BAETOH, J.
This action was brought to recover damages for the removal by the respondents of certain improve[44]*44ments from certain mining claims. From the record it appears that on May 5,1899, the appellants, who were the owners of the mining claims, executed a bond and lease to Ernest G. Miller and Peter Me Court, who then assigned the same to the respondent Huntsman Copper Mining Company. The contract thus assigned contained a covenant granting to the lessees the exclusive right to purchase the mining claims at a stipulated price, and also covenants obligating the lessees to perform certain work upon the claims to improve the same, with the right to mine and sell the ore, and to pay to the lessors certain amounts as royalty, all of which amounts so paid, if any, to apply as part payment of the purchase price in the event of the election by the lessees to purchase the claims, and of their compliance with the conditions of the bond and lease. The contract also provided for forfeitures of all the rights of the lessees, together with all moneys, if any, paid as part of the purchase price, in ease of a failure to comply with the conditions of tire agreement. After the execution and assignment of the bond and lease the respondent company went into possession of the property, and, among other things, erected thereon a bunk house and boarding house, and also constructed a track of iron or steel rails in the tunnel, all of which were used in operating the mine. These buildings and track the respondents, while yet in possession, removed from the claims; and thereafter the lessors declared a forfeiture, claiming a failure or refusal on the part of the lessees to carry out the provisions of the agreement. At the trial, after the plaintiffs rested their case, the court, upon motion of the defendants, granted a nonsuit, and at the same time directed the jury to return a verdict,“No cause of action,”' in favor of the defendants. Thereupon judgment was entered accordingly, and this appeal prosecuted.
The decisive question presented is whether the respondents had the right, under the contract, to remove the buildings and track during the term, and while in possession of the [45]*45mining claims. It is insisted by the appellants, as appears, that the bond and lease constituted simply a contract of 1 purchase, that the relation of landlord and tenant did not exist, and that the buildings and track in dispute were fixtures of a permanent character, and formed a part of the realty. In neither of these propositions are we able to concur. The contract contains essential characteristics of a lease. On its face it appears that the lessors were “desirous of leasing” as well as selling the property. In-the agreement they “grant, lease, and demise” the mining claims, fix the term of the lease, and provide for work to be performed, which is to be “not less than ninety shifts” each month “during the term of the lease.” Rent is reserved by way of royalty, and the manner of its payment stipulated. Eorfeiture and surrender of possession are provided for in the event of a failure on the part of the lessees to perform any of the covenants of the lease to be performed by them. These are elements of a lease. In fact, an examination of the instrument shows that the evident design of the lessors was to lease the mining claims and grant to the lessees the privilege to purchase them, and the mere fact that the agreement also contains a covenant granting the “privilege of purchasing” the demised premises does not destroy its character as a lease. Nor is such a covenant inimical to the existence of the relation of landlord and tenant between the parties prior to the exercise of the privilege. 18 Am. and Eng. Ency. Law (2 Ed.), 169; Clifford v. Gressinger, 96 Ga. 189, 22 S. E. 399; Nobles v. McCarty, 61 Miss. 456; Hartwell v. Black, 48 Ill. 301; Barrett v. Johnson, 2 Ind. App. 25, 27 N. E. 983; Crinklev v. Egerton, 113 N. C. 444, 18 S. E. 669; Holbrook v. Chamberlin, 116 Mass. 155, 11 Am. Rep. 146. Nor does the fact that the contract provides for the payment of royalty, instead of rent in money, change the character of the-instrument, or prevent the creation of the relation of landlord and tenant. Rent may be made payable otherwise than in-money. 2 Bl. Comm., 41.
