subject to a chattel mortgage. This condition is important only to determine whether or not property which may be considered real or personal property is one or the other according to the acts of the parties, in the absence of an agreement relating thereto.

[1] Generally speaking, an agreement that chattels affixed to realty shall retain a personal character may be either in writing or parol. Broaddus v. Smith, 121 Ala. 335, 26 South. 34, 77 Am. St. Rep. 61; Tyson v. Post, 108 N. Y. 217, 15 N. E. 316, 2 Am. St. Rep. 409; Western, etc., Railroad v. Deal, 90 N. C. 110.

[2] In general it may be said that almost anything affixed to realty may by agreement be treated as personalty. Thus it has been held that houses and other buildings, machinery, 'railroad tracks, nursery stock, and indeed practically everything which before annexation was personal property may still retain their chattel character by an agreement to that effect. But the right to preserve the personal character of fixtures by agreement is limited to chattels which are attached to the realty in such a manner that they may be detached without being destroyed or materially injured or without destroying or materially injuring the realty to which they are attached. Henkle v. Dillon, 15 Or. 610, 17 Pac. 148; Ford v. Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345; Western Union Tel. Co. v. Burlington, étc., Ry. Co. (C. C.) 11 Fed. 1; Sword v. Low, 122 Ill. 487, 13 N. E. 826; German Savings & Loan Society v. Weber, 16 Wash. 95, 47 Pac. 224, 38 L. R. A. 267.

In the last-cited case this court held, in conformity with the great weight of authority, that:

"Whether fixtures attached to real estate should be regarded as personalty or realty is largely governed by the intention of the contracting parties, even so far as the rights of a former mortgagee are concerned, subject to the limitation that the fixtures, which, but for the stipulation, would be regarded as realty, can be removed only when such removal can be efected without injury to the real estate." Syllabus.

And in the course of the opinion language from the case of Ford v. Cobb, 20 N. Y. 344, was quoted with approval, as follows:

"But 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 the destruction of or material injury to the things real with which they are connected, though their connection with the land or other real estate in such that, in the absence of an agreement or of any special relation between the parties in interest, they would be a part of the real estate."

tain their character as personalty notwithstanding their annexation. * But when chattels are of such a character as to retain their identity and distinctive characteristics after annexation, and do not thereby become an essential part of the building, so that the removal of the chattels will not materially injure the buildvalue of the chattels, a mutual agreement in reing, nor destroy or unnecessarily impair the spect to the manner in which the chattels shall be regarded after annexation will have the effect to preserve the personal character of the property between the parties to the agreement." It has been held in many cases that, if competent parties make an express agreement that fixtures shall retain their character as chattels, there can be no doubt that the agreement is binding as between the parties thereto. Badger v. Batavia Paper Mfg. Co., 70 Ill. 302; Kaestner v. Day, 65 Ill. App. 623.

[3] And where one purchases an article to be annexed to the freehold which, from its character, may, after annexation, be either realty or personalty according to the intention of the parties, the giving of a chattel mortgage thereon to the seller is sufficient evidence of an intention that the fixture shall retain its character as personalty. Edwards, etc., Lumber Co. v. Rank, 57 Neb. 323, 77 N. W. 765, 73 Am. St. Rep. 514; Arlington, etc., Elevator Co. v. Yates, 57 Neb. 286, 77 N. W. 677.

An agreement that the fixture shall retain its personal character is said to be implied from the mere giving of a chattel mortgage. Sowden v. Craig, 26 Iowa, 156, 96 Am. Dec. 125; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Rep. 889; Ford v. Cobb, 20 N. Y. 344; Tibbetts v. Horne, 65 N. H. 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am.. St. Rep. 31; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345; Sword v. Low, 122 Ill. 487, 13 N. E. 826; Binkley v. Forkner, 117 Ind. 176, 19 N. E. 753, 3 L. R. A. 33; Warner v. Kenning, 25 Minn. 173; Burrill v. Wilcox Lumber Co., 65 Mich. 571, 32 N. W. 824; Henkle v. Dillon, 15 Or. 610, 17 Pac. 148; Andrews v. Chandler, 27 Ill. App. 103; Miller v. Griffin, 102 Ala. 610, 15 South. 238.

