Sec. 272] real Property.

Rights of Enjoyment.

- (d) As realty or personalty. It being conceded that trade fixtures, domestic and ornamental fixtures, and, in some jurisdictions, perhaps, agricultural fixtures, are removable by the tenant who has annexed them, the question arises whether such articles arc, before they are removed, to be regarded as part of the realty or as personalty. In this regard the cases are not in unison. Quite frequently the courts have spoken of such fixtures as being personalty, apparently considering that this necessarily follows from the fact that they are removable, and without discussion of the question.36

33. Holmes v. Treniper, 20 Johns. (N. Y.) 29. 11 Am. Dec. 238 (cider press). And see Mc-Math v. Levy, 74 Miss. 450, 21 So. 9, 523, (cotton gin).

34. Ante, this section, note 24.

35. See Amos & Ferard. Fixtures (3d Ed.) appendix (e), p. 424.

36. .Middleton v. Alabama Power Co., 196 Ala. 1, 71 So. 461; Robinson v. Wright, 9 D. C. 54; State v. Bonham, 18 Ind. 231; Tolman v. Carleton, 110 Me. 57, 85 Atl. 390; Bartlett v. Haviland. 92 Mich. 552, 52 N. W. 1008; Perkins v. Swank, 43 Miss. 349; Lanphere v. Lowe, 3 Neb. 131; Holmes v Tremper,

By other decisions, what appears to be a much sounder view has been adopted, to the effect that articles removable as belonging to one of these classes are nevertheless a part of the land until removed, the right to remove them existing in the tenant's favor apart from, and independently of, his unquestioned right to remove any articles which, though on the land, have not become a part thereof for any purpose, that is, which are mere personal chattels.37

Even in jurisdictions where removable fixtures are regarded as part of the realty, an oral transfer of them has been decided not to be invalid under the Statute of Frauds as being of an interest in the land, the transfer being apparently regarded as of the right to remove the fixtures rather than of the fixtures themselves;38 while a sale to a person taking or having an interest in the land, such as an incoming tenant or the landlord, is regarded as in the nature of an abandonment or waiver of the right of removal.39 Nor are such fixtures goods or chattels within the seventeenth section of the statute.40

- (e) Restrictions on right of removal. The right of the tenant of a limited interest to remove fixtures as has been well remarked,54 if his rights as to fixtures on the premises are to be determined by the presumption of his intention to abandon vel non, the same rule should apply to chattels on the land not so annexed as to become fixtures, and he would lose all right to them by relinquishing possession of the land, which he certainly does not do.55 This theory of a presumption of abandonment, however, seems the only possible one on which, in any jurisdiction in which removable fixtures are regarded as personalty56 to support the view that the right of removal is lost by the tenant's relinquishment of possession of the land. On the other hand, regarding the fixtures as constituting a part of the land, with a mere riant of removal in the tenant, it is perhaps difficult to see why a tenant should be enabled, by wrongfully holding over, to extend the period for the removal of the fixtures, thus profiting by his own wrong. Such a case, it might seem, would be governed by a rule different from that which governs when he holds over rightfully, that is, by permission. In the latter case, it has been decided, the right of removal continues.57

20 Johns. (N. Y.) 29, 11 Am. Dec. 238; Globe Marble Mills Co. v. Quinn, 76 N. Y. 23, 32 Am. Rep. 259; Western North Carolina R. Co. v. Deal, 90 N. C. 110; Belvin v. Raleigh Paper Co., 123 N. C. 138, 31 S. E. 655; Lemar v. Miles, 4 Watts (Pa.) 330; Heffner v. Lewis, 73 Pa. 302; Kile v. Giebner, 114 Pa. 381, 7 Atl. 154; Wright v. McDonell, 88 Tex. 140, 30 S. W. 907.

