Wadleigh v. Janvrin , 41 N.H. 503 ( 1860 )

Eowler, J.

The old and general rule of the law seems to have been, that whatever was annexed to the freehold became part of it, and could not be taken from it; understanding by the expression “ annexed to the freehold,” fastened to or connected with it; so that mere juxtaposition, or the laying of an object, however heavy, on the freehold, did not amount to annexation. Culling v. Tufnal, Buller’s Nisi Prius 34; Anthony v. Haneys Harding, 8 Bing. 186; Horn v. Baker, 9 East 215 ; Davis v. Jones, 2 B. & A. 165.

But there were early recognized cases of constructive annexation, in which an object, really a chattel, was for certain purposes considered as annexed to the freehold. Thus in Liford’s Case, 11 Coke 50, it is said to have been resolved, in 14 H. 8, 25 b, in Wiston’s Case of Gray’s Inn, that if a man has a horse-mill; and the miller take the millstone out of the mill, to the intent to pick it to grind the better, although it is actually severed from the mill, yet it remains parcel of the mill, as if it had been always lying upon the other stone, and, by consequence, by the lease or conveyance of the mill, it shall pass with it; so of doors, windows, rings, &c. The same law of keys; although they are distinct things, yet they shall pass with the house. Such, too, were heir-looms, charters and evidences attendant upon the inheritance, and the deer and fish in a man’s park or fish-pond. 11 Vin. Ab. Ex’rs, Z, 166, 177; 1 Ld. Raym. 728; Pasey v. Pasey, 1 Vern. 273; Lord v. Wardle, 3 Bing. N. C. 680; Liford’s Case, 11 Coke 50; Shep. Touch. 470 ; Wiltshear v. Cottrell, 18 E. L. & E. 142 ; Lawton v. Lawton, 3 Atk. 13, and notes; Walker v. Sherman, 20 Wend. 636, where the authorities are collected and the whole subject fully discussed by Mr. Justice Cowen; Amos & Ferrard on Fixtures; Gibbons on Fixtures; 2 Kent Com. (3d Ed.) 345; Elwes v. Mawe, 3 East 38; 2 Smith L. C. 99, and notes.

In Regina v. Wheeler, 6 Mod. 187, upon a motion to stay process for seizing the wheel of a mill as a deodand because it was parcel of the freehold, Lord Chief Justice Molt is reported as saying, “A mill is a known thing in law, and so are the parts thereof; and therefore, if the owner of a mill take out one of the mill-stones to pick or gravel it, and devise the mill while the stone is severed from it, yet it shall pass as part of the mill.” On this ground process was stayed.

These authorities are quite conclusive, that the tie-up planks, stanchion timbers, hinge staples, and tie-chains, which must manifestly have been removed by the defendant for convenience in repairing the barn, passed, by the conveyance of the farm and buildings, to the plaintiff’ notwithstanding the severance, unless the unexecuted intention of the defendant, to substitute for them doors, windows, and stanchions of a different character and construction, could affect the result; and we are entirely satisfied that his secret, unexecuted intention in that respect could have no legitimate bearing upon the question. It was entirely immaterial what purpose the defendant had formed, so long as he had not carried it out. By the conveyance, the barn passed to the plaintiff just as it then was, with the portions, afterward carried off by the defendant, dissevered from the rest. The plaintiff saw the barn in the process of repair; he had a right to infer, and to act upon the inference, that the dissevered portions constituted an integral portion of the edifice. \Besido, the destination which gives to movable objects an immovable character, results from facts and circumstances determined by the law itself, and can neither be established nor taken away by the secret, unexecuted purpose or intention of the owner. 'I HornelU v. JEnregisir, 2 Ledru Rollin, Journal de Palais, Repertoire, &c., 214, cited in Snedecker v. Warring, 2 Kern. 170, where tbe New-York Court of Appeals held, reversing the decision of the Supreme Court, that a statue, erected as an ornament to grounds, may be a part of the realty, although not fastened to the base on which it rests, and capable of being removed without fracture; and also, that a sun-dial, erected, without being in any way fastened thereto, upon a permanent foundation of stone in the same grounds, was a part of the real estate, although it weighed only two hundred pounds, and could readily be removed. In the same case, moreover, the court disregarded as incompetent and immaterial the testimony of the former owner of the statue, that, when he set it up, he did not design it as a permanent erection, but intended to sell it whenever an opportunity should offer.