It is therefore well settled as between Sewell and appellant that the status of the pipe mortgaged to appellant was fixed as a chattel.

Of course, as was observed in Binkley v. Forkner, 117 Ind. 176, 181, 19 N. E. 753, 755 (3 L. R. A. 33):

Ill. App. 623. If the rights of innocent third parties will not be prejudiced, fixtures may retain their chattel character. Edwards, etc., Lumber Co. v. Rank, 57 Neb. 323, 77 N. W. 765, 73 Am. St. Rep. 514.

[4] In cases where the rights of claimants of fixtures depend upon notice to adverse claimants, there is a considerable variety of opinion as to the effect of recording alone, as importing notice, much depending, of course, upon the language of statutes involved. 19 Cyc. 1054. As to such notice our statute relating to the filing or recording of chattel mortgages provided, in section 3662, Rem. Code, that every such mortgage filed and indexed in pursuance of this act "shall be held and considered to be full and sufficient notice to all the world, of the existence and conditions thereof." The effect of this provision is that the due filing of a chattel mortgage, as was the case here, imports as much as actual and positive notice of the mortgage and of all its conditions to all persons dealing with the chattel thereafter.

[5] Respondent cites authorities to the effect that a subsequent purchaser for value is an innocent purchaser, and that fixtures attached to the soil are real estate and not subject to a chattel mortgage seeking to hold a lien thereon as a chattel. That is true where a subsequent purchaser for value has no notice either actual or constructive or notice such as our statute provides which is equivalent to actual notice that the property in question has been agreed and determined to be chattel property. The respondent here is not an innocent purchaser for value. He is merely a subsequent occupant of the same real estate. He has, it is true, the right of possession, which cannot be questioned, of the real estate and of all the real estate comprises. His right of possession of the real estate has been granted by the national government and is superior to the rights of all others as to the land itself and its enjoyment. But the respondent had notice by the filing of the chattel mort gage that the pipe embedded and installed in the land was chattel property upon which the appellant had a lien by his chattel mortgage. The respondent has bought nothing. He is not an innocent purchaser of anything. While the former entryman and possessor of the land under the desert land. entry was in possession he could contract with reference to chattels, fixtures, and improvements there on in all respects under the local law, and his contracts would be enforced. He could have removed the pipe mortgaged or any other fixture which he placed upon the land prior to his abandonment or his removal from the land.

Under the facts and circumstances shown we are impelled to the conclusion that the pipe mortgaged was by virtue thereof agreed

by the former entryman and possessor of the desert land entry to be chattel property, and not a part of the real estate.

Notwithstanding the fact that he made what is called three years' proof under which he proved the methods by which he had attempted to reclaim the land and included in his improvements the pipe purchased, that must be taken and understood to have been subject to the lien which he had theretofore voluntarily given for the money which he had borrowed with which to purchase the same. It was therefore not fraudulent for him to make such proof in attempting to obtain title to the land.

Equity and good conscience demand that appellant's mortgage be enforced according to its terms. It may be said in opposition thereto that any attempt to remove the pipe from the land will constitute a trespass against the possession of the respondent, and also that it is impossible to remove the same without injury to the freehold. As to the first proposition, the possession by the respondent and present entryman is not as yet a complete and permanent possession, but is only a possession dependent upon his reclamation of the land, and compliance with the laws relating to desert entries. In any event his possession can only be protected under and by virtue of the state laws. These guarantee him the peaceable possession of the land in question as against trespass or unlawful intrusion. It is no unlawful intrusion for the state to enforce the rights of a person having a superior and prior right to chattel property remaining upon the land.

It is shown by the evidence that the pipe in question can be removed without permanent injury to the real estate. Such injury as would occur would be temporary only, and that could be avoided by removing it at a time when the land is not being irrigated or during the fall and winter months. Notwithstanding the extreme character of this case, we think appellant entitled to such a decree.

