Part L. Covenant to repair. "vincunt legem." A tenant, therefore, in consequence of the conditions under which he holds, may be placed in a totally different situation from that in which he has hitherto been regarded (). And the following authorities will show to what extent his privileges may be affected in different cases. In the case of Naylor v. Collinge (c), a defendant covenanted by his lease that he would repair the demised messuage and premises, and all erections and buildings then already erected and built, and also all other erections or buildings that might thereafter be erected and built in or upon the said premises (d). In an action brought upon this covenant, the breach (as far as is material to the present inquiry) respected certain erections and buildings which, during the term, had been raised upon the demised premises by the defendant himself, as tenant and occupier thereof. They were let into and fixed to the soil, and had been built and used for the purpose of trade and manufacture only. These buildings the defendant had removed; and the question was, whether they were comprehended within the terms of the covenant, and whether the tenant's right of removal was restricted thereby. It was contended by the defendant, that since the buildings were removable as trade erections, they could not be considered to fall within the restraining words of the covenant. But the Court held, that the parties were precluded from all general argument respecting the right of removing fixtures by the express words of the covenant. The Court could not go out of the covenant, which, under (b) It was said by Doderidge, J., in Lady St. John v. Piott, 2 Bulst. at p. 103, "There will be a great differ"( ence between an action of "covenant and an action of "waste; and that same thing "done may be a breach of "covenant which shall not be 'waste." (c) 1 Taunt. 19. And see Bidder v. Trinidad Petroleum Co., 17 W. R. 153. (d) See Brown v. Blunden, Skinner, 121. the general terms of erections and buildings, included Chap. II. s. 6. erections and buildings raised for the purposes of trade (e). If the tenant meant to exclude buildings of this nature it ought to have been so expressed (ƒ). lessee may remove fix tures, except in specified events. In the case of R. v. Topping (g), a lease was granted of Covenant that certain premises on which steam-engines, machinery, and other fixtures employed in the mining and smelting trades, were erected. These engines, &c., were standing on the premises at the date of the demise, but did not form part of the demise, having been purchased by the lessee from the outgoing tenant. Some other engines, &c., were put up by the lessee himself during the term. The lessee covenanted to repair "all and every the said buildings, lands, mines, engines," &c., and to deliver up the same in good repair; but the word " engines" was not mentioned in any previous part of the lease. It was also agreed that in case the indenture of lease, or the mines and premises thereby demised or any part thereof, should be extended or taken in execution, the term should cease and the lessors be at liberty to re-enter. The lessor covenanted that the lessees might erect engines, &c., and might remove them during the term or within twelve months after; as well as all such other engines as had theretofore been erected, "except as in the cases and events therein before men"tioned" (viz. inter alia the forfeiture of the term and entry by the lessor). The lease having been forfeited by the premises being taken in execution under a writ of (e) See also Bidder v. Trinidad Petroleum Co., supra, where it was held by Lord Romilly, M. R., that cisterns in a distillery bricked up to the brim were "erections." "Compare Davis v. Jones, 2 B. & Ald. 165. (f) It is proper to notice that in the case of Dean v. Allalley, 3 Esp. 11, Lord Ken- Part L Renunciation of right to remove fixtures during term. extent, it was held that the lessee was precluded from removing any of the engines and fixtures, and that the lessor was entitled to the whole of them; on the ground that this appeared to be the intention of the parties according to the construction of the lease. And Alexander, C. B., observed, that if there had been no provisions respecting the machinery, it might have been taken away by the tenant, according to the general rules; but such rules were liable to be varied by agreement of the parties; and he thought that the terms of the indenture showed it to be intended in this case, that in the event that had happened, the lessor should have the fixtures as well as the land and buildings. A similar stipulation was the subject of decision in Dumergue v. Rumsey (h). There a tenant was in possession of premises under an agreement that, until the execution of a lease, he should be bound by the terms and covenants of the intended lease as fully as if it had been executed. The draft lease annexed to the agreement provided that in case the term should be determined by effluxion of time, but in no other case, it should be lawful for the tenant within twenty-one days next after the expiration of the term, but not during any other period, to remove such fixtures as he might have attached to the premises, and as might lawfully be removed. The draft lease also contained a proviso that if any execution should be levied upon the premises, it should be lawful for the lessor to re-enter, and to seize and retain all fixtures whatsoever, whether tenant's, or trade fixtures, or otherwise. The Court of Exchequer Chamber held that the effect of these provisions was the renunciation by the tenant of his right to remove tenant's fixtures during the term, and that the landlord was entitled to such fixtures as against execution creditors. (h) 33 L. J., Ex. 88.. erections and ments. In another case (i), a lessee covenanted to yield up the Chap. II. s. 6. demised premises at the expiration of the term, together Covenant to with all erections and improvements which during the term deliver up all should be made, erected, or set up. During the term the improvelessee erected a greenhouse on the demised premises; it was built of wood on a frame fixed upon a wooden plate, which was laid upon mortar placed in the indents of walls erected for the purpose for the front and sides, the back being formed by an old wall; no holes were made in any part of the walls, the greenhouse being erected with a view to removal. Before the expiration of the term, the lessee removed the greenhouse, leaving the walls and ground flues, and doing no injury to the premises. It was held, that under the terms of his covenant the lessee was not entitled to take away the greenhouse, and that the removal was a breach of it. For the Court was of opinion that the greenhouse was to be considered an "erection or an improvement," and therefore within the meaning of the covenant entered into between the parties. 66 Analogous to these cases is that of The Earl of Mansfield Covenant to leave premises v. Blackburne (j). In that case the general right of the and works at tenant to take away the property in dispute was admitted; end of term. but the question was considered not to turn on any rule of law relating to fixtures, but to depend only upon the legal construction of the covenant entered into between the parties, which was equally applicable whether the property was a fixture or not. There a renewed lease was granted (i) West v. Blakeway, 2 M. & G. 729. In the above case, two of the judges expressed an opinion that according to the construction of the building in question it became annexed to the freehold. A second point decided by the case was, that a parol licence and permission given by the lessor to the lessee to remove the building was no answer to (j) 6 Bing. N. C. 426. Part I. Covenant to yield up premises, except things in nature of machines or implements. of certain salt works, messuages, wych houses, erections, and other things erected upon the premises. In the lease the tenant covenanted to repair the buildings, works, &c., and to leave the premises and the works, engines, &c., in good repair at the end of the term. It appeared that under the former lease the lessee had put up at his own expense divers erections, engines, &c., for carrying on the manufacture of salt; and had also put up certain salt pans. These pans were composed of plates of iron, which rested by their own weight, without any fastenings, upon low brick walls. They had rings in their sides by which they could be lifted off. They were used in the boiling of the salt, and were necessary for making it, and essential to the existence of the salt works. It was held that by the words of the covenant the lessee was restrained from taking away the salt pans at the end of his term. For without regarding whether the pans were removable as mere chattels, as not being affixed to the freehold, the Court considered that inasmuch as they were a necessary and constituent part of salt works, they must be understood to be included under the general description of works, and to fall within the terms and meaning of the covenant, "to leave all and every the premises de"mised" (k). The case of Foley v. Addenbrooke (1) deserves attention here, as it affords a further illustration of the effect of the covenants in a lease, upon the claim of a tenant in removing fixtures of which a general description only is found in the lease. The facts are very special, and may be collected from the case itself, where they are stated at great length, and the description of the fixtures in question particularly set forth. It was an action for the breach of (k) In Duke of Beaufort v. Bates, 3 D. F. & J. 381, it was held that tram plates placed upon wooden and iron sleepers resting upon but not fast ened to the soil did not fall |