink, 49 N. Y. 24.

5 Daniels . Daniels, 7 Mass. 136; Delaney v. Root, 98 Mass. 546; Foote v. Colvin, 3 Johns. 216; Bradish v. Schenck, 8 Johns. 151; Carter v. Jarvis, 9 Johns. 143; Putnam v. Wise, 1 Hill, 234; Taylor v. Bradley, 39 N. Y. 129; Harris o. Frink, 49 N. Y. 24; Moulton . Robinson, 27 N. H. 550; Daniels v. Brown, 34 N. H. 454; Hatch v. Hart, 40 N. H. 93; Carr . Dodge, 40 N. H. 403; Hurd v. Darling, 14 Vt. 214; Betts v. Ratliff, 50 Miss. 561; Doty v. Heth, 52 Miss. 530:

crops sowed or planted on land by a stranger to the title, and without authority, belong to the owner of the soil.'

Wild Animals. There is no property in wild animals until they have been subjected to the control of man. If one secures and tames them, they are his property; if he does not tame them, they are still his so long as they are kept confined and under his control. In the case of wild bees, these rules are somewhat qualified. Bees have a local habitation, more often in a tree than elsewhere, and while there they may be said to be within control, because the tree may at any time be felled. But the right to cut it is in the owner of the soil, and, therefore, such property as the wild bees are susceptible of is in him also. A hunter's custom may recognize a right to the tree in the first finder, but the law of the land knows nothing of this, and he will be a trespasser if, without permission, he enters upon the land to cut it. Even a license given by the owner of the soil to enter and cut the tree may be revoked at any time before it has been acted on. But if the bees have once been domesticated

Briggs . Thompson, 9 Penn. St. 338; Alwood v. Ruckman, 21 Ill. 200. But the relation of landlord and tenant may exist, although the rent is to be paid by a portion of the crop, in which case the parties are not tenants in common of the crop raised. Dixon v. Niccolls, 39 Ill. 372. See, further, on what relation is created by such arrangement. Walworth v. Jenness, 58 Vt. 670; Chicago, &c., Co. v. Linard, 94 Ind. 319; Frout v. Hardin, 56 Ind. 165; Texas, &c., Ry Co. . Bavliss, 62 Tex. 570; Yates v. Kinney, 19 Neb. 275; Atkins v. Womeldorf, 53 Ia. 150. In Massachusetts it is held that it cannot be said as a matter of law that the land owner has a mortgageable interest in such crop. Each case depends on the intent of the parties as shown in the contract. Orcutt v. Moore, 134 Mass. 48.

'Ewell on Fixtures, 64; Simpkins . Rogers, 15 Ill, 397; Mitchell v. Bilingsley, 17 Ala. 391; Reid v. Kirk, 12 Rich. 54; Madigan v. McCarthy, 108

Mass. 376; S. C. 11 Am. Rep. 371. Even if the trespasser remains and harvests them. Freeman v. McLennan, 26 Kan. 151; contra, Adams v. Leip, 71 Mo. 597. If one holds a farm by fraudulent conveyance, title to crops raised while conveyance is unimpeached is in him, unless raised for his grantor. Hartman v. Weiland, 36 Minn. 223.

2 Amory v. Flynn, 10 Johns. 102; Rex v. Brooks, 4 C. & P. 131; Regina v. Shickle, L. R. 1 C. C. 158; S. C. 11 Cox, C. C. 189; Commonwealth v. Chace, 9 Pick. 15; Manning v. Mitcherson, 69 Geo. 447. See State v. Krider, 78 N. C. 481.

Merrill. Goodwin, 1 Root, 209; Pierson v. Post, 3 Caines, 175; Gillet v. Mason, 7 Johns. 16; Buster v. Newkirk, 20 Johns. 75; Ferguson v. Miller, 1 Cow. 243; Idol v. Jones, 1 Dev. 162; Cock v. Weatherby, 5 S. & M. 333.

Ferguson . Miller, 1 Cow. 243. See Adams v. Benton, 43 Vt. 30.

and have then escaped, the loser retains his property therein, and may reclaim them if he pursues after them with reasonable promptness.1

As regards beasts of the chase, the English rule is that if the hunter starts and captures a beast on the land of another, [*436] the *property in him is in the owner of the land." Under the civil law the property passed to the captor,' and such is believed to be the recognized rule in America even when the capture has been effected by means of a trespass on another's land.'

How Wrongs may be Done. The methods in which one may be wronged in respect to his ownership of personal estate are the following:

1. By the direct application of force, injuring or destroying it, or disturbing the owner in his possession.

2. By indirect injuries, whether through negligence or of

intent.

3. By converting the property to the use of the wrong-doer. 4. By failure to respond to any obligation of bailment in respect to it.

5. By neglect to restore possession to the owner when it has been acquired without his consent, or when a possession once rightful has become wrongful by failure to comply with a lawful demand to surrender it to the owner.

Trespass to Personalty. The first of these wrongs is techni

'Goff o. Kilts, 15 Wend. 550. The right, however, might be of little value if they were found on the land of another who should refuse to permit the pursuer to enter and reclaim them. Possibly it might be held-as we think it certainly ought to bethat the owner of the bees might enter and retake them if he could do so without doing an injury to the land; but the law would give no implied license to cut a tree for the purpose.

2 Rigg v. Earl of Lonsdale, 1 H. & N. 923; Blades v. Higgs, 12 C. B. (N. 8.) 501; 13 C. B. (N. s.) 844; S. C. in Error, 11 H. L. Cas. 621.

Justinian, Inst. Lib. 2, t. 1, § 12. Fish are the property of those who take them, and a whale belongs to the captors. Taber v. Jenny, 1 Sprague, 315.. That there is no prop. erty in fish swimming in tide water, see Matthews v. Treat, 75 Me. 594, nor in a fresh water pond unless so enclosed as to be entirely within con/ trol of the owner of surrounding land. State v. Roberts, 59 N. H. 484. See also Lincoln v. Davis, 53 Mich. 375. One who owns the fee of soil covered by navigable fresh water, has the exclusive right to shoot wild fowl flying over the water. Sterling . Jackson, 37 N. W. Rep. 45 (Mich.)

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