by the tenant or occupier of land for a limited period, as for life or years, is not removable by him, because a part of the land, has been subjected to a relaxation in favor of the tenant as against the landlord or remainderman, by which the former, or his representative, is allowed to remove certain classes of articles annexed.

That articles which are annexed by the tenant for purposes of trade, known as "trade fixtures," are removable by him as against the landlord, has been recognized from an early period in the development of the law of fixtures, the theory being that it is of public utility that the tenant should be enabled to improve the property for the purpose of carrying on trade, without thereby forfeiting his improvements.131 The same exception exists in favor of a tenant for life as

181 Poole's Case, 1 Salk. 368, 1 Gray's Cas. 661; Elwes v. Maw, 3 East, 38, 2 Smith, Lead. Cas. (8th Ed.) 169, 1 Gray's Cas. 666; Van Ness v. Pacard, 2 Pet. (U. S.) 137, 1 Gray's Cas. 717, Finch's Cas. 312; Holbrook v. Chamberlin, 116 Mass. 155, 17 Am. Rep. 146; Moore v. Smith, 24 Ill. 512; Andrews v. Day Button Co., 132 N. Y. 348; Kile v. Giebner, 114 Pa. St. 381; Macdonough v. Starbird, 105 Cal. 15; Smith v. Whitney, 147 Mass. 479; Conrad v. Saginaw Min. Co., 54 Mich. 249, 52 Am. Rep. 817; 13 Am. & Eng. Enc. Law, 642. • Thus, attachments for the purpose of conducting a boarding house or hotel, such as additional buildings, shelves, counters, furnaces, and water pipes, have been held to be removable as trade fixtures (Wall v. Hinds, 4 Gray [Mass.] 256, 64 Am. Dec. 64; Carlin v. Ritter, 68 Md. 478, 6 Am. St. Rep. 467; Ombony v. Jones, 19 N. Y. 234) as has a building erected by a dairyman for the purpose of his trade, though also occupied by his family for residence purposes (Van Ness v. Pacard, 2 Pet. [U. S.] 137, 1 Gray's Cas. 717, Finch's Cas. 312). Engines and machinery are evidently within the rule allowing removal. See cases cited 13 Am. & Eng. Enc. Law, 644.

The tenant, if a gardener or nurseryman, may remove even trees and shrubs if he has planted them with a view to sale. 2 Taylor, Landl. & Ten. § 536; Penton v. Robart, 2 East, 90; Lee v. Risdon, 7 Taunt. 191; Brooks v. Galster, 51 Barb. (N. Y.) 196. And see Miller v. Baker, 1 Metc. (Mass.) 27; Whitmarsh v. Walker, 1 Metc. (Mass.) 315.

against the landlord or remainderman.182 In this connection, the term "trade" has, by the courts, been given a broad significance, and apparently all annexations for the purpose of pecuniary profit, provided they are not of an exclusively agricultural character, are removable as trade fixtures.

Articles annexed for purely agricultural purposes were decided in England not to be removable by the tenant who erected them.183 This decision has been criticised in this country, and in some states the same right of removal doubtless exists in the case of agricultural as of trade fixtures.184

Articles annexed by a tenant for years or at will for the ornamentation or more convenient use of a dwelling, known as "ornamental" or "domestic" fixtures, are also subject to removal by him,135 and the executor of a tenant for life has been decided to have the same right of removal.136

By some decisions, the right of the tenant of a limited estate to remove fixtures extends to all fixtures which may be regarded as having been annexed by him for purposes of

132 Dudley v. Warde, Ambler, 113; Estate of Hinds, 5 Whart. (Pa.) 138, 34 Am. Dec. 542; Overman v. Sasser, 107 N. C. 432, Finch's Cas. 310; Lawton v. Lawton, 3 Atk. 13, 1 Gray's Cas. 661; Elwes v. Maw, 3 East, 38, 1 Gray's Cas. 666; In re De Falbe [1901] 1 Ch. 523. 133 Elwes v. Maw, 3 East, 38, 1 Gray's Cas. 666, 2 Smith, Lead. Cas. 191.

184 McMath v. Levy, 74 Miss. 450; Harkness v. Sears, 26 Ala. 493, 62 Am. Dec. 742. See Van Ness v. Packard, 2 Pet. (U. S.) 137, Finch's Cas. 312, 1 Gray's Cas. 717; Wing v. Gray, 36 Vt. 261.

