Part I. General ob servations as to present right of removing fixtures or buildings. not be so completely to the advantage of the latter as has been anticipated in some quarters. Perhaps the present position of an agricultural tenant with respect to the removal of buildings and fixtures, in the absence of contract regulating the right (w), may be shortly summarized as follows: (A.)-A tenant to whom the Act of 1883 applies may, subject to the provisions of sect. 34 of that Act, remove buildings, fencing and fixtures, coming within that section, for which he is not entitled to compensation, either by reason of their not having been put up with the consent of the landlord, or from any other cause (x). (B.)-Any tenant of a farm or lands who has put up buildings, engines or machinery, either for agricultural purposes or for purposes of trade and agriculture, with the consent of the landlord, may, under the provisions of 14 & 15 Vict. c. 25, s. 3, remove the same, although he would have been entitled to compensation for them under the Act of 1883 (y). (C.)—A tenant for one year, or for less than a year, or at will, or a tenant occupying only during his continuance in the landlord's employment, may remove buildings, engines or machinery, under the provisions of 14 & 15 Vict. c. 25, s. 3 (~). (D.)—In other cases of buildings or fixtures put up for agricultural purposes the rule declared in Elices v. Maw applies, and there is no right of removal (a). (w) See the remarks, ante, p. 93; and post, p. 145 et seq. (x) Ante, p. 88. (y) Ante, p. 77. The landlord would, of course, have the right of purchase given by that section. (2) Ante, pp. 77, 81. But if the fixtures have been affixed before January 1st, 1884, to a holding to which the Agricultural Holdings Act, 1875, applies, they may be removable under sect. 53 of that Act, notwithstanding its repeal. See 46 & 47 Vict. c. 61, s. 62. (a) Ante, p. 76. For a summary of rules relating to fixtures between landlord and tenant, see Appendix (B). SECTION III. Of the Right of a Tenant to remove Fixtures set up for the Ir was an observation made by Lord Ellenborough, in the Chap. II. s. 3. The decisions alluded to, are those of Lord Hardwicke respecting the fire-engines or steam-engines in collieries (6); and the case before Comyns, C. B., respecting the cidermill (c). In the working of a colliery, the enjoyment of the profits of land is materially concerned; nevertheless, Lord Hardwicke considered that the getting and vending the coals so far partook of the nature of a trade, that the engines employed in the collieries might be deemed trading erections. The case of the cider-mill appears to rest on the same principle. For it was said, that although the mill was put up in part for the enjoyment of the real estate, yet as the making of cider was a species of trade, the mill might be considered to fall within the general exception in favour of trade fixtures (d). These decisions, (a) 3 East, 38, 57, ante, p. 75. (b) Lawton v. Lawton, 3 Atk. 13; Lord Dudley v. Lord F.* Warde, Amb. 113. (c) 3 Atk. at p. 14. (d) As to this case see ante, p. 57, and post, pp. 217, 229. H Fixtures, where trade and the profits of land are combined. Part I. In what cases such fixtures apart from statute. therefore, in conjunction with the case of Lawton v. Salmon (e), in which Lord Mansfield expressed an opinion that the salt pans, though accessory to the land, would have been removable between landlord and tenant for the benefit of trade, point out a class of trade fixtures of a peculiar description. They are what Lord Hardwicke calls mixed cases, between enjoying the profits of land, and carrying on a species of trade (ƒ); and in this respect they are distinguishable from those fixtures that are subservient to trades which have no relation to the profits of the demised land. It appears necessary to consider these fixtures as a separate class, chiefly on account of the distinction taken in the case of Elwes v. Maw, as explained in the preceding section. For, in deciding whether such erections are removable or not, it is essential, with reference to the doctrine laid down in that case, to inquire into the proportion in which the profits of land are combined with the object of trade (g). Apart from the statutory provisions as to agricultural are removable, tenants hereafter noticed (), questions between landlord and tenant, respecting the right to fixtures of this description, must, even at the present day, principally be determined by the rules which Lord Hardwicke has laid down in Lawton v. Lawton, and Lord Dudley