JOHNSON, JUDGE,
delivered the following opinion of the Court:
Syflabns 1. That a steam engine and boiler, burrs and mill-irons necessary ~o the running of a mill as such are fixtures, is not now an open question. We have no hesitation in approving the conclusion of the Court in Green v. Phillips et al., 26 Gratt. 752, which is, that the true rule in determining what are fixtures in a manufacturing estab-inent, where the land and buildings are owned by the manufacturer is, that where the machinery is permanent in its character, and essential to the purposes for which the building is occupied, it must be regarded as realty, and passes with the building; and that whatever is essential to the purposes, for which the building is used, will be considered as a fixture, although the connection between them be such that it may be severed without physical or lasting inj ury to either. In Lewis, Receiver, &c. v. Rossler, Sheriff, supra, this Oourt held, that the words fixtures and appurtenances have acquired a peculiar and appropriate meaning, and are to be construed according to such meaning, having due reference to the context, and the connection in which the words are used.
In the case at bar the description of the property in the contract of sale is the "Ritchie Virginia Mills," with a tract of about seventeen acres of land on which said mills are situated. That contract of course passed the mills and fixtures which were a part thereof consisting of engine, boiler, burrs, mill-irons, &c. The engine, boiler, burrs and mill-irons in controversy in this suit were on the property when the plaintiff, Patton, acquired an equitable title thereto. When Patton sold to Meserve, he reserved the engine and boiler, and sold them to another party. As far as Patton's rights wcra concerned, there was a complete severance of the property, and a conversion into chattels. Lewis, Rceiver &c. v. Rossler, Sheriff, &c., supra. Patton then cancelled his contract with Meserve, and let (Jochrane have the mill-[438]*438property on the same terms as specified in his contract Meserve. At this time certainly Patton would have had no right to complain, if the engine and boiler had *Deen ievjef] 0I1 an(| sold under an execution in favor of any one, as he had parted with his right to them. We are not considering the rights of Core in the premises, or whether he would have had a right to enjoin the severance of the engine and boiler from the mill.
But while Cochrane was in possession of the mill-property under his purchase from Patton, he purchased the same engine and boiler with the manifest intention of again making them fixtures in the mill, and had for that purpose hauled them into the mill-yard, and before he had put them into the mill, they were on the 30th day of December, 1870, levied on by sheriff Heaton, under an execution in favor of Meserve, for the use of B. F. Moore v. Martin Cochrane. Were they .liable to be so levied upon at that time ?
In The Congregational Society of Dubuque v. Fleming, 11 Ia. 533, a bell had been used in the belfry of an old church-edifice of a religious society; a new building was erected and the old one sold, the bell being reserved. A tower was erected on the new building for the bell and a temporary frame-work was also erected upon the lot, upon which the bell was placed and used for church purposes with the intention on the part of the authorities of the society to place it permanently in the tower. It remained in the tempory frame for nearly a year, and was then removed to the place designed for it.. It was held, that it never ceased to be a fixture, and that it was not subject to the levy of an execution as personal property.
In Palmer v. Forbes et al., 23 Ill. 301, it was held, that the rolling stock, rails, ties, chains, spikes, and all other material brought upon the ground of the company and designed to be attached to the realty should be considered as a part of the realty. This decision was approved in McLaughlin v. Johnson, 46 Ill. 163. In the former case the court said : “ It is a familiar principle, [439]*439that rails hauled on to the land designed to be laid into a fence, or timber for a building, although not yet elected, but lying around loose, and in no way attached to the soil, are treated as a part of the realty and pass with the land as appurtenances.” See also Bishop v. Bishop, 1 Kern. 123.
syuabus 2. We think this is sound reasoning. If this were not so, persons involved in any degree would not have much encouragement to erect permanent improvements. They might have all their arrangements made to build, their contracts made, the material all on the ground, and the whole scheme might be frustrated, and irreparable loss inflicted by the levy of an execution on the materials thus collec!ed and on the ground. And so with regard to a mill. It might be all complete except the engine and boiler, the motive power, without which it would be useless, and that is brought upon the ground to be attached, and before it is actually attached, it is taken in execution, and the whole mill-scheme, it may be, frustrated. We hold, therefore, if an engine and boiler have been bought by the owner of a mill, and hauled into the mill-yard with the bona fide intention of attaching them to the mill and they are necessary for the purpose for which they are to be used, they must be regarded as a part of the realty, and not liable to the levy of an execution as personal property. The engine and boiler in this case were not liable therefore to be levied on as personal property by John Heaton, sheriff of Ritchie county, on the 30th day of December, 1870.
Syllabus 8. But if this were not true, and they were at that time ’ J mere chattels, they became a part of the realty by being attached to the freehold, with the consent of the execution-creditor, and the lien of the execution, if any existed, was thereby released. In Heaton v. Findlay, 12 Penn. St. 304, the owner of land sold a fixture to A., which was temporarily severed from the freehold. He then sold the land to B., with notice of the previous sale of the fixture. The fixture was never actually delivered, [440]*440and it was in a short time re-annexed to the freehold and continued to be so used. At the date of the sale of the fixture there was a judgment recovered by a stranger against the owner of the land, which was a lien thereon ; under this the land was sold to B. It was held that- B. thereby became the owner of the fixture, nor is his title as sheriff’s vendee affected by his knowledge of the sale, nor by his own previous admission that the fixture belonged to A., there being no contract or consideration for such statements, which would preclude him from acquiring such title, as a stranger might have acquired by such purchase. See also Goddard v. Bolster et al., 6 Me. 427.
