By the Court,
G-arber, J.:
The boiler and engine in controversy were actually and firmly annexed to the soil' — solo infixa, in the strictest sense of the term; and the other articles, if not actually, were constructively annexed, and follow the nature of the principal portion of the machinery, as essential parts of one entire combination. The machinery was'“ annexed to the freehold for the better enjoyment of the freehold, attached to the soil for the soil’s -use, and essential to the inheritance for its only valuable purpose.” It therefore became a fixture. It is true, the parties testified that they erected the mill with the intention of removing it. But such evidence was palpably inadmissible ; and although admitted without objection, is entitled to no weight whatever. Wadleigh v. Janvrin, 41 N. H. 512.
It is urged that an intention to devote these articles as a permanent accession to the freehold, -jvas a prerequisite to their conversion from chattels into realty; and that, as there was only a limited supply of timber in the vicinity of this mill, which could be hauled to and sawed by it without loss, such intention is not only not proved, but the contrary is clearly inferable.
Now, every saw-mill may, sooner or later, exhaust the available timber in its immediate vicinity — yet, it would hardly be contended that a saw-mill, as such, is always and necessarily a chattel. That all the available ore in a quartz lode maybe extracted, is as true as that all the available timber near a mill may be sawed; and it [42]*42rarely, if ever, happens that the machinery first erected on a ledge is suited or intended to do the work of hoisting and pumping from the deeper workings, which favorable developments may induce. Yet ever since the great case of Fisher v. Dixon, it has been settled law, that machinery annexed to the soil for mining becomes part of the soil; and in Merritt v. Judd, 14 Cal. 60, a small steam engine and pump were adjudged to be fixtures. If it was the intention, in the latter case, to work the ledge to any great depth, (it must also have been the intention to 'replace this small engine and pump with others, larger and of greater power. It cannot be, then, that an intention to remove, at any time, however remote— for instance, when the greatest depth consistent with profitable working shall have been attained, or whenever more powerful \ machinery must be used — controls the act of annexation, or rebuts | the presumption that thereby the chattel is made a part of the land. Then, where shall the line be drawn ? If a steam pump calculated to drain the mine to a depth of five hundred feet, or a mill with timber for three years’ sawing, remain chattels, with how much power would the engine, and with how much timber would the mitlr — ^ become a fixture ? The millt in question, a large, w'ell equipped, and perfectly appointed steam mill, was actively operated nearly three years. The same body of timber might have supplied, a smaller mill, poorly constructed, for many years. Would the latter become real estate, and the former remain a chattel ? That it is1 the annexation, and not the intention, which controls in such a case as this, is shown by the law as to young trees, temporarily set out in a nursery and intended for transplantation and sale. These are part of the realty .; at common law, go with the land to the heir, and pass to a vendee of the land. Maples v. Mallon, 31 Conn. 598; Lee v. Risdon, 7 Taunton, 188; Smith v. Price, 39 Ill. 28.
If this machinery was personal property after annexation, common law larceny could have been committed of it. But not even growing corn is the subject of such felony, because it is “ annexed to the freehold.” 1 Hawkins P. C. 148. The cases cited for appellants, (one of the latest and best reasoned of which class is Capen v. Peckham, 35 Conn. 88) are shown to be in direct antagonism with well established principles, by the very illustrations relied [43]*43upon to prove that, in questions of this kind, intention is a universal criterion and controlling test. For if, in order to constitute an article a fixture, it must appear that a permanent accession to the freehold Avas intended; and if, in cases arising between landlord and tenant, a presumption arises from the relation of the tenant to the property, that he did not intend to make trade fixtures erected by him a part of the realty, thus making a donation of them to the OAvner of the soil; it should follow, as these cases assume, that such trade fixtures retain their'quality of chattels, and are no part or parcel of the realty.
