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V. Domestic Fixtures. -Domestic fixtures are annexations made by a tenant to the dwelling house which he occupies, to render his occupation more comfortable or more convenient. They are divided into two classes, viz., useful and ornamental. They are removable by the tenant if their removal does not materially injure the dwelling. At the present time the same favors are shown domestic fixtures by the law as those erected for trade purposes, although formerly the latter received the greater favor.

VI. Ecclesiastical Fixtures. — Ecclesiastical fixtures are annexations made by the incumbent of an ecclesiastical benefice, and the question whether or not any particular annexation is removable generally arises between the executors of the incumbent and his successor. In respect to such annexations, the general rule is that the same principles apply between the executor of an incumbent and his successor as apply between the executor of a tenant for life and remainderman.3' The question generally arises with refWentz 2. Fincher, 12 Ired. (N. Car.) 297; opinion of the court, says: “In regard to Burlerson v. Teeple, 2 Greene (Iowa), an ecclesiastical benefice, the character 542; Seymour v. Watson, 5 Blackf., (Ind.) and object of the building to which the 555; Blair v. Worley, í Scam. (111.) chattel is attached, and for which it has 178.

been so attached, seem of very great imHowever, it has been held that rails as portance in determining whether there was well as a string of fence may be personal any intention to separate it permanently property. Fahnestock v. Gilham. 77 III. and irrevocably from the personal es637. See also Pennybecker v. McDougal,

Here there is an erection, in itself 48 Cal. 160.

purely matter of luxury and ornament, A lessee of a farm used the old rails, which the testator might have pulled which were the refuse of a farm, and down, but which he probably wished 10 which had been removed for fuel, under enjoy so long as he lived in the benefice, an agreement that he could take away and therefore did not remove. To this, firewood “from fallen trees dead and for the purpose of completing that wood." Held, that trespass would not lie, luxurious and ornamental creation, a and that they were not a partof the chattel is so attached as to be detached realty. Fullington v. Goodwin, 7 Vt. without injury to the freehold. We 611.

think the inference is that it never ceased 1. Poole's Case, i Salk. 368. See to be a chattel during the testator's life; also Herlakin's Case, 4 Coke, 64; Cave v. that it continued to be so the Cave, 2 Vern. 508; Harvey v. Harvey, 2 moment of his death, and therefore Strange, 1141; Lee v. Risden, 7 Taunton, passed as part of the personal estate to 191; Lawton 2. Lawton, 3 Atk. 13: Snede. the executors. See also Huniley v. ker v. Warring, 12 N. Y. 170; McCracken Russell, 13 A. & E. 570. v. Hall, 7 Ind. 30; 2 Taylor's Land. and If an incumbent enter upon a benefice Ten., § 1547; Tiedman's Real Prop. in which there are hangings, grates, iron $ 6; Gibbons' Law of Fixtures, 32. backs to chimneys, not put there by the

2. Tyler's Law of Fixtures, 505: Mar- last incumbent, but have gone from suctin v. Roe, 7 E. & B. 236. In this. case cessor to successor, he is entitled to them; the incumbent of a benfice erected on but if the last incumbent placed them the parsonage grounds two hot-houses there for his own use, they go to the exwith brick walls, and glass-work sliding ecutor. 4 Burn's Eccl. Law (9th Ed.). 413 up and down on pulleys, and working in 3. " It may therefore, it is conceived, wooden frames which were bedded into be laid down that an incumbent will in mortar. On the death of the rector his general be entitled to fixtures of the same successor and executor both claimed the description as those which form part of glass-work, but it was held that as the the personal estate of the deceased tenrector himself would have had the right ant for life. Amos & Ferard's Law of to remove the building while he was alive, Fixtures (2d Ed.), 146. See also Gibson's the same right should be granted to his Cod. Jur. Eccl. 752; 2 Smith's Lead. Cas. Lord Campbell, in giving the 197.






Miss. 349.

erence to matters of ornament or convenience annexed to the buildings on the land held by a resident incumbent.1

VII. Trade Fixtures. --Fixtures erected by a tenant on leased premises for the purpose of carrying on a trade or a manufactory, and removable by him during the term. They include buildings,

1. Tyler's Law of Fixtures, 507. The place of the old furnaces, which had not ornaments in a bishop's chapel pass to been sold to them. Hay v. Tillyer (N. the successor, and not to the executors. J.), 14 Atl. Rep. 18. Corven's Case, 12 Coke, 106.