If Moore, the execution-creditor, had a lien on the engine and boiler by virtue of the levy, it was of course in his power to release that lien; and if by his consent the property was made a part of the freehold, that was certainly a most effectual mode of releasing his lien, because the power to enforce it under execution was forever gone.
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JOHNSON, JUDGE,
delivered the following opinion of the Court:
Syflabns 1. That a steam engine and boiler, burrs and mill-irons necessary ~o the running of a mill as such are fixtures, is not now an open question. We have no hesitation in approving the conclusion of the Court in Green v. Phillips et al., 26 Gratt. 752, which is, that the true rule in determining what are fixtures in a manufacturing estab-inent, where the land and buildings are owned by the manufacturer is, that where the machinery is permanent in its character, and essential to the purposes for which the building is occupied, it must be regarded as realty, and passes with the building; and that whatever is essential to the purposes, for which the building is used, will be considered as a fixture, although the connection between them be such that it may be severed without physical or lasting inj ury to either. In Lewis, Receiver, &c. v. Rossler, Sheriff, supra, this Oourt held, that the words fixtures and appurtenances have acquired a peculiar and appropriate meaning, and are to be construed according to such meaning, having due reference to the context, and the connection in which the words are used.
In the case at bar the description of the property in the contract of sale is the "Ritchie Virginia Mills," with a tract of about seventeen acres of land on which said mills are situated. That contract of course passed the mills and fixtures which were a part thereof consisting of engine, boiler, burrs, mill-irons, &c. The engine, boiler, burrs and mill-irons in controversy in this suit were on the property when the plaintiff, Patton, acquired an equitable title thereto. When Patton sold to Meserve, he reserved the engine and boiler, and sold them to another party. As far as Patton's rights wcra concerned, there was a complete severance of the property, and a conversion into chattels. Lewis, Rceiver &c. v. Rossler, Sheriff, &c., supra. Patton then cancelled his contract with Meserve, and let (Jochrane have the mill-[438]*438property on the same terms as specified in his contract Meserve. At this time certainly Patton would have had no right to complain, if the engine and boiler had *Deen ievjef] 0I1 an(| sold under an execution in favor of any one, as he had parted with his right to them. We are not considering the rights of Core in the premises, or whether he would have had a right to enjoin the severance of the engine and boiler from the mill.
But while Cochrane was in possession of the mill-property under his purchase from Patton, he purchased the same engine and boiler with the manifest intention of again making them fixtures in the mill, and had for that purpose hauled them into the mill-yard, and before he had put them into the mill, they were on the 30th day of December, 1870, levied on by sheriff Heaton, under an execution in favor of Meserve, for the use of B. F. Moore v. Martin Cochrane. Were they .liable to be so levied upon at that time ?
In The Congregational Society of Dubuque v. Fleming, 11 Ia. 533, a bell had been used in the belfry of an old church-edifice of a religious society; a new building was erected and the old one sold, the bell being reserved. A tower was erected on the new building for the bell and a temporary frame-work was also erected upon the lot, upon which the bell was placed and used for church purposes with the intention on the part of the authorities of the society to place it permanently in the tower. It remained in the tempory frame for nearly a year, and was then removed to the place designed for it.. It was held, that it never ceased to be a fixture, and that it was not subject to the levy of an execution as personal property.
In Palmer v. Forbes et al., 23 Ill. 301, it was held, that the rolling stock, rails, ties, chains, spikes, and all other material brought upon the ground of the company and designed to be attached to the realty should be considered as a part of the realty. This decision was approved in McLaughlin v. Johnson, 46 Ill. 163. In the former case the court said : “ It is a familiar principle, [439]*439that rails hauled on to the land designed to be laid into a fence, or timber for a building, although not yet elected, but lying around loose, and in no way attached to the soil, are treated as a part of the realty and pass with the land as appurtenances.” See also Bishop v. Bishop, 1 Kern. 123.
syuabus 2. We think this is sound reasoning. If this were not so, persons involved in any degree would not have much encouragement to erect permanent improvements. They might have all their arrangements made to build, their contracts made, the material all on the ground, and the whole scheme might be frustrated, and irreparable loss inflicted by the levy of an execution on the materials thus collec!ed and on the ground. And so with regard to a mill. It might be all complete except the engine and boiler, the motive power, without which it would be useless, and that is brought upon the ground to be attached, and before it is actually attached, it is taken in execution, and the whole mill-scheme, it may be, frustrated. We hold, therefore, if an engine and boiler have been bought by the owner of a mill, and hauled into the mill-yard with the bona fide intention of attaching them to the mill and they are necessary for the purpose for which they are to be used, they must be regarded as a part of the realty, and not liable to the levy of an execution as personal property. The engine and boiler in this case were not liable therefore to be levied on as personal property by John Heaton, sheriff of Ritchie county, on the 30th day of December, 1870.
