1 Sec also McRae v. Bank, p. 271, infra.
In Stevens v. The Buffalo &'NY.C.R.R.,31 Barb. 590, decided in September, 1858, Justices Green, Grover and Marvin held that rolling-stock was personalty, and that a mortgage thereof was required to be filed under the act of 1833. Elaborate opinions were written in support of these conclusions, in which the Hendrickson Case, before cited, and that of Coe v. Hart, in the United States Circuit Court, before Mr. Justice McLean, that of Corey v. The Pittsburgh & F. W. F. Co., and Mitchell v. Winslow, 2 Story, 690, were examined with the result before mentioned.
In December, 1859, Mr. Justice Allen decided Beardsley v. Ontario Bank, 31 Barb. 619. The mortgage was of the railroad, real estate, chattels and franchises of the corporation. It was held that the rolling-stock was not covered by the mortgage, not being part of the realty. The last two decisions were acquiesced in; the first, the case of Hendrickson, was taken to the Court of Appeals in 1863, and resulted in an order for reargument, and subsequently the case was settled. The case now under consideration is reported in 47 Barb. 109, before Justice Sutherland, at Special Term in 1867. He held that rolling-stock does not become part of the realty, and that it passed by the two mortgages in question, as specially named, and not as part of the realty.. He also held that mortgages of the corporate property and franchises of railroads should not, as to the personal property covered by them, be deemed to be subject to the provisions of the chattel mortgage act of 1833. At General Term the case came before Justice Ingraham, Sutherland and G. G. Barnard, and the decision appealed from was affirmed, Judge Ingraham giving the only opinion. After declaring himself not prepared to accede to the opinion at Special Term, that rolling-stock is in all cases to be considered as personal property, he holds that the intent of the parties is evident that the rolling-stock should pass as part of the realty, and that such a construction should be given to the transaction. He further holds that the chattel mortgage act does not apply to a mortgage executed by a railroad company under authority of section 28 of the general railroad act of 1850. That section warrants a mortgage of the corporate property and franchises of a railroad company to raise moneys for completing, finishing or operating its road. Such a mortgage was intended by the Legislature, the learned judge says, to be treated as a mortgage of the road and its accessories, and, therefore, need not be filed as a chattel mortgage. While upon each proposition involved, a majority of judges appear to have been against the claim that rolling-stock may be effectually mortgaged without filing, under the act of 1833, the question still remains open for decision.
In respect to the legal methods of disposition, all property is distributed by law under the head either of real or personal; and in order effectually to be disposed of, the act of disposition must conform to the mode appropriate to the kind of property. What method shall be sufficient to transfer property is matter of positive regulation by law; and it is not in the power of parties to waive or alter, by their private agreement, any of these regulations. These regulations have been adopted with regard not only to the interests of the parties immediately concerned, but also with regard to the interest of others in ascertaining the ownership of property. In regard to realty, a conveyance by metes and bounds of a parcel of land carries with it everything which the law recognizes as part of the realty, whether it was originally personal in its nature or not, as fully and completely as by the most minute enumeration and specification. It draws to itself and binds everything afterward made part of the land by any method of annexation or affixing which the law recognizes as effectual, whether actual or constructive in character. Murdoch v. Gifford, 18 N. Y. 30; Mott v. Palmer, 1 Comst. 564; Leroy v. Platt, 4 Paige, 77.
In view of these well settled and universally recognized rules, the cases - such as Prim v. Emery, 32 N. H. 484, and Pinnock v. Coe, 23 How. 117, which, as well on grounds of reason as authority, labor to maintain that after-acquired rolling-stock is bound by a previous mortgage, that in terms is declared to bind such after-acquired property - point irresistibly to the conviction that rolling-stock is not part of the realty. No one ever doubted that a mortgage of land bound a house subsequently built upon it; nor that it bound anything originally personal which became afterward part of the land. The labored attempt to prove that rolling-stock, acquired after the date of the mortgage, will be bound by it, shows how strongly the incongruity is perceived of treating it as part of the realty.
