What is an annexation of a chattel to

the freehold :

It will perhaps be convenient to consider in the first place, what is such an annexation to the freehold as will bring a chattel within the general rule; and then to proceed to inquire, in what cases the rule is relaxed with respect to an executor or administrator.-In order to constitute such an annexation it is necessary that the article should be let into or united to the land, or to substances previously connected therewith. It is not enough that it has been laid upon the land, and brought into contact with it: The rule requires something more than mere juxta-position; as, that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented, or otherwise fastened to some fabric previously attached to the ground (r). As an illustration may be mentioned in the case of Culling v. Tuffnal (s) before Treby, C. J., at Nisi Prius, where it was holden that the tenant who had erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but not fixed it in or to the ground, might take it away at the end of his term (t). On the other hand, where the tenant had erected a veranda, the lower part of which was attached to posts which were fixed in the ground, Abbott, J., held, that the tenant could not remove any part of it (u). In the case of R. v. Londonthorpe (x), where a tenant had built on part of the land a post windmill constructed upon cross traces, laid upon brick pillars, but not

Hardwicke, C., in Dudley v. Warde,
Ambl. 113, and of Lord Ellenbo-
rough, in Elwes v. Maw, 3 East,
51. This rule is always open to
variation by agreement of parties:
Wood v. Hewett, 8 Q. B. 913.

(r) Treatise on Fixtures, p. 2.
Wilde v. Waters, 16 C. B. 637.

(8) Bull. N. P. 34.

(t) In Buller, it is said to have been holden, that he might do so by the custom of the country: but Lord Ellenborough, in adverting to the case (in Elwes v. Maw, 3 East, 55,) observes, that the tenant might

attached or affixed thereto; the Court held, that the wind-
mill was a mere chattel, and not to be considered as connected
with the land (y). And generally, where the buildings are
not let into the soil, but merely rest upon blocks or pattens,
they continue mere chattels (2). It is obvious, that, in
similar cases, where it is a conclusion of fact that the con-
nection with the soil does not amount to an actual annexa-
tion, the property continues in every respect a mere chattel,
and will pass as such to the executors and administrators.

Moreover, the object and purpose of the annexation must
be regarded: For if a chattel be fixed to a building, merely
for the more complete enjoyment and use of it as a chattel,
it still, it should seem, remains a chattel, notwithstanding
it is annexed to the freehold; and is never a part of it,
any more than a carpet which is attached to the floor by
nails for the purpose of keeping it stretched out: And on
this principle it was held, that cotton spinning machines,
screwed into and fixed firmly to the floor, were chattels, and
distrainable for rent (a).

But there may be a sort of constructive annexation of a constructive

(y) So in R. v. Otley, Suffolk, 1 Barn. & Adol. 161, a pauper rented a windmill, and a brickbuilt cottage and garden, at the rent of 30%. per annum for six years, and during that time held and occupied the same, and actually paid that rent, and was rated to and paid the rates for the relief of the poor: The cottage and garden, with the mill, were together of more than the annual value of 10%., but exclusive of the mill, they were not of that annual value: The mill was of wood, and had a foundation of brick; but the wood-work was not inserted in the brick foundation, but rested upon it by it's own weight alone: No part of the machinery of the mill touched the ground or any part of the foundation: It was held that the wind

mill, not being affixed to the free-
hold, nor to anything connected
with it, was not parcel of a tene-
ment, and, consequently that the
pauper gained no settlement. Again
in Wansbrough v. Maton, 4 A. &
E. 884, it was held, that a tenant
was entitled, at the expiration of
his term, to remove a barn which
he had erected on a foundation of
brick and stone, the foundation
being let into the ground, but the
barn resting upon it by it's weight
alone; and that he might maintain
trover for such a barn. See also
Wiltshear v. Cottrell, 1 E. & B,
674.

21.

(z) Nayler v. Collinge, 1 Taunt.

(a) Hellawell v. Eastwood, 6 Exch. 295, 10 Exch. 508, 520. See also Davis v. Jones, 2 B. & A. 165.

annexation:

In what cases executors are entitled to

sever fixtures:

chattel not actually affixed to the freehold as if a man has
a mill, and the miller takes the stone 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, and
will go to the heir: The same law of keys, and (in some sort)
of doors, windows, rings, &c., which, although they are
distinct things, shall go with the inheritance of the house (b).
So the sails of a windmill are parcel of the freehold, and
shall
go to the heir, and not to the executor (c).

It has been laid down, that dung in a heap is a chattel, and goes to the executors; but if it lies scattered upon the ground, so that it cannot well be gathered without gathering part of the soil with it, then it is parcel of the freehold (d).