135 Bishop v. Elliott, 11 Exch. 113; Gibson v. Hammersmith & City Ry. Co., 2 Drew. & S. 603 (ornamental chimney pieces); Grymes v. Boweren, 6 Bing. 437, 1 Gray's Cas. 676 (a pump); Gaffield v. Hapgood, 17 Pick. (Mass.) 192, Finch's Cas. 323 (a fire frame); Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64 (cistern and sink); Roffey v. Henderson, 17 Q. B. 575 (stoves, ranges, etc.). See Elwes v. Maw, 3 East, 38, 1 Gray's Cas. 666.

136 Leigh v. Taylor [1902] App. Cas. 157, affirming In re De Falbe [1901] 1 Ch. 523,

his occupancy only, and not to particular classes of fixtures merely.187

Restrictions on right of removal.

The right of the tenant of a limited interest to remove fixtures cannot be exercised if the premises will be thereby substantially injured, to the disadvantage of the reversioner;139 nor, according to some authorities, if the article annexed cannot be removed without losing its identity, or being reduced to merely a collection of crude materials.13

139

The rights of a tenant to remove fixtures may be extended or restricted by agreement between him and the landlord, and they may likewise be affected by a local custom.140

The exceptional rule in regard to trade fixtures has no application in the case of annexations by the owner of a feesimple estate in the land, and fixtures of this character pass, as do other fixtures, to the heir, grantee, or mortgagee of the land;141 nor is there, it seems, any right of removal of ornamental fixtures annexed by the owner of the fee.142

137 Bliss v. Whitney, 9 Allen (Mass.) 114, 85 Am. Dec. 745; Bircher v. Parker, 40 Mo. 118. See 13 Am. & Eng. Enc. Law, 647.

188 Gibson v. Hammersmith & City Ry. Co., 2 Drew. & S. 603; Hanrahan v. O'Reilly, 102 Mass. 201; Powell v. McAshan, 28 Mo. 70; Cubbins v. Ayres, 4 Lea (Tenn.) 329. See Wall v. Hinds, 4 Gray (Mass.) 271, 64 Am. Dec. 64; Conrad v. Saginaw Min. Co., 54 Mich. 249, 52 Am. Rep. 817.

139 Whitehead v. Bennett, 27 L. J. Ch. 474, 1 Gray's Cas. 691; Collamore v. Gillis, 149 Mass. 578. But see Van Ness v. Pacard, 2 Pet. (U. S.) 137, 1 Gray's Cas. 717, Finch's Cas. 312; White's Appeal, 10 Pa. St. 252; 13 Am. & Eng. Enc. Law, 644, note.

140 13 Am. & Eng. Enc. Law, 655, 661.

141 Fisher v. Dixon, 12 Clark & F. 312, 1 Gray's Cas. 686; Walmsley v. Milne, 7 C. B. (N. S.) 115, 1 Gray's Cas. 695; Climie v. Wood, L. R. 4 Exch. 328, 1 Gray's Cas. 706; Harkness v. Sears, 26 Ala. 403, 62 Am. Dec. 742; Foote v. Gooch, 96 N. C. 265, 60 Am. Rep. 411; Wight v. Gray, 73 Me. 297; Burnside v. Twitchell, 43 N. H. 390; 13 Am. & Eng. Enc. Law (2d Ed.) 635, 663, 671.

142 Amos & F. Fixt. (3d Ed.) 329; Hallen v. Runder, 1 Cromp., M.

Time of removal.

Fixtures removable by a tenant for years, within the above rules, must be removed by him during the term,143 or, according to other authorities, before he surrenders possession at or after the end of the term.144 If the duration of a tenant's term is indefinite, as in the case of a tenancy for life or at will, or if the tenancy is prematurely terminated without his fault, he has a reasonable time after its termination in which to remove the fixtures.1

145

& R. 266, 1 Gray's Cas. 679; Lee v. Gaskell, 1 Q. B. Div. 700, 1 Gray's Cas. 715; South Baltimore Co. v. Muhlbach, 69 Md. 395; Norton v. Dashwood [1896] 2 Ch. 497; Bainway v. Cobb, 99 Mass. 457. Contra, as between executor and heir, Squier v. Mayer, Freem. Ch. 249, cited in Re De Falbe [1901] 1 Ch. 523, 535.

