in good repair one cattle guard and one causeway or other adequate means of crossing the same at such reasonable place as may be designated by the owner," it is held that a “cause way" as applied to a railroad, means a way raised above the road; that the fact that its use requires the landowner to open and close gates does not render it inadequate; and where it is adequate the landowner cannot, on the grounds of convenience or profit, demand an underground crossing. State ex rel. Stone v. Burlington, C. R. & N. Ry. Co., 99 Ia. 565 (68 N. W. Rep. 819). As to what crossings are "necessary" within the meaning of the Miss. Code 1892, § 3561, requiring railroad companies to maintain "convenient and suitable" crossings for "necessary plantation roads," is a question of fact for the jury. Alabama & V. R. Co. v. Odeneal, 73 Miss. 34 (19 So. Rep. 202). Citing, Thornt. Crossings, § 268; Chalcraft v. Railroad Co., 113 Ill. 86; Dubbs v. Railroad Co., 148 Pa. St. 66 (23 Atl. Rep. 883). For further construction of this statute, see Seelbinder v. Illinois Cent. R. Co., 73 Miss. 84 (19 So. Rep. 300); Hardy v. Alabama & V. Ry. Co., 73 Miss. 719 (19 So. Rep. 661); Alabama & V. Ry. Co. v. Ligon, 74 Miss. 176 (20 So. Rep. 988). Ind. Rev. Stat. 1894, §§ 5320, 5321, applied-erection of gates at farm crossings. Louisville, N. A. & C. Ry. Co. v. McAfee, 15 Ind. App. 442 (43 N. E. Rep. 36). Va. Code, § 1262, construed and applied-duty of railroad company to construct cattleguards-recovery of penalty by landowner for its failure to do so. Russell v. Louis

ville & N. R. Co., 93 Va. 322 (25 S. E. Rep. 99). Wis. Rev. Stat., § 1811, construed and applied-failure to replace gates or bars at crossing. Oeflein v. Zautcke, 92 Wis. 176 (66 N. W. Rep. 108).

Sec. 340. Miscellaneous notes. In Ohio it is held that where a lot owner erected thereon near the property of the adjoining lot owner a high board fence which shut off the light and air from the windows of the latter's house, although erected from motives of unmixed malice towards such lot owner and for no useful or ornamental purpose, he could maintain such fence and neither law nor equity could compel its removal. Letts v. Kessler, 51 O. St. 73 (42 N. E. Rep. 765). See opinion for extensive collection of authorities.

Substantiatly the same is held in Michigan. Peck v. Roe, 110 Mich. 52 (67 N. W. Rep. 1080). The common law rule by which the owner of domestic stock is liable for injury done by them to the uninclosed lands of another is not in force in the portions of Oregon to which the fence law of that state is applicable, and the fact that the character of the stock requires that they be in charge of some one to protect them from loss or destruction does not change the rule. Walker v. Bloomingcamp, (43 Pac. Rep. 175). It is negligence for a town discontinuing a traveled highway to erect across it a barbed wire fence, without barriers or warnings, and it may be held liable to travelers for injuries resulting therefrom. Bills v. Town of Kaukauna, 94 Wis. 310 (68 N. W. Rep. 992).

Ore.

FIXTURES.

EPITOME OF CASES.

Fences

Sec. 341. As to what constitutes a fixture. permanently affixed to land constitute a part of the realty. Bagley v. Columbus S. Ry. Co., 98 Ga. 626 (25 S. E. Rep. 638; 34 L. R. A. 286; 58 Am. St. Rep. 325). A heater and range, although but slightly attached to the building, are fixtures, if put in by the owner of the premises with the intention of making them such. Erdman v. Moore, 58 N. J. L. 445 (33 Atl. Rep. 958). On a sale or mortgage of a brewery and its machinery and appliances for making beer, the machinery and appliances used for making it and on the premises will pass to the purchaser and such as may be substituted in lieu of other machinery that becomes useless or requires repairing. Reyman v. Henderson Nat. Bank, 98 Ky. 748 (34 S. W. Rep. 697). Title to machinery so situated on land as it would otherwise pass as a fixture does not pass to a mortgagee of the land where the purchase price for such machinery is unpaid and the vendor thereof retained title until payment of the purchase price. Butler v. Adler-Goldman Com. Co.,

62 Ark. 445 (35 S. W. Rep. 1110). It is held that the mere placing of machinery in position in a building with intent to make it a permanent part of a manufacturing plant, does not make it part of the real estate unless it is actually or construct'ively attached to the building or to the land. It may be sufficient if the machines be secured or bolted to the floor, or, the ponderous machines weighing from three to four tons resting upon the floor, by their own weight, may under certain circumstances be treated as part of the realty. Shepard v. Blossom, 66 Minn. 421 (69 N. W. Rep. 221; 61 Am. St. Rep. 431). See Washington Nat. Bank v. Smith, 15 Wash. 16 (45 Pac. Rep. 736).