The second branch of the inquiry respecting fixtures remains to be investigated, viz., when chattels personal have been affixed to the freehold, and have thus lost their chattel character, under what circumstances the executor or administrator of the person who affixed them is entitled to sever them, and to reduce them again to a state of personalty, so as to form part of the estate of the personal representative. 1. Right of the 1. The subject will first be considered as between the executor of tenant in fee executor or administrator, and the heir of tenant in fee. In this case, the old rule of law above mentioned, “quicquid plantatur solo, solo cedit," still obtains with some rigour in favour of the inheritance, and against the right to disannex therefrom, and consider as a personal chattel, any thing which has been affixed thereto; whereas, in the case as between the executors of tenant for life or in tail, and the remainder-man or reversioner, the right to the fixtures is considered more favourably for the executors; and in the case as between landlord and tenant (which, although foreign to this Treatise, it will be necessary in some measure to

to fixtures as against the heir :

(b) Liford's case, 11 Co. 50, b.
Place v Fagg, 4 Man. & Ryl. 277.
(c) R. v. Crosse, 1 Sid. 207, by
Clench and Fenner, Justices.

(d) Yearworth v. Pierce, Aleyn, 32. S. C. nomine Carver v. Pierce, Sty. 66. See Higgon v. Mortimer, 5 C. & P. 616,

contemplate,) still greater latitude and indulgence has been allowed in favour of the tenant (e). It must, therefore, carefully be observed, that an instance of the right allowed to a tenant as against his landlord, is no authority for its allowance to an executor as against the heir, or the remainder-man or reversioner; nor does it follow, that because the executor of tenant for life or in tail is entitled to certain fixtures, that the executor of tenant in fee will also be entitled.

66

The rule, as anciently established, between the executor and heir of tenant in fee seems to have had no exceptions; whatever was affixed to the freehold descended to the heir as parcel of the inheritance. "The law is the same," says Godolphin (f), "concerning all things fastened to the freehold, or to the ground by mortar or stone, as tables, dormants, leads, mangers, millstones, anvils, doors, keys, glass windows, and the like; for none of these be chattels, but parcels of the freehold, and, therefore, belonging to the heir, not the executor." So it is said in the Touchstone (g), “ the incidents of a house, as glass windows annexed with nails or otherwise to the windows, the wainscot fixed by nails, screws, or irons put through the posts or walls, tables, dormants, furnaces of lead and brass, and vats in a brew and dye-house standing and fastened to the walls, or standing in or fastened to the ground in the middle of the house, (although fastened to no wall), a copper, or lead, fixed to the house, the doors within and without that are hanging and serving to any part of the house, shall not go to the executor or administrator to be divided and sold from the house." So it is laid down in Noy's Maxims (h), "all chattels shall go to the executors, as vats and furnaces fixed in a brew-house or dye-house by the lessee; but if they be fixed by tenant in fee, the heir shall have them" (i).

(e) Elwes v. Maw, 3 East, 51, in Lord Ellenborough's judgment. See also Lord Kenyon's judgment in Penton v. Robart, 2 East, 90, 91.

(f) Pt. 2, c. 14, s. 1.
(g) P. 470.

(h) P. 51.

(i) See also Swinb. Pt. 6, s. 7,

Relaxations

with respect to executor's

right, as against

the heir, to

trade fixtures

But in modern times some relaxations of the rule have obtained; which may be considered, 1st, with respect to fixtures put up by the tenant in fee for the purposes of trade; and 2ndly, with respect to fixtures put up by him for ornament or domestic convenience. As to trade fixtures, the first instance of departure from the old rigour was in the case of a cyder-mill, before C. B. Comyns, at the assizes at Worcester, where, upon an action of trover brought by the executor against the heir, the cyder-mill, though deep in the ground, and certainly affixed to the freehold, was held to be personal estate, and the jury were directed to find for the executor (k). This, in fact, is the only expressly decided case in favour of the right of the executor of tenant in fee to trade fixtures: although Lord Hardwicke, in Lawton v. Lawton (1), alluding to fire-engines set up in a colliery, said, "I think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir:" and Lord Ellenborough, in his judgment in Elwes v. Maw (m), recognises the principle of C. B. Comyns's decision. Its authority, however, has lately been denied in the House of Lords in Fisher v. Dixon (n); unless on the supposition that the cyder-mill in question was not annexed to the freehold (which it has always been assumed to have been in all the previous judicial discussions of the case).— The case of Fisher v. Dixon has also negatived the doubt suggested by the dictum of Lord Hardwicke above cited: For it was there held by the House of Lords, that machinery affixed to the freehold by the owner in fee of certain land (purchased by himself), consisting of steam-engines, rails, and other fixtures, erected and used by him in the course of trade, for the purpose of working coal and iron mines in pl. 5. Wentw. Off. Ex. 149, 150, 151, 14th edit. Herlakenden's case, 4 Co. 64, a.

(k) Ex relatione Wilbraham, in 3 Atk. 14, Lawton v. Lawton. The decision was recognised by Lord Hardwicke in that case, and in Lord

Dudley v. Lord Warde, Ambl. 114, and by Lord Ellenborough in Elwes v. Maw, 3 East, 54.

(1) 3 Atk. 15.

(m) 3 East, 54.

(n) 12 Cl. & F. 312, 325, 329, 331.