Mitchell, J.
In February, 1881, the defendants Mueller and Sie-bold, being the owners of certain real estate upon which was situated a brewery, executed a mortgage on the premises to the plaintiff. In February, 1883, the same parties executed a chattel mortgage on the articles in controversy to defendant Baxter. The plaintiff claims that these articles were fixtures constituting a part of the realty, and as such were covered by his mortgage on the land. On the other hand, defendant Baxter claims that they were chattels. This presents the only point in the case. The court below held that the air-pump and the iron pump, which were fastened to the building, were a part of the realty and covered by plaintiff’s mortgage. Hence, as Baxter does not object, these articles need not be considered. It is too plain to require argument that the loose circular rotary pump, the swimmers, ice-tools, pitching-machine, and kettle were mere chattels. In fact, plaintiff makes no point as to them. This reduces the controversy to three classes of articles, to wit, 47 large coops, casks, or hogsheads used for holding and storing beer, 12 fermenting-tubs, and 1 copper cooler. In fact, they may be reduced to two classes, for the coops and fermenting-tubs stand on the same footing. The case was [17] submitted in the court below upon an agreed statement of facts, which we will leave to be set out, so far as material, in the statement of the ease.
It has often been remarked that the law of “fixtures” is one of the most uncertain titles in the entire body of jurisprudence. . The lines between personal property and fixtures is often so close and so nicely drawn that no precise and fixed rule can be laid down to control all cases. It is difficult, if not impossible, to give a definition of the term which may be regarded of universal application. Each case must be more or less dependent upon its own peculiar facts. Whether a thing is a fixture or not has been sometimes said to be a question partly of law and partly of fact. Almost every court and every text-writer has attempted to define the term. None of these definitions are infallible or of universal application; but they are of service in determining whether an article is or is not, in a given case, a fixture. These definitions may be found collected in almost any law dictionary or text-book on the subject. We shall neither quote them nor attempt to give a definition of our own, but simply say that they all agree that “fixtures,” in the primary meaning of the term, (and distinguished from movable or tenants’ fixtures,) means chattels annexed to the realty so as to become a part of it.
While not agreeing as to the necessity for, or the degree of importance to be attached to, the fact of actual physical annexation, yet the authorities generally unite in holding that, to constitute a fixture, the thing must be of an accessory character, and must be in some way in actual or constructive union with the principal subject, and not merely brought upon it; that in determining whether the article is personal property, or has become a part of the realty, there should be considered the fact and character of annexation, the nature of the thing annexed, the adaptability of the thing to the use of the land, the intent of the party in making the annexation, the end sought by annexation, and the relation of the party making it to the freehold. These other tests named, while having an important bearing upon the questions whether there has been an annexation, and, if so, its effect, do not, however, do away with the necessity of annexation, either actual or constructive, to constitute a fixture. This would in[18] volve a contradiction of terms, and wipe out the fundamental distinction between real and personal property. A thing may be said to be constructively attached where it has been annexed, but is separated for a temporary purpose, as in the case of a millstone removed for the purpose of being dressed, or where the thing, although never physically fixed, is an essential part of something which is fixed; as in the case of keys to a door, or the loose cover of a kettle set in brick-work. It is, perhaps, somewhat on this principle that the permanent and stationary machinery in a structure erected especially for a particular kind of manufacturing has been held fixtures, although very slightly or not all physically connected with the building; because, without it, the structure would not be complete for the purpose for which it was erected. Ponderous articles, although only annexed to the land by the force of gravitation, if placed there with the manifest intent that they shall permanently remain, may be fixtures.
But, while physical annexation is not indispensable, the adjudicated cases are almost universally opposed to the idea of mere loose machinery or utensils, even where it is the main agent or principal thing in prosecuting the business to which the realty is adapted, being considered a part of the freehold for any purpose. To make it a fixture, it must not merely be essential to the business of the structure, but it must be attached to it in some way, or, at least, it must be mechanically fitted so as, in ordinary understanding, to constitute a part of the structure itself. It must be permanently attached to, or the component part of, some erection, structure, or machine which is attached to the freehold, and without which the erection, structure, or machine would be imperfect or incomplete.
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Mitchell, J.
In February, 1881, the defendants Mueller and Sie-bold, being the owners of certain real estate upon which was situated a brewery, executed a mortgage on the premises to the plaintiff. In February, 1883, the same parties executed a chattel mortgage on the articles in controversy to defendant Baxter. The plaintiff claims that these articles were fixtures constituting a part of the realty, and as such were covered by his mortgage on the land. On the other hand, defendant Baxter claims that they were chattels. This presents the only point in the case. The court below held that the air-pump and the iron pump, which were fastened to the building, were a part of the realty and covered by plaintiff’s mortgage. Hence, as Baxter does not object, these articles need not be considered. It is too plain to require argument that the loose circular rotary pump, the swimmers, ice-tools, pitching-machine, and kettle were mere chattels. In fact, plaintiff makes no point as to them. This reduces the controversy to three classes of articles, to wit, 47 large coops, casks, or hogsheads used for holding and storing beer, 12 fermenting-tubs, and 1 copper cooler. In fact, they may be reduced to two classes, for the coops and fermenting-tubs stand on the same footing. The case was [17] submitted in the court below upon an agreed statement of facts, which we will leave to be set out, so far as material, in the statement of the ease.
