value. It will be found in like manner, on referring to the Chap. II. s. 1. cases, that the other topics above mentioned, in respect of Intention and the intention of the parties, and the comparative value to comparative the respective claimants, have been incidentally noticed by the Courts, either separately, or in combination with those that have been here particularly pointed out (s). It is true, indeed, that some of these grounds of argument have been relied upon more especially in claims between other class of persons; and it is therefore difficult to say what degree of importance would be attached to them, in questions between landlord and tenant. But as they have so frequently been adverted to, and considered worthy of attention and inquiry in the judicial opinions, it would not in any case be safe to overlook them, in determining upon the right of a tenant in taking away trade erections. From a review of the authorities that have been examined in the course of this section it will appear, that if any rule were to be laid down to serve as a guide in practice as between landlord and tenant, with respect to the right of removing annexations made for the purposes of trade, it would be necessary to express it in terms so guarded as not to clash with any of the grounds of decision which have been adverted to in the preceding remarks. The following rule, however, may perhaps be found to be most consistent with the adjudged cases. Things which a tenant has fixed to the freehold, for the purposes of trade or manufacture, may be taken away by him, wherever the 14 W. R. 860, 862, per Mellor, J.; Governors of Harrow School v. Alderton, 2 Bos. & Pul. 86. See, also, Redfern v. Smith, 1 Bing. 382; and post, p. 354. (s) See the cases of Lawton v. Lawton, and Lawton v. Salmon, supra; Buckland v. Butterfield, 2 Brod. & Bing. General observations as to right of removing trade fixtures. Part I. removal is not contrary to any prevailing practice; where the articles can be removed without causing material injury to the estate; and where, in themselves, they were of a perfect chattel nature before they were put up, or at least have in substance that character independently of their union with the soil; or, in other words, where they may be removed without being entirely demolished, or losing their essential character or value. If an erection, put up in relation to trade, can be severed without violating any one of these conditions, it may very safely be affirmed, that whatever be its magnitude, construction or mode of annexation, it is a fixture which a tenant is privileged to remove. It is not, however, meant to be inferred, that because in any particular instance these circumstances do not all concur, that therefore an article cannot be removed by the tenant. On the contrary, it is not inconsistent with some of the decisions to say that things may be removable, although these requisites are not completely fulfilled. The rule, therefore, here proposed is only offered as an affirmative one; that wherever the above-mentioned circumstances do concur, that there an article may confidently be pronounced to belong to the tenant. although it may be thought that this rule is too narrow to be of much practical utility, still no other could safely be laid down; because, upon looking into the judgments of the Courts, it is impossible not to see, that in a disputed claim between landlord and tenant, the absence of any one of the requisites which have been mentioned might with propriety be urged against the exercise of the tenant's right (t). (t) For a summary view of the particular articles which have been held to belong to a tenant upon the authority of the cases detailed at length in this section, the reader And may refer to Appendix (B), where they are collected and arranged with reference to the manner in which questions upon this subject usually occur in practice. SECTION II. Of the Right of a Tenant to remove Things set up for trade did not It was decided in the year 1802, in a case of great im- Chap. II. s. 2. portance, upon which much deliberation was bestowed, Privilege in that the privilege established in favour of tenants in trade respect of did not extend to agricultural tenants, so as to entitle them extend to to remove things which they had erected for the purposes erections. agricultural of husbandry; although they left the premises in the exact state in which they found them on their entry. The importance of this decision requires that it should still be considered at some length, although its bearing upon position of agricultural tenants has been greatly diminished by the effect of subsequent legislation, and in particular by the provisions of the Agricultural Holdings (England) Act, 1883 (a). the The case is that of Elwes v. Maw (b) in the King's Elwes v. Maw. Bench. It was an action by an owner in fee against his tenant, for injury caused to the reversion by the removal of certain buildings and erections placed by the defendant on the demised premises. At the trial a verdict was found for the plaintiff, subject to the opinion of the Court on a special case:-The defendant occupied a farm under a lease from the plaintiff for 21 years; which lease contained a covenant on the part of the tenant to keep and deliver up in repair the messuage, barn, stables and out-houses, and other buildings belonging to the demised premises. About 15 years before the expiration of the lease, the defendant erected upon the farm, at his own expense, a substantial beast-house, a carpenter's shop, a fuel-house, a (a) 46 & 47 Vict. c. 61, (b) 3 East, 38. post, p. 79. Part I. Judgment of in Elwes v. cart-house, a pump-house, and a fold-yard. The buildings were of brick and mortar, and tiled, and the foundations were about one foot and a half deep in the ground. The carpenter's shop was closed in, and the other buildings were open to the front, and supported by brick pillars. The fold-yard wall was of brick and mortar, and its foundation was in the ground. The defendant, previous to the expiration of his lease, pulled down the erections, dug up the foundations, and carried away the materials, leaving the premises in the same state as when he entered upon them. These erections were necessary and convenient for the occupation of the farm, which could not be well. managed without them. The question for the opinion of the Court was, whether the defendant had a right to take away such erections. The case was twice argued before the Court at considerable length; and in the result judgment was given for the plaintiff. Lord Ellenborough, who delivered the judgment of the Court, after tracing the progress of the exceptions to the general rule that, wherever a lessee who has annexed anything to the freehold, afterwards takes it away, it is waste, says;-"But no adjudged case has yet gone the length of establishing that buildings sub"servient to purposes of agriculture, as distinguished from "those of trade, have been removable by an executor of "tenant for life, nor by the tenant himself who built "them during his term." His Lordship next examines the grounds of the decisions in the three principal cases upon the subject; viz. Lawton v. Lawton (c); Lord Dudley v. Lord Warde (d); and Lawton v. Salmon (e). These, and also the cider-mill case before Comyns, C. B. (f), he considers to have been decided mainly upon the ground, that notwithstanding the fire-engines and the cider-mill were (c) 3 Atk. 13. (d) Amb. 113. (f) See these cases referred to, ante, p. 51 et seq. erected for the enjoyment of the profits of land, yet they Chap. II. s. 2. were accessory to a species of trade, a matter of a personal nature. He intimates an opinion, that in Lawton v. Salmon, Lord Mansfield did not consider the salt-pans as accessory to the carrying on a trade; and adds that if he had, "still it would not have affected the question before "the Court, which is the right of a tenant, for mere agri"cultural purposes, to remove buildings fixed to the free"hold, which were constructed by him for the ordinary purposes of husbandry, and connected with no description "of trade whatsoever." Lord Ellenborough then enters upon a critical examination of the authorities which had been urged in support of the defendant's claim (g), and distinguishes them from the case before the Court. His Lordship concludes thus"The case of buildings for trade has been always put and recognized as a known allowed exception from the general "rule which obtains as to other buildings; and the cir"cumstance of its being so treated and considered, esta"blishes the existence of the general rule, to which it is "considered as an exception. To hold otherwise, and to "extend the rule in favour of tenants in the latitude con"tended for by the defendant, would be, as appears to me, "to introduce a dangerous innovation into the relative "state of rights and interests holden to subsist between "landlords and tenants. But its danger, or probable "mischief, is not so properly a consideration for a court "of law, as whether the adoption of such a doctrine would "be an innovation at all; and, being of opinion that it "would be so, and contrary to the uniform current of legal authorities on the subject, we feel ourselves, in "conformity to, and in support of those authorities, obliged (g) Viz., Dean v. Allalley, 3 Esp. 11; Culling v. Tufnal, Bul. N. P. 34; Fitzherbert v. Shaw, 1 H. Bl. 258; Penton |