Boyd v. Douglass

Munson, J. If the nature, purpose and manner of annexation of the building in question are such as would ordinarily make it removable by the tenant, the defendant is nevertheless precluded from removing it by the character of the lease. The lease is for five years without reservation of rent, requires the erection of a specified building in one year on pain of forfeiture, and gives no right of removal. The building erected under this lease cannot be treated as a removable fixture. A tenant’s right of removal rests upon the ground that the fixture is annexed for his own benefit, and not to enhance the value of the freehold. An intention to remove it is presumed to- exist at the time of annexation, and this intention is held to prevent its becoming inseparably connected with the realty. But there is no room for these considerations when the demise stands upon a condition which requires the annexation. The only intention which can then be recognized is that evidenced b}' the agreement. [451] The facts from which a contrary intention would be deduced in the absence of such an agreement are made immaterial by its existence. In whatever manner the fixture may be annexed, the lessee will have no right to remove it, if the lease requires its annexation, and affords no indication that the connection was intended to be temporary. A building erected by a tenant on the demised premises pursuant to a covenant in his lease is not removable, unless the lease gives him a right to remove it. 13 A. & E. Ency. Law. 2d. ed. 660; Dean v. Hutchinson, 40 N. J. Eq. 83; Price v. Grice, 92 Va. 763; Gett v. McManus, 47 Cal. 56; New York v. Brooklyn Fire Ins. Co. 41 Barb. 231. Judgment reversed and judgment for plaintiff for one cent damages and costs.