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.

or, in case the sale is to the landlord, there is considered to be merely an abandonment or waiver of the right of re moval.149

241. Compensation for improvements.

Since the rule that erections or additions made by one who has no rights to land are fixtures, and therefore not removable by him, even though he made them in the belief that he was the owner of the land, is calculated to cause hardship to an innocent occupant of another's land, by giving the benefit a sysof his labor and expenditures to the landowner, 150 tem of compensation for improvements so made has been established by the courts, and, in most of the states, by express legislation.

A court of equity will, on the principle that he who seeks equity must do equity, refuse its assistance to the rightful owner of land as against an occupant thereof unless he make compensation for permanent and beneficial improvements, made by the latter without notice of the defect in his title.151

149 Hallen v. Runder, 1 Cromp., M. & 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.

150 Ritchmyer v. Morss, 3 Keyes (N. Y.) 349, Finch's Cas. 283; Inhabitants of First Parish in Sudbury v. Jones, 8 Cush. (Mass.) 184; Jones v. New Orleans & S. R. Co., 70 Ala. 227; Doscher v. Blackiston, 7 Or. 143; Beers v. St. John, 16 Conn. 322; Goddard v Bolster, 6 Me. 427, 20 Am. Dec. 320; Hunt v. Missouri Pac. Ry. Co., 76 Mo. 115; Price v. Weehawken Ferry Co., 31 N. J. Eq. 31.

151 3 Pomeroy, Eq. Jur. § 1241; Wharton v. Moore, 84 N. C. 479, 37 Am. Rep. 627; Thomas v. Evans, 105 N. Y. 614, 59 Am. Rep. 519; Williams v. Vanderbilt, 145 Ill. 238, 36 Am. St. Rep. 486; Broumel v. White, 87 Md. 521; Barrett v. Stradl, 73 Wis. 385, 9 Am. St. Rep. 795. By a few decisions, the person making the improvement has been allowed to recover the value thereof in equity by bill therefor, and not merely as a defense. Herring v. Pollard's Ex'rs, 4 Humph. (Tenn.) 362; Albea v. Griffin, 22 N. C. 9. See Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875.

This equitable practice of granting compensation for improvements in favor of an innocent occupant has frequently been adopted by courts of law to the extent of allowing the value of the improvements to be set off against the claim of the owner for mesne profits.152

In most of the states, statutes, known as "Occupying Claimants' Acts," or "Betterment Acts," have been passed, allowing one in adverse possession of another's land, under color of title, who has made improvements in good faith, to recover their value, either by the assertion of his claim in an action by the owner to recover the land, or by a direct proceeding for the purpose.153

$ 242. Divided ownership of building.

A building may not only, by force of an agreement to that effect, belong to a person other than the owner of the land,154 but parts of a building may belong to different persons, as when an upper floor belongs to one, and the lower to another, 155 or separate rooms, or even parts of rooms, belong to different persons.156

152 Kerr v. Nicholas, 88 Ala. 346; Dowd v. Faucett. 15 N. C. 92; Tongue v. Nutwell, 31 Md. 302; Porter v. Hanley, 10 Ark. 186; Learned v. Corley, 43 Miss. 687; Ege v. Kille, 84 Pa. St. 333; Jackson v. Loomis, 4 Cow. (N. Y.) 168, 15 Am. Dec. 347, and note.

153 See the full discussion of these statutes, and the numerous decisions thereunder, by J. W. Magrath, Esq., in 16 Am. & Eng. Enc. Law, 79 et seq. See, also, Sedgwick & W. Tr. Title Land, c. 26; 2 Kent, Comm. 335, and notes.

154 Howard v. Fessenden, 14 Allen (Mass.) 124; Dame v. Dame, 38 N. H. 429, 75 Am. Dec. 195; Walton v. Wray, 54 Iowa. 531; Lowenberg v. Bernd, 47 Mo. 297; Chicago & A. R. Co. v. Goodwin, 111 Ill. 273, 53 Am. Rep. 622; Ingalls St. Paul, M. & M. Ry. Co., 39 Minn. 479, 12 Am. St. Rep. 676. See supra, § 235.

155 Co. Litt. 48b; Corbett v. Hill, L. R. 9 Eq. 671; Loring v. Bacon, 4 Mass. 575, Finch's Cas. 100, Ottumwa Lodge v. Lewis, 34 Iowa, 67, 11 Am. Rep. 135; Cheeseborough v. Green, 10 Conn. 318, 26 Am. Dec. 396; McConnel v. Kibbe, 33 111. 75; Mott v. Palmer, 1 N. Y. 564, Finch's Cas. 286.

156 Selby v. Greaves, L. R. 3 C. P. 594; Com. v. Hersey, 144 Mass 298; White v. White, 16 N. J. Law, 202, 31 Am. Dec. 232.