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2. Construction.-These statutes pertaining to the right to take fish are in derogation of the common law and must be construed strictly.1

navigable stream above tide-water have title only to ordinary low-water mark, and not to the centre of the stream. Elder v. Burns, 6 Humph. (Tenn.) 358.

In Louisiana the sea-shore is the space of land over which spreads in the highest water during the winter season. Civil Code, art. 442.

A lease of a fishery of a pond, with the spear sedge and the flags and rushes growing in and about the same, passes the soil. Rex v. Old Arlesford, 1 T. R. 358.

By the grant of the fish in a pond, a right of going upon the banks and fishing from them is granted. Reniger v. Fogossa, Plowd. 16; Ship. Touch. Lord Darcy v. Askwith, Hob. 234.

89;

It is a general rule that anything corporeal or incorporeal, lying in livery or in grant, may be subject of demise; therefore watercourses, fisheries, and all other incorporeal hereditaments are included in the common-law rule and may be demised. Ship. Touch. 268; Com. v. Weatherford, 110 Mass. 175; Eastham v. Anderson, 119 Mass. 526; Morrill v. Markman, 24 Mich. 279: Commissioners v. Clark, 33 N. Y. 251; Taylor v. Beebe, 3 Rob. (N. Y.) 262.

In Maine it is illegal to retain female lobsters if they are captured. But an indictment charging merely that the defendant had in his possession such lobsters charges no offence. State v. Hennett, 79 Me. 55.

A party unlawfully fished in a several fishery, but caught no fish. In an action against him by the plaintiff, he was held liable for nominal damages. Patrick v. Greenway, I Saund. 3466, note.

Remedy against Wrong-doers. Assumpsit may be brought to recover a remuneration for the use and occupation or enjoyment of a fishery. Davis v. Morgan, 4 B. & C. 8; 6 D. & B. 42.

If a party has only a profit à prendre, under the common law, his remedy against a wrong-doer who disturbs his right of common of fishery is trespass on the case and not trespass. Welden v. Bridgewater, Cro. Eliz. 421; Wilson v. Mackreth, 3 Burr. 1827; Smith v. Kemp Salk. 637.

Trespass lies for an injury to plaintiff's land covered with water. Smith v. Ingraham, 7 Ind. (N. Car.) 175; McKenzie v. Hulet, 2 Taylor (N. Car.), 181.

In bringing the action of trespass, it may be charged that the defendant broke and entered the several fishery of the

plaintiff, and fished therein for fish, but it is a question whether trespass lies for fishing in a free fishery. Smith v. Kemp, 2 Salk. 637; Co. Litt. 45, 122; Richardson v. Mayor, 2. H. Bl. 182; Child v. Greenhill, Cro. Car. 554.

Trespass lies for dredging for oysterspat in a common navigable river, contrary to the 13 Rich. II, stat. I, c. 19; Mayor v. Woolvet, 4 P. & D. 26.

When all persons have a general right to fish in a navigable river, it is unnecessary to state such right. It is sufficient to show with brevity that there was a public right; that such a particular place was a navigable river; and that the defendant prevented the plaintiff from fishing. Ward v. Caswell, Willes, 268; Tarant v. Goldwin, 2 Ld. Raym. 1091.

An action is brought for fishing in a certain river, being the plaintiff's fishery, and the trespass intended by the complaint or declaration is for fishing to the extent of two miles and upwards; if the defendant plead that he is seized in fee of ten acres adjacent to the river, and prescribes for a free fishery in the river along the side of the ten acres, then the plaintiff should new assign and state that the trespass complained of was not only for fishing in the river adjacent to the ten acres, but also above and below the same. This will compel the defendant to answer the whole trespass. 2 Chit. Pl. 361; 1 Saund. 300 C (5th Ed.).

If a commoner be disseised of fishery, under the common law, he was allowed to reinstate himself in the possession by a writ of novel disseisin. Now the remedy for a violation of these incorporeal rights is either by an action of ejectment or a special action on the case. Probably the ancient remedies have been superseded in most of the States by more convenient and familiar actions.3 Kent,

419. 3.

