Talbot v. Whipple

Bigelow, C. J. The rule of law, as now settled by the recently adjudicated cases, is, that any acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises amount to a surrender of a term by operation of law. Grimman v. Legge, 8 B. & C. 324 : S. C. 2 Man. & Ry. 436. Dodd v. Acklom, 6 Man. & Gr. 672; S. C. 7 Scott, N. R. 415. Phene v. Popplewell, 12 C. B. (N. S.) 334, 340. 1 Cruise Dig. tit. ix., c. 1, § 13. The facts in the present case are of the most unequivocal character on the part of both landlord and tenant, and leave no room for doubt as to the intent of the parties. The latter left the premises under circumstances which indicated a fixed purpose, not only to cease to occupy and to give up all control over them, but also to permit the landlord to gain access thereto and resume possession thereof. The former entered with a manifest design of accepting the abandonment and [181] surrender of the term by the latter, and of finally determining the tenancy. The minds of the parties, therefore, concurred in the common intent of relinquishing the relation of landlord and tenant, and they executed this mutual intent by acts which are tantamount to a stipulation to put an end to the lease. We think it equally clear that the building and the machine called a callender were in their nature fixtures. The building was of large dimensions, so constructed that it could not be removed from the premises without a change in its structure at great cost; it was built on stone foundations, partly natural and partly artificial, to which it was fastened by iron bolts; a brick furnace and chimney, also resting on a base set in the ground, formed part of the structure, and it was erected by the tenants during the term, to be used in connection with other buildings on the premises belonging to the landlord for the same purposes for which the estate was leased to the tenant. It is difficult to see in what manner a building could be more effectually annexed to the realty than the one in controversy. Sudbury v. Jones, 8 Cush. 184-189. Bliss v. Whitney, 9 Allen, 114. The case last cited is decisive also as to the nature of the machine called a callender. It was placed on a solid foundation of stone, erected for the purpose of supporting it, in the soil which formed the bottom of the cellar; its removal would have left large holes in the first and second floors of the building belonging to the landlord, which was included in the demise; it was securely fastened to the timbers which composed the frame of the building by iron bolts, and it could not have been taken away without serious damage both to the inner and outer portions of the structure. These facts show that it was a fixture, within the strictest meaning of the word. Wall v. Hinds, 4 Gray, 256. Bliss v. Whitney, ubi supra. We cannot doubt, therefore, that the building and machine are to be regarded, not as movable chattels, such as the tenant might have removed within a reasonable time after the expiration of the tenancy, but as belongng to that class of fixtures which, if removable at all, must be removed by the tenant from the realty during the term demised, or, if suffered to remain annexed thereto after the [182] expiration of the tenancy, belong to the landlord as a part of the freehold. It is hardly necessary to add that the plaintiffs can claim no better title to the property in controversy than that which was vested in the tenant under whom they claim as mortgagees. When the mortgage was made, the building and machine were fixtures annexed to the realty of the defendant by his tenant, and which the defendant had then the inchoate right to claim as part of the freehold if not seasonably disannexed before the term was ended. Judgment for the defendant.