[46]*46We are of the opinion that the contract in this case must-be regarded as a lease, and that the relation of landlord and tenant existed between the parties to this controversy. Having come to this conclusion the question is, was the removal of the fixtures in dispute by the lessees lawful? The contract is silent, as to such removal, and the proof fails to show any other agreement relating to- the subject. Doubtless, in general, under the rule of the common law as it prevailed in England, any structures once annexed to the freehold became a part of it, and could not afterwards be removed, except by him who was entitled to the inheritance. This rule, however, although never without exceptions, has been greatly relaxed by modem decisions, especially as between landlord and tenant, in favor of the latter. And this would seem to be in consonance with equity and justice, since tenants usually pay adequate rent for the premises, and should therefore be permitted to remove, during the term, fixtures which they have erected at their own expense for their own convenience and use, when this can be done without material injury to the freehold, and when such removal was within the intention of the tenant at the time of the construction of the fixtures. “In modern times,” says' Chancellor Kent, “for the encouragement of- trade and manufactures, and as between landlord and tenant, many things are now treated as personal property which seem, in a very considerable degree, to be attached to the freehold. The law of fixtures is in derogation of the original rule of the common law,- which subjected everything affixed to the freehold to the law governing the freehold; and it has grown up into a system of judicial legislation, so as almost to render the right of removal of fixtures a general rule, instead of being an exception. The general rule, which appears to be the result of the cases, is that things which the tenant has affixed to the freehold for the purpose of trade or manufactures may be removed, when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate, and which can [47]*47be removed without losing their essential character or value as personal chattels. The character of the property, whether personal or real, in respect to fixtures, is governed very much by the intention of the owner, and the purpose to which the erection was to be applied.” 2 Kent, Comm., 343; 13 Am. and Eng. Ency. Law (2 Ed.), 639; Van Ness v. Pacard, 2 Pet. 137, 7 L. Ed. 374; Wall v. Hinds, 4 Gray 256, 64 Am. Dec. 64; Bircher v. Parker, 40 Mo. 118; Reynolds v. Shuler, 5 Cow. 323; Dubois v. Kelly, 10 Barb. 496; Kelly v. Austin, 46 Ill. 156, 92 Am. Dec. 243; Whiting v. Brastow, 4 Pick. 310; Hayes v. Mining Co., 2 Colo. 273; Heffner v. Lewis, 73 Pa. 302; Bartlett v. Haviland, 92 Mich. 552, 52 N. W. 1008. Hpon examination of the authorities it will be seen that the law regards with peculiar favor the rights of tenants as to the removal of trade fixtures annexed by them to the freehold at their own expense; and, applying the principles-which 2 govern such cases to the case at bar, we have no hesitancy in holding that under the contract herein the lessees had the right to remove the buildings and track, there being no showing that such removal caused any material injury to the realty.
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BAETOH, J.
This action was brought to recover damages for the removal by the respondents of certain improve[44]*44ments from certain mining claims. From the record it appears that on May 5,1899, the appellants, who were the owners of the mining claims, executed a bond and lease to Ernest G. Miller and Peter Me Court, who then assigned the same to the respondent Huntsman Copper Mining Company. The contract thus assigned contained a covenant granting to the lessees the exclusive right to purchase the mining claims at a stipulated price, and also covenants obligating the lessees to perform certain work upon the claims to improve the same, with the right to mine and sell the ore, and to pay to the lessors certain amounts as royalty, all of which amounts so paid, if any, to apply as part payment of the purchase price in the event of the election by the lessees to purchase the claims, and of their compliance with the conditions of the bond and lease. The contract also provided for forfeitures of all the rights of the lessees, together with all moneys, if any, paid as part of the purchase price, in ease of a failure to comply with the conditions of tire agreement. After the execution and assignment of the bond and lease the respondent company went into possession of the property, and, among other things, erected thereon a bunk house and boarding house, and also constructed a track of iron or steel rails in the tunnel, all of which were used in operating the mine. These buildings and track the respondents, while yet in possession, removed from the claims; and thereafter the lessors declared a forfeiture, claiming a failure or refusal on the part of the lessees to carry out the provisions of the agreement. At the trial, after the plaintiffs rested their case, the court, upon motion of the defendants, granted a nonsuit, and at the same time directed the jury to return a verdict,“No cause of action,”' in favor of the defendants. Thereupon judgment was entered accordingly, and this appeal prosecuted.
The decisive question presented is whether the respondents had the right, under the contract, to remove the buildings and track during the term, and while in possession of the [45]*45mining claims. It is insisted by the appellants, as appears, that the bond and lease constituted simply a contract of 1 purchase, that the relation of landlord and tenant did not exist, and that the buildings and track in dispute were fixtures of a permanent character, and formed a part of the realty. In neither of these propositions are we able to concur. The contract contains essential characteristics of a lease. On its face it appears that the lessors were “desirous of leasing” as well as selling the property. In-the agreement they “grant, lease, and demise” the mining claims, fix the term of the lease, and provide for work to be performed, which is to be “not less than ninety shifts” each month “during the term of the lease.” Rent is reserved by way of royalty, and the manner of its payment stipulated. Eorfeiture and surrender of possession are provided for in the event of a failure on the part of the lessees to perform any of the covenants of the lease to be performed by them. These are elements of a lease. In fact, an examination of the instrument shows that the evident design of the lessors was to lease the mining claims and grant to the lessees the privilege to purchase them, and the mere fact that the agreement also contains a covenant granting the “privilege of purchasing” the demised premises does not destroy its character as a lease. Nor is such a covenant inimical to the existence of the relation of landlord and tenant between the parties prior to the exercise of the privilege. 18 Am. and Eng. Ency. Law (2 Ed.), 169; Clifford v. Gressinger, 96 Ga. 189, 22 S. E. 399; Nobles v. McCarty, 61 Miss. 456; Hartwell v. Black, 48 Ill. 301; Barrett v. Johnson, 2 Ind. App. 25, 27 N. E. 983; Crinklev v. Egerton, 113 N. C. 444, 18 S. E. 669; Holbrook v. Chamberlin, 116 Mass. 155, 11 Am. Rep. 146. Nor does the fact that the contract provides for the payment of royalty, instead of rent in money, change the character of the-instrument, or prevent the creation of the relation of landlord and tenant. Rent may be made payable otherwise than in-money. 2 Bl. Comm., 41.