Rights of Common.-Rights of common are very rare in the United States, and hence but few cases are found in the reports concerning them. See Bell v.

O. & P. R. Co.,25 Pa. St. 161; Trustees v. Robinson, 12 Serg. & R. (Pa.) 29; Livingston v. Ten Broek, 16 Johns. (N. Y.) 14; Lyman v. Abeel, 16 Johns. (N. Y.) 30; Hall v. Lawrence, 2 R. I. 218; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639; Worcester v. Green, 2 Pick. (Mass.) 429; Smith v. Floyd, 18 Barb. (N. Y.) 522; Livingston v. Ketcham, I Barb. (N. Y.) 592.

1. Dwelley v. Dweller, 46 Me, 377;

FISHING-BILL, in equity, is a bill that seeks a discovery upon general, loose, and vague allegations; and such a bill is at once dismissed on that ground.1

FIT.2

FITTINGS.3

Berttes v. Nunan, 92 N. Y. 152; Martin v. Waddell, 16 Pet. (U. S.) 367; Parker v. Mill-Dam Co., 7 Shep. (Me.) 353; Moulton v. Libbey. 37 Me. 472.

1. In re Pac. R. Comm'n, 32 Fed. Rep. 263,

2. The Verb.-Under a lease by which the lessor could terminate the tenancy by notice, provided that if he did so within three years he was to compensate the lessee "for expenditures incurred in fitting up the premises and in removing," the lease having been terminated within the three years it was contended by the lessor that " fitting up the premises" included only the actual alterations and additions made to the house, while the lessee claimed in addition the expenses of furnishing the house. It was held, however, that the terms of the lease covered all the expenses the lessee was at during the term in doing anything to the premises to adapt them to his use, and the expenses of specially fitting any furniture to the premises, that is, the labor and expense of fitting it, and the depreciation in its value. Pratt v. Paine, 119 Mass. 439.

The conversion of a merchant vessel into a ship of war is a "fitting out" of such within the meaning of an act forbidding the fitting out and arming of any vessel, with the intent to employ it in the service of any foreign power, to commit hostilities against a power at peace with the United States. 2 Dall. (U. S.) 321.

So under an act prescribing a penalty for the fitting out of a vessel with intent to employ her in the slave trade, "any preparations for a slave voyage which clearly manifest or accompany the illegal intent, even though incomplete and imperfect, and before the departure of the vessel from port, do yet constitute a fitting out." Accordingly, a ship which sailed on her voyage for the purpose of employment in the slave trade, before every equipment therefor was taken on

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board, was held to be within the meaning of the statute. United States v. Gooding, 12 Wheat, (U. S.) 501.

The Adjective. Under a statutory provision that the President may make fit and proper regulations for estimating duties on goods whose cost shall be exhibited in a depreciated foreign currency, he cannot fix an arbitrary value on such foreign currency. The act was "intended to authorize the President to make fit and proper regulations' to sustain and carry out the revenue laws relating to foreign coins, and not to violate them." De Forest v. Redfield, 4 Blatchf. (C. C.) 478.

Copper fit for manufacture. See CASH and COIN.

Fit for cultivation.-This phrase imports such condition of the soil, in its natural condition, as will enable a farmer bringing to business a reasonable amount of skill to raise regularly and annually, by tillage, grain or other staple crops. Staple productions are such productions of the soil as have an established and defined character in the commerce of the country." Keeran v. Griffith, 34 Cal. 580. Fit for distillation. See DISTIL.

If he shall think fit.-Where a power of removal of a certain class of officers for inability or misbehavior, if he shall think fit, is given to a chancellor, it is for him to determine whether their inability or misbehavior is made out, after hearing evidence, and his determination is final. Ex parte Ramshay, 18 Q. B. 193.

3. Gas Fittings.-Under an act exempting from distress meters and fittings for the gas" hired by the gas company to the consumer, the term "fittings for the gas" includes a gas stove. "The expression is as large as it can be, and must include all the apparatus which is used for the supply and the consumption of the gas." Gas Light & Coke Co. v. Hardy, 17 Q. B. D. 619; s. c., 56 L. J. R. Q. B. 169.