But Ave take the law to be, that trade fixtures do become part of the realty, whatever intention to the contrary on the part of the tenant erecting them may be inferred from his limited interest in the land. Lee v. Risdon, supra; Coombes v. Beaumont, 5 B & Ad. 72; MacIntosh v. Trotter, 3 M. & W. 184; Powers v. Dennison, 30 Vt. 752; Mott v. Palmer, 1 Comstock, 564; Pemberton v. King, 2 Dev. 376; Reynolds v. Shuler, 5 Cowen, 323; Boyd v. Shorrock, L. R. 5 Eq. 72.
Although part of the realty, the law indulges the tenant with the right of removing them during his term, not out of any regard to his intention, but by Ayay of exception to a rule Ayhich would other-' wise work hardship or'retard improvement. For the same-reason, they could be taken under a fi. fa., and passed to the executor, thus extending the benefit of the exception to the creditors of the lessee. Just as emblements, though part of the realty so as to pass the vendee or devisee of the land, and to belong to a successful plaintiff in ejectment, ^ent at common laAV to the executor and were subject to levy, by reason of an exception introduced for the benefit of the creditors of tenant in fee. 2* Black. Com. 404. Trade or removable fixtures, erected by a tenant for life or years, pass by a grant of the land, or a mortgage or assignment of the term or lease — by instruments in which no mention of them, eo nomine,.is made. Why ? Because they are part of the realty described,. If still chattels, they Avould no more pass than a horse of the tenant standing in a stable on the land.
To apply the other illustrations used in Capen v. Peckham to this case, suppose it had been found that the articles herein question were [44]*44annexed for the single purpose of steadying them for more convenient use as chattels, without any intention to benefit or improve the realty; and that they were removable without any appreciable damage to themselves or to the freehold. If, as is asserted in Capen v. Peckham, these findings would “ show for what purpose the annexation 'of the articles was made, that it was done with no design to make them part of the realty,” it follows that such design, instead of being “ material and important,” is simply irrelevant. For the addition of the supposed findings to those already in the record would not vary the result. The machinery in question would still be deemed a fixture. Climie v. Wood, L. R. 4 Exch. 328; S. C. L. R. 3 Exch. 259; Longbottom v. Berry, L. R. 5 Q. B. 138; Mather v. Fraser, 2 Kay & Johns, 548; D’Eyncourt v. Gregory, L. R. 3 Eq. 382: Johnson v. Wiseman, 4 Met. (Ky.) 357.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court,
G-arber, J.:
The boiler and engine in controversy were actually and firmly annexed to the soil' — solo infixa, in the strictest sense of the term; and the other articles, if not actually, were constructively annexed, and follow the nature of the principal portion of the machinery, as essential parts of one entire combination. The machinery was'“ annexed to the freehold for the better enjoyment of the freehold, attached to the soil for the soil’s -use, and essential to the inheritance for its only valuable purpose.” It therefore became a fixture. It is true, the parties testified that they erected the mill with the intention of removing it. But such evidence was palpably inadmissible ; and although admitted without objection, is entitled to no weight whatever. Wadleigh v. Janvrin, 41 N. H. 512.
It is urged that an intention to devote these articles as a permanent accession to the freehold, -jvas a prerequisite to their conversion from chattels into realty; and that, as there was only a limited supply of timber in the vicinity of this mill, which could be hauled to and sawed by it without loss, such intention is not only not proved, but the contrary is clearly inferable.