v. Lord Warde (i). (e) 1 H. Bl. 260, in notis; see post, p. 221. (f) Lawton v. Lawton, 3 Atk. at p. 16. (g) Where the subjectmatter of the tenant's occupation is not obtained from the demised land, but is brought from a distance, in order to be worked up for market, the case is not to be considered as referable to the present section. Such was the instance of the lime-burner in Thresher v. East London Waterworks Co., 2 B. & C. 608. (h) 14 & 15 Vict. c. 25, s. 3; see post, p. 100. (i) See the explanation given of these cases by Lord Ellenborough, C. J., in 3 East, With which compare the judgments, as cited post, p. 167 et seq. 54. And it may be observed in general, that whenever the Chap. II. s. 3. consideration of trade prevails to the same extent as it appears to have done in these cases, an erection may be treated as lawfully removable by a tenant. fixtures of a It may be useful in this place to point out in what Examples of manner the principles of the foregoing cases may be found mixed nature. applicable to questions in practice. Many examples might be suggested of fixtures similar to those already referred to, in which the enjoyment of the profits of land may be combined with trade. As, for instance, where machines and erections are made, and used by a tenant for procuring or preparing minerals, lime, alum, pottery and brick earth, &c. In like manner mixed cases may occur wherein agriculture is combined with a species of trade. For a tenant may cultivate land, and raise grain for the purpose of converting it into malt in his own kilns for sale; or he may grow corn and grind it into flour for sale in his occupation as a miller. Another tenant, following the trade of a butcher, may erect a beast-house and a fold-yard (j) for the use of cattle which he grazes upon the premises, or fattens on the produce of the land demised. So a distiller may grow his own grain; a weaver of linen his own flax. These, and the like instances, might give rise to many questions between landlord and tenant, which would involve the points above considered. Another description of cases might be suggested, dif- Fixtures used occasionally fering in some respects from the preceding. And that is, for trade. where a machine or utensil is employed sometimes for the purpose of trade, and at other times for a purpose wholly unconnected with trade; and where it may be uncertain whether the object of the erection is the trade to which a right of removal attaches, or the other employment to (j) In Elwes v. Maw, 3 East, 38, these erections were held not removable when put up exclusively for agriculture. Part I. Primary object of erection must be considered. Except in cases under 14 & 15 Vict. c. 25, s. 3. Nurserymen, their rights. which such a right does not attach. There is no express decision affecting cases of this description; but it is conceived that the question, whether an article would be removable under these circumstances, will mainly depend on the fact, to which of the two purposes the erection in dispute is more usually appropriated. In all questions relating to the several kinds of fixtures here described, and not falling within the statutory provisions hereinafter mentioned, it will be very important to consider what has been the primary object of the erection in dispute; and whether in making it the intention of trade predominated over the other purpose with which it is combined. With this view it may frequently be found useful to consult the decisions which have occurred in questions of bankruptcy; where the fact to be determined was whether the dealing of a person was in the way of merchandise, which was to be deemed his principal occupation, or was merely incidental to a pursuit not within the scope of the bankruptcy laws (k). We have already seen, however, that 14 & 15 Vict. c. 25, s. 3, has expressly provided that a tenant may remove buildings, engines or machinery, put up for purposes of trade and agriculture, if they have been put up with the consent of the landlord (7). In cases, therefore, falling within the provisions of this Act it will be immaterial whether the purpose of trade or that of agriculture was predominant. There is another class of persons whose rights appear to depend on the principles discussed in this section; viz., the tenants of nursery gardens and grounds. It has been thought expedient to reserve their claims for a separate consideration in this place. (k) The cases on the subject will be found collected in Robson on Bankruptcy (4th ed.), pp. 107, 113. (1) Ante, p. 77, and see the remarks ante, p. 91. |