Both upon reason, because the severance of a fixture while in process of repair cannot vary its nature or deprive it of the character which annexation has conferred upon it, and upon authority, therefore, we think the testimony of the defendant as to his inchoate intention, unaccompany-ing the act of severance, to substitute different fixtures to the barn in place of those removed by him for convenience in making repairs, was properly rejected; and that the tie-up planks, stanchion timbers, tie-chains, and hinge hooks were clearly and unequivocally, by destination, part and parcel of the realty, and, as such, passed by the conveyance of the land to the plaintifij although they were, at the time and under the circumstances found by the case, entirely dissevered therefrom.

Nor can we doubt that the cider-mill was also part of the real estate, and passed by the conveyance of the farm and buildings to the plaintiff. The conflicting evidence upon the trial as to conversations in relation to it, alleged by one party to have occurred, and denied by the other, was clearly incompetent on the legal question as to whether or not it was part of the realty, ancl passed with it under the conveyance of the farm. All preliminary negotiations in relation to the property were merged in the written contract of conveyance, and the only question was, whethei’, as matter of law, the cider-mill, as it was situated at the date of the execution of the deed, passed under it. The understanding of either, or both parties, could not affect this legal question; at most, it would only be their opinion upon it. Beside, it does not appear that any intimation was made at the trial of any desire that this evidence should be submitted to the jury.

J We know the strict rule of the ancient law has been much relaxed in favor of trade and manufactures and to encourage industry, as between landlord and tenant, and tenant for life and the remainder-man; so that, as between landlord and tenant, the latter may take away, dui'ing the term, all such chimney-pieces, wainscot, machinery, and implements of trade, such as brewing vessels, coppers, fire-engines, cider-mills, &c., as he has himself put up or erected; and the tenant for life may remove fire-engines, cider-mills, coppers, &c., which he has erected, and by which he not only enjoys the profits of the estate, but carries on a species of trade. But, as we understand the matter, the old rule, that whatever is fixed to the freehold becomes part of it and cannot be taken from it, still holds as between the heir and executor, the mortgagee and mortgagor, and the grantee and grantor. Co. Litt. 53, a; Broke, Waste, 104, 143; Cooke’s Case, Moore 177; Herla-kenden’s Case, 4 Coke 64, a; Day v. Bisbitch, Cro. Eliz. 374; Cave v. Cave, 2 Vern. 508; Culling v. Tufnal, Bul. N. P. 34; Poole’s Case, 1 Salk. 368; Ex parte Quincy, 1 Atk. 477; Dudley v. Ward, Amb. 113; Lawton v. Salmon, cited in note to Lawton v. Lawton, 3 Atk. 13, and in note to Fitzherbert v. Shaw, 1 H. Bl. 259; Elwes v. Mawe, 3 East 38; Penton v. Robart, 2 East 88.

We are aware that in Lawton v. Lawton, 3 Atk. 13, a case is cited by the counsel as having been decided by Lord Chief Baron Comyns, at the assizes at "Worcester, where it was holden that a eider-mill, which was let very deep into the ground and so fixed to the freehold, was personal estate, and belonged to the executor instead of the heir; and Lord Hardwicke, in announcing his opinion, recognizes Lord Chief Baron Comyns as a very able lawyer. But Lord Mansfield, in Lawton v. Salmon, as reported in note to 3 Atk. 17, says that case most probably turned upon a custom, and, as reported in 1 H. Bl. 259, speaks of it doubtingly, as standing alone and not printed at large. In Elwes v. Mawe, 3 East 38; 2 Smith L. C. 111, Lord Chief Justice Dllenborough, after speaking of Lawton v. Lawton, 3 Atk. 13, which was the case of a fire-engine erected by a tenant for life to work a colliery, Dudley v. Ward, Amb. 113, which was of exactly the same character, and Lawton v. Salmon, 1 H. Bl. 259, as having been decided mainly upon the ground that where the fixed instrument, engine, or utensil, or the building covering the same, was an accessory to a matter of a personal nature, it should itself be considered personal, says, “ Upon the same principle, Lord Chief Baron Comyns may be considered as having decided the case of the cider-mill; that is, as a mixed case between enjoying the profits of the land and carrying on a species of trade, and as considering the cider-mill as properly an accessory to the trade of making cider.”

