case could not be removed without taking the boards off the side of the building, and the boilers were set in brick, requiring the wall to be torn down to remove them. In this case the question arose between the grantor and the purchaser. Despatch v. Bellamy, 12 N. H. 205.

A person may not intend to make a permanent improvement, but the chattel may be so firmly annexed that the law will not permit him to carry out his intention of removing it. In such a case the damage to the realty must be very pronounced to constitute the chattel a part of the real property if it is the expressed intent of the party that the chattel shall remain personalty.

But, on the other hand, the fact that it may be removed without such injury does not necessarily make it personalty.

Fencing material that has been used as part of the fences on a farm, but is temporarily detached without any intent to divert it from such use, is a part of the realty and passes by a conveyance of the farm to a purchaser. Goodrich v. Jones, 2 Hill (N. Y.) 142.

Gas pipes running under the floors and between the walls are not removable fixtures, but gas fixtures and chandeliers screwed in through holes in the walls or floors are removable. Stoves and furnaces put up in the usual way by a tenant are treated as furniture and are removable, but if built into brickwork they are nonremovable fixtures.

Gas fixtures which are screwed on to the gas pipes, and mirrors which are not set into the wall but are supported by hooks so that they can be removed without injuring the walls, form no part of the realty and do not pass by deed or mortgage of the premises.

McKeage v. Hanover Ins. Co., 81 N. Y. 38. An electric chandelier, an annunciator and similar articles attached to a house by the tenant for his own convenience, and removable without injury to the building, form no part of the realty.

- Raymond v. Strickland, 124 Ga. 504.

A boiler installed by a tenant to replace an inadequate boiler, screwed to pipes running through the building, but removable without injury, was not a fixture and the tenant was entitled to remove it.

- McLain Inv. Co. v. Cunningham, 113 Mo. Appeal 519.

Another test is the appropriation of the chattel to the use or purpose of that part of the realty to which it is connected. It seems that an article which is essential to the use for which the building or land is designed, or which is especially adapted to

the place where it is erected, is regarded as a nonremovable fixture, although it is but slightly connected with the realty.

Articles such as shelving, racks, counters, cases, etc., although personal in their nature, are realty when made to be used with real estate and essential to its beneficial use. Bullard v. Hopkins, 128 Iowa 703.

An engine and boiler, bought by the owner of a mill and hauled to the mill with the intention of attaching them thereto, are realty even if not actually attached, when they are necessary for the use of the mill.

Patton v. Moore, 16 W. Va. 428.

Poles used necessarily in cultivating hops, but which are taken down for the purpose of gathering the crop and piled in the yard with the intention of being replaced in season next year, are a part of the realty.

Bishop v. Bishop, 11 N. Y. 123.

A mortgagee claimed the machinery in a building erected expressly for use as a twine factory. The machinery was heavy and was fastened to the floor by bolts, nails, and cleats and was attached to the gearing. Most of the machinery could have been removed without material injury to the building and used elsewhere. It was proved that the machinery was put in the building for permanent use. Held, that the evidence was sufficient to find an intent to make the machinery part of the realty. The court said the criterion of a fixture is the union of three requisites: 1, Actual annexation to the realty or something appurtenant thereto; 2, Application to the use or purpose to which that part of the realty to which it is connected is appropriated; 3, The intention of the party making the annexation to make a permanent accession to the realty. In such cases the court said the purpose of the annexation and the intent with which it is made are the most important considerations. - McRea v. Central Bank, 66 N. Y. 489.

This last rule in the case of McRea v. Central Bank does not apply between landlord and tenant, as it is held that the tenant cannot intend articles for permanent use on land that does not belong to him. This rule inaugurates the theory of constructive annexation and is contrary to the common law, which requires actual annexation to the realty.

The owner of realty, after giving a mortgage, placed on his ground in front of his house a statue of Washington, made by himself, and weighing about three tons. It was on a base three feet high. This base rested upon a foundation built of mortar and stone. The statue was not fastened to the base, nor the base to the foundation. Held, that the statue was a part of the realty and that it was as firmly attached to the soil by its own weight as it could have been by clamps and screws. In the same case a sun dial, similarly placed, was also held to be realty. Snedeker v. Waring, 12 N. Y. 170.

The builders of a church left a recess in which an organ was to be placed. The organ was required to complete the design and finish of the building and was attached to the floor and intended to be permanent. Held, that the organ was a part of the realty and passed to the purchaser of the land.

· Rogers v. Crow, 40 Mo. 91.

Force pumps, pipes, and shafting, and machinery attached by spikes, nails, and bolts, are part of the realty.

It was held, that machinery used in a sash and blind factory and attached to the mill by spikes, bolts, and screws, and which was operated by belts running from the permanent shafting driven by a water wheel under the mill, was part of the realty. - Symonds v. Harris, 51 Maine 14.

Under the rule of constructive annexation some cases hold that machinery, permanent in its character and essential for the purposes of the building, becomes realty although not actually attached thereto.

Illustrations of this class of fixtures are ponderous machinery kept in place by its own weight, cotton gins, and duplicate rollers for a rolling mill, all of which are held to pass with the realty.