It has been held that trade fixtures 2. Harkness v. Sears, 26 Ala. 193; Per- erected by a lessee after a verbal agreekios v. Swank, 43 Miss. 349; Weathersby ment with the landlord for the purchase V. Sleeper, 42 Miss. 732; Holbrook v. of the premises became a part of the Chamberlin, 116 Mass. 155; Watriss v. realty, and

subject the First Nat. Bank, 124 Mass. 571; Hill v. vendor's lien. Perkins v. Swank, 43 Sewald, 53 Pa. St. 271; Van Ness .

But compare Holbrook v. Pacard, 2 Pet. 137.

Chamberlin, 116 Mass. 155; Smith v. Sir John Cross, in Ex parte Broadwood, Moore, 26 Ill. 392; Moore v. Smith, 24 1 Moni. D. & De G. 631, says: “ In Ex Ill. 513. parte Lloyd in re Ogden, 3 Dea. & Ch. 3. Robinson v. Wright, 2 McArthur 765, this court held that an equitable (U. S.), 54; Beers v. St. John, 16 Conn. mortgagec of a cotton-mill carried all the 322:Walton v. Wray,54 Iowa, 531; McIver fixtures, although they were erected for v. Estabrook, 134 Mass. 550; Kissam v. the purpose of trade, and the mortgagor Barclay, 17 Abbt. Pr. (N. Y.) 360; Beckcontinued in possession of them at the with v. Boyce, 9 Mo. 560; Railroad Co. time of his bankruptcy. It has always v. Deal,90 N. Car. Inr; Krouse v. Ross, seemed to me that the circumstances of 1. Cranch (C. C.), 368: Van Ness v. Pack. fixtures being what are called trade fix- ard, 2 Pet. (U. S.) 137; Penton v. Robtures is of importance only in questions ert, 2 East, 88; Wansbrough v. Watson, depending between landlord and tenant, 4 A. & E. 884; Rex v. Otley, 1 B. & Ad. and does not affect the consideration of 161. those arising between mortgagor and Where land is leased for trade purmortgagee. Much confusion has in my poses and the lessees erect buildings and opinion been created in the conflicting fixtures thereon, under the terms of the cases on this subject by not attending to lease, which provides that on the abandonthis distinction. And in Oves v. Ogles- ment of said business the buildings and by it is said: “ Privilege for the benefit fixtures shall revert back to the lessees, it of trade holds only betwixt landlord and was held that they remained personal tenant, not betwixt third persons and the property, and were not subject to a lien owner the soil.” Oves v. Oglesby, 7 of attachment on the real estate. Melhop Watts. (Pa.), 106.

v. Meinhart, 70 Iowa, 685. Trade fixtures erected by a tenant are Buildings placed upon the land by personal property during the continuance agreement or consent of the freeholder of the term. Kile v. Giebner (Pa. 1886), remain personal properly.

Walton v. 7 Atl. Rep. 157; Walion v. Wray, 54 Wray, 54 Iowa, 531; Hines v. Ament, 43 Iowa, 531; Lemar v. Miles, 4 Watts Mo. 298: Priestly v. Johnson, 67 Mo. (Pa.), 330; Globe Marble Works 632; Wells V. Baunister, 4 Mass. 513; Quinn, 76 N. Y. 23; Lamphere v. Lowe, Tapley v. Smith, 18 Me. 12; Russell v. 3 Neb. 131. Compare Pemberton v. King, Richards, 10 Me. 429, Ashman v. Will. 2 Dev. (N. Car.) L. 376. And it has been iams. 8 Pick. (Mass.) 402; Fuller v. Tabor, held that during the term, if the interest 39 Me. 519; Weathersby V. Sleeper, 42 of the lessees in the land were sold for Miss. 732; Dame v, Dame, 38 N. H. his debts, trade fixtures pass with the 429. Compare Prince v.Case, 10 Conn. 375. interest in the land as really to the pur- It does not matter whether the assent chaser at the judicial sale. Dobschuetz is given before or after the erection, V. Holliday, 82 III. 371; McNalley v. Fuller v. Tabor, 39 Me. 519. Connolly, 70 Cal. 3.

If the building is erected against the will Where the lessees of premises used for of the landowner or without his consent, manufacturing purposes erected furnaces it becomes realty. Bonney v. Foss, 62 to take the place of those that they had Me. 248; Cannon v. Copeland, 43 Ala. worn out in their business, they would 252; Dart v. Hercules, 57 Ill. 446; Washhave no right to remove such furnaces as burn v. Sproat, 16 Mass. 449; Honzick v. trade fixtures, since they only took the Delaglise, 65 Wis. 494.

machinery, store fixtures,” steam engines and boilers,gas fixtures, 4 bowling-alleys and appurtenances, etc.

