Opinion by
Holt, C.:
The.plaintiff in error, defendant below, complains of two errors in the trial of the action: one, allowing damages for the boiler and its removal; the other, in decreeing a perpetual injunction against the removal of the pump. Both of the alleged errors involve the application of the same principles and require the determination of the same question, namely, whether the several pieces of property retained their character as chattels, or became fixtures. What we may say of one thing in this connection will usually apply to all the others. It will be conceded that before plaintiff could recover for the conversion of the boiler, it must have become a part of his real estate. The boiler originally was the property of defendant, and it could have done with it as it pleased; and the only way it could have become divested of its ownership, under the facts in this case, was in the manner of placing it.on plaintiff’s land. If it then became a fixture, it was the property of plaintiff.
Hill gives this definition of fixtures: “By the term fixtures are designated those articles which were chattels, but which, by being physically annexed or fixed to the real estate, become a part of and accessory to the freehold.” It is frequently a difficult and vexatious question to ascertain the dividing-line between real and personal property, and to [28]*28decide upon which side of the line certain property belongs. When we compare a thing at the extremity of one class with a thing at the extremity of the other, the difference is obvious; but when we approach the question of fixtures, which is the dividing-line between real and personal property, there is often great difficulty. The decisions of the courts are apparently as diverse as the peculiarities of the facts in the different cases that are decided; and being largely governed by the particular facts of each case, the citation and examination of decisions often tend to confuse rather than to enlighten the judgment.
In the statement of facts it is agreed that the boiler was placed on the ground upon a cast-iron base, was not set in masonry, and was connected with the pump by a steam pipe for the purpose of furnishing steam from the boiler to operate the pump, and thereby carry water to the tank. This of itself does not necessarily show such a physical attachment to the realty as constitutes a fixture. (Hendy v. Dinkerhoff, 57 Cal. 3; Towne v. Fiske, 127 Mass. 125; Kimball v. Grand Lodge, etc., 131 id. 139; Balliett v. Humphreys, 78 Ind. 388; Hoyle v. P. & M. Rld. Co., 51 Barb. 45.)
But attachment to the realty is not alone sufficient to change the character of personal property; it is only one of several tests to determine whether property originally a chattel has become a fixture by being used for a particular purpose, and however the rule^may have been formerly it is not now deemed to be the controlling test. Tyler, on page 101 of his treatise on Fixtures, says:
2. Fixture,what is-criterion. “The simple criterion of physical annexation is so limited M its range, and so productive of contradiction, p. wm n0f; apply with much force except in respect to fixtures in dwellings.”
In Meigs’s Appeal, 62 Pa. St. 28, it is said:
1. structure, a fixture, or not. “In determining what is a fixture, the notion of physical attachment is exploded; it is now determined by the character of the act by which the structure is put into its piaee? the policy of the law connected with its purpose, and the intention of those concerned.”
[29]*29This Pennsylvania case lays down the rule more broadly, perhaps, than that of some other courts, yet it shows the tendency of modern decisions. (See also Ewell on Fixtures, pp. 20, 293.) There is scarcely any kind of machinery, however complex in its character, or no matter how firmly held in its place, which may not with care be taken from its fastenings and moved without any serious injury to the structure where it may have been operated and to which it may have been attached. That the simple fact of annexation to the realty is not the sole and controlling test of whether a certain article is a fixture or not, is very well illustrated by the fact that trees growing in a nursery and kept there for sale are personal property, while trees no larger, if transplanted to an orchard, become real estate. On the other hand, there are very many things although not attached to the realty which become real property by their use — keys to a house, blinds and shutters to the windows, fences and fence rails, etc.
3. Personal property when a fixture. It can readily be seen that one of the tests of whether a chattel retains its character or becomes a fixture is the uses to which it is put. If it be placed on the land for the purpose of improving it and to make it more valuable, that is evidence that it is a fixture. Applying: this criterion to the boiler, we are led to inquire whether this benefited the land of plaintiff. The real estate upon which this boiler was placed was a narrow strip in the city of Burlingame, and it cannot be contended that this well, boiler and the attachments could have greatly benefited this small tract of land. They were not placed there for the purpose of enhancing its value; ordinarily it would not enhance the value of such property in a city, as this small piece of ground, by digging a well thereon like the one in question; and the only value added thereto by placing a pump, boiler and boiler-house like those in controversy would be what they were worth as chattels. The test of whether real estate is benefited by the act of annexation has been repeatedly applied by the courts, to determine whether the chattel annexed became a fixture or not. (11 Alb. L. J. 151; Woollen [30]*30Co. v. Hawley, 44 Iowa, 57; Taylor v. Collins, 51 Wis. 123; Huebschmann v. McHenry, 29 id. 655; Minnesota Co. v. St. Paul Co., note, 2 Wall. 645; N. C. Rld. Co. v. Canton Co., 30 Md. 347; Wagner v. C. & T. Rld. Co., 22 Ohio St. 563.)