It has often been remarked that the law of “fixtures” is one of the most uncertain titles in the entire body of jurisprudence. . The lines between personal property and fixtures is often so close and so nicely drawn that no precise and fixed rule can be laid down to control all cases. It is difficult, if not impossible, to give a definition of the term which may be regarded of universal application. Each case must be more or less dependent upon its own peculiar facts. Whether a thing is a fixture or not has been sometimes said to be a question partly of law and partly of fact. Almost every court and every text-writer has attempted to define the term. None of these definitions are infallible or of universal application; but they are of service in determining whether an article is or is not, in a given case, a fixture. These definitions may be found collected in almost any law dictionary or text-book on the subject. We shall neither quote them nor attempt to give a definition of our own, but simply say that they all agree that “fixtures,” in the primary meaning of the term, (and distinguished from movable or tenants’ fixtures,) means chattels annexed to the realty so as to become a part of it.
While not agreeing as to the necessity for, or the degree of importance to be attached to, the fact of actual physical annexation, yet the authorities generally unite in holding that, to constitute a fixture, the thing must be of an accessory character, and must be in some way in actual or constructive union with the principal subject, and not merely brought upon it; that in determining whether the article is personal property, or has become a part of the realty, there should be considered the fact and character of annexation, the nature of the thing annexed, the adaptability of the thing to the use of the land, the intent of the party in making the annexation, the end sought by annexation, and the relation of the party making it to the freehold. These other tests named, while having an important bearing upon the questions whether there has been an annexation, and, if so, its effect, do not, however, do away with the necessity of annexation, either actual or constructive, to constitute a fixture. This would in[18] volve a contradiction of terms, and wipe out the fundamental distinction between real and personal property. A thing may be said to be constructively attached where it has been annexed, but is separated for a temporary purpose, as in the case of a millstone removed for the purpose of being dressed, or where the thing, although never physically fixed, is an essential part of something which is fixed; as in the case of keys to a door, or the loose cover of a kettle set in brick-work. It is, perhaps, somewhat on this principle that the permanent and stationary machinery in a structure erected especially for a particular kind of manufacturing has been held fixtures, although very slightly or not all physically connected with the building; because, without it, the structure would not be complete for the purpose for which it was erected. Ponderous articles, although only annexed to the land by the force of gravitation, if placed there with the manifest intent that they shall permanently remain, may be fixtures.
But, while physical annexation is not indispensable, the adjudicated cases are almost universally opposed to the idea of mere loose machinery or utensils, even where it is the main agent or principal thing in prosecuting the business to which the realty is adapted, being considered a part of the freehold for any purpose. To make it a fixture, it must not merely be essential to the business of the structure, but it must be attached to it in some way, or, at least, it must be mechanically fitted so as, in ordinary understanding, to constitute a part of the structure itself. It must be permanently attached to, or the component part of, some erection, structure, or machine which is attached to the freehold, and without which the erection, structure, or machine would be imperfect or incomplete.
On applying these rules and tests to the case in hand, we are of opinion that the coops or casks and tubs in controversy have none of the characteristics of fixtures. They were not actually annexed to the freehold, nor were they of a nature to be deemed constructively affixed to the realty. It is true that they were well adapted to and necessary for carrying on the brewing business, to which the premises were appropriated; but this of itself is quite an immaterial element in determining the nature of an article. Many articles of a purely personal [19] nature are useful and necessary in carrying on a particular business which can in no just sense be termed fixtures. These articles were no more essential to the brewing business than were the ice-tools, pitching-machine, or ordinary beer-kegs, or are farm machinery for the business of husbandry. It is also true that it is stipulated that these casks and tubs were constructed for the purpose of being put into and used in this brewery, and were placed there with intent that they should remain there for permanent use, and that the vaults were excavated for the special purpose of storing therein such hogsheads, and that the ice-house was constructed for the special purpose of placing therein fermenting-tubs in the first story, and casks in the second; but it does not appear that the vaults were excavated or the ice-house built in any special shape to suit these particular casks or tubs, or that the casks or tubs were constructed to fit into any particular place in the vaults or ice-house. They were adapted to receive any other casks or tubs as well as these, and any other such casks or tubs would have been just as well adapted to be stored there as these. It is expressly stipulated that these tubs and hogsheads were of the same description as those in general use in breweries, and that they might be sold to other brewers for the purposes for which they were constructed. They were readily removed from the vaults and ice-house, and in fact were removed once a year or oftener outside, for the purpose of being pitched or repaired. We can see no particular difference between them and ordinary beer-kegs, except that they were used exclusively inside of the vaults or ice-house, and, being larger, were somewhat more difficult to move. The intent that they should remain in this brewery for permanent use there is unimportant. Intent alone will not convert a chattel into a fixture. A farmer may take a plow, or any other farm implement, upon his farm with intent to keep and use it there until it wears out, but this will not make it real estate. Moreover, it will be noted that it is not stipulated that these articles were placed in the brewery with intent to make them a permanent accession to the freehold, but merely that they should remain there for permanent use.
What has been said as to the hogsheads and tubs will in the main apply to the copper cooler. It was a loose, movable utensil, the same [20] as in common use in breweries. The only ground for a distinction between this and the other articles is that, when in use, it was connected by a hose to a stationary water-tank, in order to permit water to pass through it. When not in use the hose was disconnected, and the cooler was laid away. The object and purpose of this temporary annexation was not to make the cooler a permanent accessory to the building, but for the purpose of using the article as a chattel. It may be, on the facts, a little closer case than that of the hogsheads and tubs, but the court below having found it to be personal property, we see no occasion to disturb his decision.
Order affirmed.