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1. Definition. A fixture is an article which was a chattel, but which, by being physically annexed or affixed to the realty by some one having an interest in the soil, becomes a part and parcel of it. The annexation may be actual or constructive. Remov

1. Teaff. Hewitt, 1 Ohio St. 511; Capen v. Peckham, 35 Conn. 88; Potter 7. Cromwell, 40 N. Y. 287; Tiedman Real Prop. 3: 3 Abbott's N. Y. Dig. 146, n.; Taylor's Land. & Ten. § 544; I Wash. Real Prop. 6.

The difficulty of giving a definition of this word which will apply to all cases appears as soon as we begin to examine the law on the subject. The word has been used by many writers in various senses, and this ambiguity has so often been followed even in adjudicated cases that the law on the subject has been thrown into great confusion. Another element of uncertainty is the fact that so many exceptions have been allowed to modify the original idea of a fixture, that now each case must be decided rather upon the circumstances that surround it, than upon any general principle that can be evolved from the law. In fact, so many exceptions to the law have occurred, that many writers and courts have been constrained to throw aside the definition as used in the earlier law on this subject, and to adopt one whose import is almost opposite in meaning. Thus a fixture has been defined to mean a personal chattel annexed to the freehold, and which may be severed and removed by the party who has annexed it, against the will of the owner of the freehold. Pickerel υ. Carson, 8 Iowa, 544; Sheen v. Ritchie, 5 M. & W. 175; Ex parte Barclay et al., 5 De G. M. & G. 403; Halben v. Runder, 1 C. M. & R. 264; Taylor's Land. & Ten.

Y. Dig. 146. Henry, J., says: "It is difficult to define the term fixtures,' and there is inextricable confusion both in the text-books and adjudged cases as to what is such an annexation of chattels to realty as to make them part and pass by a conveyance of the realty. An attempt to reconcile the authorities on the subject would be futile, and to review them would be an endless task. As was well observed by Kent, J., in Strickland v. Parker, 54 Me. 263: It is not to be disguised that there is an almost bewildering difference and uncertainty in the various authorities, English and American, on this subject of fixtures, and on the question of what passes by a transfer of the realty. One thing is quite clear in the midst of the darkness, and that is, that no general rule applicable to all cases and to all relations of the parties can be extracted from the authorities. Thomas v. Davis, 76 Mo. 72. See also 4 Cent. Law Jour. 22.

2. In the early cases the method of annexation was a very prominent element in determining whether or not a certain thing was to be regarded as a fixture or not. Park, B., says "that everything substantially and permanently affixed to the soil is in law a fixture. The principle of law is, that 'quidquid solo plantatur, solo cedit." Minshall υ. Lloyd, 2 M. & W. 450. See also Penton v. Robart, 2 East, 88.

In Culling v. Taffnall it was held that a barn erected by a tenant on pattens and blocks of timber lying on the ground, but not fixed in or to the ground, was not a fixture, and could be removed by the tenant. Buller's Nisi Prius, 34. Lord For other definitions see 3 Abbott's N. Ellenborough in referring to this case

544. note 1; Bouvier's Law Dict. tit. Fixtures; 2 Par. Cont. 431; Amos & Ferard's Law of Fixtures, 2.

able fixtures are those which the person annexing them to the freehold may legally remove against the will of the owner of the land.1

said: "To be sure he might, and that without custom; for the terms of the statement exclude it from being considered as a fixture,It was not fixed in or to the ground." Elwes 7. Mawe, 3 East, 38. See also Horn . Baker, 9 East, 215; Nansbrough v. Maton, 4 A. & E. 884: King v. Otley, 1 B. & Ad. 161; Wiltshear v. Cottrell, 1 E. & B. 674; Dubois v. Kelly, 10 Barb. (N. Y.) 496; Degraffenreid v. Scruggs, 4 Humph. (Tenn.) 451.

