Lemar v. Miles

The opinion of the Court was delivered by Sergeant, J. —The general principle is, that a fixture erected by a tenant on demised premises, for the purpose of carrying on his trade, is personal property, and may be removed or levied on by fieri facias against him, and at his death, if not disposed of, passes to his executor. In Lawton v. Lawton, 3 Atk. 13, afire engine set up for the benefit of a colliery by a tenant for life, was considered part of his personal estate, passing to the executor as assets, and not to the remainder man as annexed to the freehold : it being for the benefit of the public to encourage tenants to do what is advantageous to the estate during their term. The same point was afterwards decided in Dudley v. Warde, Amb. 113, wItere an engine of a similar kind was considered part of the personal estate, whether erected by tenant for life or in (ail. In Van Ness v. Packard, 2 Peters’s S. C. Rep. 137, the subject is carefully examined by Justice Story, and the tenant was there held not to be liable for pulling down and removing a wooden dwellinghouse, with a cellar of stone or brick foundation, and a brick chimney, which he had erected on a demised lot of ground for a term of years reserving rent, with a view of carrying on the business of a dairyman and for the residence of his family and servants engaged in the business. The present is the case of a steam engine set up by the tenant on the demised premises and used in lieu of horse-power, for more advantageously carrying on the manufacture of salt. It must, therefore, be deemed personal property belonging to him, aud as such liable to be seized and sold on the execution of his judgment creditor. In Gray v. Holdship, 17 Serg. & Rawle 413, the copper kettle in the brewhouse was erected by the owner of the inheritance, and would have passed to the purchaser of the building unless specially reserved : it was, therefore, part of the building within the mechanic’s lien law. The case of Morgan v. Arthurs, 3 Walls 140, was determined on the same grounds. But [333] here the engine was purchased and erected by the tenant, and was never part of the inheiitance. It is supposed, however, that the terras of this lease form an exception to the general rule. There is a covenant on the part of the lessees to bore the wells to the depth of five hundred feet if practicable, and as much deeper as they please, and to make all additional and necessary erections at their own expense. It is afterwards declared, that should the wells fail at any time during the lease, the lessees were at liberty to give them up by paying up the rent to the time of said failure; and should such failure take place within the term of three years, the lessees were at liberty to take away all the metal and improvements of the works, or be paid the value thereof, at the choice of the lessor. This covenant seems to contain an implication that if the lessees gave up the works after the three years, on account of failure of the water, the erections were to belong to the lessor. The reason of this covenant is not very clear; but, perhaps, it was thought right they should remain as an indemnity to the lessor for his loss, where the lessees had enjoyed the strength of the wells during, perhaps, a larger part of the term. But there was no surrender on account of failure; for although one witness for the plaintiffs said he thought the water failed the first year, he explained by saying it got weaker; it was not more than half as good perhaps. He also states that the well was not given up to Lemar. The event contemplated, then, never occurred ; and the rights of the parties can only be adjusted by the application of the usual legal principles. Besides, I am inclined to think this clause refers to erections of a more real and permanent character than an engine. The words “metal and improvements,” may comprehend all permanent fixtures of iron or other metal, and all buildings, whether dwellinghouses, stables, sheds, walls, or of whatever kind, set up for the purpose of carrying on the business more conveniently; the right to remove which might have been considered as questionable, unless expressly agreed to. But for an article in itself decidedly personal, it. was not necessary to make such provision, and it ought not by implication to be applied to it. Judgment affirmed.