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hold, cease to be goods and chattels by becoming part of the freehold; and though it is in his power to reduce them to the state of goods and chattels again by severing them during his term, yet until they are severed they are a part of the freehold, as wainscots screwed to the wall, trees in a nursery ground, which, when severed, are chattels, but standing, are part of the freehold, certain grates, and the like. And unless the lessee uses during the term his continuing privilege to sever them, he cannot afterwards do it; and it never, I believe, was heard of that trover could be afterwards brought." He then refers to the well-settled doctrine that a stranger who without right severs and carries away fixtures commits a trespass, and is not guilty of a felony at common law.

The more modern English authorities have also followed the law as thus laid down, and we refer, as bearing directly upon the question we are now considering, to Minshall v. Lloyd, 2 Mees. & W. 450; Mackintosh v. Trotter, 3 Id. 184; Weeton v. Woodcock, 7 Id. 14; Davis v. Jones, 2 Barn. & Ald. 165; Lyde v. Russell, 1 Barn. & Adol. 394; Colegrave v. Dias Santos, 2 Barn. & C. 76; Roffey v. Henderson, 17 Q. B. 574; Hallen v. Runder, 1 Cromp. M. & R. 266; Wilde v. Waters, 16 Com. B. 637; Pitt v. Shew, 4 Barn. & Ald. 206; Pugh v. Arton, L. R. 8 Eq. 626; Leader v. Homewood, 6 Com. B., N. S., 546. Other English decisions bearing upon the same subject are cited and commented upon by the elementary writers above referred to, and also in 2 Smith's Lead. Cas. 202. In fact, the limitation as to the time within which the tenant's right to remove fixtures under any circumstances endures, as pointed out in the earlier cases, was recognized by Lord Ellenborough in the leading case of Elwes v. Maw, 3 East, 38, in which the previous judgment of Lord Kenyon in Penton v. Robart, 2 Id. 88, is reviewed, and whatever doubts this latter case may have thrown upon the subject are removed by the later decisions, and especially by Baron Alderson in Weeton v. Woodcock, supra, who says: "The rule to be collected from the several cases decided on this subject seems to be this: that the tenant's right to remove fixtures continues during his original term and during such further period of possession by him as he holds the premises under a right to still consider himself as tenant."

In this country the decisions are numerous, and almost if not entirely uniform in support of the same general rule. Among them we refer to Davis v. Buffum, 51 Me. 160; Garfield v. Hapgood, 17 Pick. 192; Allen v. Kennedy, 40 Ind. 142;

Davis v. Moss, 38 Pa. St. 346; Beers v. St. John, 16 Conn. 322; Bliss v. Whitney, 9 Allen, 114; 85 Am. Dec. 745; State v. Elliott, 11 N. H. 540; Reynolds v. Shuler, 5 Cow. 223; Shepard v. Spaulding, 4 Met. 416; and Preston v. Briggs, 16 Vt. 124. In the last cited case, Redfield, J., in a well-considered opinion, gives this terse, and as we think accurate, statement of the law: "It seems equally well settled that all fixtures for the time being are part of the freehold, and that if any right to remove them exists in the person erecting them, this must be exercised during the term of the tenant, and if not so done, the right to remove is lost, and trover cannot be maintained for a refusal to give them up." It is true that modern decisions have in the interest of trade greatly enlarged the number of movable or trade fixtures, but they agree with the earlier authorities in limiting the time within which the removal must take place. They hold that the interest which a tenant has in his fixtures consists in the right or privilege of removing them, and reducing them again to personal chattels, and that this is a right or privilege which may be lost by not being exercised in due time, or may be voluntarily surrendered, abandoned, or waived. The position sustained by the overwhelming weight of authority, both English and American, and ancient and modern, is, that where a tenant quits possession or surrenders the premises unqualifiedly to his landlord without removing or reserving his fixtures, he is understood to make a dereliction of them to his landlord; and the few cases in which the right of property in fixtures has been held to remain unchanged after the termination of the tenancy, and the surrender of possession of the premises by the tenant, rest upon the particular attendant circumstances, and may be regarded as exceptional, and they do not invalidate the general rule: Tyler on Fixtures, 453.

From the law as thus stated, it clearly follows that if the tenant in this case had, under the notice to quit given in 1880, removed from the premises without severing and taking with him the fixtures in question, they would have become the absolute property of the landlord. He did not, however, quit the possession, but what he did was this: he recognized the notice as putting an end to his tenancy by the year, and accepted from his landlord the lease above referred to, which took effect at the expiration of his yearly tenancy under the notice. The operative effect of this lease as a conveyance, and the implied obligation thereby cast upon the lessee, have

been already stated. It is a lease for a term of years, to take effect upon the expiration of the prior yearly tenancy, containing terms, conditions, and stipulations which did not pertain to the prior tenancy by the year, and which contained no reservation of the right to remove the fixtures then on the premises; and it was under this lease that the tenant continued in possession. The question, then, immediately before us is, What effect had the acceptance of this lease, and continuing in possession under it, upon the tenant's right to remove these trade fixtures? And here again, in answer to this question, all the elementary writers concur in laying down the proposition that if a tenant, having the right to remove fixtures erected by him on the demised premises, accepts a new lease of such premises, without reservation or mention of any claim to such fixtures, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous. And the reason given is, because the fixtures set upon the premises at the time of the lease are part of the thing demised, and the tenant, by accepting a lease of the land without reserving his right to the fixtures, has acknowledged the right of his landlord to them, which he is afterwards estopped from denying: 2 Taylor on Landlord and Tenant, sec. 552; Ewell on Fixtures, 174, 175; Tyler on Fixtures, 437-439; Grady on Fixtures, 98; Gibbons on Fixtures, 43; Amos and Ferard on Fixtures, 117; 2 Smith's Lead. Cas., 8th Am. ed., 214.