It has been held that before personal property can become a fixture by actual physical annexation, the intention of the parties and the uses for which the personal property is to be put, must all combine to change its nature from that of the chattel to that of the fixture. (Teaff v. Hewitt, 1 Ohio St. 511; Ewell on Fixtures, p. 293; Woollen Co. v. Hawley, supra.) In this connection it is well enough to note, also, the circumstances under which this boiler was placed upon the land of plaintiff. It is conceded that the railroad company was a trespasser, yet it was not a willful one; it dug the well, put in the pump and boiler and erected the boiler-house under the belief it was occupying its own land, and only discovered its mistake after some years of occupation. There is nothing to show that it wished to gain anything by digging the well where it was located rather than on its own land; in fact, it is stated that two feet of the well is upon its own land. It can be safely presumed that the well would have been as good a one if it had been placed on defendant’s side of the division line instead of plaintiff’s. It dug the well, put in the pump and boiler for the sole purpose of operating its railroad, and not to improve the land where the property was placed.
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Opinion by
Holt, C.:
The.plaintiff in error, defendant below, complains of two errors in the trial of the action: one, allowing damages for the boiler and its removal; the other, in decreeing a perpetual injunction against the removal of the pump. Both of the alleged errors involve the application of the same principles and require the determination of the same question, namely, whether the several pieces of property retained their character as chattels, or became fixtures. What we may say of one thing in this connection will usually apply to all the others. It will be conceded that before plaintiff could recover for the conversion of the boiler, it must have become a part of his real estate. The boiler originally was the property of defendant, and it could have done with it as it pleased; and the only way it could have become divested of its ownership, under the facts in this case, was in the manner of placing it.on plaintiff’s land. If it then became a fixture, it was the property of plaintiff.
Hill gives this definition of fixtures: “By the term fixtures are designated those articles which were chattels, but which, by being physically annexed or fixed to the real estate, become a part of and accessory to the freehold.” It is frequently a difficult and vexatious question to ascertain the dividing-line between real and personal property, and to [28]*28decide upon which side of the line certain property belongs. When we compare a thing at the extremity of one class with a thing at the extremity of the other, the difference is obvious; but when we approach the question of fixtures, which is the dividing-line between real and personal property, there is often great difficulty. The decisions of the courts are apparently as diverse as the peculiarities of the facts in the different cases that are decided; and being largely governed by the particular facts of each case, the citation and examination of decisions often tend to confuse rather than to enlighten the judgment.
In the statement of facts it is agreed that the boiler was placed on the ground upon a cast-iron base, was not set in masonry, and was connected with the pump by a steam pipe for the purpose of furnishing steam from the boiler to operate the pump, and thereby carry water to the tank. This of itself does not necessarily show such a physical attachment to the realty as constitutes a fixture. (Hendy v. Dinkerhoff, 57 Cal. 3; Towne v. Fiske, 127 Mass. 125; Kimball v. Grand Lodge, etc., 131 id. 139; Balliett v. Humphreys, 78 Ind. 388; Hoyle v. P. & M. Rld. Co., 51 Barb. 45.)
But attachment to the realty is not alone sufficient to change the character of personal property; it is only one of several tests to determine whether property originally a chattel has become a fixture by being used for a particular purpose, and however the rule^may have been formerly it is not now deemed to be the controlling test. Tyler, on page 101 of his treatise on Fixtures, says:
2. Fixture,what is-criterion. “The simple criterion of physical annexation is so limited M its range, and so productive of contradiction, p. wm n0f; apply with much force except in respect to fixtures in dwellings.”
In Meigs’s Appeal, 62 Pa. St. 28, it is said:
1. structure, a fixture, or not. “In determining what is a fixture, the notion of physical attachment is exploded; it is now determined by the character of the act by which the structure is put into its piaee? the policy of the law connected with its purpose, and the intention of those concerned.”
[29]*29This Pennsylvania case lays down the rule more broadly, perhaps, than that of some other courts, yet it shows the tendency of modern decisions. (See also Ewell on Fixtures, pp. 20, 293.) There is scarcely any kind of machinery, however complex in its character, or no matter how firmly held in its place, which may not with care be taken from its fastenings and moved without any serious injury to the structure where it may have been operated and to which it may have been attached. That the simple fact of annexation to the realty is not the sole and controlling test of whether a certain article is a fixture or not, is very well illustrated by the fact that trees growing in a nursery and kept there for sale are personal property, while trees no larger, if transplanted to an orchard, become real estate. On the other hand, there are very many things although not attached to the realty which become real property by their use — keys to a house, blinds and shutters to the windows, fences and fence rails, etc.
