Part I.

Stones, &c., falling into soil.

Materials of uncompleted erection.

Mill-fender in alieno solo.

In Dearden v. Evans (ƒ), it appeared that certain large masses of stone had from time to time fallen from the cliffs above upon the field of a copyholder, and had thereby become imbedded in the soil. There was no evidence to show when any particular portion of them had fallen within living memory. It was held that these stones must be considered a part of the soil below belonging to the lord, and therefore his property, although the cliffs above did not belong to him; and that the copyholder was not entitled to take them for his own profit.

In Smith v. Render (g), the point was raised whether any portion of the building materials, inserted in the course of erecting a shed, were to be considered as annexed to the land till the shed itself was completed. The Court gave no judgment on this point; but there seems no reason to doubt that if the erection itself, when completed, would be a fixture, each portion of it as it is fixed in position at once becomes a part of the soil.

In the case of a chattel placed on the soil of another, but severable from it, it has been held that this does not necessarily become part of the freehold, even though it may be accessorial to a principal thing that is itself connected with the soil; but that it is always matter of evidence whether it belongs to the freehold or not. Thus, the owner of a mill had placed a fender for the use of his mill upon a stream of water, where neither the banks of

ther, or fruit that drops from
a tree growing in a hedge
into the field of another, and
that in such cases the property
is not lost, see Vin. Ab. tit.
Trespass (H. a. 2) and (L. a.);
Com. Dig. tit. Pleader (3 M.
39); Bac. Ab. tit. Trespass
(F.), p. 674, and (G.), p. 689;
Anthony v. Haney, 8 Bing.

186, 192.

(f) 5 M. & W. 11. See, also, Blewitt v. Tregonning, 3 Ad. & E. 554, that sand drifted and blown from the sea-shore upon a man's close, becomes part of it, and belongs to the owner of the close.

(g) 27 L. J., Ex. 83.

the stream nor the adjoining land belonged to him. The
fender moved up and down in a groove fixed to the brick-
work, and, when down, rested upon a sill also fixed to the
brickwork. It was held that this fender did not neces-
sarily become part of the freehold; but that it was matter
of evidence whether by agreement it did not remain the
property of the original owner, though placed on the soil
of another (h). It was said by Lord Denman, C. J., in
giving judgment (i) :—“ In a case of this kind, it is always
open to inquiry, how the article came to be in the place
"in which it is found, and what the parties intended as to
"its use;
. . the manner of its becoming connected
"with the soil may be merely accidental. If a heavy stone
"bason is placed on a man's land, it is not a fixture. If it
"sinks into the soil and in that manner becomes fixed, is
"it therefore a fixture? The rights in such a case must

Chap. I.

Again, in Lancaster v. Eve (k), the action was for injury Pile in bed of to a pile driven about eight feet into the bed of a navigable river. river, the soil of which was vested in the Crown. The pile was used by the plaintiffs, the occupiers of a wharf, for the purpose of mooring their barges. There was evidence that the pile was placed in the soil of the river for the convenience of the plaintiffs' trade as wharfingers, and not with an intention that it should become permanently attached to the freehold. It was held, that from its long user by them without any interference on the part of the Crown, it might reasonably be inferred that the pile was originally placed there as an easement, and that the plaintiffs were entitled to keep it there, and use and enjoy it as their own property. It will be noticed that in this case

(h) Wood v. Hewett, 8 Q. B. 913, explaining Mant v. Collins, Q. B., Trin. Term, 1842, not reported.

(i) S. C. p. 919. ante, p. 4, note (1).

And see

(k) 28 L. J., C. P. 235. See Parsons v. Hind, 14 W. R. at p. 861, per Blackburn, J.

Part I.

Signboard on neighbouring house.

Custom to erect and remove build

the pile was firmly fixed, and therefore the decision goes further than that in Wood v. Hewett. But it does not appear that either case is an authority for holding that the prima facie inference arising from annexation that an article has become part of the freehold, can be rebutted when it is so annexed as not to be severable without injury to the soil (1).

In a recent case (m), it has been held, in accordance with the two last-mentioned cases, that an occupier of a publichouse might by user acquire a right to have a signboard fixed to the wall of a neighbouring house. The Court came to the conclusion that the signboard was placed by the plaintiff's predecessors in title on the defendant's house, not with the view of allowing it to become part of the property of the defendant's predecessors in title, but by virtue of some easement granted by them to the predecessors in title of the plaintiff.

Upon a similar principle, a particular custom may give to a person a right to place erections upon the land of ings in alieno another, and afterwards to remove them at pleasure, not

solo.

withstanding that whilst annexed to the soil they formed part of it. Thus, by the customs of the High Peak of Derbyshire (revised and amended by 14 & 15 Vict. c. xciv), any person may, upon certain conditions, erect machinery and buildings, for mining purposes, upon the freehold of another. And the right to do so being independent of, and not derived from, the surface owner, the miner may

(1) Lancaster v. Eve, 28 L. J., C. P. at p. 236, per Cockburn, C. J. As to whether an article in alieno solo which has become a part of the freehold may still remain the property of the person annexing it, see per Patteson, J., in Wood v. Hewett, as reported 15 L. J., Q. B. at p. 243, and

ante, p. 32.

(m) Moody v. Steggles, 12 Ch. D. 261. See, too, Hoare v. Metrop. Board of Works, L. R., 9 Q. B. 296; Francis v. Hayward, 20 Ch. D. 773; affirmed 22 Ch. D. 177. And see Lane v. Dixon, 3 C. B. 776; Gilb. Evid., 209 et seq.; Swinb. on Wills, pt. 7, § 20.

subsequently during his interest, or even, it seems, within a reasonable time after its cessation, pull down and remove such erections (n).

Adverting now to the more immediate subject of this chapter, in which has been described the general nature of the species of property to which it is proposed to apply the denomination of fixtures, it is intended in the ensuing chapters to consider by what persons, and under what circumstances, the right of removal, as above explained, may be exercised and enforced (o).

Chap. I.

Part I.

CHAPTER II.

OF FIXTURES, AND THE RIGHT TO REMOVE THEM, AS
BETWEEN LANDLORD AND TENANT.

Of the Right of a Tenant to remove Trade Fixtures.

It was observed in the preceding chapter that there existed in certain cases, and in favour of particular individuals, a right of severing and removing personal chattels which have been affixed to the freehold (a). And this right, it was said, prevailed over the claims of other persons, who, by reason of their interest in the land, would have had a property in the articles, and might have prohibited their removal, if they were to be considered in all respects like other parts of the freehold. In nearly all the cases relating to the doctrine of fixtures, the conflicting rights of individuals to some particular object have been the subject of dispute, where the one party has claimed the property as being permanently affixed to the freehold of which he is the proprietor, and the other has rested his title to it, on

(a) Ante, pp. 31 et seq.