Part I. extent to which it is united with the premises. Secondly, its nature and construction; as whether it has been put up for a temporary purpose, or by way of a permanent and substantial improvement (e). And, thirdly, the effect its removal will have upon the freehold of the reversioner. With reference, indeed, to this latter circumstance, it may be laid down as a rule applicable to all cases, that if the removal of any article will occasion considerable prejudice to the freehold, as by damaging the substance or fabric of the house, &c., a tenant will not be entitled to take it away. Lastly, it should be observed, that if there is any custom or prevailing usage, such as that of valuing to incoming tenants, &c., this may be considered, in the absence of decision, as a safe and useful criterion in practice (ƒ). The privilege of the tenant in removing fixtures on the ground of ornament or convenience, must be regarded as one of a more limited nature than that in respect of trade fixtures (g). It is an indulgence which, according to the remark of Dallas, C. J. (h), is an exception only, and, though to be fairly considered, is not to be extended (i). (e) In Buckland v. Butterfield, supra, it was argued by counsel, that the intention of the party in putting up an erection ought to be attended to, and that this might be collected from the nature of his interest in the premises. And see ante, p. 71. (f) As to the effect of custom in question of fixtures, see ante, p. 66. (g) Whitehead v. Bennett, 27 L.J., Ch. at p. 275; Gibson v. Hammersmith Rail. Co., 32 L. J., Ch. at p. 341; Syme v. Harvey, 24 D. at pp. 213, 214, per Lord Deas. (h) Buckland v. Butterfield, ante, p. 112. (i) The reader will see a summary of the particular articles which may be removed by a tenant on the ground of ornament and furniture, in Appendix (B.). SECTION V. Of the Time when a Tenant may remove Fixtures, as affected by the Nature and Duration of his Interest in the Premises. HAVING in the preceding sections pointed out the description Chap. II. s. 5. of property which a tenant is entitled to remove as fixtures, the next object of inquiry is as to the time of the removal, with reference to the continuance and termination of the tenancy. interest in It has never been implied in any of the decisions, that Nature of the property which an ordinary tenant is permitted to take premises, how away, depends in any degree on the nature of his interest far important. in the premises. On the contrary, it appears that whether the tenant is lessee for years, tenant from year to year, or tenant at will, and whether his term is uncertain or otherwise, his right as to the description of articles he is authorized to remove is in every respect the same. But with regard to the time within which the tenant must exercise his privilege, a distinction may obviously exist. For a tenant who is aware of the period when his interest will expire, may be expected to use a greater degree of vigilance in removing his fixtures, than one who, from the nature of his estate, is uncertain how long he may continue in possession of the demised premises. The object, therefore, of the present section, is to point out the rules which the law has prescribed to tenants with regard to the time of removing their fixtures (a). (a) It must be understood that the rules laid down in this section are applicable only where there is no special agreement which may affect the question as to which see Part I. time certain must remove in term. And, first, of a termor who knows when his interest in Tenant for a the premises will expire. From the earliest recognition of the tenant's right, it was always considered that he was fixtures with bound to use his privilege in removing his fixtures, during the continuance of his term. Thus in the Year Book, 20 Hen. 7, p. 13, the Court, speaking of the furnaces set up by a lessee for years, say: "If he permit them to remain "fixed to the soil after the end of his term, then they "belong to the lessor." And the dictum of Kingsmill, J., in 21 H. 7, p. 27, is to the same effect. In like manner in Poole's case (b), it was said by Lord Holt, that during the term the soap-boiler might well remove the vats; but, after the term, they became a gift in law to him in reversion, and are not removable. The rule is laid down in the same terms in the more modern decisions. Thus, in the case of Lyde v. Russell (c), it was expressly recognized and approved by Lord Tenterden, C. J. His Lordship adds, "According to these "authorities, then, the property in fixtures which would be "in the tenant if he removed them during the term, vests "in the landlord on the determination of the term” (d). Many other cases might be cited in confirmation of this doctrine (e), but it will