But such rolls, being adapted to the manufacture of bars of different shapes and sizes, cannot all be used at once; and according to the ordinary criterion, only those in place and fixed for use would be deemed a part of the mill. But by the criterion proposed, they must be deemed equally a part of it when unfixed to give place to others; for a rolling mill without rollers for all work, would be as incomplete as a hatter's shop without blocks for all heads. By this, however, I mean not to be understood as intimating that any such block is part of the realty. On the principle, then, that a thing temporarily severed from the freehold does not cease to belong to it, the whole set must be considered a part of the mill. Some two or three of these rolls, however, were duplicates; but all of them had, at one time or another, been in actual operation, and it is impossible to say which were the proper members of the set, and which the supernumeraries. But even if that could be told, all might nevertheless . be deemed a part of the mill, seeing that they are often broken and cannot be instantly replaced if they are not kept ready on hand. Duplicates necessary and proper for an emergency consequently follow the realty on the principle by which duplicate keys of a banking-house, or the toll-dishes of a mill, follow it.
We are of opinion, therefore, that the rolls in question passed as a part of the freehold by the mortgage and sale on the levari facias ; but that if they had not passed, they could not have been sold as chattels on the plaintiff's fieri facias against the mortgagor; and were it necessary, we would further hold that they might have passed, had they been chattels, by force of the word apparatus in the description of the premises. On all these points the case is with the defendants. Judgment affirmed.
6 Maine, 154. - 1829.
Trover for a mill-chain, dogs and bars. Plaintiffs claimed title through a deed from defendant. It was proved that the chain, dogs and bars were in their proper places when the deed was made. As the chain in question was prepared for being hooked and unhooked at pleasure, the trial judge ruled that it was a personal chattel which would not pass by the deed of the mill, unless by uniform and general usage it should be considered a part of the same. The question as to usage was left to the jury on the evidence and they found for plaintiff. The questions of construction and of admissibility of parol evidence as to usage were reserved for this court
Weston, J., delivered the opinion of the Court: If the chain in question passed as a constituent part of the mill, the plaintiffs have made out their title, and have a right to judgment on the verdict. A considerable portion of the machinery and power of a mill, like that conveyed by the defendant, is designed to be applied to draw up logs into the mill; which is essential to the operation of one of this construction. It is not denied that other parts of the machinery intended for this purpose, go with the mill; but it is insisted that the chain is of the nature of personal property, and therefore passes not by a deed of the realty unless specially named. To this it may be answered, first, that if it be an essential part of the mill it is included in that term, whether real or personal; secondly, that that which is in its nature personal may change its character, if fixed, used, and appropriated to that which is real. Is it too much to say that the mill is incomplete without a chain, a cable, or other substitute? It may be that a mill-wright who contracts to erect a mill, and to furnish materials, may be deemed to have completed his engagement without supplying a chain. One mill-wright, a witness in this case, has testified that such is his impression. And if this is urderstood generally his contract might not extend further. But the owner would find that he had yet something more to procure before the mill could be in a condition to operate. The chain is the last of the parts in the machinery to which the impelling power is communicated to effect the object in view. Its actual location in the succession of parts can make no difference. If it is in its nature essential to the mill it is included in that term; and that, as has been before remarked, whether it be personal or real property. But upon consideration, we are of opinion that it ought to be regarded as appertaining to and constituting a part of the reality.
It is an ancient principle of law that certain things which m their nature are personal property, when attached to the realty, become part of it,as fixtures. One criterion is that if that which is ordinarily personal be so fixed to the realty that it cannot be severed therefrom without damage, it becomes part of the realty; as wainscot work and old fixed and dormant tables and benches. Other things pass as incident to the realty, as doves in a dove-house, fish in a pond, or deer in a park: 2 Com. Dig. Biens, B. On the other hand, as between landlord and tenant, for the benefit of trade, in modern times many things are regarded as personal which, as between the heir and executor, would descend to the heir as part of the inheritance.
Although the being fastened or fixed to the freehold is the leading principle in many of the cases in regard to fixtures it has not been the only one. Windows, doors, and window-shutters are often hung but not fastened to a building, vet they are properly part of the real estate, and pass with it; because it is not the mere fixing or fastening which is regarded, but the use, nature, and intention. Dane's
Abr. ch. 76, art. 8, sec. 39. Modern times have been fruitful in inventions and improvements for the more secure and comfortable use of buildings as well as of many other things which administer to the enjoyment of life. Venetian blinds, which admit the air and exclude the sun, whenever it is desirable so to do, are of modern use; so are lightning-rods, which have now become common in this country and in Europe. These might be removed from buildings without damage; yet, as suited and adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by deed as appertaining to the realty. But the genius and enterprise of the last half-century has been in nothing more remarkable than in the employment of some of the great agents of nature, by means of machinery, to an infinite variety of purposes, for saving of human labor. Hence there has arisen in our country a multitude of establishments for working in cotton, wool, wood, iron, and marble, some under the denomination of mills, and others of factories, propelled generally by water power, but sometimes by steam. These establishments have in many instances, perhaps in most, acquired a general name, which is understood to embrace all their essential parts; not only the building which shelters, incloses, and secures the machinery, but the 'machinery itself. Much of it might be easily detached, without injury to the remaining parts or to the building. But it would be a very narrow construction which should exclude it from passing by the general name by which the establishment is known, whether of mill or factory. The general principles of law must be applied to new kinds of property, as they spring into existence, in the progress of society, according to their nature and incidents, and the common sense of the community. The law will take notice of the mutations of language, and of the meaning of new terms applied to new subjects as they arise. In other words, it will understand terms used by parties in their contracts, whether executed or executory, whether in relation to real or personal estate, according to their ordinary meaning and acceptation.