The judgment of the lower court will be reversed in so far as it decreed that appellant was not entitled to a judgment of foreclosure against the pipe described in the chattel mortgage, and further providing for the protection of the rights of the respondent in the matter by decreeing that the pipe shall only be removed at a time when there is no irrigation being done upon the premises or during the months between November and March, inclusive, and that no growing tree shall be removed, despoiled, or injured upon the premises, or any permanent structure thereon, and that the soil removed shall be restored, in as good condition as before.

ELLIS, C. J., and MOUNT, FULLERTON, and PARKER, JJ., concur.

1. JURY 14(12) TRIAL BY ACTION TO ABATE NUISANCE.

In an action by the state to abate a public nuisance, the defendant is not entitled to a jury trial.

erected near said building and a series of dances conducted thereon by the defendants for the purpose of drawing crowds into the place of business in order that intoxicating liquors and imitations thereof and substitutes therefor might be sold to the patrons of the dance; that among the regular attendants at said dances were two women of unchaste and lewd character, known as Kate

and Babe, who frequented the store belonging to defendant Balch, being seen often in

2. EVIDENCE 322(2)

TION.

tionable character; that the said Kate and Babe conducted themselves in a lewd and licentious manner in and about said building and premises, and that men who frequented such resort, visiting with Kate and Babe, would curse and swear in loud and boister

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1204.]

3. NUISANCE 61-PUBLIC NUISANCE-PARTICULAR CASE.

A place where intoxicating liquors are sold in violation of the law, where cigarettes are sold to minors, and where lewd and lascivious persons congregate for the purpose of indulging in immorality, held to be a public nuisance.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 142-151.]

4. NUISANCE 82-ABATEMENT BY STATECIVIL ACTION.

A public nuisance may be abated by a civil action brought by the state on the relation of the county attorney of the county in which such public nuisance exists.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 195.]

Commissioners' Opinion, Division No. 1. Error from District Court, Cleveland County; F. B. Swank, Judge.

Action by the State of Oklahoma, on the relation of J. D. Grigsby, County Attorney of Cleveland County, Okl., against A. R. Balch and others. Judgment for plaintiff, and defendant A. R. Balch brings error. Modification ordered to be entered of record in the proceedings below, and in other respects judgment affirmed.

W. J. Davidson, of Oklahoma City, for plaintiff in error. J. D. Grigsby, Co. Atty., Ben F. Williams, and John E. Luttrell, all of Norman, for defendant in error.

STEWART, C. The parties hereafter will

be designated as in the court below. The county attorney of Cleveland county brought an action in the name of the state of Oklahoma against A. R. Balch and others for the purpose of abating a public nuisance alleged to be maintained by the defendants in the town of Moore, Cleveland county, Okl., the petition averring that a building in which the said A. R. Balch conducted a grocery store was used by A. R. Balch for the purpose of selling intoxicating liquors; that intoxicating liquors were sold on said property; and, further, that a platform was

children; that people would congregate at said store and become drunk and imbibe intoxicating liquors sold in said store; that cigarettes were sold to minors in violation of law; that the general reputation of such place of business was that of a place where lewd men and women would resort for the purpose of unlawful cohabitation and sexual intercourse; that said place was an unfit place for women and children to purchase groceries, or for other purposes; that the same was an immoral resort and a public nuisance, and the conduct of the said Kate and Babe and others who frequented the store was outrageous to public morals and public decency. The plaintiff prayed for a temporary injunction restraining the defendants and all of them from opening or conducting said store or building, or permitting any one else to conduct same, and that same should be placed in the hands of the sheriff of Cleveland county and closed until final hearing in the matter; that upon final hearing, the injunction be made perpetual, and for general and special relief. A hearing was had in chambers before the county judge of Cleveland county, in the absence of the district judge from said county, and upon at said town of Moore and in the vicinity the affidavits of numerous citizens residing thereof; the county judge granted a temporary injunction and order abating said nuisance and closing the store. Afterwards the

defendants made application before the judge

of the district court in chambers asking for a vacation of the temporary injunction. After hearing on said application, the district judge modified the temporary order before

made to read as follows:

"On consideration of said motion and being fully advised in the premises, it is now ordered by the court that the said temporary injunction be modified to the extent that the said defendant A. R. Balch is hereby permitted to open and conduct his said storeroom in what is known as the Courtney Building in said town of Moore, in Cleveland county, Okl., and to make regular and lawful sale of merchandise therein contained until the 1st day of November, 1915, and it is

the further order of this court upon the execution of bond of said A. R. Balch in the sum of $1,000, with sufficient surety to be approved by the court clerk of Cleveland county, Okl., on the condition that during said time said defendant A. R. Balch either by himself or by his agents or servants shall not violate the prohibitory liquor law or any other laws of the state of Oklahoma on or about said premises."