[46]*46We are of the opinion that the contract in this case must-be regarded as a lease, and that the relation of landlord and tenant existed between the parties to this controversy. Having come to this conclusion the question is, was the removal of the fixtures in dispute by the lessees lawful? The contract is silent, as to such removal, and the proof fails to show any other agreement relating to- the subject. Doubtless, in general, under the rule of the common law as it prevailed in England, any structures once annexed to the freehold became a part of it, and could not afterwards be removed, except by him who was entitled to the inheritance. This rule, however, although never without exceptions, has been greatly relaxed by modem decisions, especially as between landlord and tenant, in favor of the latter. And this would seem to be in consonance with equity and justice, since tenants usually pay adequate rent for the premises, and should therefore be permitted to remove, during the term, fixtures which they have erected at their own expense for their own convenience and use, when this can be done without material injury to the freehold, and when such removal was within the intention of the tenant at the time of the construction of the fixtures. “In modern times,” says' Chancellor Kent, “for the encouragement of- trade and manufactures, and as between landlord and tenant, many things are now treated as personal property which seem, in a very considerable degree, to be attached to the freehold. The law of fixtures is in derogation of the original rule of the common law,- which subjected everything affixed to the freehold to the law governing the freehold; and it has grown up into a system of judicial legislation, so as almost to render the right of removal of fixtures a general rule, instead of being an exception. The general rule, which appears to be the result of the cases, is that things which the tenant has affixed to the freehold for the purpose of trade or manufactures may be removed, when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate, and which can [47]*47be removed without losing their essential character or value as personal chattels. The character of the property, whether personal or real, in respect to fixtures, is governed very much by the intention of the owner, and the purpose to which the erection was to be applied.” 2 Kent, Comm., 343; 13 Am. and Eng. Ency. Law (2 Ed.), 639; Van Ness v. Pacard, 2 Pet. 137, 7 L. Ed. 374; Wall v. Hinds, 4 Gray 256, 64 Am. Dec. 64; Bircher v. Parker, 40 Mo. 118; Reynolds v. Shuler, 5 Cow. 323; Dubois v. Kelly, 10 Barb. 496; Kelly v. Austin, 46 Ill. 156, 92 Am. Dec. 243; Whiting v. Brastow, 4 Pick. 310; Hayes v. Mining Co., 2 Colo. 273; Heffner v. Lewis, 73 Pa. 302; Bartlett v. Haviland, 92 Mich. 552, 52 N. W. 1008. Hpon examination of the authorities it will be seen that the law regards with peculiar favor the rights of tenants as to the removal of trade fixtures annexed by them to the freehold at their own expense; and, applying the principles-which 2 govern such cases to the case at bar, we have no hesitancy in holding that under the contract herein the lessees had the right to remove the buildings and track, there being no showing that such removal caused any material injury to the realty. Under such circumstances as are herein disclosed, such fixtures must be regarded as personalty.
The appellants also insist that the court erred in granting a judgment of nonsuit at the close of the plaintiffs’ testimony, claiming that the motion therefor was too indefinite. The motion was based upon the ground, among other things, that the proof showed no contract which required the defendants to leave the improvements upon the premises. As the contract hereinbefore considered was the only one which had 3 been introduced in evidence, and the only one under which the lessees held possession of and operated the mine, and since under that contract the lessees had the right to remove the improvements in question, we think the motion was sufficiently specific. It called the attention of the court to the fact that the plaintiffslhad introduced no proof showing [48]*48any liability on the part of the defendants. The motion was therefore sufficient to warrant the court in granting the non-suit. Nor did the court, under the circumstances disclosed, commit fatal error, as claimed by counsel for the appellants, in directing a verdict for .defendants at the same time of sustaining the motion for a nonsuit. The direction of such a verdict was nothing more than the determination of the case 4 by the court on the same grounds which called for a judgment of nonsuit, and, under the circumstances, no prejudice resulted to the appellants. We do not, however, wish to be understood as sanctioning such practice. We simply bold that in this case it was harmless and not prejudicial error. An instruction for such a verdict, given at the close of plaintiffs’ case upon the ground of failure of proof, is in effect a nonsuit. 6 Ency. Pl. and Prac., 694; Gerding v. Haskin, 141 N. Y. 514, 36 N. E. 601; McKay v. Railway Co., 13 Mont. 15, 31 Pac. 999; Creek v. McManus, 13 Mont. 152, 32 Pac. 675; Harris v. Woody, 9 Mo. 113-116; Appleby v. Insurance Co., 54 N. Y. 253.
We find no reversible error in tbe record. The judgment is affirmed, with costs.
MINER, C. J., and BASKIN, J\, concur.