The English cases usually cited in support of this position are Fitzherbert v. Shaw, 1 H. Black. 258; Heap v. Barton, 74 Eng. Com. L. 273; and Thrasher v. East London Water Works Co., 2 Barn. & C. 608. And the more recent case of Sharp v. Milligan, 23 Beav. 419, was a case where tenants in possession had agreed in writing to take a lease of the premises from their landlord for the term of twenty-one years. Specific performance of this agreement was decreed; and in settling the terms of the lease to be executed, the tenants insisted that it should be so framed as to protect their right to certain fixtures they had erected on the premises, and they asked this upon the conceded ground that if not thus protected they would be estopped by the lease from claiming their trade fixtures. But the master of the rolls (Sir John Romilly) refused their request, saying the tenants ought to have introduced the exceptions in the agreement if they intended their fixtures should not become the landlord's property. From these authorities

we cannot doubt that if this case were before an English court it would be promptly decided in favor of the landlord's right to these fixtures.

In this country, the question seems first to have arisen in the case of Merritt v. Judd, 14 Cal. 59, and there the court followed the English authorities, saying that upon the execution of the new lease the tenant was in the same situation as if the landlord, being seised of the land, had leased both land and fixtures to him. The same ruling was subsequently made by Brady, J., in Abell v. Williams, 3 Daly, 17, in the court of common pleas for the city and county of New York. A different opinion, however, was expressed by Reynolds, J., in the city court of Brooklyn, as reported in the case of Devin v. Dougherty, 27 How. Pr. 461. But both these latter cases were decisions by courts of inferior jurisdiction. Finally the question came before the court of appeals of New York, in Loughran v. Ross, 45 N. Y. 792, 6 Am. Rep. 193, where it was reasoned out and the authorities reviewed. "In reason and principle," says Allen, J., in delivering the opinion in that case, "the acceptance of a lease of the premises, including the buildings, without any reservation of right, or mention of any claim to the buildings and fixtures, and occupation under the new letting, are equivalent to a surrender of the possession to the landlord at the expiration of the first term. The tenant is in under a new tenancy, and not under the old; and the rights which existed under the former tenancy, and which were not claimed or exercised, are abandoned as effectually as if the tenant had actually removed from the premises, and after an interval of time, shorter or longer, had taken another lease, and returned to the premises. A lease of land and premises carries with it the buildings and fixtures on the premises, and the tenant accepting a lease of the premises without excepting the buildings takes a lease of the lands with the buildings and fixtures, and acknowledges the title of the landlord to both, and is estopped from controverting it." So in Massachusetts substantially the same doctrine was long ago announced by Chief Justice Shaw, in Shepard v. Spaulding, 4 Met. 416, the circumstances of the case differing only in the fact that there was an interval between the surrender of the interest under the first lease and the granting of the second when the lessor was in actual possession. Then comes the case of Watriss v. National Bank of Cambridge, 124 Mass. 571, 26 Am. Rep. 694, which, in its facts, is almost identical with

the one now before us, and in which the court, speaking by Endicott, J., reaffirms the same rule in a very carefully reasoned opinion.

Opposed to this strong array of authority in this country, and to the whole body of the English decisions, stands the case of Kerr v. Kingsbury, 39 Mich. 150; 33 Am. Rep. 362. This case was decided about the same time as the one last referred to in Massachusetts, and no reference is made in either to the other. The opinion was delivered by Judge Cooley, but we cannot go along with him in his reasoning. We are not able to discover anything "absurd" in the rule laid down by the other authorities, and certainly not when applied to a case like the one at bar. If it was the intention of the parties in this or any other similar case that the right to remove fixtures should continue, nothing was easier than to insert in the lease a clause to that effect; and it seems to us reasonable to infer from the absence of such a clause that it was their intention that this right should no longer continue. It is also a rational inference, if not a presumption, that the parties understood what they were doing, and what would be the legal construction and effect of the instrument they were executing. That the terms of this lease are broad enough to convey the fixtures, and did convey them, is a proposition about which we cannot entertain a doubt, and if this be so, we must assume the tenant knew it. It is also to be noted that this was the first written lease between the parties, and is not simply a renewal of an old one upon the same terms and conditions. Its office was not to effect an extension or a holding over under and upon the terms of an existing lease or a former tenancy, but to create a new tenancy upon new and different terms, and non constat the landlord would have granted or the tenant could have procured such a lease, except upon the condition that the fixtures should remain the property of the former, and the right to remove them be abandoned. At all events, such, in our opinion, is the construction and effect of this instrument, and we neither know of, nor can we recognize, any "public policy" which ought to induce the courts to place a different construction or give a different effect to a lease between landlord and tenant from that given to other contracts between other parties, or to set aside a well-settled rule or principle of law, in order to promote the interests of either party thereto.

We therefore affirm the decree so far as it decides that the

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