that the legal right of the tenant to remove fixtures is capable of being controlled by the previous disposition or stipulation of the parties to the contrary,-a circumstance, moreover, of frequent occurrence, as it is very usual for tenants to covenant that they will remove none of the fixtures that shall be annexed during the term to the demised premises, but will deliver them up at its expiration to the landlord's use (h); and it is also worthy of notice, that the question of property in fixtures generally has heen held liable to modification by the effect of a special usage, if any such can be shewn to have long prevailed in the particular neighbourhood (i). remarks. In concluding these remarks concerning fixtures, we may Concluding observe, that the uncertainty of the law on this subject results necessarily from the fact, that each case involving a question as to the right to fixtures is professedly decided according to its own particular circumstances; and we may further remark, that the general principle, quicquid plantatur solo solo cedit, is held up only to be departed from on account of the acknowledged injurious effects which would ensue from too strict an application of it (k). (h) 2 Steph. Com. 262; Woodf. L. and T., 5th ed., 457; Earl of Mansfield v. Blackburne, 3 B. N. C. 438. (i) 1 Williams, Executors, 3rd ed., 579; Vin. Abr. "Executors," U. 74; Davis v. Jones, 2 B. & Ald. 165, 168. (k) See Woodf. L. and T., 5th ed., 447; Amos. & Fer. on Fixtures, Introd., pp. 24, 25. For lists of articles held recoverable by tenant, or the contrary, the reader is referred to Chit. Contr., 3rd ed., 359 et seq. Rule.-Instances of its application. CUICUNQUE ALIQUIS QUID CONCEDIT CONCEDERE VIDETUR ET When anything is granted, all the means to attain it (1), and all the fruits and effects of it, are granted also, and shall pass inclusive, together with the thing by the grant of the thing itself, without the words cum pertinentiis, or any such like words (m). Therefore, by the grant of a piece of ground is granted a right of way to it over the grantor's land as incident to the grant; and, in like manner, it seems, that by a reservation of the close is reserved also a right of way to it; and by the grant of trees is granted power to enter on the land to cut them down, and take them away (n). So, where a man leases his land and all mines where there are no open ones, the lessee may dig for the minerals; and by the grant of fish in a man's pond is granted power to come upon the banks and fish for them (o). So, it has been observed, that, when the use of a thing is granted, everything is granted by which the grantee may have and enjoy such use; as, if a man gives me a license to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter, and dig the land, in order to (1) See Dalton's Justice, p. 397, ed. 1655, cited Evans v. Rees, 12 A. & E. 57, 58. (m) Shep. Touch. 89; Hobart, 234; Vaugh. R. 109. (n) Howton v. Frearson, 8 T. R. 56; Noy, Max., 9th ed., pp. 54, 56; Plowd. Com. 16 a.; 1 Wms. Saund. 323, note (6); Clarke v. Cogge, Cro. Jac. 170; Beaudely v. Brook, (0) 1 Wms. Saund. 323, n. (6); Shep. Touch. 89; Co. Litt. 59. b. ; Liford's case, 11 Rep. 52; Foster v. Spooner, Cro. Eliz. 18; Saunders' case, 5 Rep. 12; Noy, Max., 9th ed., p. 56; ante, p. 176. mend the pipes, though the soil belongs to another, and not to me (p). Where trees are excepted in a lease, the lessor has a power by law, as incident to the exception, to enter upon the land demised in order to fell and take away the trees, though this power is often, for the greater caution, expressly reserved to him (q). In like manner, a rector may enter into a close to carry away the tithes over the usual way, as incident to his right to the tithes (r). So, a tenant at will, after notice to quit, or any other party who is entitled to emblements, shall have free entry, egress, and regress, to cut and carry them away (s). The right to emblements does not, however, give a title to the exclusive occupation of the land. Therefore, it seems, that, if the executors occupy till the corn or other produce be ripe, the landlord may maintain an action for the use and occupation of the land (t). On the same principle, where a tenant is entitled to an away-going crop, he may likewise be entitled by custom to retain possession of that portion of the land on which it grows; and, in this case, the custom operates as a prolongation of the term as to such portion (u). In a very recent case, it was held, that a certain coalshoot, water and other pipes, all which were found, by special verdict, to be necessary for the convenient and beneficial use and occupation of a certain messuage, did, under the particular circumstances, pass to the lessee as integral parts of such messuage; and it was further held, that the (p) Per Twysden, J., Pomfret v. Ricroft, 1 Saunds. R. 323; Judg. ment, Hodgson v. Field, 7 East, 622, 623. (g) 1 Wms. Saund. 