be sufficient to refer to the following "step further than any prior "decision, for it shows that on the tenant's quitting the "land the property of fixtures "vests so completely in the "landlord, that even though (b) 1 Salk. at p. 368. And see Ex parte Quincy, 1 Atk. 477; Lord Dudley v. Lord Warde, Amb. 113; Br. Ab. tit. Chattels, pl. 7; Com. Dig. tit. Wast (D. 2); Went. Off. Executors (14th ed.), pp. 150, 151. (c) 1 B. & Ad. 394. (d) In the notes to Elwes v. Maw, 2 Sm. L. C. (8th ed.), p. 205, it is said, "This case, with which, although the "judgment is not long, Lord "Tenterden is said to have "taken great pains, goes a they are subsequently se"vered and made chattels, the "tenant's right to them does "not revive." The American case of Stokoe v. Upton, 29 Am. Rep. 560, is a decision to the like effect. (e) E. g., Lee v. Risdon, 7 Taunt. at p. 191; Colegrave v. Dias Santos, 2 B. & C. at passage from the judgment of Lord Hatherley in Meux v. Chap. II. s. 5. Jacobs (f):-"The law has held that trade fixtures may be, "at any time during the limited interest which the owner "of the lease may have, removed by him, yet, if he do "not remove them during the lease (as in the old case that was cited, before Holt [Poole's case, 1 Salk. 368]), he is "held to have allowed them to pass to the owner of the "reversion, because, and only because, they are attached to "his reversion; and if they are not removed, as the law "would have enabled the person to remove them during "the lease, they must be considered to have returned at "once and finally to the owner of the reversion." rule. The authorities, therefore, all agree as to the period of Ground of time within which a tenant must remove his fixtures. And it is sufficiently obvious that the principle on which this rule is founded applies alike to all descriptions of fixtures, whether for trade or otherwise. Accordingly, in general, if a tenant remove fixtures after the expiration of his term, he will commit a trespass (g). There has been some confusion, however, amongst the authorities as to the grounds upon which this rule is based. In some cases, as in that before Lord Holt (), it has been explained upon the ground of a presumption of gift by the tenant to the reversioner, the omission to sever the fixtures within the time limited by the law being considered tantamount to an express gift. But we have seen (i) that the tenant by the very act of annexing a chattel to the freehold, makes it a part of the reversioner's property and retains only a p. 79; Elwes v. Maw, 3 East, at p. 52; Hallen v. Runder, 1 Cr., M. & R. at p. 275; Gibson v. Hammersmith Rail. Co., 32 L. J., Ch. at p. 341; Pugh v. Arton, L. R., 8 Eq. at p. 629; Climie v. Wood, L. R., 4 Ex. at p. 329; Bain v. Brand, 1 App. Cas. at p. 772. F. (f) L. R., 7 H. L. at p. 490. (g) See Ex parte Quincy, (h) Poole's case, supra. And K qualified right in it-viz., that of reducing it again to a chattel state within a certain time. In other words, the tenant retains only a power coupled with an interest. It follows, therefore, that if the tenant does not exercise this right, the article annexed necessarily passes to the reversioner as forming a part of his reversion (j). If the landlord's rights depended upon a presumption of gift, the same presumption ought to apply to chattels left by the tenant upon the demised premises, but this is not so (k). It is clear from the above decisions, that fixtures unsevered by the tenant during his term pass to the landlord when he takes possession of the demised premises on its expiration. A question arises, however, as to the right of a tenant who retains possession of the premises after his term has expired. Has he in such a case the right to sever fixtures as long as he keeps actual possession of the demised premises? This point has been the subject of discussion in several cases. The earliest of these is the case of Penton v. Robart (1), which was an action of trespass for breaking and entering a certain yard and buildings; and breaking down the buildings, and the materials of a fence; and taking away certain timbers, bricks and lead. As to the breaking the yard, the defendant suffered judgment by default, and pleaded the general issue to the rest of the trespass. At the trial before Lord Kenyon, C. J., it appeared (m) that the defendant was in possession as an undertenant, and had erected upon the premises a building (j) Heap v. Barton, 12 C. B. at p. 278, per Jervis, C. J.; Gibson v. Hammersmith Rail. Co., 32 L. J., Ch. at pp. 342, 343; Meux v. Jacobs, per Lord Hatherley, supra; Bain v. Brand, 1 App. Cas. at p. 767, per Lord Cairns, C. (k) Gibson v. Hammersmith Rail. Co., supra; and see post, p. 142. (1) 2 East, 88. (m) See 4 Esp. 33. See also the remarks on this case, ante, P. 60. |