143 Poole's Case, 1 Salk. 368, 1 Gray's Cas. 660; Lyde v. Russell, 1 Barn. & Adol. 394; Lee v. Risdon, 7 Taunt. 188; Bliss v. Whitney, 9 Allen (Mass.) 114, 85 Am. Dec. 745; Stokoe v. Upton, 40 Mich. 581, 29 Am. Rep. 560; Sullivan v. Carberry, 67 Me. 531.

144 Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 341, Finch's Cas. 328; Gaffield v. Hapgood, 17 Pick. (Mass.) 192, 28 Am. Dec. 290, Finch's Cas. 323; Watriss v. Cambridge First Nat. Bank, 124 Mass. 571, 26 Am. Rep. 694, 1 Gray's Cas. 780. It is quite frequently stated that the tenant loses his right to remove fixtures by failure to do so before the end of the term or his surrender of pos session, for the reason that he is, in such case, presumed to have intended to abandon the fixtures, but, on such a theory, chattels not annexed, but merely left lying on the premises by the tenant, should also be lost to him, which is not the case. The more satisfactory view is that there is no right of removal after the time named because the tenant's exceptional right to remove certain classes of fixtures is so restricted, and, being part of the freehold, he has no right to remove them except as permitted by the rule. See the remarks of Kindersley, V. C., in Gibson v. Hammersmith & City Ry. Co., 2 Drew. & S. 603, 32 L. J. Ch. 337, 1 Gray's Cas. 683, note. Viewing the matter thus, it would seem proper that his right of removal should be restricted to his term, and that it should not be extended by his unauthorized continuance in possession beyond the term.

146 Watriss v. First Nat. Bank, 124 Mass. 571, 26 Am. Rep. 694, 1 Gray's Cas. 780; Loughran v. Ross, 45 N. Y. 792, 6 Am. Rep. 173,

If the tenant takes a new lease, without any stipulation on the subject, he loses, by perhaps the weight of authority, the right to remove the fixtures.146

Real or personal property.

148

By some authorities, articles which, though annexed to the land, are removable by the tenant of a limited term, are regarded as personalty,147 but the better view is that they are fixtures, as previously defined, and constitute part of the land until the tenant actually removes them.1 But though removable fixtures be regarded as part of the land, a sale of them by the tenant is not within the fourth section of the Statute of Frauds, it being considered that the tenant thereby sells, not the fixtures, but the right to remove the fixtures,

Finch's Cas. 325; Sullivan v. Carberry, 67 Me. 531; Shellar Shivers, 171 Pa. St. 569; Martin v. Roe, 7 El. & Bl. 237.

146 Watriss v. First Nat. Bank, 124 Mass. 571, 26 Am. Rep. 694, 1 Gray's Cas. 780; Loughran v. Ross, 45 N. Y. 792, 6 Am. Rep. 173, Finch's Cas. 325; Talbot v. Cruger, 151 N. Y. 117, Finch's Cas. 330; Carlin v. Ritter, 68 Md. 478, 6 Am. St. Rep. 467. See Thresher v. East London Water Works Co., 2 Barn. & C. 608, 1 Gray's Cas. 673. Contra, Kerr v. Kingsbury, 39 Mich. 150, 33 Am. Rep. 362, Finch's Cas. 332; Beloit Second Nat. Bank v. O. E. Merrill Co., 69 Wis. 501. 147 Watts v. Lehman, 107 Pa. St. 106; Torrey v. Burnett, 38 N. J. Law, 457; Holmes v. Tremper, 20 Johns. (N. Y.) 29. 148 Hallen v. Runder, 1 Cromp., M. & R. 266, 1 Gray's Cas. 679; Mackintosh v. Trotter, 3 Mees. & W. 184, 1 Gray's Cas. 682; Gibson v. Hammersmith & City Ry. Co., 2 Drew. & S. 603, 32 L. J. Ch. 337, 1 Gray's Cas. 683, note; Meux v. Jacobs, L. R. 7 H. L. 490; Freeman v. Dawson, 110 U. S. 264, 270; Sampson v. Camperdown Cotton Mills, 64 Fed. 939; Joliet First Nat. Bank v. Adam, 138 Ill. 483; Bliss v. Whitney, 9 Allen (Mass.) 114, 85 Am. Dec. 745.

It is only, it seems, by considering such annexed articles as part of the realty, and not as personalty, that it is possible to justify the rule that the right to remove them is lost by failure to do so during the term or the tenant's possession, since a tenant does not lose his right to personal chattels on the premises by his failure to remove them. Nor, on the contrary view, could the right to them well be lost by the taking of a new lease.