322, note (5); Liford's case, 11 Rep. 52. (r) 1 Wms. Saund. 323, note (6), ad finem. (s) Litt. s. 68; Co. Litt. 56. a., 153. a., cited 1 M. & S. 660. (1) Woodf. L. and T., 5th ed., 501. (u) Per Bayley, J., Boraston v. Green, 16 East, 81; Ex parte Mandrell, 2 Madd. 315: see Strickland v. Maxwell, 2 Cr. & M. 539. right of passing and repassing over the soil of a certain passage for the purpose of using the said coal-shoot, and using, cleaning, and repairing the said pipes, likewise passed to the lessee as a necessary incident to the subject-matter actually demised, although not specially named in the lease (x). In a deed of conveyance of certain land, the grantor excepted and reserved out of the grant all coal-mines, together with sufficient way-leave and stay-leave to and from the said mines, and the liberty of sinking pits: the Court held, that, as the coals were excepted, and a right to dig pits for getting those coals reserved, all things " depending on that right, and necessary for the obtaining it," were, according to the above rule, reserved also, and, consequently, that the owner had, as incident to the liberty to sink pits, the right to fix such machinery as would be necessary to drain the mines, and draw the coals from the pits; and, further, that a pond for the supply of the engine, and likewise the engine-house, were necessary accessaries to such an engine, and were, therefore, lawfully made (y). Again, the power of making bye-laws is, on the same principle, incident to a corporation; for, when the Crown creates a corporation, it grants to it, by implication, all powers that are necessary for carrying into effect the objects for which it is created, and securing a perpetuity of succession. Now, a discretionary power somewhere to make minor regulations, usually called bye-laws, in order to effect the objects. of the charter, is necessary; and this power is, therefore, impliedly granted by the Crown (z). (x) Hinchliffe v. Earl of Kinnoul, 5 B. N. C. 1. (y) Dand v. Kingscote, 6 M. & W. 174, and cases cited in the argu ment; Hodgson v. Field, 7 East, 613. (z) Rex v. Westwood, 7 Bing 20. The above maxim, however, must be understood as applying to such things only as are incident to the grant, and directly necessary for the enjoyment of the thing granted: therefore, if a man, as in the instance above put, grants to another the fish in his ponds, the grantee cannot cut the banks to lay the ponds dry, for he may take the fish with nets or other engines (a). So, if a man, upon a lease for years, reserve a way to himself through the house of the lessee to a back-house, he cannot use it but at seasonable times, and upon request (b). A way of necessity is also limited by the necessity which created it, and, when such necessity ceases, the right of way likewise ceases; therefore, if, at any subsequent period, the party formerly entitled to such way can, by passing over his own land, approach the place to which it led by as direct a course as he would have done by using the old way, the way ceases to exist as of necessity (c). Limitation of rule to neces sary inci dents. implied by On a principle similar to that which has been thus briefly Authority considered, it is a rule, that, when the law commands a law. thing to be done, it authorises the performance of whatever may be necessary for executing its command: Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud (d). Thus, constables, whose duty it is to see the peace kept, may, when necessary, command the assistance of others (e). In like manner, the sheriff is authorised in the execution of a writ to take the posse comitatus, or power of the county, to help him, and every one is bound to assist (a) 1 Wms. Saund. 233, n. (6), ad finem; Lord Darcy v. Askwith, Hob. 234; per Parke, B., 6 M. & W. 189. (b) Tomlin v. Fuller, 1 Ventr. 48: see also Morris v. Edgington, 3 Taunt. 24, cited 6 M. & W. 189; Wilson v. Bagshaw, 5 Man. & Ry. (c) Holmes v. Goring, 2 Bing. 76. |