By the Court, Miller, J.
The law in respect to fixtures has been the occasion of much discussion, and repeated adjudications, in this state, and the general principles relating to that subject are well settled. The cases, however, are not a little conflicting, and it is sometimes difficult to discriminate, in considering many of the exceptions to general rules, between personal property and fixtures. In fact the line of demarcation is so close and often so nicely drawn that no precise and fixed rule can be laid down to govern and control all cases ; and each one must be more or less dependent upon the peculiar facts and circumstances by which it is surrounded.
In Walker v. Sherman, (20 Wend. 636,) most of the cases arising under the law of fixtures prior to that decision are collected and examined, and the whole subject discussed with much learning and ability. It was there held that machinery in a woolen factory which had been used, and passed from one owner to another, for eleven years or more, [249]*249the same as if actually annexed, was not a part of the realty. The learned judge,, who wrote the elaborate and comprehensive opinion in that case, lays down as the general rule from the cases, that nothing of a personal nature in itself will pass by a deed “unless it be brought within the denomination of a fixture by being in some vway, permanently, at least habitually, attached to the land or some building upon it. It need not be constantly fastened. It need not be so fixed that detaching will disturb the earth or rend any part of the building.” I am not aware that the rule here laid down has been essentially altered by ahy subsequent decision. In fact it seems to have been' sanctioned and sustained by repeated adjudications holding that machinery in cotton) and other mills, not attached to the building, and capable of removal without injury to it, were not fixtures, but personal property. (Vanderpoel v. Van Allen, 10 Barb. 157. Godard v. Gould, 14 id. 662, Laflin v. Griffiths, 35 id. 58. Murdock v. Gifford, 18 N. Y. Rep. 28. Ford v. Cobb, 20 id. 344. Swift v. Thompson, 9 Conn. Rep. 63. Gale v. Ward, 14 Mass. Rep. 352.)
Within the principle' decided in the cases cited it is entirely clear that the planing machines and saw benches, saWs, single machine, the copper pipes for steaming hubs5 lathes, appendages and attachments to the same were personal property, covered by the chattel mortgages, and did not pass under the foreclosure sale. These machines, and other articles were placed on the floor and affixed to the building for convenience, the saw benches and single machines being secured by cleats, doubtless to keep them in position. They could be removed without any difficulty and without occasioning any injury or damage to the building. They could have been placed elsewhere with an entire adaptation to other localities, and had no particular connection with the inheritance. They do not differ very materially in their character, or the general purposes and objects for which they were used and applied, from the machinery and articles which were held to be per[250]*250sonal property in the cases before cited; and I think possessed quite as much the characteristics and elements of personal property, not attached to the freehold, as those articles did. If machinery in a cotton and a woolen, fulling or in a paper mill, which is fastened to the building slightly, for the purpose of being employed in the business there conducted, and in some instances made expressly to suit the building itself, is not to be considered as fixtures, 'then certainly, the property covered by the chattel mortgages which was moveable and similarly situated can safely be regarded as not embraced in that class of property. As to the steam engine and boilers, the question assumes somewhat of a different aspect. There are some views which might be taken, in reference to their situation and connection with the building and real estate, by which they might be considered as not being sufficiently attached to the freehold, as being placed there for the purpose of manufacture and trade; as being capable of removal without injury to the building, and as not being necessary for its support. From these considerations it might be urged, with some force, that they were personal property. No case in this state has ever held that an engine and boilers thus situated could be considered as fixtures. In Fryatt v. The Sullivan Co., (5 Hill, 116,) where a steam engine and boiler which were leased were held to be converted into real estate, they were affixed so firmly to the freehold that they could not be removed without destroying the building in which they were placed. This is the extent to which the authorities have gone, here. The cases in other states which appear to hold the other way, were cases where it generally appears that the engines were the sole and only motive power used for the purposes of the-establishments, and by which they were operated and conducted..
Passing over this aspect of the case, I will assume that the engine and boilers were placed upon and became parcel of the real estate, and consider the effect of the arrangement [251]*251between the owner of the land and the mortgagees in the chattel mortgages, by which it was agreed, that although they were connected with and annexed to the freehold as it was contemplated that they should be before the first chattel mortgage was executed and before -they were actually placed upon the premises, that they should continue to remain as personal property, to such an extent as would be necesssary and essential to-give-'effect and validity to the personal mortgages. Although real estate can not be changed into personal property by the agreement of parties, yet “it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without destruction of, or material injury to the things real with which they are connected, though their connection with the land or other real estate, is such that in the absence of any agreement or any special relation between the parties in interest, they would be a part of the real estate.” (Ford v. Cobb, 20 N. Y. Rep. 344.) In the case last cited, salt kettles were bought, and mortgaged to the seller as personalty. They were imbedded in brick arches, but could be removed without injury to them by displacing a portion of the brick, at an inconsiderable expense, and the owner of the manufacture required them to be removed and to be re-set annually. It was held that they continued personalty, as against a subsequent purchaser who had no notice of the facts, other than constructively from the filing of the chattel mortgage. The case involved the question whether the method in which the salt kettles were affixed to the freehold was such that they could still be claimed as chattels, or whether they were to be considered as real property. After discussing this question, the learned judge says: “The kettles were originally personal property. The agreement contained in the chattel mortgage preserved them character as personalty, which would otherwise have been lost by their annexation. They therefore continued to be personal chattels, notwith[252]
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By the Court, Miller, J.