The general doctrine is, that things originally personal in their nature remain personal, though used in connection with land. All the implements of agriculture have their use only in the cultivation of land; and yet they are never thought to be part of the realty. Some element of annexation, usually physical in its character, is the common criterion for determining whether things personal in their origin have lost that quality and become part of the realty Generally, the connection is appreciable by the senses; so that what belongs to the land and what is personal may be determined by inspection alone. Cases of constructive annexation are few, and rest upon peculiar and obvious reasons of their own. Thus keys, which must be movable to answer their end, and which are a necessary part of the fixed locks to which they are adapted; sashes and window frames, and the old example of an upper mill-stone, removed to be picked, illustrate the same principle. Deer in a park, rabbits in a warren, doves in a dove cot, and fish in a pond, depend on a different reason. In these conditions they are reckoned not property at all; but any of them, caught and secured, becomes at once personal property. Williams on Personal Property, 19. In respect to all cases of constructive annexation, there exists both adaptation to the enjoyment of the land and localization in use as obvious elements of distinction from mere chattels personal. Even in respect to cases of actual annexation to the realty and consequent change of character from chattel personal to realty, it is held that there ought to be the concurrence of actual annexation, of applicability to the use to which that part of the realty is appropriated with which it is connected, and lastly an intention on the part of the party making the annexation to make a permanent accession to the freehold. Potter v. Cromwell, 40 N. Y. 287; Voorhies v. McGinnis, 48 1d. 278. Looking now at the rolling-stock of a railroad, it is originally personal in its character, it is subservient to a mere personal trade, the transportation of freight and passengers. The tracks exist for the use of the cars rather than the cars for the use of the track. There is no annexation, no immobility from weight, there is no localization in use. The only element on which an argument can be based to support the character of realty is adaptation to use, with and upon the track. Even in respect to this, were the same contrivance adopted by a tenant for use in his trade upon leased lands his right to remove both cars and track would be beyond question. It is perhaps fortunate that this question was not finally adjudicated in the early days of railroad enterprise, for then unity of ownership in track and cars and independence of roads upon each other seemed to render it possible to consider rolling-stock part of the realty without introducing great inconvenience. At the present time, independent companies exist, owning no tracks, whose trains run through State after State on the railroad track of other companies. It is no uncommon sight to see the cars of half a dozen companies formed into a single train and running from New York to Illinois and Missouri. It is impossible to deal with such property as part of the realty without introducing anomalies and uncertainties of the gravest character. Call cars and engines part of the realty; where shall they be taxed? Real estate is to be taxed at its site. What is the site of a railroad train running from New York to Buffalo in a day? Shall it be taxed in each town where the assessors catch sight of it rushing by at thirty miles an hour? Or if a judgment be docketed in one county on the line, will its lien attach on each car as it is whirled past? And how shall conflicting liens in such cases be marshaled? The difficulties which follow on admitting that rolling-stock can be part of the realty are partly disclosed in Minnehaha Co. v. St. Paul Co., 2 Wall. 609. There the court is supposed to have adjudged that a company owning a long line of railroad and all the rolling-stock upon it may assign particular portions of rolling-stock to particular parts of the road and mortgage such parts of the road with their particular portion of rolling-stock; that whether this had been done was a question of intention, and that in the case before the court it had been done. But upon examining the case it will be found that it was so decided by the District Court in another suit, the decree in which bound the parties then before the court, and concluded them so that the question spoken of could not be adjudicated (p. 636). To this judgment three of the justices dissent, and in expressing their views say, " we agree that the rolling-stock upon this road covered by the several mortgages, and as respects any other valid liens upon the same, is inseparably connected with the road; in other words, is, in technical language, a fixture to the road, so far as in its nature and use it can be called a fixture. But it is a fixture extending over the entire track of the road. It is not a fixture upon any particular division or portion, but attaches to every part or portion."