Sec. 342. Right of tenant to remove fixtures. A tenant having purchased at execution sale the buildings erected by a former tenant, after entering into a subsequent lease. without reserving the right to remove the buildings is held not to be entitled to them. Talbot v. Cruger, 151 N. Y. 117 (45 N. E. Rep. 364). The court say: "The right of a tenant to remove fixtures erected for trade is conceded to him for reasons of public policy, and, being in the nature of a privilege, it must be exercised before the expiration of the term, or before he quits possession. If the right to remove other fixtures exists by virtue of some agreement, then it must be exercised in like manner. By entering upon a new lease, in which the tenant's rights are not reserved, the rights which may have existed under the former tenancy are determined; and this is true even where there is a continuous holding of the premises, but not under the same lease. A tenant may remain in possession after the old lease has expired; but, unless he reserves the right under the new lease to remove the fixtures upon the land, the right will be deemed to have been abandoned, and they will become the property of the landlord." Citing, Tayl. Landl. & Ten., §§ 551, 552; Loughran v. Ross, 45 N. Y. 792 (6 Am. Rep. 173); Watriss v. Bank, 124 Mass. 571 (26 Am. Rep. 694). A provision in a trust deed to secure debts that it is to cover "all machinery now upon, or which may hereafter be put upon, said premises, whether attached or detached," was held not to embrace machinery afterwards

put on the premises by a tenant. Polle v Rouse, 73 Miss. 713 (19 So. Rep. 481).

FORCIBLE ENTRY AND DETAINER.

EPITOME OF CASES.

Sec. 343. As to what constitutes forcible entry and detainer. A lessor who causes the arrest of his lessee while peaceably in possession of the premises, on a warrant charging a public offence and during his absence takes possession of the premises and refuses to surrender them, is guilty of forcible entry and detainer. Cal. Code Civ. Pro., §§ 1160– 1162, applied. Lasserot v. Gamble, Cal. (46 Pac. Rep. 917). In construing and applying the forcible entry and detainer statute of Oklahoma it is held that where one who, while operating a saloon, was in peaceable possession of the building to which the city claimed title and right of possession, was arrested by a sheriff accompanied by the peace officers of such city, on a duly presented charge of such a nature as entitled the officer to take possession and remove the furniture from the building, and while such occupant was in the custody of the officer the officials of the city took possession of the building, it is held that the action will lie against the city; that the notice to quit and leave the premises was sufficient if served upon the mayor of the city, and if properly signed by the plaintiff his name need not appear in the body thereof. Oklahoma City v. Hill, 4 Okla. 521 (46 Pac. Rep. 568). If the person lawfully entitled to the possession of real property can make peaceable entry even while another is in occupation, the entry in contemplation of law gives or restores to him complete possession; and it has even been held that it is not unlawful for him to resort to such means short of the employment of force, as will render further occupation by the other impracticable. Mercil v. Brouillette, 66 Minn. 416. (69 N. W. Rep, 218). Citing, Cooley on Torts, 379-381. The fact that the common law right of a lessor to make

re-entry by force for breach of condition has been abrogated by statute does not render invalid a condition in a lease giving the lessor the right, upon breach of condition, to declare the term ended, and either with or without process of law, to re-enter and remove the lessee, using such force as is necessary, and a lessor, who in the exercise of such right has acquired possession of the leased premises peaceably, may use the necessary force to prevent a re-entry by the lessee. Goshen v. People, 22 Colo. 270 (44 Pac. Rep. 503). Citing, Ambrose v. Root, 11 Ill. 497 (52 Am. Dec. 456); Page v. De Puy 40 Ill. 506; Fabri v. Bryan, 80 Ill. 182. Particular facts held to constitute a forcible detainer of premises by persons who had entered thereon without any claim of right. Brown v. Mc Fuukin, 99 Ga. 91 (24 S. E. Rep. 855).

One

Sec. 344. Who may maintain the action. whose only claim of possession to land is that he had placed some timber on it which had been removed by the defendant, has not sufficient title to maintain the action. Salinger v. Gunn, 61 Ark. 414 (33 S. W. Rep. 959). The action can only be maintained by one who has the present right of possession. Sand & H. Ark. Dig., §§ 3443, 3444, applied. King v. Duncan, 62 Ark. 588 (37 S. W. Rep. 228). Under Miss. Code 1892, § 4461, providing that the action may be maintained by "the legal representatives or assigns" of the one who is deprived of his possession on account of his tenant holding possession after the expiration of his right, it is held that the purchaser at an execution sale may maintain the action against the tenant of the defendant in execution. Whitfield, J., dissenting. Glenn v. Caldwell, 74 Miss. 49 (20 So. Rep. 152). Particular breach of a lease held not to entitle the lessor to prosecute an action of forcible entry and detainer. Stevenson v. Brodahl, 49 Neb. 703 (68 N. W. Rep. 1024). Mill & V. Tenn. Code, § 4075, applied-relation of landlord and tenant necessary. Griffith v. Brackman, 97 Tenn. 387 (37 S. W. Rep. 273).

One in the peaceable possession of property, although he may not have the right to such possession, who is ousted by force by another who takes possession may maintain the action against the latter. Oklahoma City v. Hill, 4 Okla. 521 (46 Pac. Rep.