But, on whatever grounds the decision referred to may have been made, it does not appear to have been followed by any modern case; and the circumstances disclosed on trial, in relation to the cider-mill in controversy, seem to leave no reasonable doubt that it was essentially a fixture and passed with the land. The press was actually attached to the building in which it stood by a brace, and rested upon a foundation of stone embedded in the earth. It was heavy and bulky, and could only be removed by being taken down and its various parts dissevered. It had been used in the building erected to contain it for twenty-one years, and had evidently been constructed with a view to the permanent enjoyment by the owner of the large orchard upon the farm. The cider-mill house was a mere incident or accessory to the cider-mill contained in it. Admitting that the mill might be removed without actual or physical injury to itself or the building, still the cider-mill was necessary and essential to the particular use to which the building was appropriated, and must therefore be regarded as a fixture in it. There was a manifest and necessary dependence and adaptation between the building itself, and the cider-mill and press contained in it;fand some well considered adjudged cases have holden that the true test of a fixture is to be found in the relation it bears to the uses of the freehold. /

Thus, it was decided in Voorhis v. Freeman, 2 W. & Serg. 114, that rolls which formed part of the machinery of a mill were to be regarded as fixtures, although detached at the time when the question arose, and kept on hand for the purpose of replacing others which were actually in use. In Pyle v. Pennock, 2 W. & Serg. 391, this doctrine was fully carried out and applied, by deciding that plates of iron, which had been placed on the floor of a rolling-mill to protect it against fire, were a part of the building, although not fastened to it in any way, and kept in place only by their own weight. So, too, in Winslow v. The Merchants’ Ins. Co., 4 Met. 306, where the question was, whether a steam engine and other machinery of a manu-factory were to be considered as fixtures, and had vested as such in the defendants under a mortgage of the building prior to the period when they were erected, in opposition to the claim of the plaintiff's under a subsequent specific mortgage of the machinery itself, the court held that this point was to be determined, not by the fact whether or not the machinery was affixed to the building, but on whether it was permanent in its character, and essential to tbe purposes for which the building was occupied. “The rule,” says Shaw, C. J., “that objects must be actually and firmly affixed to the freehold to become realty, or otherwise be considered as personalty, is far from constituting a criterion. Doors, window-blinds, and shutters, capable of being removed without the slightest damage to a house, and even though, at the time of a conveyance, an attachment, or a mortgage, actually detached, would be deemed, we suppose, a part of the house, and pass with it. And so, we presume, mirrors, wardrobes, and other heavy articles of furniture, though fastened to the walls by screws with considerable firmness, must be regarded as chattels. * * * In general terms, we think it may be said that when a building is erected as a mill, and the water works or steam works, which are relied on to move the mill, are erected at the same time, and the works to be driven by it are essential parts of the mill, adapted to be used in it and with it, though not, at the time of the conveyance, attachment, or mortgage, attached to the mill, they are yet parts of it and pass with it, by the conveyance, mortgage, or attachment.” The doctrines of this case, as thus expressed, seem strictly applicable to the cider-mill in controversy, and the building erected to contain it; particularly to the grinding portion of the mill, with its trough and sweep, as it lay about the building at the time of the conveyance to the plaintiff.

The principle we have endeavored to sustain was fully carried out and illustrated in Snedecker v. Warring, 2 Kern. 170, before cited, where the Court of Appeals held that the question whether or not the statue and sun-dial were fixtures and passed with the land, depended, not upon whether they were affixed or fastened to it, but upon their evident purpose and adaptation for ornament or use in the situation and manner in which they were located and constructed. Says Parker, J., in delivering the opinion of the court, “ A thing may be as firmly affixed to the land by gravitation, as by clamps or cement. Its character may depend much, upon the object of its erection. Its destination, the intention of the person making the erection, often exercise a controlling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was that the thing in question should retain its original chattel character, or whether it was designed to make it a permanent accession to the lands.” Tried by this test, there can be no doubt that the defendant, when he procured the cider-mill and erected the house over it, or erected the cider-house and subsequently placed the mill within it, intended to make it a permanent accession to the lands; for it had remained in the same position for twenty-one years, at the date of the conveyance to the plaintiff.

Pothier says, that where, in the construction of a large vestibule or hall, niches are made, the statues attached to those niches make part of the house, for they are placed there ad integrandam domum — they serve to complete that part of the house. Indeed, the niches being made only to receive the statues, there will fail to be any thing in the vestibule without the statues. Pothier de Communauté, see. 56.

