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Manufactory buildings, lands, and hereditaments, steam-engines, machiohimmr. nery» pipes, fixtures, articles and things, and all and singu

General rule thnt the tenant cannot remove fixtures.

Exception in favour of fixtures erected for ornament or domestic convenience;

thaw, ubi supra). The stones of a mill, keys, doors, windows, rings, and the like, even though temporarily disannexed, are fixtures. (LiforcTs ease, 11 Co. Rep. 60 b; and see Matter v. Bradley, 9 Bing. 24; S. C. 2 Moo. & Scott, 25). The sails, too, of a windmill appear to be fixtures; (Rex v. Crosse, 1 Sid. 207); but manure, in a heap, is a mere chattel. ( Yearworth v. Pierce, Alleyn, 32; S. C. nom. Career v. Pierce, Sty. 66). See further, as to what are fixtures, ante, Vol. 3, p. 501; Amos & Ferard, Law of Fixtures, pt. 1, ch. 1, and generally.

The ancient and general rule between landlord and tenant, with regard to fixtures, in the absence of express contract, is, that all personal chattels which have been so affixed to the freehold, either by landlord or tenant, as to become fixtures, cannot be removed by the tenant without waste. (Co. Lit. 53. a. ; Coot's case, Moore, 177; Lord Darcy v. Aequith, Hob. 234; 2 Brod. & Bing. 58). But in modern times this rule has been much relaxed, and many exceptions grafted upon it in favour of the tenant ; and in adverting to the cases on the subject, it is to be borne in mind that the right to fixtures is considered more favourably to the tenant against the landlord than to the executors of a deceased owner of the freehold against the succeeding owner; (2 East, 91 ; 3 East, 51 ; 6 Bing. 439, 440); and, therefore, where any case has been decided in favour of the executors of a deceased owner of the freehold, against the succeeding owner, such case is a fortiori a decision in favour of tenants; but it does not follow that a case decided against such executors is necessarily a decision against tenants.

One of the exceptions made in favour of the tenant has been in respect of chattels affixed for ornament or domestic convenience; such as ornamental chimney-pieces, pier glasses, hangings, wainscots fixed only by screws, and the like. (3 East, 53; Squire v. Mover, 2 Eq. Ca. Abr. 430; S. C. Freem. Cha. Ca. 249; Poole's case, 1 Salk, 368; Beck v. Rebow, 1 P. Wins. 14; Lord Dudley v. Lord Warde, Amb.113; Harvey v. Harvey, 2 Stra. 1141; Allen v. Allen, Mose. 112; The King v. St. Dunstan, 4 B. & C. 686; S, C. 7 Dow. & Ry. 178; Grrymes v. Boweren, 6 Bing. 437; Birch v. Dawson, 2 Ad. & Ell. 37; Avery v. Cheslyn, 3 Ad. it Ell. 75; S. C. 5 Nev. & Man. 372). There are, indeed, some cases of a contrary tendency, but with the exception of Cave v. Cave, 2 Vern. 508, (which cannot now be deemed of much authority), they relate rather to chattels so firmly annexed to the freehold as to have lost their character of fixtures. (See Wynne v. Ingilby, 5 B. & Aid. 625; Colegravc v. Dios Santos, 2 B.. & C. 76; Buckland v. Butterfield, 2 Brod. & Bing. 64; S; C, lar other the premises hereinbefore demised, or expressed juid intended so to be, unto the said C. D. and E. F., their

AND MA-
CHINERY.

4 J. B. Moore, 440; Leach v. Thomas, 7 Car. & Pay. 328; see, too, further, with respect to the foregoing exceptions, Amos & Ferard, Law of Fixtures, pt. 1, ch. 2, s. 4).

Another exception has been made in favour of the tenant, in respect of fixtures put up for the purposes of trade, as mills, buildings, machinery, and the like. Thus, a cyder-mill is removable even by an executor of the freeholder; (3 Atk. 14) ; and so, too, is an engine set up for colliery purposes. (Lawton v. Lawton, 3 Atk. 13; Lord Dudley v. Lord Warde, Amb. 113). Salt-pans used in salt-works by the owner of the fee simple belong to his heir, not to his executor; {Lawton v. Salmon, 1 H. Bl. 259, n.) ; but Lord Mansfield in that case expressed an opinion, that, if erected by a tenant, to whom the springs had been let, they might have been removed by him. A wooden building, used by a tenant for the purpose of varnish making, which was his trade, was held to be removable by him, though it had been erected op a brick foundation. (Penton v. Robart, 2 East, 87; S. C. 4 Esp. 33). See further on the subject of trade fixtures, Amos & Ferard, Law of Fixtures, pt. 1, ch. 2, ss. 1, 3. In Lowther v. Cavendish, 1 Eden, 99, it was referred to the Master to determine, whether wooden railways, laid down for colliery purposes, were removable according to the custom of the country.

