Sec. 14. Introductory

It has been seen that the term "land" comprehends not only the earth but things that are attached thereto. Popularly, as well as technically, this is understood. When we speak of a person's "real estate" we mean his improved lands as well as his vacant lots. An owner may, of course, at any time sever the attachments from the realty and thus make the detached property personalty. But whether attachments to the real property are always and from all standpoints real property, is a question that arises when there are conflicting interests involved based on the question whether property is real or personal. A tenant of the land may at the end of the term remove from the land all his personal property - are all the annexations made by him to the real property themselves real property or do they retain their character as personalty? An owner who sells his real property may take therefrom his personal property - are all attachments made by him a part of the realty which is included in the sale? What does a mortgage of real estate include? If a testator gives his real estate to one son and his personal property to the other, does the first son take all that is annexed to the realty? It is in ways of this character that the question arises whether property is or is not a part of the real estate. And the subject involved is called the law of fixtures.

The word fixtures is employed in two senses: sometimes to indicate that the property described as a fixture can be removed and sometimes to indicate that the property so described cannot be removed. In the latter sense it is perhaps more frequently employed as when we say a certain article is a fixture and must go with the real estate; but it is used also in the former sense, as when we say that a tenant can remove fixtures. We will avoid this difficulty by speaking of annexations, and attempting to indicate when and for what purposes they are to be considered as part of the real estate and when and for what purposes they are not.

Sec. 15. Annexation To Real Estate May Be Actual Or Constructive

Articles may be annexed to the real estate so as to become, for some purposes, real estate, by actual annexation and by constructive annexation.

Ignoring for the present time, considerations that might prevail to make a specific annexation realty for some purposes, but not realty for other purposes, we may notice that there may be incorporation into the real estate by actual fastening to the real estate, or by constructive annexation.

Actual annexation consists in actually joining to the real estate, as by nailing shelving to a house, or imbedding posts in the ground, or by installing a bathtub by attaching it to the plumbing system of the building.

But it can readily be seen that this circumstance of actual joining ought not to be always determinative. Things may be as actually joined for permanent improvement purposes without any actual fastening as they may be with such actual fastening. For instance, a rail fence which maintains its permanent position by mere weight, is obviously as much a part of a farm as a fence consisting of boards nailed to posts sunk in the earth. It is apparent therefore, we must seek some other test than that of actual joining to the real estate. It is true that actual joining by nailing, imbedding in the ground, or otherwise, generally makes the article so affixed a part of the real estate (for certain purposes) but that, after all, cannot be the true test, but obviously also it will generally be the evidence of the true test.

What is the test ? It is, in general language, the intention of the party making the annexation, that is, the intention the law must impute to him (whether his actual intention or not) in annexing the article. What intention? The intention to make the added article a permanent part of the place for its improvement as real estate, and that depends on (1) the relationship of the party to the place, and (2) the character of the annexation. An owner's annexations are obviously from a different motive than those of a tenant. But even a tenant cannot remove what he has added when the removal would injure the freehold. In such a case we must presume he intended to make it permanent notwithstanding his own transient interest.

As before stated, the annexation may be actual or constructive; for even though not actually nailed to, or screwed down, or imbedded in, or otherwise actually joined, if an article is placed upon real estate with the intention (within the test proposed in the above paragraph) of making it a permanent improvement thereof, it becomes a part thereof. There are two well known cases of constructive annexation - one, where mere weight is the usual and practicable way of making the addition for permanent purposes, the other, where removal is made at times without the intention of permanent removal, as screens that are taken off for the winter season, or storm doors that are removed for the summer season, or a part of a machine is removed for the substitution of another in the same place.

Generally speaking, a piece of furniture is not a fixture. But it may be one, as a bench that is built in, or a mirror that is a part of the wall or door.

Generally also utensils are not a part of the real estate, but they may be, as some illustrations below will indicate.

Sec. 16. Annexations To Real Estate By The Owner Of The Real Estate

Whatever is constructively or actually attached to the real estate by the owner for the purpose of improving such real estate in the use to which it is being put, becomes real estate, and on sale of the real estate by the owner without reservation, the attached articles pass therewith as a part thereof, though not mentioned.

Real estate to be useful, must be improved, and the improvements add to its value. Whatever is put upon the real estate by the owner thereof obviously to improve it as real estate, and not merely to furnish it, is deemed to be put there to add to its efficiency and increase its value. True, the owner may remove at any time what he has attached, but if the rights of purchasers intervene, he cannot remove. What is it that becomes real estate, so that it will pass by a transfer of the land, unless reserved, even though the deed is to the land alone?