The manner in which a fixture is attached or annexed to the realty is indicative of the intention with which it was placed there. It shows whether it was intended to be permanent or to be subsequently removed.66 Some cases make the manner of fastening a thing the test of its character as a fixture.67 By some of these courts a thing does not become a real fixture unless it is so annexed to the land that its severance would cause a considerable injury to the realty.68 Although annexation is largely a question of fact in each case, it has been held that there may be an attachment of a thing to the land by its weight alone;69 for instance, a heavy statue on a pedestal,70 or a dry stone wall.71
65 1 Stim. Am. St. Law, §§ 2100-2102.
66 Teaff v. Hewitt, 1 Ohio St. 511; Rogers v. Brokaw, 25 N. J. Eq. 496; Red-lon v. Barker, 4 Kan. 445; O'donnell v. Hitchcock, 118 Mass. 401; Penny -becker v. Mcdougal, 48 Cal. 160; Cook v. Whiting, 16 111. 480; Sayles v. Purifying Co. (Sup.) 16 N. Y. Supp. 555; Jones v. Bull (Tex. Sup.) 19 S. W. 1031; Kendall v. Hathaway, 67 Vt. 122, 30 Atl. 859; Chase v. Box Co., 11 Wash. 877, 39 Pac. 639; Roseville Alta Min. Co. v. Iowa Gulch Mln. Co., 15 Colo. 29, 29 Pac. 920; Strickland v. Parker, 54 Me. 263.
67 Rex v. Otley, 1 Barn. & Adol. 161; Wansbrough v. Maton, 4 Adol. & E. 884; Ex parte Astbury, 4 Ch. App. 630; Wadleigh v. Janvrin, 41 N. H. 503; Carpenter v. Walker, 140 Mass. 416, 5 N. E. 160. But see Landon v. Platt, 84 Conn. 517.
68 Bewick v. Fletcher, 41 Mich. 625, 3 N. W. 162; Murdock v. Gifford, 18 N. Y. 28; Ford v. Cobb, 20 N. Y. 344; Vanderpoel v. Van Allen, 10 Barb. 157; Whiting v. Brastow, 4 Pick. 310; Swift v. Thompson, 9 Conn. 63; Hunt v. Mullanphy, 1 Mo. 361; Lanphere v. Lowe, 3 Neb. 131; Fullam v. Stearns, 30 Vt. 443; Bartlett v. Wood, 32 Vt 372. But see Tifft v. Horton, 53 N. Y. 377; Morrison v. Berry, 42 Mich. 389, 4 N. W. 731; Quinby v. Paper Co., 24 N. J. Eq. 260; Degraffenreid v. Scruggs, 4 Humph. (Tenn.) 451; Thresher v. Water Works, 2 Barn. & C. 608.
69 Smith v. Blake, 96 Mich. 542, 55 N. W. 978; Miller v. Waddingham (Cal.) 25 Pac. 688.
70 Snedeker v. Warring, 12 N. Y. 170; Oakland Cemetery Co. v. Bancroft, 161 Pa, St. 197, 28 Atl. 1021.
71 Ewell, Fixt 31. Cf. Noble v. Sylvester, 42 Vt 146
Chattels which have become realty by a permanent annexation may nevertheless be converted into personalty again by being severed from the realty by the owner with an intent to produce that effect 72 A mere intention to sever is not, however, sufficient.73 This severence need not be actual, but may be constructive, as by the execution of a bill of sale or chattel mortgage.74 A mere temporary severance, however, though actual, will not change the character of a real fixture.75 For instance, when machinery is taken from a mill for repairs, it does not thereby become personal property.76
Same - Constructive Annexation.
Chattels may become realty by constructive annexation; for instance, keys to a house, storm windows, etc., though not at the time fastened to the house, will pass with a conveyance of the realty.77 And the same has been held as to saws and belts in a factory,78 and rolls in an iron mill, though detached.79 As to whether railway cars are real or personal property the cases are conflicting,80 but the tendency of late cases is to consider them personalty,81 and there are constitutional provisions to this effect in some states.82
72 Morgan v. Varick, 8 Wend. 587; Bliss v. Misner, 4 Thomp. & C. 633; Gardner v. Flnley, 19 Barb. 317; Davis v. Emery, 61 Me. 140. See, also, Taylor v. Townsend, 8 Mass. 411.
73 Bratton v. Clawson, 2 Strob. 478.
74 Davis v. Emery, 61 Me. 140; Shaw v. Oarbrey, 13 Allen (Mass.) 462. See, however, Richardson v. Copeland, 6 Gray (Mass.) 536; Dudley v. Foote, 63 N. H. 57.
75 Rogers v. Gilinger, 30 Pa. St 185; Wadleigh v. Janvrin, 41 N. H. 503; Davis v. Emery, 61 Me. 140. So fence boards, though temporarily removed, remain part of the realty, so as to pass to a vendee. Goodrich v. Jones, 2 Hill (N. Y.) 142; Mclaughlin v. Johnson, 46 111. 163. But see Harris y. Scovel, 85 Mich. 32, 48 N. W. 173.
76 Wadleigh v. Janvrin, 41 N. H. 503.
77 Ewell, Fixt 33. See, also, Wadleigh v. Janvrin, 41 N. H. 503.
78 Burnside v. Twitchell, 43 N. H. 390; Farrar v. Stackpole, 6 Me. 154.
80 For cases holding them realty, see Farmers' Loan & Trust Co. v. Hen-drickson, 25 Barb. 484; Palmer v. Forbes, 23 111. 301; Titus v. Mabee, 25 111. 257; Farmers' Loan & Trust Co. v. St. Joseph & D. C. R. Co., 3 Dill. 412, Fed. Cas. No. 4,669; Baker v. Atherton, 15 Pa Co. Ct R. 471.
Adaptation for Use with the Realty.
Another circumstance showing the intention with which a chattel is annexed is its adaptation for use with the realty.83 Some cases even regard this as a decisive test.84 The principal application of the rule is to machinery, engines, and boilers in mills and factories, without which the business could not be carried on.85 The rule is not, however, extended to loose, movable machinery, no matter how complete its adaptation.86 But such things as duplicate rolls in an iron rolling mill have been held real fixtures, because of their adaptation for use with the mill.87 The same has been held of pans in salt works,88 and of shelves, drawers, and counters in a retail store 89 The test of adaptability has also been applied to the rolling stock of railroads, making such fixtures realty.90 are of the Fixtures-trade Fixtures. A valuable aid in determining the intention with which an annexation is made is found in the nature of the thing itself. It is not to be presumed that one engaged in trade or manufacture will attach valuable chattels to the realty, if his interest is of limited or uncertain duration, and intend that the things so annexed shall remain part of the realty. Annexations of this kind are called "trade fixtures," and their removal is permitted with considerable freedom,-in fact, is the rule rather than the exception. Show cases,91 counters and shelves,92 engines,93 boilers,94 machinery,95 tanks in a distillery,96 and even buildings 97 have been held removable as trade fixtures. Within the principle governing trade fixtures come also certain mixed cases where the annexation is