Glidden v. Bennett

43 N.H. 306

• Court: Supreme Court of New Hampshire
• Decided: December 15, 1861
• Status: Published

Opinion

Sargent, J.

It is claimed that the defendant, by his marriage, became a tenant of the premises during his wife’s life, and therefore that he might remove any fixtures placed by him on the land, by the same rule that would apply between landlord and tenant.

But there was evidently no such relation existing between the plaintiff and the defendant. By his marriage the defendant became interested in the lands of his wife during her life ; and it seems that he had possession of and occupied and carried on the land as owner, making division of and building the partition fence between himself and plaintiff, as his wife would have done had she remained unmarried; so that the same rule must be applied here that would be applied between vendor and vendee, and executor and heir. By that rule a building or permanent fence could not, of course, be removed from the land.

But the proper view is that this fence was not a fixture, for permanent buildings and fences are more properly considered as parts of the realty than as fixtures. Fences upon land, though attached to the land in mauy cases by gravity alone, are yet beyond question parts of the realty itself. Sawyer v. Twiss, 26 N. H. 348; Ripley v. Page, 12 Vt. 353; Goodrich v. Jones, 2 Hill 142; Russ v. Barker, 4 Pick. 239.

Judgment on the verdict.