Fixtures set up for agricultural purposes, by tenants or others, do not come within the same exception as trade fixtures. (Elwes v. Mawe, 3 East, 38). But, of course, such barns and other things as are not actually fastened to the ground, may be removed, (see supra, p. 85). The claim, too, to such fixtures may in some cases be rendered valid ty-the custom of the country. (Vin. Abr. tit. Executors (U.) 74; Cutting v. Tuffndl, Buller's N. P. 54, commented on 3 East, 55; see, too, Lowther v. Cavendish, 1 Eden, 99, 118; and Amos & Ferard, Law of Fixtures, pt. 1, ,ch. 2, ss. 2, 3).

Of course the landlord and tenant are at libety to enter into express contracts with respect to fixtures, so as to preclude the application of the general rules. And if the tenant covenants to yield up the premises at the end of the term, together with all things which shall have been affixed thereto during the term, he can remove nothing. (Naylor v. Collinge, 1 Taunt. 119; Penry v. Brown, 2 Stark. 533; Matter v. Bradley, 9 Bing. 24; S. C. 2 Moo. & Scott, 25; Thresher v. The East London Waterworks Company, 2 B. & C. 608; S. C. 4 Dow. & Ry. 62; Rex v. Topping, M'Lel. & You. 544; Amos & Ferard, Law of-Fixtures, pt. 1, ch. 2., s. 6).

The tenant's right to remove fixtures must be exercised during his term, {Poole's case, 1 Salk. 368), or, at least, during his continuance of possession, if he keep possession after the expiration of the term. {Penton v. Robart, 2 East, 88; S. C. 4 Esp. 33 ; see, too, Amos &

for purposes of trade;

—bat fixtures erected for agricultural purposes are not excepted.

Eflect of express contracts between landlord and tenant as to fixtures.

At what time
the tenant's
right to remove
fixtures must
be exercised.

Manufactory executors, administrators, and assigns, from the day of

Chinert. , for the term of years thenceforth next ensuing,

Reddendum. an<i fully to be complete and ended; Yielding And PayIng therefore unto the said A. B., his heirs and assigns, during the said term hereby granted, the yearly rent or sum of £ clear of all existing and future taxes, rates, assessments, and deductions whatsoever, to be paid by four equal

payments, on the day of , the day of ,

the day of , and the day of , in every

year, and the first of such quarterly payments to be

Covenant by made on the day of , now next ensuing: And

pay^nTo/rtie THE SAID C- D- ^ E- F- do hereby for themselves, rent and taxes; their heirs, executors, administrators, and assigns, covenant with the said A. B., his heirs and assigns, in manner following, (that is to say), that they the said C. D. and E. F., their executors, administrators, or assigns, shall &c. [covenants for payment of rent and taxes, supra, p. 31]: to re- And That they the said C. D. and E. F., their executors, administrators, and assigns, shall and will, from time to time and at all times hereafter, at his and their own proper costs and charges, during the continuance of the said term, well and sufficiently repair, support, sustain, amend, maintain, pave, purge, scour, cleanse, preserve, and keep in good and substantial repair and condition, all and singular the said mansion or dwelling-house, factory, warehouses, cottages, engine-houses, messuages, tenements, erections, buildings,

pair and main tain;

Ferard, Law of Fixtures, pt. 1, ch. 2, s. 5 ; Lyde v. Russell, 1 B. & Ad. 394; Minshall v. Lloyd, 2 Mee. & Wels. 450; Mackintosh v. Trotter, 3 Mee. & Wels. 184; FUzherbert v. Shaw, 1 H. BL 258). But, of course, this rule does not apply to such machinery as has been put up by the tenant during the term, and is capable of being removed without injuring the other parts of the machine, or the building, and is usually purchased by incoming tenants. {Davis v. Jones, 2 B. & Aid. 165). Landlord's With respect to the landlord's property in fixtures demised with

property in de- the soil, and which revert on severance, see Farrant v. Thompson,

To^the righT' 5 B-& Ald-826; s-c-2 Dow-& Ry-i1 Amos & Ferard, p-188;

to distrain. and with respect to distraining on fixtures, see Amos & Ferard, pt. 2, ch. 2, s. 1.

