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Lautan u Salmon
astern Tore ly executar against tenant? heir for salt fau. Sult pawe sere sufforded 4 ponuó tat fisce i zrelles. He relt varie rere ralulens without the four.
Question personal or real property. st: te zait fring is a rabuara 'inheritance, tut ve profir arisie
frow it unless there is a salt works which caurists of a truilding ets for the purfors of containing the faves its thich are fixed to the frenada
The inner etected fawre fore benefir)Ha miestaire, 6. The noon of the thing wed the intention of the testation. They must
pictures fixed to the wainscot, even though put up by the tenant, belong to the heir. But there has been a relaxation of the strict rule in that species of cases, for the benefit of trade, between landlord and tenant, that many things may now be taken away, which could not be formerly, such as erections for carrying on any trade, marble chimney-pieces and not trade fixtures the like, when put up by the tenant. This is no injury to the landlord, for the tenant leaves the premises in the same state in which he found thein, and the tenant is benefited. There has been also a relaxation in another species of cases between tenant for life and a remainder-man, if the former has been at any expense for the benefit of the estate, as by erecting a fire-engine, or anything else by which it may be improved ; in such a case it has been determined that the fire-engine should go to the executor, on a principle of public convenience being an encouragement to lay out money in improving the estate, which the tenant would not otherwise be disposed to do. The same argument may be applied to the case of tenant for life and remainder-man, as that of landlord and tenant, namely, that the remainder-man is not injured, but takes the estate in the same condition as if the thing in question had never been raised.
But I cannot find, that between heir and executor, there has been any relaxation of this sort, except in the case of the cider-mills, which is not printed at large. The present case is very strong. The salt spring is
a valuable inheritance, but no profit arises from it, unless there is a salt work; which consists of a building, &c. for the purpose of containing the pans, &c. which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessories necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance; he could never mean to give them to the executor, and put him to the expense of taking them away, without any advantage to him, who could only have the old materials, or a contribution from the heir, in lieu of them. But the heir gains £8 per week by them. On the reason of the thing, therefore, and the intention of the testator, they must go to the heir. It would have been a different question if the springs had been let, and the tenant had been at the expense of erecting these salt works; he might very well have said, “I leave the estate no worse than I found it.” That, as I stated before, would be for the encouragement and convenience of trade, and the benefit of the estate. Mr. Wilbraham, in his opinion, takes the distinction between executor and tenant. For these reasons, we are all of opinion, that the salt ns must go to the heir.
Postea to the defendant
ELWES v. MAW.
[Reported 3 East, 38.) LORD ELLENBOROUGH, C. J. This was an action upon the case in the nature of waste, by a landlord, the reversioner in fee, against his late tenant, who had held under a term for 21 years, a farin consisting of a messuage, and lands, out-houses, and barns, &c., thereto belonging, and who, as the case reserved stated, during the term and about 15 years before its expiration, erected at his own expense a beasthouse, carpenter's shop, a fuel-house, a cart-house, a pump-house, and fold-yard. The buildings were of brick and mortar, and tiled, and the foundations of them were about a foot and a half deep in the ground. The carpenter's shop was closed in, and the other buildings were open to the front and supported by brick pillars. The fold-yard wall was of brick and mortar, and its foundation was in the ground. The defendant previous to the expiration of his lease pulled down the erections, dug up the foundations, and carried away the naterials; leaving the premises in the same state as when he entered upon them. The case further stated, that these erections were necessary and convenient for the occupation of the farm, which could not be well managed without them. And the question for the opinion of the court was, Whether the defendant had a right to take away these erections? Upon a full consideration of all the cases cited upon this and the former argument, which are indeed nearly all that the books afford materially relative to the subject, we are all of opinion that the defendant had not a right to take away these erections. Questions respecting
the right to what are ordinarily called fixtures, principally arise between three classes of persons. 1st, Between different descriptions of representatives of the same owner of the inheritance ; viz., between his heir and executor. In this first case, i. e., as between heir and executor, the rule obtains with the most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel anything which has been affixed thereto. 2dly, Between the executors of tenant for life or in tail, and the remainderman or reversioner; in which case the right to fixtures is considered more favorably for executors than in the preceding case between heir and executor. The 3d case, and that in which the greatest latitude and indulgence has always been allowed in favor of the claim to having any particular articles considered as personal chattels as against the claim in respect of freehold or inheritance, is the case between landlord and tenant.
But the general rule on this subject is that which obtains in the firstmentioned case, i. e., between heir and executor ; and that rule (as
1 The opinion sufficiently states the case.
found in the Year Book, 17 E. 2, p. 518, and laid down at the close of
Herlakenden's Case, 4 Co. 64, in Co. Lit. 53, in Cooke v. Humphrey, 666
Elren v mar action onfen the care in the nature waste. a tevant for gear during his term eructed redral houces to formidations & sheet were neta half feet, delf. Behre The 4di tatim , kes lange boy tane taw Luilding, dog and Povedati, rearned way to materials.
soese ansaction for vorte lie? et: Where to kised' iustumeurenpint ou atuwait (and the building
Cerering Te same falla within the same priucije) cessary
azersenal nature, that it should be wrey inuidered on hermalt. Zustimia: Regar 2 x twaalt for men aricultural par jou I reune huilding fixes the ruled thidhrere cerebuurt ly him for the ordinary purposes of husbandry Fennected
no description of trade hatreener. Je nuke hikelege Personali rend le a baugeran tino aten and would be contrary to uniforen current & legal authorities. Lief lease for roate,
ht to trade; and that he might do it by the common law, and not by virtue of any special custom, in favor of trade, and to encourage industry ; but that after the term they became a gift in law to him in reversion, and were not removable. He adds, that there was a difference between what the soap-boiler did to carry on his trade, and what he did to complete his house, as hearths and chimney-pieces, which he held not removable. The indulgence in favor of the tenant for years during the term hat trade fiphires. has been since carried still further, and he has been allowed to carry away matters of ornament, as ornamental marble chimney-pieces, pierglasses, hangings, wainscot fixed only by screws, and the like. Beck 1. Reboro, 1 P. Wms. 94; Ex parte Quincey, 1 Atk. 477, and Lawton v. Lavton, 3 Atk. 13. But no adjudged case has yet gone the length of establishing that buildings subservient to purposes of agriculture, as distinguished from those of trade, have been removable by an executor of tenant for life, nor by the tenant himself who built them during his term.