3. Personal property when a fixture. It can readily be seen that one of the tests of whether a chattel retains its character or becomes a fixture is the uses to which it is put. If it be placed on the land for the purpose of improving it and to make it more valuable, that is evidence that it is a fixture. Applying: this criterion to the boiler, we are led to inquire whether this benefited the land of plaintiff. The real estate upon which this boiler was placed was a narrow strip in the city of Burlingame, and it cannot be contended that this well, boiler and the attachments could have greatly benefited this small tract of land. They were not placed there for the purpose of enhancing its value; ordinarily it would not enhance the value of such property in a city, as this small piece of ground, by digging a well thereon like the one in question; and the only value added thereto by placing a pump, boiler and boiler-house like those in controversy would be what they were worth as chattels. The test of whether real estate is benefited by the act of annexation has been repeatedly applied by the courts, to determine whether the chattel annexed became a fixture or not. (11 Alb. L. J. 151; Woollen [30]*30Co. v. Hawley, 44 Iowa, 57; Taylor v. Collins, 51 Wis. 123; Huebschmann v. McHenry, 29 id. 655; Minnesota Co. v. St. Paul Co., note, 2 Wall. 645; N. C. Rld. Co. v. Canton Co., 30 Md. 347; Wagner v. C. & T. Rld. Co., 22 Ohio St. 563.)
It has been held that before personal property can become a fixture by actual physical annexation, the intention of the parties and the uses for which the personal property is to be put, must all combine to change its nature from that of the chattel to that of the fixture. (Teaff v. Hewitt, 1 Ohio St. 511; Ewell on Fixtures, p. 293; Woollen Co. v. Hawley, supra.) In this connection it is well enough to note, also, the circumstances under which this boiler was placed upon the land of plaintiff. It is conceded that the railroad company was a trespasser, yet it was not a willful one; it dug the well, put in the pump and boiler and erected the boiler-house under the belief it was occupying its own land, and only discovered its mistake after some years of occupation. There is nothing to show that it wished to gain anything by digging the well where it was located rather than on its own land; in fact, it is stated that two feet of the well is upon its own land. It can be safely presumed that the well would have been as good a one if it had been placed on defendant’s side of the division line instead of plaintiff’s. It dug the well, put in the pump and boiler for the sole purpose of operating its railroad, and not to improve the land where the property was placed.
The company began condemnation proceedings to obtain the laud, but did not follow them to a conclusion; if it had, it would have been compelled to only pay for the land and not for its own improvements thereon. This rule is well established by authority: Cohen v. St. L. Ft. S. & W. Rly. Co., 34 Kas. 158; Justice v. N. V. Rld. Co., 87 Pa. St. 28; Daniels v. C. I. & N. Rld. Co., 41 Iowa, 52; Lyon v. C. B. & M. Rld. Co., 42 Wis. 538; Greve v. St. P. Rld. Co., 26 Minn. 66; Wagner v. C. & T. Rld. Co., supra; Schroeder v. DeGraff, 28 Minn. 299.
[31]*314 Wen-removal of pump and boiler. [30]*30While it is the general rule in regard to annexation made by a stranger with his own materials on the soil of another [31]*31without his consent, that the owner of the materials loses his property because he is presumed to have parted with it and dedicated it to the owner of the land, yet the peculiar circumstances under which this well was dug would indicate there should be a modification in this instance. (Lowenburg v. Bernd, 47 Mo. 297.) If the company had placed it there, even uiider a mistake, for the purpose of ultimately improving the real estate, the law might under this state of facts have held it to be the property of the owner of the real estate; but under the agreed statement it was placed there solely for the purpose of better operating its own railroad. If it had been placed on its own right-of-way and that afterward abandoned, then under a respectable list of authorities it would have been permitted to take away the pump, boiler, and boiler-house. We can see no reason for a distinction that would have allowed any compensation to plaintiff if condemnation proceedings had been instituted, after occupation and placing improvements upon the land, and prosecuted to a conclusion, and an action brought in the way this one was. In one case the authorities are an almost unbroken current that the railroad company could not have been compelled to pay for its own property placed upon the land. We also think it should not be required to do so now. We believe, in this action, because the improvements did not and were not intended to benefit the realty, that the pump, boiler and building should be held to be personal property and not fixtures. We are well aware that very many authorities hold that the buckets in a well are real property; unquestionably, between vendor and vendee and mortgagor and mortgagee this is the rule; but under the facts in this case, considering the use to which these articles were put, and the relations of the parties, we are constrained to believe that that rule does not apply.
For the reasons given above, we recommend that the judgment awarding damages against the defendant be reversed, [32]*32and the injunction so granted be modified as to allow the defendant to remove the pump.
By the Court: It is so ordered.
All the Justices concurring.