A convenient summary of the rules respecting fixtures between landlord and tenant will be found in the Appendix, No. 1, to the above work; and most of the recent cases are cited in this note.

steam-engines, machinery, pipes, apparatus, fixtures, arti- Manufactory cles, and things aforesaid, and every of them, and the party Chinkrt. and other walls, and all other houses, out-houses, edifices, erections, buildings, barns, stables, gates, pales, rails, stiles, hedges, ditches, banks, bridges, sewers, drains, sluices, water-courses, fences, and inclosures, in, upon, or belonging to the said hereby demised premises and every part thereof, in, by, and with all and all manner of needful and necessary reparations and amendments whatsoever, when, where, and as often as need or occasion shall be or require, and so as that the said steam-engines, machinery, pipes, apparatus, fixtures, and things aforesaid in the said schedule to these presents specified, may always be in good working and serviceable condition: And Also, Shall and will, at the —and yield up end, expiration, or other sooner determination of the said theterm? °f term, peaceably and quietly leave, surrender, and yield up the same premises, together with all things which at any time during the said term shall be affixed to the freehold thereof, in such good and substantial repair and condition as aforesaid, the reasonable use and wear thereof in the mean time only excepted: And Further, That it shall be —andthat lealawful for the said A. B., his heirs or assigns, and his or Jo'taapect'Sie their agents, with or without workmen or others in his or condition of the

. . ... , , premises, and

then: company, twice or oftener in every year, at seasonable that lessees,

times in the daytime, to enter and come into and upon the on nptice. j"11 •ii . • i-i repair in three

said hereby demised premises, or any part thereof, there to months;

view, search, and inspect the state and condition of the same, and of all defects or wants of reparation and amendments then and there found, and which shall have been occasioned otherwise than in the reasonable use and wear thereof, to give or leave notice or warning in writing at or upon the said hereby demised mansion or dwellinghouse for the said C. D. and E. F., their executors, administrators, or assigns, to repair or amend the same within the space of three calendar months next after such notice shall be so given or left as aforesaid, within which said time or space of three calendar months, they the said C. D. and E. F., their executors, administrators, or assigns, shall and will repair and amend all such defaults, decays, and wants of reparation and amendments as aforesaid, whereof

MANUFACTORY
AND MA-
CHINERY.

—and to scour
ditches and
water-courses,
and to open
new drains;

—and preserve trees mentioned in schedule;

—and in certain years to paint the outside of the premises;

—and to paint the inside once during the term;

I not to allow offensive trades to be carried on.

Proviso for re-entry.

such notice shall be 60 given or left as aforesaid: And Further, That they the said C. D. and E. F., their executors, administrators, and assigns, shall and will from time to time, as often as occasion shall require, open and scour all the ditches and water-courses, in, about, or belonging to the said hereby demised premises} and also shall and will cut and maintain, wherever the same shall or may be necessary, proper drains for carrying off the surface water: And Also Shall and will, during the continuance of the said term, preserve and keep all the timber and other trees mentioned in the schedule hereto: And Further, That they the said C. D. and E. F., their executors, administrators, or

assigns, shall and will in the year , and also in the year

, during the continuance of the said term, well and sufficiently and in a good and workman-like manner, paint all the outside wood and iron-work of the said hereby demised premises with three good coats of oil paint, of the same colours as the same are now painted: And Shall and will, once during the said term, well and sufficiently, and in a good and workman-like manner, paint all the inside wood and iron-work of the said hereby demised premises with three good coats of oil paint of the same colours as the same are now painted: And Further, That They the said C. D. and E. F., their executors, administrators, or assigns, shall not nor will at any time permit or suffer any nuisance or noisy or offensive trade, business, or occupation whatsoever to be carried on in or upon the said hereby demised premises, or any part thereof (b): Provided Always neverthe

Nuisances at common law, private and public.

(J) With respect to the effect of this covenant, see supra, p. 36, n. (h). There are numerous decisions with respect to the trades which are common-law nuisances. The erection of any thing offensive, so near to the house of another as to render it useless and unfit for habitation, is actionable, t. g, a swine-stye, or a lime-kiln, {Air flred's case, 9 Rep. 69 a), a privy, {Jones v. Powell, Hutt. 136), a smith's forge, {Bradley v. Gill, Lutw. 69), a tobacco-mill, (fitycin v. Hutchinson, 2 Selw. N. P. 1379, 5th edit.), a tallow-furnace. {Morley v. Pragnell, Cro. Car. 610). And generally such offensive occupations may be indicted as public nuisances, e. g. a glass-house, {Rex v. Brookes, Tremaine, PI. Cor. 195), a soap-boiler's or tallow-furnace, (Id. J98; Tohayle's case, cited Cro, Car, 510; but see, Ratttett's ease,

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