Bam. & Adol. 105. Contra, Reiff v. Reiff, 64 Pa. St. 134; Evans v. Iglehart, 6 Gill & J. 171. But not growing grasses. Reiff v. Reiff, 64 Pa. St. 134. Nor young trees. Co. Litt. 55a. But turpentine "scrape" may be. Lewis v. Mcnatt, 65 N. C. 63. And nursery stock. Brooks v. Galster, 51 Barb. 196; King v. Howland, 7 Barb. 263. See, also, Brackett v. Goddard, 54 Me. 309.
47 The seed must be sown. Mere preparation of the ground is not sufficient. Price v. Pickett, 21 Ala. 741.
48 Harris v. Frink, 49 N. Y. 24. Therefore a tenant from year to year is entitled to emblements. Clark v. Harvey, 54 Pa. St. 142. Reeder v. Sayre, 70 N. Y. 180. A tenant at will. Davis v. Brocklebank, 9 N. H. 73; Davis v. Thompson, 13 Me. 209; Towne v. Bowers, 81 Mo. 491; Pfanner v. Sturmer, 40 How. Prac. 401; Sherburne v. Jones, 20 Me. 70. And a tenant for life. Poin-dexter v. Blackburn, 1 Ired. Eq. 286; Perry v. Terrel, 1 Dev. & B. Eq. 441; Hunt v. Watkins, 1 Humph. 497; Thornton v. Burch, 20 Ga. 791; Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746. And his lessees. Bevans v. Briscoe, 4 Har. & J. (Md.) 139. But, when the interest is of definite duration, there is no right to emblements; for instance, under a tenancy for years. Whitmarsh v. Cutting, 10 Johns. 360; Sanders v. Ellington, 77 N. C. 255; Dircks v. Brant, 56 Md. 500; Hendrixson v. Cardwell, 68 Tenn. 389; Gossett v. Drydale, 48 Mo. App. 430. But a custom to the contrary will give the right. Stultz v. Dickey, 5 Bin. (Pa.) 285; Biggs v. Brown, 2 Serg. & R. 14; Templeman v. Biddle, 1 Har. (Del.) 522; Van Doren v. Everitt, 5 N. J. Law, 460; Foster v. Robinson, 6 Ohio St. 90; Clark v. Banks, 6 Houst. 584. Contra, Harris v. Carson, 7 Leigh, 632.
49 Den v. Humphries, 3 Ired. (N. C.) 362.
50 Debow v. Colfax, 10 N. J. Law, 128; Samson v. Rose, 65 N. Y. 411; Hawkins v. Skeggs, 10 Humph. (Tenn.) 30; Gregg v. Boyd, 69 Hun. 588, 23 N. Y. Supp. 918; Carney v. Mosher, 97 Mich. 554, 56 N. W. 935; Orland's Case, 5 Coke, 116a; Davis v. Eyton, 7 Bing. 154. Cf. Carpenter v. Jones. 63 111. 517. So the right is lost by the assertion of a title paramount. Howell v. Schenck, 24 N. J. Law, 89; King v. Fowler, 14 Pick. 238. As by foreclosure right to remove crops may be given in any case by express contract.51 ln some states the subject is regulated by statute.52
4. Chattels which are annexed to land are called fixtures. Fixtures are either:
(a) Real fixtures, or those which cannot be lawfully removed by the owner of a limited interest in the land. Real fixtures are real property.
(b) Chattel fixtures, or those which can be lawfully removed by such an owner. Chattel fixtures are personal property.
Buildings erected upon land and chattels annexed to land or to buildings on the land are called "fixtures." 53 When the annexation is made by the owner in fee of the land, such fixtures become real property.54 They may, of course, again become personalty by being actually severed from the land with that intent.55 But, where the annexation is made by the tenant of a less estate than a fee, it is not always easy to determine whether such fixtures become realty or remain personalty. Things annexed by a tenant sometimes become realty, and sometimes do not. The question is of importance, because, if the chattels become realty, they cannot be lawfully severed or removed by the tenant, while if they remain personalty, notwithstanding their annexation, they may be removed by the tenant before or at the expiration of his term. There is great conflict in the cases. The confusion has of a mortgage executed before the lease. Lane v. King, 8 Wend. 584; Down-nrd v. Groff, 40 Iowa, 597; Gilman v. Wills, 66 Me. 273. But see Cassilly v. Rhodes, 12 Ohio, 88. Cf. Lewis v. Klotz, 39 La. Ann. 259, 1 South. 539.
51 Van Doren v. Evoritt, 5 N. J. Law, 460.
52 1 Stlm. Am. St. Law, §§ 1334, 2064, 3233.
53 Teaff v. Hewitt, 1 Ohio St. 511; Capen v. Peckham, 35 Conn. 88; Potter v. Cromwell, 40 N. Y. 287; Peirce v. Goddard, 22 Pick. 559.
54 Harris v. Scovel, 85 Mich.32, 48 N. W. 173; Dooley v. Crist, 25 111. 551; Sampson v. Cotton Mills, 64 Fed. 939. But see Jenkins v. Mccurdy, 48 Wis. 630, 4 N. W. S07. And ef. Green, J., in Stevens v. Railway Co., 31 Barb. 597.
55 Bostwick v. Leach, 3 Day (Conn.) 476; Lee v. Gaskell, 1 Q. B. Div. 700. arisen largely from a loose use of the word "fixtures." The term has been used in three senses: First, as meaning simply chattels which are annexed to realty, irrespective of whether they may be removed or not; second, as meaning irremovable fixtures; and, third, as meaning removable fixtures.56 The resulting confusion of the cases is natural. It is hoped to avoid this confusion by calling those fixtures which cannot be lawfully removed "real fixtures," because they have become realty. Fixtures which can be lawfully removed will be called "chattel fixtures," because they remain personal property.57 They may be taken on execution against the tenant as long as the latter's right to remove them exists.58
5. What Fixtures Removable-whether a fixture is a real or personal fixture, and lawfully removable, depends on the presumed intention with which it was annexed. This intention is determined with reference to:
(a) Express contract of the parties (p. 12).
(b) Statutory regulation, which conclusively presumes intention (p. 12).
(c) Character of the annexation (p. 13).
(d) Adaptation of the fixture for use with the realty
(e) Nature of the chattels annexed, as:
(1) Trade fixtures (p. 16).
(2) Agricultural fixtures (p. 17).
(3) Domestic fixtures (p. 18).
(f) Relation of the party making the annexation to the land, as:
(1) Lessee (p. 19).
(2) Tenant for life or in tail (p. 19).
(3) Owner in fee (p. 19).
56 Ewell, Fixt. 1; Tyler, Fixt. 35.
57 Voorhees v. Mcginnis, 48 N. Y. 27S; Teaff v. Hewitt, 1 Ohio St. 511. 58 O'donnell v. Hitchcock, 118 Mass. 401; Heffner v. Lewis, 73 Pa. St. 302; Fisher v. Saffer, 1 E. D. Smith, 611.
The whole subject of fixtures is involved in difficulty, and the cases are in great conflict. The real or chattel character of a fixture is largely a question of fact, and few general rules can be laid down for determining what fixtures are removable.60 But the tendency of modern cases is to make the intention with which a fixture is annexed the test of its character,61 and to treat other things as evidence of that intention.62 It is not, however, a secret intention which controls, but the intention which the law presumes from the acts and situation of the party at the time of making the annexation.63