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the structure and mode of annexation, and the purpose or use for which the annexation has been made."

The court disclaimed the correctness of the idea of denominating an article a fixture between one set of parties and not a fixture as between others; and pronounced it to be a general doctrine that "in no case is a fixture created without the apparent intention of the party making the annexation to make a permanent accession to the freehold." It was also declared that "fixtures in a manufacturing establishment must be governed by the same criterion which applies to fixtures in other situations."―(542.)

The modern English cases no longer claim that there is a difference between trade and other fixtures, as to what is necessary to constitute a fixture.

In Fisher v. Dixon, 12 Clark & Finnelly's Parl. Rep. 325, 326, the cider mill cases were severely criticised, and their doctrines denied by Lord Brougham. "For," he said, "if a cider mill be fixed to the soil, though it is a manufac tory, and erected for the purpose of a manufactory, if it is. really solo infixtum, it is perfectly immaterial whether it is for the purpose of a manufactory, or a granary, or a barn, or anything else."

And Lord Campbell, on the same occasion, alludes to the cider mill case, and says the report of the case leaves it in doubt" whether, in fact, the mill was fixed to the freehold or not. We know that a cider mill is not necessarily affixed to the freehold, a familiar instance of which is given in the Vicar of Wakefield, where, when a match was proposed between one of the Misses Primrose and young Farmer Flamstead, Moses said: I hope that if my sister marries young Farmer Flamstead he will lend us his cider mill.' I take it that the cider mill there was movable, and was not affixed to the freehold, but might have been carried from the farm of Farmer Flamstead to the vicarage of the Primroses."

It is evident that a cider mill, capable of being moved without injury to the machine, was regarded as a chattel, not likely to be made a fixture, if indeed such a machine could

be so attached to the premises as to lose its chattel character. We need not, in this country, look into works of fiction to get an idea of a movable cider mill, since portable machines for such purpose are as common as threshing machines and other mechanical implements, designed to aid the husbandman and mechanic in his labors. But the idea is as well conveyed by an imaginary machine as a real one, that a mill or machine which can be moved without injury to itself, which is an entire and perfect machine of itself, in one place equally with another, cannot be made a fixture by any ordinary attachment or fastening to the land.

We have cited and considered the cases upon this subject more generally and fully than upon some other subjects, because it seemed to be the only proper mode in which to exhibit the apparent changes in the law of fixtures, which have been made, especially in this country, during the present century. In no other way could the reader so well enjoy the opportunity to understand the alleged and apparent changes, as that law now exists, compared to the law as it existed in England a century since.

We have also had another purpose in view; namely, of attempting to deduce from the decisions, some principles or rules of general application, more definitely and perfectly than seems yet to have been accomplished.

Upon this part of the subject we submit, in a general way, that the authorities here cited cannot be studied without leaving upon the mind the impression that the changes which have taken place have not been so much of the law itself as of the things to which the courts have been called upon to apply the law. The progression of mechanical skill and ingenuity in contriving to make utensils and machinery, has kept in advance of the lawyers and of the courts, but not of the law itself. The principles of the law of fixtures have undergone no material change, so far as the common law is concerned. The principles enunciated and applied by Lord Mansfield, in Lawton v. Salmon, 1 H. Bl. R. 259, do not differ substantially from the principles expressed in the most enlightened

opinions of modern cases. A few hundred years ago, it is probable that scarcely any chattel was associated with the land, except by physical annexation; consequently, as physical annexation was the common incident, it came to be regarded as the necessary criterion by which to determine whether the thing had become a fixture. At that period, says Macaulay, "The national wealth consisted chiefly in flocks and herds, in the harvest of the year, and in the simple buildings inhabited by the people. All the furniture, the stock of shops, the machinery which could be found in the realm, was of less value than the property which some single parishes now contain."

1 Macaulay's History of England, 27.

The criterion thus proclaimed in that rude age continued to be regarded as the law long after the domestic condition. of the people had been changed; and it was sometimes considered as important whether a thing was fastened to premises with a nail or screw; whether a building rested on a stone or a block, and whether the stone rested on the surface or was let a few inches into the ground.