So, by the French law, statues placed in a niche made expressly to receive them, though they could be removed without fracture or deterioration, are immovable, or part of the realty; while those standing on pedestals, in houses, court-yards, and gardens, retain their character of movable or personal, unless placed on a substantial or permanent base made expressly for them, in which case they are governed by the same rule as where placed in niches made expressly to receive them; and the general rule is laid down, that the law will regard such ornaments as mirrors, pictures, and statues, as immovable, when they cannot be taken away without fracture or deterioration, or leaving a gap or vacancy. A statue is regarded as integral with the permanent base on which it rests, and which was erected expressly for it, when the removal of the statue will offend the eye by presenting before it a distasteful gap — a foundation and base no longer appropriate or useful. (Things immovable by destination are those objects, movable in their nature, which, without being actually held to the ground, are destined to remain there perpetually attached, for use, improvement, or ornament. Code Napoleon, Touillier, Ledru Rollin, and other authorities cited in Snedeeker v. Warring, 2 Kern. 176, 177.

Manure in heaps, or about the barn, is deemed a fixture, by the same rule of destination. So with fences, and materials for fence, though not actually in use for that purpose at the time of the conveyance. Lassell v. Reed, 6 Gr. 222; Daniels v. Pond, 21 Pick. 327; Middlebrook v. Corwin, 15 Wend. 169; Kittredge v. Woods, 3 N. H. 503; Parsons v. Camp, 11 Conn. 525; Conner v. Coffin, 22 N. H. 542; Ripley v. Paige, 12 Vt. 353; Walker v. Sherman, 20 Wend. 639 ; Goodrich v. Jones, 2 Hill 142; Sawyer v. Twiss, 26 N. H. 346; Farrar v. Stackpole, 6 Gr. 157; Fuller v. Walter, 28 Me. 545, and authorities collected in notes of Hare and Wallace to Elwes v. Mawe, 2 Smith L. C. 121, (4th Am. Ed.) 215-221.

Aside from the facts shown in the case indicating an actual affixing of the cider-mill to the freehold, it seems quite clear, upon the authorities, that, if it had been in no •way affixed to the freehold, when taken in connection with the building that contained it, it must have been deemed a fixture by destination and appropriation for twenty-one years — as designed for permanent use where it was located —as essential to the purpose for which the cider-house was designed — and as leaving a useless and repulsive looking vacant building, if removed therefrom.

Having arrived at the conclusion that the court below were correct in ruling, upon the trial, that all the property sued for was or had been so affixed to the freehold by destination, or otherwise, as to pass by tbe conveyance of the farm to the plaintiff, it only remains to determine whether or not the plaintiff has mistaken his remedy; in other words, whether or not the action of trespass de bonis aspor-tatis can be maintained.

As to this, there seems no room for doubt. "When the defendant removed the cider-mill and other articles from the farm, they were, by his wrongful act, converted from chattels real, or fixtures, into chattels personal, but the title and ownership still remained in the plaintiff; and for their subsequent appropriation and conversion, the defendant was liable, either in trespass or in trover. The plaintiff might, it is true, have made the wrongful entry of the defendant the gist of his .action, and have brought trespass quare clausum, unless the agreement authorizing the defendant to enter and remove his personal property until the first of November might have prevented it; but he had a right to qualify the' tort by waiving the wrongful entry, and rely only upon the wrongful taking and carrying away. He might have still further waived the wrongful taking and carrying away, and have sued in trover for the conversion alone; since, where the whole merits of a case are discussed and determined in one action, the judgment may be pleaded and shown in evidence in bar to another. It is not for the defendant to complain that the plaintiff has waived some portion of his legal rights. He is certainly in no worse condition than if they had been insisted upon. Trover and trespass are generally concurrent remedies for the unlawful taking and conversion of' personal property. Pitts v. Gaines g Foresight, 1 Salk. 10; Bishop v. Montague, Cro. Eliz. 824; Shipwick v. Blanchard, Cro. Jac. 50; Cooper v. Chitty, 1 Burr. 31; Wallace v. King, 1 H. Bl. 13; Lacon v. Barnard, Cro. Car. 35; Ferrers v. Ardens, Cro. Eliz. 668; Lechmere v. Toplady, 2 Ventris 169; Walker v. Sherman, 20 Wend. 639; Goodrich v. Jones, 2 Hill 142; Farrant v. Thompson, 5 B. & A. 826; 7 E. C. L. 272; Woodruff v. Halsey, 8 Pick. 333; Lyford v. Putnam, 35 N. H. 563; Nelson v. Burke, 15 Mass. 204; Woods v. Banks, 14 N. H. 101.

In accordance with, these views, there must be judgment upon the verdict.

Exceptions overruled.