A carding machine not fastened to the house and requiring several men to move it, was held to be a fixture, and passed with the land to a purchaser. Deal v. Palmer, 72 N. C. 582.

Other cases hold that machinery is personal property unless actually annexed. Such cases hold that heavy machinery in a factory screwed to the floor but removable without injury is not realty.

Lathes, planers, and similar machines, each a complete machine and fastened to the floor by screws to keep it steady in operation, were not covered by a real estate mortgage as they had not become part of the realty. Crane Iron Works v. Wilkes, 64 N. J. Law 193.

Relation of the Parties. The relation of the parties has some weight in determining the character of the fixtures. As between landlord and tenant the presumption is that tenants do not inter the improvements to be additions to the realty, and they are therefore allowed greater rights in removing the chattels than any other class of persons. For the encouragement of trade and the promotion of industry the rule has been established that trade fixtures erected by a tenant are removable. A carpenter shop, a ballroom, and a bowling alley erected on blocks or posts have all been held to be removable.

A scenic railway, consisting of a platform, undulating tracks, machinery, etc., erected by a tenant on leased ground, was a trade fixture and could be removed by the tenant during his term.

Thompson Scenic Ry. Co. v. Young, 90 Md. 278.

As between landlord and tenant under a mining lease, engines and boilers erected by the tenant on brick and stone foundations, bolted down solidly to the ground and walled in with brick arches; also dwelling houses erected by the tenant for miners to live in, standing on posts or dry stone walls, where the intent was not to make them a part of the realty but merely to use them in the mining operations, will be regarded as "trade fixtures" and may be removed by the tenant at or before the termination of the lease. Conrad v. Saginaw Mining Co., 54 Mich. 249.

As between landlord and tenant wooden structures or buildings resting by their own weight on flat stones laid upon the surface of the ground without other foundation are not part of the realty. But if the building is a permanent structure on a foundation it becomes part of the real estate. Carlin v. Ritter, 68 Md. 478.

The parties may agree that the chattels annexed are to remain as personalty, and effect will be given to the agreement.

The tenant must exercise his right to remove fixtures before the expiration of his term. If he does not remove them before he surrenders the premises, he can not reënter and claim them.

McCaddon after his lease had expired entered upon plaintiff's premises to remove a vault and safe he had constructed, and an action was brought to restrain him from removing them. Held, that the tenant could not exercise his right of removing trade fixtures after he had surrendered possession of the premises. Dostal v. McCaddon, 35 Iowa 318.

When the question arises between vendor and vendee or mortgagor and mortgagee the presumption is stronger against the vendor and mortgagor, as being the owners of the realty they are supposed to have intended the improvements to be perma

nent.

The tenant placed on leased land an engine and other appliances for working oil and gas wells, under a lease which provided that the tenant could at any time remove all machinery and fixtures. It was held that the articles did not become part of the realty, but could be removed by the tenant within a reasonable time after the termination of the lease.

- Gartlan v. Hickman, 56 W. Va. 75.

Stage appointments and theater fittings, such as scenery, curtains, ropes for scene shifting, opera chairs screwed to the floor, etc., having been specially made and so far as their nature permitted, affixed to the realty, were fixtures and passed to a purchaser of the realty.

1. What does personal property include?

2. What are fixtures? They may be classified as what kind of property?

3. How may a fixture be annexed to realty?

4. When is a fixture said to be realty?

5. When is a fixture said to be personalty?

6. What is the most important test to be applied in case a dispute arises as to whom the fixture belongs?

7. From what is this test of ownership inferred?

8. Under the common law, what was the most important test?

9.

In what way may the purpose of a person, who did not intend to make a fixture permanent, be defeated?

10. Is a fence inclosing a lot personalty or realty? Why?

II. The fence is taken down. Is the fence material, which is on the lot, personalty or realty? Why?

12. Are gas and water pipes attached to a house and running through it, personalty or realty?

13. A tenant installs lighting fixtures for his own use in a house which is not equipped with them. Has he a right to remove them?

14. When must he exercise this right?

15. A tenant supplied his own hot-air furnace, which was not supplied in a house piped for one. He set the furnace in the cellar and connected it with the pipes already in the house. Has he a right to remove it?

16. What do you understand by mode of annexation?

17. What do you understand by degree of annexation?

18. Mention the three requisites which are necessarily combined to make a fixture a part of the realty as laid down in McRea against Central Bank.

19. Are improvements made by the mortgagor on mortgaged property covered by the mortgage? Give an illustration.

20. What is constructive annexation?

21. Downing sold a farm on which there was a well equipped with a force pump connected with pipes to the house and barn. Has he a right to remove this pumping system?

22. Are there any conditions under which he might remove the pumping system?

23. Explain the meaning of "relation of the parties" as applied to fixtures.

24. What are trade fixtures?

25. Are trade fixtures as a rule removable by the tenant? Explain.

IMPORTANT POINTS

A fixture may be either personal or real property.

Fixtures are chattels affixed to realty or to be used in connection therewith.

Mode of annexation, purpose for which it is to be used, intention and relation of the parties annexing the fixture are factors in determining whether it is personalty or realty.

The intention of the party annexing the fixture is the most important factor in determining its ownership.