VIII. Effect of Agreements. It is stated by many courts as a general proposition, that the parties between whom the question of fixtures arises may by their agreements determine the character of annexations to real estate; that they may consider as personalty what the law regards as realty, and what the law regards as personalty they may consider as realty, and whatever their agreements the courts will enforce. However, this proposition is subject to several modifications."

A building erected by persons claiming and bolted down solidly to the ground an estate in the land, but who are judi- and walled in with brick arches, and cially evicted, can be replevied by them, dwellings erected by the tenant for miners although others after the eviction had to live in, standing on posts or dry stone placed the building on a stone foundation. walls, when such machinery and buildings Mills v. Redick, i Neb. 437. Compare were intended to be merely accessory to Honzik v. Delaglise, 65 Wis. 494; the mining operations under the lease, Huebschmann v. McHenry, 29 Wis. 655; and when there was no intention in affixDart v. Hercules, 57 III. 446.

ing them to the realty, and when they can But where a railroad company obtained be removed without material disturbance the right of way over certain premises to the land, are trade fixtures. Conrad from the person in possession, supposing v. Saginaw Mining Co., 54 Mich. 249; s. him to be the true owner, and entered up- C., 52 Am. Rep. 817. See also Cooper v. on the land and placed a railroad upon Johnson, 143 Mass. 108. it, it was held that in proceedings against A steam-engine placed upon land the true owner to condemn the land for owned by one member of a partnership, railroad purposes he could not claim the by the firm, for the purpose of giving improvements as part of the realty in as- motive-power to machinery, partakes of sessing damages, Oregon R. & N. Co. v. the nature of the machinery, and is a reMosier, 14 Ore. 519.

movable fixture. Robertson v. Corselt, Buildings erected for the purposes of 39 Mich. 777. trade or manufacture are removable with- 4. McCall 7'. Walter, 71 Ga. 287; Towne out reference to their size or the materials v. Fiske, 127 Mass. 125; Guthrie v. Jones, of which they are constructed. Railroad 108 Mass. 191; Lawrence v. Kemp, i Co. v. Deal, 90 N. Car. 111; Van Ness v. Duer (N, Y.), 363; Hays v. Doane, 11 N. Pacard, 2 Pet. (U. S.) 137; Lawton v. J. E. 84. Lawton, 3 Atk. 13.

5. Hanrahan v. O'Reilly, 102 Mass. A deed of land with the buildings

201. In O'Brien v. Kusterer, 27 Mich. thereon," and other property, mentioning 289. it was held that a bar, bar fixtures, specific fixtures, and allowing grantor cupboard, bowling-alley ways and racks, thirty days to remove property not sold, attached by a tenant to a building occudoes not pass trade fixtures. Kirch v. pied by him as a saloon, were permanent Davies, 55 Wis. 287; Compare Elliott v. fixtures, and not removable as trade fixBishop, 1o Ex. 496.

tures. 1. McNalley v. Connolly, 70 Cal. 3; 6. Fratt v. Whittier, 53 Cal. 126 ; Wheeler v. Bedell, 40 Mich. 693; Stokoe Merritt v. Judd, 14 Cal. 60; Frederick v. Upton, 40 Mich. 581; Moore v. Smith, v. Deval, 15 Ind. 357 ; Warner v. Ken24 Ill. 513; Cook v. Transportation Co., ning, 25 Minn. 173 ; Robertson i Den. (N. Y.) 91.

Corsett, 39 Mich, 777; Foster v. Prentiss, 2. Josslyn v. McCabe, 46 Wis. 591; 75 Me. 279; Hunt v. Bay State Iron Guthrie v. Jones, 108 Mass. 191.

Company, 97 Mass. 279; Curtis v. Rid3. McNalley v. Connolly, 70 Cal. 3; dle, 7 Allen (Mass.), 185; Brearley v. Merritt v. Judd, 14 Cal. 60; Kelsey v. Cox, 24 N. J. L. 287 ; Sampson v. Durkee, 33 Barb. (N. Y.) 410; Hayes v. Graham, 96 Pa. St. 405 ; Sullivan v. N. Y. Mining Co., 2 Colo. 273; Dob- Jones, 14 S. Car. 362; Smith v.Waggoner, schuetz v. Holliday, 82 Ill. 371; Lawton 50 Wis. 155; Mansfield v. Blackburn, 6 v. Lawton, 1 Atk. 13. Compare Treadway Bing. (N. C.) 426 ; Penny v. Brown, 2 v. Sharon, 7 Nev. 37.