The law in respect to fixtures has been the occasion of much discussion, and repeated adjudications, in this state, and the general principles relating to that subject are well settled. The cases, however, are not a little conflicting, and it is sometimes difficult to discriminate, in considering many of the exceptions to general rules, between personal property and fixtures. In fact the line of demarcation is so close and often so nicely drawn that no precise and fixed rule can be laid down to govern and control all cases ; and each one must be more or less dependent upon the peculiar facts and circumstances by which it is surrounded.
In Walker v. Sherman, (20 Wend. 636,) most of the cases arising under the law of fixtures prior to that decision are collected and examined, and the whole subject discussed with much learning and ability. It was there held that machinery in a woolen factory which had been used, and passed from one owner to another, for eleven years or more, [249]*249the same as if actually annexed, was not a part of the realty. The learned judge,, who wrote the elaborate and comprehensive opinion in that case, lays down as the general rule from the cases, that nothing of a personal nature in itself will pass by a deed “unless it be brought within the denomination of a fixture by being in some vway, permanently, at least habitually, attached to the land or some building upon it. It need not be constantly fastened. It need not be so fixed that detaching will disturb the earth or rend any part of the building.” I am not aware that the rule here laid down has been essentially altered by ahy subsequent decision. In fact it seems to have been' sanctioned and sustained by repeated adjudications holding that machinery in cotton) and other mills, not attached to the building, and capable of removal without injury to it, were not fixtures, but personal property. (Vanderpoel v. Van Allen, 10 Barb. 157. Godard v. Gould, 14 id. 662, Laflin v. Griffiths, 35 id. 58. Murdock v. Gifford, 18 N. Y. Rep. 28. Ford v. Cobb, 20 id. 344. Swift v. Thompson, 9 Conn. Rep. 63. Gale v. Ward, 14 Mass. Rep. 352.)
Within the principle' decided in the cases cited it is entirely clear that the planing machines and saw benches, saWs, single machine, the copper pipes for steaming hubs5 lathes, appendages and attachments to the same were personal property, covered by the chattel mortgages, and did not pass under the foreclosure sale. These machines, and other articles were placed on the floor and affixed to the building for convenience, the saw benches and single machines being secured by cleats, doubtless to keep them in position. They could be removed without any difficulty and without occasioning any injury or damage to the building. They could have been placed elsewhere with an entire adaptation to other localities, and had no particular connection with the inheritance. They do not differ very materially in their character, or the general purposes and objects for which they were used and applied, from the machinery and articles which were held to be per[250]*250sonal property in the cases before cited; and I think possessed quite as much the characteristics and elements of personal property, not attached to the freehold, as those articles did. If machinery in a cotton and a woolen, fulling or in a paper mill, which is fastened to the building slightly, for the purpose of being employed in the business there conducted, and in some instances made expressly to suit the building itself, is not to be considered as fixtures, 'then certainly, the property covered by the chattel mortgages which was moveable and similarly situated can safely be regarded as not embraced in that class of property. As to the steam engine and boilers, the question assumes somewhat of a different aspect. There are some views which might be taken, in reference to their situation and connection with the building and real estate, by which they might be considered as not being sufficiently attached to the freehold, as being placed there for the purpose of manufacture and trade; as being capable of removal without injury to the building, and as not being necessary for its support. From these considerations it might be urged, with some force, that they were personal property. No case in this state has ever held that an engine and boilers thus situated could be considered as fixtures. In Fryatt v. The Sullivan Co., (5 Hill, 116,) where a steam engine and boiler which were leased were held to be converted into real estate, they were affixed so firmly to the freehold that they could not be removed without destroying the building in which they were placed. This is the extent to which the authorities have gone, here. The cases in other states which appear to hold the other way, were cases where it generally appears that the engines were the sole and only motive power used for the purposes of the-establishments, and by which they were operated and conducted..