Such rules of law may have very well accommodated the age in which they originated, but they are entirely out of place in modern times, especially in this country. The courts have been proclaiming a demand for change, for progress in the law of fixtures, for the last half century. But they seem to have mistaken the channel in which that progress should be made. The gist of the complaint has been that the tenant has not enjoyed the same right to remove agricultural as trade fixtures; and that in this age and in this country the right of removal should be common to both.`

That complaint is founded upon misapprehension. There is no such demand in this country, in favor of agricultural fixtures. No such want is felt. The great part of the land which is occupied, is occupied and tilled by those who are the absolute owners and proprietors. The tenant farmers are few in proportion, and hold only for short terms. The right of removing fixtures is not sought for by them, for they

are not in want of annexing things to the land. Accommodations of that character are provided by the owners of the freehold. The utensils and machines with which their labors are aided, are mostly if not entirely portable. They can thresh their grain, and grind it, if they please; can make their cider, and cook food for their cattle, without the aid of stationery machinery or fixed furnaces. Not only the machines and mills which do the work, but the motive power which drives them, are carried about on wheels, and are as movable as a wagon. The demand of the age is, that the old rule of physical annexation shall not be applied to such things. To hold that if the tenant should fasten one of the portable threshing machines of modern days to a barn by bolts or nails, in order to keep it steady, or to the earth by posts driven into it, it should, therefore, become a part of the real property and belong to the owner of the freehold, would, at this day and in this country, be entirely in conflict with the principles of the common law and of the demands of agricultural industry. The same principle which once made a barn on rollers a chattel, would preserve the chattel character of a modern threshing machine on wheels, however it might be temporarily fastened to the freehold. And that principle is this: that neither in the chattel itself, nor in its manner of connection with the freehold, is there sufficient evidence of an intention, on the part of the owner of the chattel, of making it a part of the freehold.

General rules and principles applicable as criteria whereby to determine when a chattel becomes a fixture.

As to general rules whereby to determine whether a chattel has been made a fixture, it may be truly said, that there is but one rule which is generally applicable to all cases; and that is, that the intention of the party, who makes the annexation of the thing with the realty, must control the question. The chief, if not the only serious difficulty is, not as to the rule itself, nor as to its application, but as to what is to be regarded as controlling evidence of the intention, in different classes of cases.

FIRST: When the owner of the chattel and the owner of the land are different parties, and it is agreed that the owner of the chattel may remove it, or that it shall retain its chattel character, notwithstanding its annexation, it does not become a fixture, or part of the realty, but remains a chattel, and is so regarded for all purposes and between parties in all relations alike.

SECOND: The converse of this proposition is not true; that is, chattels cannot in all cases be made fixtures by the mere agreement of the parties. The law has divided property into real and personal, and drawn a line between the two in accordance with certain qualities inherent in the very nature of things; and it does not permit individuals to change that line by conventional arrangements. Certain chattel property becomes real property, upon being annexed to the realty in a certain manner and under certain circumstances. But it is not true that all chattel property can be changed to realty by annexation or any other process. In order to attach the chattel to the land so as to become a fixture, the law requires a certain fitness of the thing to the realty, which must exist in the quality of things, and cannot be supplied by the agreement of parties. For example, living animals, either beasts of burden, or others, cannot be made fixtures. And the same is true of any mere tool or implement to be used by the hand, as, for example, an ax, a hoe or a spade. And yet it is none the less true of things which may be made fixtures, that the intent with which the thing is brought upon, or attached to the land, governs the question, whether it has become a part of the land. But the thing itself, the land, the uses and purposes, mere juxtaposition or physical annexation, constitute the only important and legitimate evidences of the intent of the party who made the attachment. Thus, in Snedeker v. Waring, 12 N. Y. 170, before cited, it was held not only that the intent must control the question, but that the circumstances of the case were the only evidence to to be considered in ascertaining the intent; and the expressed intention of the party who placed the statue on the land, that

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