Where there is WHEN personal inanimate chattels are affixed to the no agreement. freehold, they are usually called fixtures: and, in general, whatever chattels are affixed to the realty become part of it, partaking of all its incidents and properties. Hence, where there is no agreement, fixtures are usually the property of the landlord and not of the tenant, although the tenant may have affixed them (a). Where, at the time of making a demise, nothing is said respecting the chattels affixed to the premises, the tenant will be entitled to use of them during his (a) See Amos and Ferard on Fixtures; Judgments of Parke, B., & Martin, B., in Elliot v. Bishop, 10 Ex. 496, 11 Ex. 119; Elwes v. Maw, 2 Smith's L. C. 114; Co. Litt. 53 a. See Wiltshire v. Cotterell, 1 E. & B. 674; Sheen v. Rickie, 5 M. & W. 175; Lee v. Risdon, 7 Taunt. 191; Minshall v. Lloyd, 2 M. & W. 450-459; Walmsley v. Milne, 7 C. B. N.S. 115; Elwes v. Maw, 2 Smith's L. C. 114, and cases therein cited; Horn v. Baker, 9 East. 215. tenancy as part of the demise, and the landlord cannot afterwards, during the term, remove them or insist upon their being valued and paid for (b). It is a question of fact in each case whether the chattel is sufficiently annexed to the realty so as to form part of it (c). This question depends principally upon two circumstances:-1. The mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integrè, salvè, et commode, or not, without injury to itself or to the fabric of the building. 2. On the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling (d), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel (e). Machinery and other articles, and even buildings, may be so erected as not to be let into the soil nor annexed to it, or to any building, in such a manner as to become part of the freehold, and to lose their chattel character. Thus barns, granaries, sheds, or mills erected upon blocks, rollers, pattens, pillars, or plates, resting on brickwork, but not affixed to the freehold by being let into it or united to it by nails or otherwise, are not considered as fixtures, but as chattels removable by the tenant during the term, notwithstanding they may have sunk into the ground by their own weight (ƒ). So a wooden mill or barn resting by its own weight on a brick foundation is not part of the freehold (g). (b) Goff v. Harris, 5 M. & G. 573. (c) Elwes v. Maw, 2 Smith's L. C. 14, and cases therein cited. (d) 20 Hen. VII. c. 13. (e) Hellawell v. Eastwood, 6 Ex. 295; Trappes v. Harter, 2 C. & M. 177; Turner v. Cameron, L. R. 5 Q. B. 306, 39 L. J. Q. B. 125. (f) Huntly v. Russell, 13 Q. B. 572. (g) Rex v. Otley, 1 B. & Ad. 161; Wansborough v. Maton, 4 Tenant's fix. tures. Certain articles movable in their nature are sometimes considered to be constructively annexed to the structure to which they belong, such as the doors and windows of a house, or the gate of a field suspended on hooks, keys, winches, rings, and other detached appendages necessary for the convenient use of fixtures, which are deemed parcel of, and pass with, the fixtures to which they are appurtenant (h). Where a fixture is severed from the freehold for a special and temporary object, as for the purpose of being repaired, it does not lose its original character of a fixture. Thus a millstone taken from a mill for the purpose of being picked and hammered is not distrainable (?). If the roof of a building be annexed by a tenant to the freehold, although the roof is kept in its position merely by its own weight, and can be removed without injury to the walls on which it is sustained, yet, as the tenant has no right to remove the whole building, he cannot carry away the roof, which forms an essential part of the structure (j). Questions concerning fixtures in the case of landlord and tenant usually arise in the nature of exception to this general rule, viz., that whatever is affixed to the freehold becomes parcel of it. Tenant's fixtures are the property or privilege which a tenant, in the absence of any agreement, continues to possess, and the right of removal that belongs to him when he has, during his term, annexed