cannot enter after the tenancy expires. If the owner of a fee dies while crops are ripening, they go to his executor and not to his heir. Growing crops are personalty, and hence a sale of them falls within the seventeenth section of the Statute of Frauds, while a sale of growing perennials falls within the fourth section, although on the last point there is some conflict and confusion in the decided cases.

3. Border trees. A tree growing on the boundary line between the lands of different owners is owned by them as tenants in common. Neither can lawfully move or destroy it as a whole; but one may cut the branches on his side if he does not injure the trunk. If the trunk is wholly on one side of the boundary, the tree belongs to that landowner; the other landowner may cut off the overhanging branches but cannot appropriate them or the fruit on them.

164. Fixtures. A fixture is an article which, originally personal property, has by annexation to land come to be regarded as realty. It is often a nice and difficult question whether or not the article so annexed has become a fixture and so ceased to be personalty.

This question often arises between a vendor and a vendee of lands, between a mortgagor and a mortgagee of lands, between the heir or devisee of a landholder and his executor, between the reversioner or remainder-man and the tenant for years or the executor of a tenant for life, between the mortgagee of the owner's lands and the mortgagee of his personalty, between the landowner and a judgment creditor who levies on the article as personalty, etc. The question usually is, however, whether one who is taking possession of the land may hold the article as a part of the realty, or whether the one who is quitting the land, or his representatives, may sever the article and take it as personalty.

While the matter is a complicated and tangled one, the following rules will serve as a fairly reliable guide through the labyrinth.

1. In order to be in any event classed as a fixture the article must be physically annexed to the land or to some structure or thing itself physically annexed.

it

Exceptions. (a) If the article is an essential part of an annexed article, may be a fixture, although itself a movable, as an adjunct or part of a

machine, or the keys to a house. (b) If the article is of great weight and is kept in place by gravity without actual physical attachment, it may be a fixture, as a building, or a machine, or a colossal statue. (c) If the article has been fitted and appropriated to a purpose which when carried out would make it a fixture, it may be constructively a fixture, as fence rails laid along a line for a fence begun but not yet finished.

2. If the article is so annexed that to remove it would materially injure what remains or destroy the article itself, it must be regarded as a fixture and irremovable.

Example 1. Water and gas pipes built into a house are so annexed that they cannot be removed without tearing out floors or partitions. But if simply attached to walls or floors by hooks, they might be removed under 3, (b).

3. If the article may be removed without injury to the freehold or destruction of the article itself, then whether it is or is not regarded as a fixture often depends upon the relation of the one who annexed it to the land.

(a) If the annexer is the owner in fee of the land, and the article is calculated to improve the land, then the article becomes a fixture. If the owner sells or mortgages the land, the fixture goes with it. If the owner dies, the fixture goes to the heir or devisee and not to the executor. Of course the owner, while he is owner, may sever the article and make it again personalty, or he may by express stipulation reserve it from a sale or mortgage, or he may by will direct it to be severed and treated as personalty.

Example 2. Buildings, fences, machinery attached. to a structure, furnaces and steam-heating apparatus, bars and counters in business structures, bookcases attached to the walls, paintings on canvas cemented to the walls, heavy stone statues, and the like have all been held to be fixtures. But gas fixtures, such as chandeliers, have been held to be removable furniture.

(b) If the annexer is a tenant of the land, and the annexation was for purposes of trade or domestic convenience, the article may be removed by the tenant at the expiration of the term. The law favors the tenant in adapting the land and structures to the use to which he wishes to put them during the tenancy,

and permits him to remove annexations if he can do so without too serious an injury to what remains. He must exercise this right before he surrenders possession. If he renews his lease, he should in the new lease expressly reserve the right to remove articles annexed under the former lease or, according to some authorities, he abandons them as fixtures.

Example 3. Buildings not let into the soil, engines, boilers, and other machinery of trade, counters, cases of shelving and other store furniture, chairs fastened to the floor of a theater, gas fixtures, and the like have all been held to be removable by a tenant. The limit would be fixed when the removal would do a serious injury to the building belonging to the landlord, and upon this test many of the above articles have been held to be fixtures even as between landlord and tenant. Moreover, courts differ sometimes even upon substantially the same facts.

