Hanrahan v. O'Reilly

Ames, J. The original rule of the common law subjected everything that was affixed to the freehold to the law governing the freehold. But the law of fixtures has grown into a system, which almost renders the right of removal a general rule, instead of an exception. The ancient rule has been especially relaxed, and rendered more liberal, in its application to the relation of landlord and tenant. It seems now to be well established by the cases, that things which the tenant has at his own expense affixed to the freehold for purposes of ornament or domestic convenience, or for purposes of trade, business or manufactures, may be removed by him before the expiration of his term. The right of removal depends upon the mode in which the thing to be removed is annexed to the freehold, and the effect which its removal would have upon the premises. It may be exercised in such a case, wherever it is not contrary to any prevailing usage, and causes no material injury to the estate, and where the thing can be removed without losing its essential character or value as a personal chattel. Under this rme, chimney-pieces, wainscot, grates, furnaces, cider-mills, buildings resting on blocks, and 204 many other things of like nature have been held to be removable by the outgoing tenant. Elwes v. Maw, 3 East, 38. Doty v. Gorham, 5 Pick. 487. Gaffield v. Hapgood, 17 Pick. 192. The numerous cases cited by the textwriters are quite sufficient to bring the defendant’s bowling alleys in this case within the list of things removable as falling under the description of “trade fixtures.” 2 Kent Com. (6th ed.) 343. Ferard on Fixtures, (2d Am. ed.) 17-42. He is described as occupying the premises “ for hall purposes; ” and the alley was apparently constructed for a temporary use, incident and subordinate to his occupation. Wall v. Hinds, 4 Gray, 256. Bliss v. Whitney, 9 Allen, 114. Van Ness v. Pacard, 2 Pet. 137. The fact that the defendant was present at the auction at w hich the property was sold, and was himself a bidder without d sclosing the claim upon which he now relies, is entirely insuffic. ent to make out the estoppel for which the plaintiff contends. 9 here is nothing to indicate that it was intended, or had any tendency, to mislead the plaintiff, or to control or influence his c. induct. Indeed we see no reason to say that the defendant’s conduct at that auction was at all inconsistent with or contrary to ti e claim which he makes in this suit. Estoppels are certainly e ititled to no peculiar favor, and to call this conduct of the deft ndant an estoppel would be going very far beyond the bounds of principle and authority. Plumer v. Lord, 9 Allen, 455. Andrews v. Lyons, 11 Allen, 349. Bill dismissed, with costs.