Syllabus 8. But if this were not true, and they were at that time ’ J mere chattels, they became a part of the realty by being attached to the freehold, with the consent of the execution-creditor, and the lien of the execution, if any existed, was thereby released. In Heaton v. Findlay, 12 Penn. St. 304, the owner of land sold a fixture to A., which was temporarily severed from the freehold. He then sold the land to B., with notice of the previous sale of the fixture. The fixture was never actually delivered, [440]*440and it was in a short time re-annexed to the freehold and continued to be so used. At the date of the sale of the fixture there was a judgment recovered by a stranger against the owner of the land, which was a lien thereon ; under this the land was sold to B. It was held that- B. thereby became the owner of the fixture, nor is his title as sheriff’s vendee affected by his knowledge of the sale, nor by his own previous admission that the fixture belonged to A., there being no contract or consideration for such statements, which would preclude him from acquiring such title, as a stranger might have acquired by such purchase. See also Goddard v. Bolster et al., 6 Me. 427.
If Moore, the execution-creditor, had a lien on the engine and boiler by virtue of the levy, it was of course in his power to release that lien; and if by his consent the property was made a part of the freehold, that was certainly a most effectual mode of releasing his lien, because the power to enforce it under execution was forever gone. That Moore did intend, when he gave his consent after the levy that the engine and boiler should be attached to the mill, to release his lien on the property, if any he had under the levy, is made conclusive by the fact, that he lay quiet for nearly five year’s, and when the mill was washed away by the flood, he again liad another execution issued upon the judgment, which was by B. F. Mitchell, sheriff of Ritchie county, on the 9th day of October, 1875, levied upon the same engine and boiler. Did the severance by the flood on the 2d day of August, 1875, convert the engine, boiler, burrs and mill-irons into chattels, so that they were subject to the levy of the execution on the 9th day of October, 1875 ? According to the decision in Buckout v. Swift, 27 Cal. 483, which laid down the broad proposition, that the severance and removal of a house from the freehold changes the character of the house from real to personal property, whether the severance is by the act of God or of man, it did have that effect. But we cannot approve [441]*441that decision, and announced a contrary one in Lewis, Receiver, &c. v. Rossler et al., supra. We find no authority to sustain the California decision; but on the contrary it was held in Rogers et al. v. Gilinger et al., 30 Penn. St. 185, that the fragments of a building, blown down by a temptest, are not thereby converted into personalty, but pass to the purchaser of the realty at a sheriff’s sale. Strong, Judge, in delivering the opinion of the Court said: “What then is the criterion by which we are to determine whether that which was once part of realty has become personalty on being detached ? Not capability of restoration to the former connection with the freehold, as is contended, for the tree prostrated by the tempest, is incapable of re-annexation to the soil, and yet remains realty. The true rule would rather seem to be, that which was real shall continue real, until the owner of the freehold shall by his election give it a different character.”
Syllabus 4. In Goddard v. Bolster et al., 6 Me. 427, the agent of the owner of a grist-mill having put into it his own mill-stones and mill-irons it was held, that they became thereby the property of the owner of the mill, as part of his freehold, so that the agent could not lawfully sever them again; nor could his creditors seize them for his debt, though the mill had been destroyed by a flood and they alone remained. We conclude therefore, that it is a clear legal proposition, that the washing out of a mill by flood, of an engine, boiler, burrs and mill-irons, which were fixtures in the mill, does not convert them into personal property ; and when thus washed out, they are not subject to the levy of an execution.
[442]*442Syllabus 5. [441]*441After they were thus washed out, Cochrane raised a new frame, the old having been carried away by the flood, got part of the fixtures back into the mill, and got it to running again, perhaps by water-power, and being unable to pay for it surrendered the mill-property to Patton, and took back and cancelled the notes for the purchase-money, without any express reservation of the [442]*442engine and boiler. We think it is an undisputed propo-si tion, that where a purchaser of real property, who makes permanent improvements thereon attached to the free}10^j and then being unable to pay for it surrenders the property to the vendor, without express reservation of the improvements, and cancels the contract of purchase, the improvements go with the property back to the vendor. Therefore when Cochrane surrendered the mill-property to Patton, the engine and boiler, which he had attached to the mill, not being expressly reserved, became the property of Patton.
Syllabus 6. It is insisted in the argument, that the demurrer to the bill ought to have been sustained, because a court of equity had not jurisdiction. Equity will take jurisdiction by injunction to preserve the inheritance, and where a mill is about to be dismantled by execution-creditors of the owners who have levied on the fixtures attached thereto, equity will interfere to prevent it. This doctrine is recognized by this Court in Ferrell v. McMillan, 6 W. Va. 223. The cases cited by counsel for appellant do not apply to a case like this. The jurisdiction in a case much like the one before us was sustained in Green v. Phillips et al., 26 Gratt. 752.
For the foregoing reasons the decree of the circuit court of Ritchie county is affirmed with costs and $30.00 damages.
The otheR Judges Concurred.
Decree Apeirmed.