Starkie, 403 ; Naylor v. Collings, i Taun. Steam engines and boilers erected by ton, 19. a tenant on brick and stone foundations, 7. An agreement between the owner

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IX. Time of Removal.-- In the absence of a special contract removable fixtures must be removed during the time for which the premises are demised, or while the relation of landlord and tenant still exists under the original lease. Nor does it matter whether the lease expire by effluxion of time or by re-entry on forfeiture.? Where the tenancy is uncertain in duration, as when it depends upon a contingency, or when the lessee is a tenant for life or at will, the law allows a reasonable time for the removal of fixtures. However, the landlord and tenant may stipulate as to

of land and the owner of the fixture that they should by any arrangement between the latter shall remain personal property the owners become chattels.” Ford v. cannot affect the righis of a bona fide Cobb, 20 N. Y. 344 See also Fortman purchaser of the land. Roswand v. v. Goepper, 14 Ohio St. 558. Anderson, 33 Kan. 267; Bartholomew v. 1. Pugh v. Arton, 8 Eq. Cas. (L. R.) Hamilton, 105 Mass. 239 : Fryatt v. The 626; Lyde v. Russell, 1 B. & Ad. 394; Sullivan Co., 5 Hill (N. Y.), 116; La- Penton v. Robart, 2 East, 88; Weeton v. custrine Fer. Co. v. L. G. & Fer. Co., Woodcock, 7 M. & W. 14; Minshall v. 82 N. Y. 476 ; Smith v. Waggoner, 50 Lloyd, 2 M. & W., 460; Lee v. Risden, Wis. 1 55 See also, ante, VENDOR AND 7 Taunt. 188; Heap v. Barton, 12 C. B. VENDEE, note 4.

274; Hayes v. N. Y. Min. Co., 2 Colo. The agreement must be governed by 273; Griffin v. Ransdell, 71 Ind. 440; the Statute of Frauds. Myers v. Schemp, Dostal v. McCaddon, 35 Iowa, 318; Davis 67 Ill. 469 ; Trull v. Fuller, 28 Me. 575. v. Buffum. 51 Me. 160; Dingley v. BufBut it has been held that the agreement fum, 57 Me. 381; Mason v. Fenn, 13 III. may be proven by parol. Frederick v. 525; Kuhlmann v. Meier, 7 Mo. Ap. 260; Devol, 15 Ind. 357 ; Walker 2. Schindel, Powell v. McAshaw, 28 Mo. 70; Stale v. 58 Md. 360 See also Mitchel v. Freedley, Elliot, 11 N. H. 540; Torrey v. Burnett, io Barr (Pa.), 198.

38 N. J. L. 457; Haflick v. Stober, II Where purchase-money mortgagees Ohio St. 482; White v. Arndt, 1 Whart. verbally agreed with the grantee of the (Pa.) 91; Preston v. Briggs, 16 Vt. 124; mortgagor that on payment to them of a Thomas v. Crout, 5 Bush (Ken.), 37; sum sufficient to entitle the grantor to a Josslyn v. McCabe, 46 Wis. 591. conveyance he might remove the plant It has been held that when a lease of a marine railway on the premises, it gives the tenant the right to remove his was held that the agreement was bind fixtures at the end of the term the law ing. Tyson v. Post (N. Y.), 15. N. E. allows him a reasonable time to complete Rep. 316.

the removal after surrendering possesThe fixtures must be of such a nature sion. Smith v. Park, 31 Minn. 70; Kuhlas to be capable of becoming personal mann v. Meier, 7 Mo. Ap. 290. property in order to subject them to an Where a tenant erected buildings or. agreement of this kind. Denio J., says : leased premises, under the terms of the “ It is conceded that there must neces- lease allowing him to remove all buildings sarily be a limitation to this doctrine, erected by him during the term, it was which will exclude from its influence held that he could not remove those cases where the subject or mode of an- buildings which he had connected with nexation is such that the attributes of the buildings on the land prior to his personal property cannot be predicated entry, in such a way that the latter would of the thing in controversy. Thus a be injured by the removal. Powell v. house or other building, which from its McAshan, 28 Mo. 70. size or the materials of which it was con- 2. Pugh v. Arton, 8 Eq. Cas. (L. R.) structed, or the manner in which it was 626; Weeton v. Woodcock, 7 M. & W. fixed to the ground, could not be re- 14; Whipley v. Dewey, 8 Cal. 36. But moved without practically destroying it, it has been held that the forfeiture must would not, I conceive, become a mere be judicially determined. Keogh v. chattel by means of any agreement which Daniell, 12 Wis. 181. could be made concerning it. So, of the 3. Watriss v. Nat. Bank, 124 Mass. separate materials of a building and 571; Antoni v. Belknap, 102 Mass. 193: things fixed into the wall so as to be es- Loughran 7'. Ross, 45 N. Y. 792; Haflick sential to its support, it is impossible that 7. Stober, 11 Ohio St. 482; Sullivan v.