Lord Chancellor Hardwicke, in commenting on the question of annexation, says: To be sure in the old cases they go a great way upon the annexation to the freehold, and so long ago as Henry the Seventh's time the courts of law construed even a copper and furnace to be part of the freehold. Since that time the general ground the courts have gone upon relaxing this strict construction of law is that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during their term." Lawton v. Lawton, 3 Atk. 13. However, the later cases have in general departed from the ancient rule, that was based largely upon physical annexation, and now other considerations, as use, nature, and intention, enter into the question. Walker 7. Sherman, 20 Wend. (N. Y.) 636; Hill v. Sewald, 53 Pa. St. 271; Voorhis v. Freeman, 2 W. & S. (Pa.) 116; Van Ness v. Pacard, 2 Pet. (U. S.) 137; Lemar 7. Miles, 4 Watts (Pa.), 330; Farrar v. Stackpole, 6 Me. 154. And see also Lushington v. Sewell, I Sim. 435; 3 Dane's Abridg. 156. And some cases go so far as to hold that physical annexation is not necessary to convert a chattel into a fixture. Mercur, J.. says: "Physical annexation to realty is not necessary to convert a chattel into a fixture. Whether it be such, depends on the business for which the premises are used. Articles necessary or convenient in the transaction of one kind of business would be useless in another. If the article, whether fast or loose, be indispensable in carrying on the specific business, it becomes a part of the realty." Morris' Appeal, 88 Pa. St. 368. See also Voorhis 7. Freeman 2 W. & S. (Pa.) 116; Meigs' Appeal, 62 Pa. St. 28; Davis v. Eastham, 81 Ken. 116. But Cowen, J., suggests that this kind of reasoning would make live stock fixtures. Walker 7. Sherman, 20 Wend. (N. Y.) 636. See also

Brown v. Lillie, 6 Nev. 244; Tillman v. De Lacey, 80 Ala. 103; Capen v. Peckham, 35 Conn. 88; Winslow v. Merchants' Ins. Co.. 4 Met. (Mass.) 306; Despatch Line v. Bellamy, 12 N. H. 205; Teaff z. Hewitt, 1 Ohio St. 511; Hill . Wentworth, 29 Vt. 428.

3

Constructive annexation arises when the thing is fitted for use in connection with the premises, and is more or less necessary to their enjoyment, but is not firmly attached. Teidman Real Prop. $5; Walker v. Sherman, 20 Wend. (N. Y.) 636. Hence a millstone detached from a mill for repairs,-Liford's Case, II Coke, 50, or by accident,—Goddard v. Bolster, 6 Me. 427.-is a fixture. On the same principle, title-deeds, deer in a park, and fish in a pond have been held to belong to and pass with the estate. Dane's Abridg. 156. See also 2 Com. Dig. Biens, B; Farrar . Stackpole, 6 Me. 154; Kittredge v. Woods, N. H. 503; Wadleigh v. Janvrin, 41 N. H. 503; Pusey v. Pusey, i Vern. 273; Lord v. Wardle, 3 Bing. (N. C) 680. So, too, windows, doors. blinds, Venetian blinds, Farrar v. Stackpole, 6 Me. 154.-fences, Walker v. Sherman. 20 Wend. (N. Y.) 636,-and manure,--Kittredge v. Woods, 3 N. H. 503; Middlebrook 7. Corwin, 15 Wend. (N. Y.) 169; Goodrich z. Jones, 2 Hill (N. Y.), 142,-belong to the land, as being constructively annexed to it.

1. The law of fixtures has its origin in the exceptions to the rule of law that whatever is annexed to the freehold becomes a part of the realty. The excep tions to this rule have grown so rapidly in number, that it has been found necessary to arrange them into some sort of a system, and in this way the law of fixtures has been gradually built up. Chancellor Kent says: "The law of fixtures is in derogation of the original rule of 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.' 2 Kent Com. (7th Ed.) 402. See also Dubois v. Kelly, 10 Barb. (N. Y.) 496.

In order that a fixture may be removable, it must be capable of being severed from the freehold without serious injury to the freehold, or, in other words, the land must be left in as good condition

II. Tests for Determining what are Fixtures.—In order to ascertain whether or not a particular thing is a fixture, it is necessary to apply certain rules that have been agreed upon by the courts in adjudicated cases, and if the article in question meet the requirements of the rules, it is decided to be a fixture. We may safely say that these rules can be reduced to three, which require that the article under consideration shall be

(1) Actually annexed to the realty or to something appurtenant thereto.