III. RELATIVE RIGHTS OF ADJOINING OWNERS

165. Fences: cattle trespass. At common law the owner of cattle is bound to fence them in or otherwise restrain them. The owner of crops is not bound to fence against trespassing cattle. Statutes have in many states changed or modified these rules, and in some the matter is left to local authorities to regulate. Very generally, however, statutes have imposed upon railroads the duty of fencing their property so as to avoid injury to trespassing cattle.

In many states there are statutes compelling adjoining owners to maintain a partition fence at their joint expense.

166. Air and waters; support of land. One owner is not permitted to pollute the air over a neighbor's land by smoke, dust, or odors in a manner unreasonably to disturb the neighbor's enjoyment of his property. Neither can he unreasonably disturb it by noises or vibrations. These acts constitute a nuisance for which damages may be recovered or an injunction issued.

One owner cannot pollute waters flowing from his land to that of a neighbor, nor unreasonably divert the waters or appropriate them.

One owner cannot remove the lateral support of a neighbor's land by digging so near the boundary as to cause the neighbor's

land to cave in. This does not extend to the support of buildings but only of the land in the natural condition. But one excavating may be liable for negligence or for want of notice if another's building is injured thereby.

167. Easements. An easement is a right by one person to do or to compel another to refrain from doing some act on that other's land. It may be acquired by grant or, in some cases, by prescription, that is, by the adverse use of the right for a specified period, usually twenty years.

One cannot by prescription acquire a right to have light and air come to his land from his neighbor's land, but he may by grant. Thus, A buys land of B, and the latter agrees not to build nearer the line than twenty feet. This gives A an easement to that extent in the light and air from B's land.

One may by prescription or by grant acquire a right of way over another's land. If one sells to another land not adjoining a highway, there is a "way of necessity" over the seller's remaining land in order to reach the highway.

One may acquire a right to use a party wall, or to drain water, or to take water, or to compel another to maintain a partition fence, and the like. All these are easements.

A highway over one's land is an easement for the benefit of the public generally, who acquire thereby a right to pass to and fro. Of course the public may, and sometimes does, own the fee also. But if the fee remains in a private individual, he may use it for any purpose not inconsistent with the right of the public. He is entitled to the vegetable growth, and he may forbid others to cut trees or grass, or pasture cattle, or hunt or fish there.

IV. TRANSFER OF INTERESTS IN LANDS

168. Contract of sale. A contract to sell lands or any interest in lands must be in writing and be signed by the party to be charged (see sec. 22). While the writing may be an informal instrument (a memorandum), it is usual to have a somewhat formal one setting out the terms of the agreement in full. It should be signed by both parties in order that both may be held.

The legal title does not pass at the time of making the contract, as it does in the case of the sale of personal property. But equity for many purposes regards the title as having passed to the vendee from the time the contract is made, although payment and delivery of the deed are postponed. As equity regards the vendee as the true owner, it will compel the vendor to execute the conveyance by what is known as specific performance of contract.

Equity regards the land as already a part of the vendee's realty, so that if he dies his heir can compel his executor to pay for it out of the personalty, and the deed from the vendor will be made to the heir; it regards the unpaid purchase price as a part of the vendor's personalty, and the money when paid will go to the vendor's executor in case the vendor has died.

Since equity regards the land as that of the vendee he must bear the loss if buildings burn, and cannot escape paying the purchase price on that account. But at law the risk will follow the legal title and the loss from destruction of buildings will fall on the vendor.

169. Conveyances. Conveyances of interests in lands other than leases are by deed. Of these there are two kinds, quitclaim deeds and warranty deeds.

A quitclaim deed conveys whatever title the grantor may have, and throws upon the grantee the risk as to whether there is a good or bad title or no title at all.

A warranty deed conveys the title of the grantor, and he covenants or warrants (a) that the grantor is seised of the lands and has the right to convey them; (b) that they are unincumbered unless otherwise stated; (c) that the grantee shall have quiet enjoyment, that is, shall not be evicted by any superior title; (d) that the grantor will warrant and defend him in this; (e) that the grantor will execute any further instrument necessary to perfect the grantee's title.

Many states provide by statute for a short form of deed which shall be deemed to carry with it all these warranties.

A deed must be signed by the grantor and, unless otherwise provided by statute, must be sealed; in some states it must also be witnessed. In order to be recorded it must be acknowledged before a notary or other authorized official. Recording