Passing over this aspect of the case, I will assume that the engine and boilers were placed upon and became parcel of the real estate, and consider the effect of the arrangement [251]*251between the owner of the land and the mortgagees in the chattel mortgages, by which it was agreed, that although they were connected with and annexed to the freehold as it was contemplated that they should be before the first chattel mortgage was executed and before -they were actually placed upon the premises, that they should continue to remain as personal property, to such an extent as would be necesssary and essential to-give-'effect and validity to the personal mortgages. Although real estate can not be changed into personal property by the agreement of parties, yet “it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without destruction of, or material injury to the things real with which they are connected, though their connection with the land or other real estate, is such that in the absence of any agreement or any special relation between the parties in interest, they would be a part of the real estate.” (Ford v. Cobb, 20 N. Y. Rep. 344.) In the case last cited, salt kettles were bought, and mortgaged to the seller as personalty. They were imbedded in brick arches, but could be removed without injury to them by displacing a portion of the brick, at an inconsiderable expense, and the owner of the manufacture required them to be removed and to be re-set annually. It was held that they continued personalty, as against a subsequent purchaser who had no notice of the facts, other than constructively from the filing of the chattel mortgage. The case involved the question whether the method in which the salt kettles were affixed to the freehold was such that they could still be claimed as chattels, or whether they were to be considered as real property. After discussing this question, the learned judge says: “The kettles were originally personal property. The agreement contained in the chattel mortgage preserved them character as personalty, which would otherwise have been lost by their annexation. They therefore continued to be personal chattels, notwith[252]*252standing the annexation, and the plaintiff, by filing the mortgage, observed all the formalities required by law to preserve their lien upon that kind of j>roperty. The title to the kettles did not therefore pass by the conveyance .to the plaintiff.” The case cited, in many of its leading features, bears a striking similarity to the case at bar, and I think both involve precisely the same question. In neither case was the property removed considered necessary for the support of the building; nor was its condition materially changed or its value essentially diminished, by their removal. In both cases, it was necessary to remove the brick. Although the brick work was laid over the boilers, yet they could be removed without any injury to the foundation, upon which they were laid, except the displacement of the top covering. The shafting and gearing, although constructed . with especial regard to the place in which it was used, and firmly fastened and bolted in the beams and timber of the building, was also capable of removal without injury to the building: It is not claimed that these were of any importance in supporting the building, or that they were materially changed in value by being employed elsewhere. They could be used in another location: The manner in which these articles wete annexed to the building was not any more substantial than that of the salt kettles, which could only be used for that particular kind of business. The fact that the salt kettles had to be taken out and re-set as often as once a year, in the ordinary course of the business of manufacturing salt, does not vary that case essentially from this; as repairs might be needed for the boilers and engines, which might require similar work upon them, and as the business in which they might be made useful would be more varied and extensive than the salt kettles, which were of no sort of consequence in any other business.
I do not think that the removal of the boilers and engine required any such damage to the realty, or destruction of them, as to cancel, annul and destroy an agreement by which they [253]*253were to remain personal property, and were liable to be taken away and disposed of as such in the event of a failure to comply with the terms of the chattel mortgages.
Hor do I consider the fact that the building was erected for the express purpose of enlarging the business of ^the owner of the realty and the machinery adapted to it, as making any material difference, so long as the property could be removed without injury to the freehold. In Godard v. Guild, (14 Barb. 662,) where the machinery was manufactured for and set up in a paper mill, and the mode of annexation was such that it could be removed without injury to the building, it was held, that it did- not by the annexation become part of the realty. Such was also the case in Ford v. Cobb, where the salt kettles were especially adapted to the works, and were purchased expressly for them.
• It may also be observed that the steam engine did not entirely furnish the motive power used in the establishment. Prior to 1850 the sole power applied for carrying on the saw ' and grist mills and the machinery connected therewith, was the water power. Since then, it continued to be the principal power. The steam engine was only an addition to the hydraulic power, for the purpose of increasing the facilities for business. It was an independent power employed to run separate machinery which had been placed in the building as an addition to what was previously there. It was not therefore a component part of the structure, without which it would be imperfect and incomplete, (14 Barb. 164,)
The views which I have expressed lead me to the conclusion that neither the steam engine and boilers, nor any of the other articles covered by the chattel mortgages, were so connected with and annexed to the freehold that their identity became destroyed as personal chattels, and therefore there is is no legal ground for refusing to enforce the arrangement incorporated in the mortgages, by which they were regarded and designated as personal property, and were to retain that distinctive character.
[254]*254[Albany General Term,
December 4, 1865.
I have examined the other points taken hy the plaintiff’s counsel, and do not think that they are available. They are mainly covered by the observations already made.
My opinion is that the personal chattels described in the pleadings were not attached to the realty in such a way as to bring them within the denomination of fixtures, and therefore the judgment entered upon the report of the referee must be affirmed.
Hogeioom, Peckham and Miller^ Justices.]