(2) Appropriate to the use or purpose of that part of the realty with which it is connected.

(3) Intended by the party making the annexation to be a permanent accession to the freehold, and what that intention was in making the annexation is inferred from the following facts:

(a) The nature of the article annexed.

(b) The relation of the party making the annexation.

(c) The structure and mode of annexation.

(d) The purpose or use for which the annexation has been

made.1

after severance as before. And the fixture itself must retain its essential character and value as a personal chattel. 2 Kent Com. (7th Ed.) 402; Taylor's Land. & Ten. § 550; Tillman v. De Lacey, 80 Ala. 103; Dubois v. Kelly, 10 Barb. (N. Y.) 496; Taffe v. Warnick, 3 Blackf. (Ind.) 111; Gale v. Ward, 14 Mass. 352; Whiting v. Brastow, 4 Pick. (Mass.) 310; Hellawell v. Eastwood, 6 Ex. 295; Trappes v. Harter, 3 Tyrwhitt, 603. Compare Longbottom v. Berry, 5 Q. B. (L.R.) 123: Capen v. Peckham, 35 Conn. 88; Pea v. Pea, 35 Ind. 387; Hunt v. Potter, 47 Mich. 197.

When fixtures have been detached from the freehold, whether by an act of God or of man,they are personal property. Buckout. Swift, 27 Cal. 433. See also McNally. Connelly, 70 Cal. 3; Citizens' Bank v. Knapp, 22 La. Ann. 117; Curry 7. Schmidt, 54 Mo. 515. Compare Goddard v. Bolster, 6 Me. 427.

1. Tillman v. Delacy, 80 Ala. 103; Capen . Peckham, 35 Conn. 88; Hellawell v. Eastwood, 6 Ex. 295; Pea v. Pea, 35 Ind. 387; Eaves z. Estes, 10 Kan. 314; Dudly. Hurst, 67 Md. 44: s. c., 8 Atl. Rep. 901; Weathersby v. Sleeper, 42 Miss. 732: Rogers v. Crow, 40 Mo. 91; McRea v. Cent. Nat. Bk., 66 N. Y. 489; Potter v. Cromwell, 40 N. Y. 287; Crane v. Brigham, 11 N. J. E. 29; Quimby v. Manhattan, etc., Co., 24 N. J. E. 260; Teaff v. Hewitt, 1 Ohio St. 511; Hutchins v. Masterson, 46 Tex. 551; Hill z. Wentworth. 28 Vt. 428; Green v. Phillips, 26 Gratt. (Va.) 752; Taylor v. Collins, 51 Wis. 123.

Bartley, C. J., who is the author of the rules given above in this form, says: "This criterion furnishes a test of general and uniform application-one by which the essential qualities of a fixture can in most cases be certainly and easily ascertained, and tends to harmonize the apparent conflict in the authorities relating to the subject. It may be found inconsistent with the reasoning and distinctions in many of the cases, but it is believed to be at variance with the conclusion in but few of the well-considered adjudications." Teaff v. Hewitt, 1 Ohio St. 511.

It has been held in many cases that the question of removing the chattel without injury to the freehold or to itself was important in deciding whether a certain article was a fixture or not. Thus in the case of Swift v. Thompson, Daggart, J., says: "It is material here to observe that an important part of the description is that they were attached to the building to render them stable, but that they might be removed to any other part of the building or any other place without injury to the freehold. We resort, then, to the criterion established by the rules of the common law: Could this property be removed without injury to the freehold ?" Swift v. Thompson, 9 Conn. 63. See also Farrar v. Chauffetete, 5 Den. (N. Y.) 527; Murdock v. Gifford, 18 N. Y. 28; Hunt 7. Mullanphy,1 Mo. 508; Bewick v. Fletcher, 41 Mich. 625: Vanderpoel v. Van Allen, 10 Barb. (N. Y.) 157; Lamphere 2. Lowe, 3 Neb. 131; McClintock v. Graham, 2 McCord (S Car.), 326; Fullam v. Stearns,

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