While I can see that views like these are accommodated to rail-roads in the character of mortgagors in their relation with the holders of their bonds, they cannot be allowed to prevail without introducing inextricable confusion and uncertainty in respect to the laws of taxation and of judgment liens, and great embarrassment in dealing in respect to this class of property. It is vastly better that changes of this sort, if thought to be needed, should be introduced by legislation. In my judgment, the want of the element of localization in use is a controlling and conclusive reason why the character of realty should not be given to rolling-stock of a railroad. For want of that element, rolling-stock cannot be subjected to the laws regulating taxation and liens on real property. For a statement of all the decided cases to 1869, I refer to Redfield on Railways, vol. 2, p. 507, sec. 235, and notes.
Taking it, then, to be the law, that rolling-stock of a railroad does not become part of the realty so as to pass by a conveyance of the land as part thereof, the next question is whether the law of 1833 requires a mortgage of such property to be filed where no change of possession takes place. That the case falls within the language of the law, is plain. It is universal in its requirement. If this case is to be excepted, it must be either on account of the character of the mortgage or of the property mortgaged, or on account of some provision of the statute law taking away the necessity of filing. [The court finds no ground for exception by reason of character of mortgage or property mortgaged, and proceeds as follows:]
Nor does the statute authority, conferred by the act of 1850 to mortgage for certain purposes corporate property and franchises, touch the question. The statute is silent as to the manner in which the power shall be exercised. It might as well be argued that a mortgage filed as one of personal property should, by this filing, operate to give priority as one of land, without being recorded, as to maintain the converse of the proposition. The power is given, but to be effectually exercised the method must be pursued which is appropriate to the kind of property. What is real, must be dealt with as real; what is personal, as personal. This view of the statute is confirmed by the subsequent statute of 1868 (chap. 779, p. 1747), which enacts that mortgages by railroad companies of real and personal property need not be filed as chattel mortgages, if recorded as real estate mortgages, in each county in or through which the road runs. * * *
1 In some states statutory or constitutional provisions have set aside decisions holding rolling-stock realty. See Const of Illinois. - Ed.
2. Severance of a Chattel Which Has Once Been Annexed.
a. Severance by owner of land.
(a.) With intent that severance shall be permanent.
85 Michigan, 32. - 1891.
Morse, J. - This is an action of trover for the conversion of 2,000 fence rails, commenced in Justice's Court, and subsequently appealed to the Circuit Court of Wayne county. Plaintiff recovered judgment in both courts.
The plaintiff, in the partition of real estate, February 6, 1886, became the owner of a piece of land 175 feet wide and 1,601 feet in length. There was then a fence on the land which, before the partition, made a lane. She sold the land to defendant October 3, 1888. The deed of conveyance was a warranty deed in the ordinary form. Having no use for a lane on the premises, about a year before she sold to the defendant the plaintiff took down the fence, and piled up the rails on the premises, intending, as she testifies, to remove them to a farm that she owned in Dearborn. She had drawn 84 posts upon this land, and made some preparation to build a board fence as a division fence between her land and that of others, as, at the time partition was made, it left the premises allotted to her open and unfenced. She testified, against objection, that at the time she made the agreement with defendant to sell him the land she reserved the rails. There was no reservation in the deed. The rails, prior to being piled up by plaintiff, had been in this lane fence nearly fifty years. Plaintiff had no use for the lane after the partition. Defendant testified that plaintiff, when making the agreement to sell, wanted to reserve the rails, but he would not consent to it, and bought the place as it was.
The circuit judge submitted the question to the jury, instructing them that the rails piled upon the premises, and not being in any existing fence at the time of the sale, were personal property, and that, unless they found that the plaintiff sold the rails to the defendant, - agreed that they should go with the land, - she was entitled to recover. The court was right, and the judgment must be affirmed. Kails piled up, under the circumstances that these were, are personal property. There can be no claim that fence rails are of necessity part of the realty unless they are in a fence, and even in such case, they may remain as personalty, if such be the agreement between the parties interested at the time the fence is built. Curtis v. Leasia, 78 Mich. 480.
The contention is made that plaintiff is estopped from claiming these rails, because, following the description by metes and bounds of the premises in her warranty deed to defendant, the deed continues as follows: " Being the same premises which were assigned by said commissioners in partition to Mary E. Harris, . . . together with all and singular the hereditaments and appurtenances thereunto belonging," etc.
It is argued that she thereby conveyed these rails, because they were a part of the realty when she received it in partition. We do not consider this statement in the deed to be, or to have been intended to be, a covenant that the premises were to be conveyed to defendant in exactly the same condition as to fences, timber, and growing crops as they were when she received them. Such a construction would be absurd. If the rails must pass under the warranty, because of this clause, then she must also account, under such warranty, to the defendant for all the timber standing or crops growing upon the premises when she received them by partition, which she may have removed since that time and before the sale to defendant. The deed cannot, in reason, be so construed.