fixtures

FIXTURES, property. Personal chattels annexed to land, and which may be 
afterwards severed and removed by the party who has annexed them, or his 
personal representative, against the will of the owner of the freehold. 
     2. Questions frequently arise as to whether fixtures are to be 
considered real estate, or a part of the freehold; or whether they are to be 
treated as personal property. To decide these, it is proper to consider the 
mode of annexation, the object and customary use of the thing, and the 
character of the contending parties. 
     3.-1. The annexation may be actual or constructive; 1st. By actual 
connexation or annexation is understood every mode by which a chattel can be 
joined or united to the freehold. The article must not however be laid upon 
the ground; it must be fastened, fixed or set into the land, or into some 
such erection as is unquestionably a part of the realty. Bull. N. P. 34; 8 
East, R. 38; 9 East, R. 215; 1 Taunt. 21; Pothier, Traite des Choses, Sec. 
1. Looks, iron stoves set in brick-work, posts, and window blinds, afford 
examples of actual annexation. See 5 Rayw. 109; 20 John. 29; 1 Harr. and 
John. 289; a M'chrd, 553; 9 Conn. 63; 1 Miss. 508, 620; 7 Mass. 432; 15 159; 
3 Stew. 314. 2d. Some things have been held to be parcel of the realty, 
which are not in a real sense annexed, fixed, or fastened to the freehold; 
for example, deeds or chattels which relate to the title of the, 
inheritance, go to the heir; Shep. Touch. 469; but loose, movable machinery, 
not attached nor affixed, which is used in prosecuting any business to which 
the freehold is adapted, is not considered as part of the real estate, nor 
as an appurtenance to it. 12 New H. Rep. 205. See, however, 2 Watts,& S. 
116, 390. It is also laid down that deer in a park, fish in a pond, and 
doves in a dove-house, go to the heir and not to the executor, being with 
keys and heirlooms, constructively annexed to the inheritance. Sheph. 
Touchs. 90; Pothier, Traite des Choses, Sec. 1. 
     4.-2. The general rule is, that fixtures once annexed to the 
freehold, become a part of the realty. But to this rule there are 
exceptions. These are, 1st. Where there is a manifest intention to use the 
fixtures in some employment distinct from that of the occupier of the real 
estate. 2d. Where it has been annexed for the purpose. of carrying on a 
trade; 3 East, 88; 4 Watts, 330; but the distinction between fixtures for 
trade and those for agriculture does not in the United States, seem to have 
been generally admitted to prevail. 8 Mass. R. 411; 16 Mass. R. 449; 4 Pick. 
R. 311; and set, 2 Peter's Rep. 137. The fact that it was put up for the 
purposes of trade indicates an intention that the thing should not become a 
part of the freehold. See 1 H. B]. 260. But if there be a clear intention 
that the thing should be annexed to the realty, its being used for the 
purposes of trade would not perhaps bring the case within one of the 
exceptions. 1 H. BI, 260. 
     5.-3. There is a difference as to what fixtures may or may not be 
removed, as the parties claiming them stand in one relation or another. 
These classes of persons will be separately considered. 
     6.-1st. When the question as to fixtures arises between the executor 
and the heir. The rule, as between these persons has retained much of its 
original strictness, that the fixtures belong to the real estate, or the 
heir i but if the ancestor manifested an intention, which is to be inferred 
from circumstances, that the things affixed should be considered as 
personally, they must be so considered, and will belong to the executor. See 
Bac. Abr. Executors and Administrators; 2 Str. 1141; 1 P. Wms. 94 Bull. N. 
P. 34. 
     7. 2d. As between vendor and vendee. The rule is as strict between 
these persons as between the executor and the heir; and fixtures erected by 
the vendor for the purpose of trade and manufactures, as potash kettles for 
manufacturing ashes, pass to the vendee of the land. 6 Cowen, R. 663; 20 
Johns. R. 29. Between mortgagor and mortgagee, the rule seems to be the same 
as that between vendor and vendee. Amos & F. on Fixt. 188; 1 5 Mass. R. 1 5 
9; 1 Atk. 477 16 Verm. 124; 12 N. H. Rep. 205. 
     8.-3d. Between devisee and executor. On a devise of real estate, 
things permanently annexed to the realty at the time of the testator's 
death, will pass to the devisee. His right to fixtures will be similar, to 
that of the vendee. 2 Barn. & Cresw. 80. 
     9.-4th. Between landlord and tenant for years. The ancient rule is 
relaxed, and the right of removal of fixtures by the tenant is said to be 
very extensive. 3 East, 38. But his right of removal is held to depend 
rather upon the question whether the estate will be left in the condition in 
which he took it. 4 Pick. R. 311. 
    10.-5th. In cases between tenants for life or their executors and the 
remainder-men or reversioners, the right to sever fixtures seems to be the 
same as that of the tenant for years. It has been held that the steam 
engines erected in a colliery, by a tenant for life, should belong to the 
executor and not go to the remainder-man. 3 Atk. R. 1 3. 
    11.-6th. In a case between the landlord and a tenant at will, there 
seems to be no reason why the same privilege of removing fixtures should not 
be allowed. 4 Pick. R. 511; 5 Pick. R. 487. 
    12. The time for exercising the right of removal of fixtures is a matter 
of importance a tenant for years may remove them at any time before he gives 
up the possession of the premises, although it should be after his term has 
expired, and he is holding over. 1 Barn. & Cres. 79, 2 East, 88. Tenants for 
life or at will, having uncertain, interests in the land, may, after the 
determination of their estates, not occasioned by their own faults, have a 
reasonable time within which to remove their fixtures. Hence their right to 
bring an action for them. 3 Atk. 13. In case of their death the right passes 
to their representatives. 
     See, generally, Vin. Abr. Landlord and Tenant, A; Bac. Abr. Executors, 
&c. H 3; Com. Dig. Biens, B and C; 2 Chitty's Bl. 281, n. 23 Pothier, Traite 
des Choses; 4 Co. 63, 64 Co. Litt. 53, a, and note 5, by Hargr.; Moore, 177; 
Hob. 234; 3 Salk. 368; 1 P. Wins. 94; 1 Atk. 553; 2 Vern. 508; 3 Atk. 13; 1 
H. Bl. 259, n Ambl. 113; 2 Str. 1141; 3 Esp. 11; 2 East, 88; 3 East, 38; 9 
East, 215; 3 Johns. R. 468; 7 Mass. 432; 6 Cowen, 665; 2 Kent, Com. 280; 
Ham., Part. 182; Jurist, No. 19, p. 53; Arch. L. & T. 359; Bouv. Inst. 
Index, h.t.