Affirmed.

(2.) How the " Reasonably Presumable Intent" in Annexing is

Ascertained.

(a.) From the nature of the chattel annexed.

(b ) From the mode and degree of annexation2

(c.) From the apparent appropriation of the chattel to the use or purpose of that part of the realty with which it is connected.3

(d.) From the relation of the annexor to the chattel and to the land4

4. The Apparent Appropriation of the Chattel to the Use or Purpose of that Part of the Realty With Which it is Connected. Fixtures by Destination.

Voorhis V. Freeman

2 Watts and Sergeant (Pa.), 116. - 1841. [Reported herein at p. 224.]5

5. The Relation of the Annexor to the Chattel and the Land as Bearing on the ' Reasonably Presumable Intent " in Annexing.

A. The chattel-owner has no interest in the land.

a. The chattel-owner is annexor. (1.) He Annexes without License of, or Agreement with, Landowner.

Ritchmyer V. Morss

3 Keyes (N. Y.), 349. - 1867.

Davies, Ch. J. - The plaintiff claims in this action to recover the value of a certain building located upon the lands of the defendants, which he claims as owner, and which was taken possession of and removed by defendants. The building was erected by one Vroman in the fall of 1849, at which time the land upon which it was erected was owned by Alonzo C. Paige and others. It was a good frame building, as described by the plaintiff, fifteen by sixteen feet, ten feet posts, nicely inclosed with pine siding, pine shingles, a good cornice on one end, painted white, with two coats; one door outside and one inside; two windows, one in the front end and one in the side, and a window in the back end; there was a partition in it lathed and plastered, counter and shelves in the front part of the building. The building stood on a foundation of loose stones, with a back chimney in it. The plaintiff purchased it on the 21st of November, 1859, having previously occupied it for six years. The defendants removed it in December, 1860. The plaintiff testified he did not know by whose authority the shop was built there; did not know for whose benefit Vroman built it; he did not know that Vroman occupied as tenant of anybody when he erected the building.

1 See supra et infra, passim.

2 See p. 234, supra.

3 See p. 283, infra.

4 See p. 283, infra.

5 See also Snedeker v. Warring, p. 231, supra, and Farrar v. Stackpole, p. 227, supra, and compare McKeage v. Insurance Co., p. 245, supra, and Hoyle v. R. R. Co., p. 248, supra. - Ed.

The defendants then proved that on the 16th day of June, 1860, they entered into a written contract with Paige and Potter, then the owners of the land upon which said building was located, and agreed to pay therefor the sum of $2,500, on the execution of a good and sufficient deed therefor, and that the defendants took possession of said land under said contract. That they were in possession under that contract at the time the shop was removed; that there were several other buildings on this lot at the time they bought, and the defendants took possession of the whole lot and all the buildings, including this shop; that the defendants subsequently received a deed for said premises pursuant to the terms of their contract; that the defendants have occupied all the premises since the contract to them.

The judge charged the jury that as matter of law the plaintiff was entitled to recover, to which charge the counsel for the defendants then and there duly excepted. The judge further charged that the only question for the jury to consider was the question of damages, and to this the defendants also excepted.

I think the learned judge at the circuit was in error in holding as a matter of law that upon this testimony the plaintiff was entitled to recover. That testimony showed, in brief, that the plaintiff had become the purchaser of a building erected upon land owned by the defendants, and that the defendants had taken possession of the building and removed it, as they clearly had a right to do if it was attached to the freehold and passed under the contract and conveyance to them. That it did so pass is established by authority. Matt v. Palmer, 1 N. Y. 564. In that case Judge Bronson said: " The word ' land ' includes not only the soil but everything attached to it, whether attached by the course of nature, as trees, herbage and water, or by the hand of man, as buildings and fences. This is but common learning, and there is no more room for question that a grant of land, eo nomine, will carry buildings and fences than there is that it will carry growing trees and herbage upon or mines and quarries in the ground."

The cases relied upon to take this case out of this well-recognized and firmly established rule of law do not apply to the facts as proven on the trial of this action. In the first place, it was not established that this building was erected upon any agreement between Vroman and the then owners of the fee of the land that it was to be considered strictly a personal chattel. Second, it was not proven that the building was erected by a tenant for the purposes of his trade and business, or that the relation of landlord and tenant ever existed between Vroman and the defendant's grantors, or between them and the plaintiff. The first proposition was necessary to establish to make applicable the doctrine of the case of Smith v. Benson, 1 Hill, 176. In that case, Cowen, J., said: " There both parties agreed to consider it (the building in question) as in a state of severance from the freehold, and no one had ever thought of its being so fixed as to be irremovable. Prima facie, such a building would be a fixture and irremovable. The legal effect of putting it on another's land would be to make it a part of the freehold. But the parties concerned may control the legal effect of any transaction between them by an express agreement. They have in effect stipulated that the placing this building on the ground should work nothing more toward changing its nature than if it had been the loose timber of the house, instead of the house itself. The law often implies an agreement of nearly the same character from the relation of lessor and lessee, or tenant and remainder-man. And surely the parties may, by express agreement, do the same thing and even more." Equally inapplicable is the doctrine of Ombony v. Jones (ubi supra), as the second proposition above stated was not established by proof.