the removal of fixtures after the expiration of the term.1 If a tenant go upon the premises to remove fixtures after surrendering the premises to the landlord he will be a trespasser.? And where the tenant takes a new lease of the pregmises to date from the expiration of his old one, without stipulating for the removal of fixtures erected by him during the tenancy just expiring, he cannot remove them at the end of the renewed lease.3 Where the tenant leaves his fixtures on the premises after the expiration of his term, he is presumed to have abandoned them to the landlord.

Carberry, 67 Me. 531; Cooper v. John- tures does not lose his right to them. son, 143 Mass. 108; Martin v. Roe, 7 E. Second Nat. Bank v. Merrill Co. (Wis.), & B. 236.

34 N. W. Rep. 514. In this case the Where the tenant has been restrained

court says:

· In the case of grantor and by an injunction from removing his fix- grantee the usual status of the parties is tures, he will have a reasonable time that, before the grant is made, the whole after its dissolution to remove them. right is in the grantor, and the grantee is Mason v. Fenn, 13 III. 525; Bircher v. purchasing all his rights; in the case of a Parker, 40 Mo. 118.

tenant having made and owning fixtures 1. Saint J. Pilley, 10 Ex. (L. R.) 137; and machinery of equal or greater value McCracken v. Hall, 7 Ind. 30; Torrey than the realty on which it stands, and 7'. Burnett, 38 N. J. L. 457; Cromie v. being in actual possession, and with the Hoover, 40 Ind. 49-61; Josslyn v. Mc- right to remove the same, treating with Cabe, 46 Wis, 591.

his landlord or the grantee of such landIf the lessor agree to purchase the lord for a new lease, he is not supposed buildings erected by a tenant, there is an to treat for a lease of what he already implied promise that the lessee shall have owns, but for a lease of what the landlord possession of the premises until the fix- owns; and if he accepts a lease which tures are paid for. Van Rensselaer's does not in clear terms cover the properHeirs v. Penniman, 6 Wend. (N. Y.) 569. ty which he himself owns, it ought not,

2. Cromie v. Hoover, 40 Ind. 49; as against him and for the purpose of Railroad Co. v. Deal, 90 N. Car. III; working a release of his right to the landThomas v. Crout, 5 Bush (Ky.), 37. lord, be construed to cover such proper

3. Watriss v. First Nat. Bank, etc., ty.”. And Judge Cooley, in commenting 124 Mass. 571; Loughran v. Ross, 45 on the law in reference to this branch of N. Y. 792; Merritt v. Judd, 14 Cal. 60; the subject, says: “ But why the right Jungerman v. Bovee, 19 Cal. 355; Marks should be lost when the tenant instead of v.Ryan, 63 Cal. 107; Hedderich v. Smith, surrendering possession takes a renewal 103 Ind. 203; McIver v. Estabrook, 134 of the lease, is not very apparent. There Mass. 550.

is certainly no reason of public policy to Where a tenant from year to year sustain such a doctrine; on the contrary, erected and placed certain buildings and the reasons which saved to the tenant his fixtures upon the premises, and without right to the fixtures in the first place are surrendering possession of the premises equally influential to save him on a retook a written lease “ of the premises, newal of what was unquestionably his with all the rights and appurtenances before. What could possibly be more thereunto appertaining,” but without re- absurd than a rule of law which should in serving any right in the lease to remove effect say to the tenant who is about to trade fixtures, it was held that the ac- obtain a renewal: If you will be at the cepting such a lease was equivalent to expense and trouble, and incur the loss absolute surrender of possession without of removing your erections during the removal of his trade fixtures, and an term, and of afterwards bringing them abandonment of them to his landlord. back again, they shall be yours; otherwise Carlin v. Ritter (Md.), 13 At. Rep. 370. you will be deemed to abandon them to However, it was held that wooden build- your landlord'?” Kerr v. Kingsbury, 39 ings resting upon flat stones lying upon Mich. 150. ihe surface of the ground were not fix- 4. McCracken v. Hall, 7 Ind. 30; Contures.

nor 7. Coffin, 22 N. H. 538; Keogh v. It has been held that the tenant who Daniell. 12 Wis. 181; Dubois v. Kelley, 10 accepts a new lease of the premises con- Barb. (N. Y.) 496. But this presumption iaining no agreement as to his trade fix

can never arise as long as the tenant is

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