Now, every saw-mill may, sooner or later, exhaust the available timber in its immediate vicinity — yet, it would hardly be contended that a saw-mill, as such, is always and necessarily a chattel. That all the available ore in a quartz lode maybe extracted, is as true as that all the available timber near a mill may be sawed; and it [42]*42rarely, if ever, happens that the machinery first erected on a ledge is suited or intended to do the work of hoisting and pumping from the deeper workings, which favorable developments may induce. Yet ever since the great case of Fisher v. Dixon, it has been settled law, that machinery annexed to the soil for mining becomes part of the soil; and in Merritt v. Judd, 14 Cal. 60, a small steam engine and pump were adjudged to be fixtures. If it was the intention, in the latter case, to work the ledge to any great depth, (it must also have been the intention to 'replace this small engine and pump with others, larger and of greater power. It cannot be, then, that an intention to remove, at any time, however remote— for instance, when the greatest depth consistent with profitable working shall have been attained, or whenever more powerful \ machinery must be used — controls the act of annexation, or rebuts | the presumption that thereby the chattel is made a part of the land. Then, where shall the line be drawn ? If a steam pump calculated to drain the mine to a depth of five hundred feet, or a mill with timber for three years’ sawing, remain chattels, with how much power would the engine, and with how much timber would the mitlr — ^ become a fixture ? The millt in question, a large, w'ell equipped, and perfectly appointed steam mill, was actively operated nearly three years. The same body of timber might have supplied, a smaller mill, poorly constructed, for many years. Would the latter become real estate, and the former remain a chattel ? That it is1 the annexation, and not the intention, which controls in such a case as this, is shown by the law as to young trees, temporarily set out in a nursery and intended for transplantation and sale. These are part of the realty .; at common law, go with the land to the heir, and pass to a vendee of the land. Maples v. Mallon, 31 Conn. 598; Lee v. Risdon, 7 Taunton, 188; Smith v. Price, 39 Ill. 28.
If this machinery was personal property after annexation, common law larceny could have been committed of it. But not even growing corn is the subject of such felony, because it is “ annexed to the freehold.” 1 Hawkins P. C. 148. The cases cited for appellants, (one of the latest and best reasoned of which class is Capen v. Peckham, 35 Conn. 88) are shown to be in direct antagonism with well established principles, by the very illustrations relied [43]*43upon to prove that, in questions of this kind, intention is a universal criterion and controlling test. For if, in order to constitute an article a fixture, it must appear that a permanent accession to the freehold Avas intended; and if, in cases arising between landlord and tenant, a presumption arises from the relation of the tenant to the property, that he did not intend to make trade fixtures erected by him a part of the realty, thus making a donation of them to the OAvner of the soil; it should follow, as these cases assume, that such trade fixtures retain their'quality of chattels, and are no part or parcel of the realty.
But Ave take the law to be, that trade fixtures do become part of the realty, whatever intention to the contrary on the part of the tenant erecting them may be inferred from his limited interest in the land. Lee v. Risdon, supra; Coombes v. Beaumont, 5 B & Ad. 72; MacIntosh v. Trotter, 3 M. & W. 184; Powers v. Dennison, 30 Vt. 752; Mott v. Palmer, 1 Comstock, 564; Pemberton v. King, 2 Dev. 376; Reynolds v. Shuler, 5 Cowen, 323; Boyd v. Shorrock, L. R. 5 Eq. 72.
Although part of the realty, the law indulges the tenant with the right of removing them during his term, not out of any regard to his intention, but by Ayay of exception to a rule Ayhich would other-' wise work hardship or'retard improvement. For the same-reason, they could be taken under a fi. fa., and passed to the executor, thus extending the benefit of the exception to the creditors of the lessee. Just as emblements, though part of the realty so as to pass the vendee or devisee of the land, and to belong to a successful plaintiff in ejectment, ^ent at common laAV to the executor and were subject to levy, by reason of an exception introduced for the benefit of the creditors of tenant in fee. 2* Black. Com. 404. Trade or removable fixtures, erected by a tenant for life or years, pass by a grant of the land, or a mortgage or assignment of the term or lease — by instruments in which no mention of them, eo nomine,.is made. Why ? Because they are part of the realty described,. If still chattels, they Avould no more pass than a horse of the tenant standing in a stable on the land.
