It has been already stated that the exceptions of buildings and other fixtures for the purpose of carrying on a trade or manufacture is of very ancient date, and was recognized almost as early as the rule itself. The very point was decided in 20 Henry VII., 13a. and b., where it was laid down, that if a lessee for years made a furnace for his advantage, or a dyer made his vats or vessels to occupy his occupation, during the term, he may afterward remove them. That doctrine was recognized by Lord Holt in Poole's Case, 1 Salk. 368, in favor of a soap-boiler who was tenant for years. He held that the party might well remove the vats he set up in relation to trade, and that he might do it by the common law (and not by virtue of any custom) in favor of trade and to encourage industry. In Lawton v. Lawton, 3 Atk. R. 13, the same doctrine was held in the case of a fire-engine set up to work in a colliery by a tenant for life. Lord Hardwicke there said that since the time of Henry VII. the general ground the courts have gone upon of relaxing the strict construction of law is that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during the term. He added, "one reason which weighs with me is its being a mixed case, between enjoying the profits of the land, and carrying on a species of trade; and in considering it in this light it comes very near the instances in brew-houses, etc., of furnaces and coppers.'' The case, too, of a cider-mill, between the executor and heir, etc., is extremely strong, for though cider is a part of the profits of the real estate, yet it was held by Lord Chief Baron Comyns, a very able common lawyer, that the cider-mill was personal estate notwithstanding, and that it should go to the executor. " It does not differ it, in my opinion, whether the shed be made of brick or wood, for it is only intended to cover it from the weather and other inconveniences." In Penton v. Robart, 2 East, 88, it was further decided that a tenant might remove his fixtures for trade even after the expiration of his term if he yet remained in possession; and Lord Kenyon recognized the doctrine in its most liberal extent.
It has been suggested at the bar that this exception in favor of trade has never been applied to cases like that before the court, where a large house has been built and used in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole question is whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a soap-boilery of one or two stories high, and on whatever foundations he may choose. In Lawton v. Lawton, 3 Atk. R. 13, Lord Hardwicke said (as we have already seen) that it made no difference whether the shed of the engine be made of brick or stone. In Penton v. Robart, 2 East's R. 88, the building had a brick foundation, let into the ground, with a chimney belonging to it, upon which there was a superstructure of wood. Yet the court thought the building removable. In Elwes v. Mawe, 3 East's R. 38, Lord Ellenborough expressly stated that there was no difference between the building covering any fixed engine, utensils, and the latter. The only point is whether it is accessory to carrying on the trade or not. If bona fide intended for this purpose, it falls within the exception in favor of trade. The case of the Dutch barns before Lord Kenyon, Dean v. Allalley, 3 Esp. 11; Woodfall's Landlord and Tenant, 219, is to the same effect.
Then, as to the residence of the family in the house, this resolves itself into the same consideration. If the house were built principally for a dwelling-house for the family, independently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule, and immovable. But if the residence of the family were merely an accessory for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. There are many trades which cannot be carried on well without the presence of many persons by night as well as by day. It is so in some valuable manufactories. It is not unusual for persons employed in a bakery to sleep in the same building. Now, what was the evidence in the present case? It was, " that the defendant erected the building before mentioned, with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in that business." The residence of the family was then auxiliary to the dairy; it was for the accommodation and beneficial operations of this trade.
Surely, it cannot be doubted, that in a business of this nature the immediate presence of the family and servants was, or might be, of very great utility and importance. The defendant was also a carpenter, and carried on his business as such in the same building. It is no objection that he carried on two trades instead of one. There is not the slightest evidence of this one being a mere cover or evasion to conceal another, which was the principal design; and unless we are prepared to say (which we are not) that the mere fact that the house was used for a dwelling-house as well as for a trade superseded the exception in favor of the latter, there is no ground to declare that the tenant was not entitled to remove it. At most, it would be deemed only a mixed case, analogous in principle to those before Lord Chief Barons Comyns and Lord Hardwicke, and therefore entitled to the benefit of the exception. The case of Holmes v-Tremper, 20 Johns. R. 29, proceeds upon principles equally liberal,and it is quite certain that the Supreme Court of New York were not prepared at that time to adopt the doctrine of Elwes v. Mawe in respect to erections for agricultural purposes. In our opinion the Circuit Court was right in refusing the first instruction.