37. Meux v. Jacobs, L. R. 7 H. L. 481, 490; Lain v. Brand. 1 App. Cas. 762, 772, 777; Holland v. Hodgson, L. R. 7 C. P. 328; Climie v. Wood, L. R. 4 Exch. 328;

Freeman v. Dawson, 110 U. S 270; Sampson v. Camperdown Cotton Mills, 64 Fed. 939; Hereford v. Pusch, 8 Ariz. 76, 68 Pac. 547; Guthrie v. Jones, 108 Mass. 191; Treadway v. Sharon, 7 Nev. 37.

38. Lee v. Gaskell, 1 Q. B. Div. 700; Oswald v. Whitman, 22 Nova Scotia, 13.

39. Hallen v. Runder, 1 Cromp. M. & R. 266; South Baltimore Co. v. Muhlbach, 69 Md. 395, 1 L. R. A. 507, 16 Atl. 117.

40. Lee v. Gaskell, 1 Q. B Div. 700; Hallen v. Runder, 1 Cromp.. M. & R. 266; South Baltimore Co.

Sec. 272]

Rights of Enjoyment.

41. Davis v. Jones, 2 Barn. & Ald. 165; Capen v. Peckham, 35 Conn. 88; Chase v. New York Insulated Wire Co., 57 111. App. 205; Collamore v. Gillis, 149 Mass. 578, 5 L. R. A. 150, 14 Am. St. Rep. 460, 22 N. E. 46; Northwestern Lumber & Wrecking Co. v. Parker, - Minn. - ,145 N. W. 964; Powell v. McAshan, 28 Mo. 70; Friedlander v. Ryder, 30 Neb 783, 9 L. R. A. 700, 47 N. W. 83; For-tescue v. Bowler, 55 N. J. Eq. 741, 38 Atl. 445; Ombony v. Jones, 19 N. Y. 234; Cubbins v. Ayres, 4 L,ea (Tenn.) 329.

42. Whitehead v Bennett, 27 Law J. Ch. 474, approved by Lord Chancellor Selborne in Wake v. Hall, 7 Q. B. Div. 295; Collamore v. Gillis, 149 Mass. 578, 5 L. R. A. 150, 14 Am. St. Rep. 460, 22 N. E. 46. A contrary view is asserted in Baker v. McClurg, 198 111. 28, 59 L. R. A. 131, 92 Am. St. Rep. 261, 64 N. E 701. And in a number of oases, brick and stone structures which are, in their nature, insusceptible of removal without disintegration, have been regarded as removable. See Van Ness v. Packard, 2 Pet. (U. S.) 137, 7 L. Ed. 374; Brown v. Reno Elec. Light & Power Co., 55 Fed. 229; Carr v. Georgia R. Co., 74 Ga. 73, 81; Gordon v. Miller, 28 Ind. App. 612, 63 N. E. 774; Dubois v. Kelly, 10 Barb. (N. Y.) 496; Moore v. Wood, 12 Abb. Pr. (N. Y.) 393; Belvin v. Raleigh Paper Co., 123 N. C. 138, 31 S. E. 655; White's Appear, 10 Pa. 252; Couch v Welsh, 24 Utah 36, 66 Pac. 600. 43. Alden v. Mayfield. 163 Cal. 793, 41 L. R. A. (N. S.) 1022, 127 Pac. 44; Webb v. New Haven Theater Co., 87 Conn. 129, 87 Atl. 274; Dougherty v. Spencer, 23 111. App. 357; P. Squire & Co. v. City of Portland, 106 Me. 234, 30 L. R. A. (N. S.) 576, 20 Ann. Cas. 603, 73 Atl. 679; Pond & Hasey Co. v. O'Connor, 70 Minn. 266, 73 N. W. 159, 248; Hay v. Tillyer (N. J. Ch.) 14 Atl. 18; Ashby v. Ashb-59 N. J. Eq. 536, 46 Atl. 528; Bovet v. Holzgraft, 5 Tex. Civ. App. 141, 23 S. W. 1014; See Felcher v. McMillan, 103 Mich. 494, 61 N. W. 791. Compare Ross v.