To apply the other illustrations used in Capen v. Peckham to this case, suppose it had been found that the articles herein question were [44]*44annexed for the single purpose of steadying them for more convenient use as chattels, without any intention to benefit or improve the realty; and that they were removable without any appreciable damage to themselves or to the freehold. If, as is asserted in Capen v. Peckham, these findings would “ show for what purpose the annexation 'of the articles was made, that it was done with no design to make them part of the realty,” it follows that such design, instead of being “ material and important,” is simply irrelevant. For the addition of the supposed findings to those already in the record would not vary the result. The machinery in question would still be deemed a fixture. Climie v. Wood, L. R. 4 Exch. 328; S. C. L. R. 3 Exch. 259; Longbottom v. Berry, L. R. 5 Q. B. 138; Mather v. Fraser, 2 Kay & Johns, 548; D’Eyncourt v. Gregory, L. R. 3 Eq. 382: Johnson v. Wiseman, 4 Met. (Ky.) 357.
These fixtures were not removable by appellants, either as tenants or by custom. At the time the mill was erected, and for more than a year thereafter, the land described in the complaint was public land of the United States and consequently, during all that time, the parties erecting and running the mill were naked trespassers. The mill passed to the state of Nevada, with the land, on the third day of July, 1868. Appellants claim that, by the state statute, they, as occupants, had the right of preemption for six months after July 3d, 1868 ; and that hence their position was analogous to that of a party holding possession under agreement to purchase after the agreement is ended; and, therefore, analogous to that of a tenant at will of the state. If this be conceded, the supposed tenancy at will must have had its inception on the third of January, 1869, more than a year after the completion of the mill, and was therefore a tenancy of the mill, as well as of the land.
The right of removing trade fixtures has been liberally construed in favor of the tenant: yet, we believe, never so liberally as to embrace, not only those erected during the term, but also such as constitute a portion of the thing demised.
The most appellants can claim is, that the statute was passed in contemplation of the selection of the land by the state, and the mill was erected on the faith of the right of preemption given by the [45]*45statute; and that, consequently, they and their predecessors occupy the position of one entering into possession of, and erecting trade fixtures upon land, under a right to purchase subsisting at the time of the erection, but afterwards forfeited and lost by his own laches. Such an occupant has no greater right to the fixtures, as against the purchaser whom he'suffers to acquire the title to the land, than has the vendor of land as against his vendee. King v. Johnson, 7 Gray, 240; Hemenway v. Cutter, 51 Maine, 497; McLaughlin v. Nash, 14 Allen, 136.
Thpn, whether the mill was erected by trespassers on the land, or by parties clothed with a right of preemption, the result is the samp. On eithér view, the question is, would the machinery have passed to plaintiff, if, instead of obtaining a patent from the state, he had taken from the appellants a deed for the land? We think it would have passed, under the general rule that, Avhen .a chattel has been affixed to the soil, it passes with the soil. Between landlord and tenant this rule was relaxed, to relieve the tenant from the dilemma of submitting, either to the inconvenience of conducting his business with articles capable of use without annexation, or to the injustice of surrendering to his landlord, at the expiration of the term, articles unfit for use unless so fastened and steadied as to become fixtures. But ’this relaxation is strictly an exception to the general-rule, 4o bo |extended only to cases within the. policy and exigency which gave rise to it.
The appellants were ijot placed in the dilemma from which the exception rescued the tenant. All they had to do ivas, to avail themselves of their right to acquire the title to the land. Failing in this, they can with as little reason complain of the rigor of the rule of. law„ as could a vendor, failing to avail himself of his right to disannex before selling, or to except the fixtures in the deed. As to the custom relied on, even if a custom can be proved by one witness, we cannot say the court below erred, in finding, as presumably it did, against the existence of a custom evidenced as this was. Bissel v. Ryan, 28 Ill. 556, and cases cited.
On the question of value, there was evidence to sustain the finding, irrespective of that based on profits.
The finding and judgment’for gold coin conform to and are author[46]*46ized by the statute. (Stats, of 1869, 228, Sec. 202.) Of the constitutionality and validity of that statute, we entertain no doubt, and shall adhere to our former decision upholding it.
The judgment and order appealed from are affirmed.