If the poles had been standing in the yard at the time of the sale, all admit that they would have formed a part of the realty. But by being placed in heaps for a temporary purpose, they would not lose their distinctive character, as appurtenant to the land, any more than rails, or boards, from a fence in the same condition, would become personal property. Indeed, the case cannot be distinguished from Goodrich v. Jones, 2 Hill, 142, where it was held that manure in heaps in the yard, and that fences, constitute a part of the freehold; and where the materials of which the fence is composed were temporarily detached, without any intent to divert them from their original use, it would work no change in their nature.

The opinion, in the case cited, was pronounced by Justice Cowen, who was himself an advocate for the doctrine of corporeal annexation, as being in general the true criterion of a fixture. Walker v. Sherman, 20 Wend. 655. But all that was claimed by the learned justice, in his elaborate opinion in Walker v. Sherman, was that the chattel should be " habitually attached to the land, or some building upon it." It need not, he adds, " be constantly fastened." I think, according to this principle, that hop-poles which are put into the ground every season, and continue there until they are removed to gather the crop, and which are designed to be thus used, in the same yard, for the same purpose, until they decay by lapse of time, may without impropriety be considered as "habitually attached to the land," although "not constantly fastened to it."

The judgment of the Supreme Court should be affirmed.1

1Of the other judges, four concurred in this opinion. Denio and Johnson, JJ., dissented, regarding the hop-poles as mere tools or implements and so chattels. - En.

(b.) Between execution Creditor of annexer and his vendor or mortgagor.

Snedeker V. Warring

12 New York, 170. - 1854. [Reported herein at p. 231.]

(2.) Between Vendor (by Deed) and Vendee; Mortgagor and Mortgagee.

Between Tenants in Common.

Farrar V. Stackpole

6 Maine, 154. - 1829.

[Reported herein at p. 227.]

Walker V. Sherman

20 Wendell (N. Y.), 636. - 1839. [Reported herein at p. 218.]

Peirce V. Goddard

22 Pickering (Mass.), 559. - 1839.

Wilde, J., drew up the opinion of the court. - This action is submitted on an agreed statement of facts, by which it appears that one Davenport, being the owner of a lot of land with a dwelling-house thereon, mortgaged the same to the plaintiff; that afterwards he took down the house, and with the materials partly, and partly with new materials, built a new house on another lot of his at some distance; and that after the new house was completed, he, for a valuable consideration, sold the last-mentioned lot and house to the defendant.

There are two counts in the declaration, one, for the conversion of the newly erected house, and the other, for the conversion of the materials with which it was built, belonging to the old house.

The plaintiff's counsel insist, that the old house was the property of the plaintiff, and that Davenport had no right to take it down, and could not, therefore, acquire any property in the materials by such a wrongful act; that the new house, being built with the materials from the old house in part, became the property of the plaintiff, although new materials were added by right of accession; and that Davenport, having no property in the house, as against the plaintiff, could convey no title to it to the defendant.

That Davenport is responsible for taking down and removing the old house cannot admit of a doubt; but it does not follow that the property in the new house vested in the plaintiff.

The rules of law, by which the right of property may be acquired by accession or adjunction, were principally derived from the civil law, but have been long sanctioned by the courts of England and of this country as established principles of law.

The general rule is, that the owner of property, whether the property be movable or immovable, has the right to that which is united to it by accession or adjunction. But by the law of England as well as by the civil law, a trespasser, who wilfully takes the property of another, can acquire no right in it on the principle of accession, but the owner may reclaim it, whatever alteration of form it may have undergone, unless it be changed into a different species and be incapable of being restored to its former state; and even then the trespasser, by the civil law, could acquire no right by the accession, unless the materials had been taken away in ignorance of their being the property of another. 2 Kent's Comm. 362; Betts v. Lee, 5 Johns. R. 348. But there are exceptions to the general rule.

It is laid down by Molloy as a settled principle of law, that if a man cuts down the trees of another, or takes timber or plank prepared for the erecting or repairing of a dwelling-house, nay, though some of them are for shipping, and builds a ship, the property follows not the owners, but the builders. Mole de Jure Mar. lib. 2, c. 1, sec. 7.

Another similar exception is laid down by Chancellor Kent in his Commentaries, which is directly in point in the present case. If, he says, A. builds a house on his own land with the materials of another, the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged to answer to the owner of the materials for the value of them. 2 Kent's Comm. 360, 361. This principle is fully sustained by the authorities. In Bro. tit. Property, pl. 23, it is said, that if timber be taken and made into a house, it cannot be reclaimed by the owner; for the nature of it is changed, and it has become a part of the freehold. In Moore, 20, it was held, that if a man takes trees of another and makes them into boards, still the owner may retake them, but that if a house be made with the timber it is otherwise.