anything to the demised premises which may be considered a fixture (k). This A. & E. 884. See also Dean v. (h) Liford's case, 11 Rep. 50 b; (i) Wigstow's case, Year-book, 14 Hen. VIII. fo. 25, pl. 6; Gorton v. Falkner, 4 T. R. 567; Place v. Fagg, 4 M. & Ry. 277. See supra, tit. Distress, p. 197. (j) Wansborough v. Maton, 6 A. & E. 884-889. (k) Amos and Ferard on Fix property or privilege extends-(1.) to fixtures erected by the tenant for the purposes of trade and manufactures, and sometimes, if combined with other purposes, (2.) to fixtures erected by the tenant for ornament and convenience. As to the latter class, a tenant has been allowed to remove fixtures put up for convenience or ornament, and which are of such a description as to be capable of being disannexed without any permanent injury to the inheritance, such, for instance, as stoves and grates fixed into the chimney with brickwork, and marble chimneypieces and wainscot, fixed with screws (). In Grymes v. Boweren (m), a tenant was allowed to take away a pump which was attached to a stout perpendicular plank resting on the ground at one end, and at the other end fastened to the wall by an iron pin, which had a head at one end and a screw at the other, and went completely through the wall. The judgment of the Lord Chief-Justice Tindal in that case contains a good summary of the law with regard to this class of fixtures :-" It is difficult to draw any very general, and, at the same time, precise and accurate, rule on this subject; for we must be guided, in a great degree, by the circumstances of each case, the nature of the article, and the mode in which it is fixed. The pump, as it is described to have been fixed in this case, appears to me to fall within the class of removable fixtures. The rule has always been more relaxed as between landlord and tenant than as between persons standing in other relations. It has been holden that stoves are removable during the term, and grates, ornamental chimneypieces, wainscots fastened with screws, coppers, and various other tures, p. 18; Hallen v. Runder, 1 C. M. & N. 266; Elliot v. Bishop, 10 Ex. 508. (1) See Lawton v. Lawton, 3 Atk. 13; R. v. St Dunstan, 4 B. & C. 686; Colegrave v. Dias Santos, 2 B. & C. 76; Winn v. Ingilby, 5 B. & A. 625. (m) 6 Bing. 437. articles; and the circumstances that, upon a change of occupiers, articles of this sort are usually allowed by landlords to be paid for by the incoming tenant to the outgoing tenant, is confirmatory of this view of the question. Looking at the facts of this case, considering that the article in dispute was of domestic convenience, that it was slightly fixed, was erected by the tenant, could be moved entire, and that the question is between the tenant and his landlord, I think the rule should be made absolute." There are five circumstances most material to be considered in ascertaining whether the tenant may remove fixtures which he has put up for ornament, or for the convenience of his occupation, viz., 1. That the article was one of domestic convenience. 2. That it was erected by the tenant. 3. That it could be moved entire. 4. That it was but slightly fixed. 5. That the question was between landlord and tenant. The following articles have been held to fall within this class of tenants' fixtures:-Hangings, tapestry, pier-glasses, chimney - glasses, and iron backs to chimneys (n); beds fastened with ropes or nails to the ceiling (o); stoves, mash-tubs, locks, bolts, and blinds (p); cupboards standing on the ground and supported by holdfasts (q); coffee-mills and maltmills (r); iron ovens, clock cases (s); carpets attached to the floor by nails, for the purpose of keeping them stretched out, curtains, pictures, and other like matters of an ornamental nature which are slightly (n) Beck v. Rebow, 1 P. Wms. 94; Harvey v. Harvey, 2 Str. 1141. (0) Noy's Maxims, 167, 9th edit.; Keilw. 88. (p) Colegrave v. Dias Santos, 2 B. & C. 76. (q) Reg. v. St Dunstan, 4 B. & C. 686. (r) Reg. v. Inhabitants of Londonthorpe, 6 T. R. 377. The mill was clearly a chattel in this case. (s) 4 Burns' Eccl. Law, 411, 9th edit. |