The defendants afterwards filed answer, denying the allegations contained in plaintiff's petition, except the allegation that the said defendant A. R. Balch was using said premises for the purpose of conducting a retail grocery and general store.

The cause came on for hearing at the regular term of the court, and after the introduction of testimony on the part of both the plaintiff and defendants the court found for the plaintiff and against the defendant A. R. Balch; the court making the following order and decree:

"Thereupon it was considered, ordered, adjudged, and decreed by the court that the temporary injunction heretofore made herein be, and the same hereby is, made permanent as against said defendant A. R. Balch, and that the storeroom of said defendant A. R. Balch described in said petition be ordered closed by the sheriff of Cleveland county, Okl., and plaintiff have judgment against defendant to pay all costs of this action, taxed at $

Motion for new trial having been duly filed, overruled, and exceptions saved, the defendant A. R. Balch appeals to this court. The defendant urges in his brief the following assignments of error: (1) Error of the trial court in denying the plaintiff in error a trial by jury. (2) Error of the trial court in overruling the demurrer of plaintiff in error to the evidence introduced on behalf of the state of Oklahoma, plaintiff below. (3) Error of the trial court in the admission of evidence offered by defendant in error and objected to by plaintiff in error. (4) Error of the trial court in the rejection of testimony offered by plaintiff in error. (5) Error of the trial court in rendering judgment for defendant in error and against plaintiff in error. (6) Error of the trial court in rendition of final judgment made by it by exceeding the jurisdiction of the district court in declaring the storeroom of the plaintiff in error a nuisance and ordering the same to be closed by the sheriff of Cleveland county.

not entitled to a jury trial either as a matter of constitutional or statutory right. Such right was not recognized by the courts of Oklahoma Territory, nor has the same been sanctioned by the courts of the state. The Supreme Court of the territory in Reaves v. Territory, 13 Okl. 396, 74 Pac. 951, passed squarely on the question of the right of jury trial in an action brought by the state to abate a public nuisance. In the syllabus to the opinion the court says:

brought for an injunction to suppress and abate "A trial by jury is not required in suits. a public nuisance."

[2, 3] It is clear that the acts complained of in the petition, if true, in the instant case would constitute the place a public nuisance. It is provided in section 4250, Revised Laws of 1910:

"A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

"First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or "Second. Offends decency. * *

And section 4251, Revised Laws of 1910, reads as follows:

"A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although ed upon the individuals may be unequal." the extent of the annoyance or damage inflict

In addition to the general law of the state on the subject, by specific enactment, our statutes provide that a place where intoxicating liquors are sold or kept for sale or barter, or where persons congregate for the purpose of drinking such liquors, is a public nuisance. The county attorney of the county in which a public nuisance exists has the authority to bring a civil action to abate same by civil action in the name of the state.

The defendant contends that the court erred

in the admission of testimony as to the general reputation of the women known as

"Kate" and "Babe" as to lewdness and chastity, and also in admitting testimony as to the general reputation of the house in which the defendant's business was conducted as being a house of ill fame or one to which persons resorted for the purpose of prostitution. There is no longer any question in this state as to the admissibility of such testimony in cases of the character of the one at bar.

In Jones v. State, 10 Okl. Cr. 79, 133 Pac. 1134, in the syllabus, it is said:

The proceeding in the case at bar, being equitable in its nature, the defendants were

of the inmates and persons who resort thereto as being of lewd and lascivious character, the law lewd and immoral purposes, and that the house will infer that such characters resort thereto for is a bawdyhouse. The state is not required to show specific acts of lewdness or prostitution in the house. It is sufficient if it be shown that mission of acts of immorality, and that the the house is commonly resorted to for the comproprietor knows the fact, and either procures