Action on the case against the defendant for waste, committed by
him while tenant of the plaintiff, the owner of the reversionary
interest, by pulling down and removing from the demised premises a
dwelling house erected thereon and attached to the freehold. The
question raised in the case was what fixtures erected by the tenant
during his term are movable by him.
The general rule of the common law undoubtedly is that whatever
is once annexed to the freehold becomes part of it, and cannot be
afterwards removed except by him who is entitled to the
inheritance. This rule, however, never was inflexible and without
exceptions. It was construed most strictly between executor and
heir in favor of the latter, and more liberality between tenant for
life and in tail and remainderman or reversioner in favor of the
former, and tenant in favor of the tenant. A more extensive
exception to the rule has been of fixtures erected for the purposes
of trade. Fixtures which were erected to carry on trade and
manufactures were from an early period of the law allowed to be
removed by the tenant during his term, and were deemed personalty
for many other purposes.
The common law of England is not to be taken in all respects to
be that of America. Our ancestors brought with them and adopted
only that portion which was applicable to their situation.
It might deserve consideration whether, if the rule of the
common law of England which prohibits the removal of fixtures
erected by the tenant for agricultural purposes were not previously
adopted in a state by some authoritative practice or adjudication,
it ought to be assumed by this Court as a part of the jurisprudence
of such state upon the mere footing of its existence in the common
law.
The question whether fixtures erected for the purposes of trade
are or are not removable by the tenant does not depend upon the
form or size of the building, whether it has a brick foundation or
not, or is one or two stories high or has a brick or other chimney.
The sole question is whether it is designed for the purposes of
trade or not.
If the house were built principally for a dwelling house for the
family, independently of carrying on a trade, then it would
doubtless be deemed a fixture falling under the general rule, and
irremovable. But if the residence of the family were merely an
accessory for the more beneficial exercise of the trade and with a
view to superior accommodation in this particular, then it is
within the exception.
Every demise between landlord and tenant in respect to matters
in which the parties are silent may be fairly open to explanation
by the general usage and custom of the country or of the district
where the land lies. Every person, under such circumstances, is
supposed to be conusant of this custom and to contract with a tacit
reference to it.
A court cannot be required to give an instruction to the jury as
to the relation, right, and credibility of the testimony adduced by
the parties in a cause.
Page 27 U. S. 138
The plaintiffs in error instituted their action of trespass on
the case, in the court below to recover damages for the removal of
certain buildings from a lot of ground in the City of Washington,
the property of the plaintiffs, which had been leased to the
defendant by the plaintiffs for a term of years, reserving a rent.
The jury gave a verdict in favor of the defendant.
Upon the trial of this cause, the plaintiffs gave in evidence to
the jury an indenture of lease between them and the defendant for a
lot of ground in the City of Washington for a term of years,
reserving a certain rent, with the privilege to purchase out the
fee at a stipulated sum, and offered evidence to the jury to prove
that after the defendant had taken possession of the land described
in the lease, he erected thereon a building, two stories high in
front, with a cellar of stone or brick and a shed of one story, and
that the principal building, which had a brick chimney, rested upon
this stone or brick foundation. That the defendant was a carpenter
by trade, and resided in the house from the commencement of his
lease to about the period of its expiration, and that, before the
term had expired, he took down and removed the said house from off
the premises.
The defendant gave evidence that upon obtaining the said lease,
he erected the building with a view to carry on the business of a
dairyman and for the residence of his family and servants engaged
in his said business, and that the cellar, in which was a spring,
was made and used exclusively for a milk cellar; that in the upper
part of the house were kept and scalded and washed the utensils of
his said business, and that that part was also occupied as a
dwelling for his family; that he was also a carpenter, and had
tools and two apprentices in the house and a workbench out of
doors; and that he worked in said house at his trade of a
carpenter; that the house was in a rough unfinished state, and made
partly of old materials, and that he also erected on said lot a
stable for his cows of plank and timber fixed upon posts fastened
into the ground, and that the stable
Page 27 U. S. 139
was pulled down and removed at the same time with the principal
building.
Upon this evidence, the counsel for the plaintiffs prayed the
instructions of the court to the jury that if it should believe the
same to be true, the defendant was not justified in removing the
house from the premises, and that he is liable in this action to
the plaintiffs for the value of the house, which instructions the
court refused to give.
The defendant also offered evidence to prove that a usage and
custom existed in the City of Washington which authorized a tenant
to remove any building which he might erect upon leased premises,
provided the same was removed before the expiration of the
term.
Upon this evidence, the counsel for the plaintiffs asked from
the court instructions to the jury that the same was not competent
to establish the fact that a general usage did exist in the City of
Washington which authorized a tenant to remove such a house as that
which has been erected by the defendant, nor was it competent for
the jury to infer from the evidence that such a usage existed.
These instructions were refused by the court.
The plaintiffs then gave evidence by the examination of a number
of persons who, as owners of real property in the City of
Washington, were claimed to know all that appertained to it, to
show that the usage under which the defendant asserted a right to
remove the buildings erected by him did not exist, and thereupon
moved the court to instruct the jury that upon the evidence, it is
not competent for it to find a usage or custom of the place by
which the defendant could be justified in recovering the house in
question, and that, there being no such usage, the plaintiffs are
entitled to a verdict for the value of the house which the
defendant pulled down and destroyed. These instructions were also
refused.
The plaintiffs by their bill of exceptions presented the whole
of these matters for the consideration of this Court.
Page 27 U. S. 141
MR. JUSTICE STORY delivered the opinion of the Court.
The original was an action on the case brought by the plaintiffs
in error against the defendant for waste committed by him while
tenant of the plaintiffs to their reversionary interest by pulling
down and removing from the demised premises a messuage or dwelling
house erected thereon and attached to the freehold. The cause was
tried upon the general issue, and a verdict found for the defendant
upon which a judgment passed in his favor, and the object of the
present writ of error is to revise that judgment.
By the bill of exceptions filed at the trial it appeared that
the plaintiffs, in 1820, demised to the defendant for seven years a
vacant lot in the City of Washington at the yearly rent of $112.50,
with a clause in the lease that the defendant should have a right
to purchase the same at any
Page 27 U. S. 142
time during the term for $1,875. After the defendant had taken
possession of the lot, he erected thereon a wooden dwelling house,
two stories high in front, with a shed of one story, a cellar of
stone or brick foundation, and a brick chimney. The defendant and
his family dwelt in the house from its erection until near the
expiration of the lease, when he took the same down and removed all
the materials from the lot. The defendant was a carpenter by trade,
and he gave evidence that upon obtaining the lease he erected the
building above mentioned
with a view to carry on the business
of a dairyman and for the residence of his family and servants
engaged in his said business, and that the cellar, in which there
was a spring, was made and exclusively used for a milk cellar, in
which the utensils of his said business were kept and scalded and
washed and used, and that feed was kept in the upper part of the
house, which was also occupied as a dwelling for his family. That
the defendant had his tools as a carpenter and two apprentices in
the house, and a workbench out of doors, and carpenter's work was
done in the house, which was in a rough unfinished state and made
partly of old materials. That he also erected on the lot a stable
for his cows of plank and timber fixed upon posts fastened into the
ground, which stable he removed with the house before the
expiration of his lease.
Upon this evidence, the counsel for the plaintiffs prayed for an
instruction that if the jury should believe the same to be true,
the defendant was not justified in removing the said house from the
premises, and that he was liable to the plaintiffs in this action.
This instruction the court refused to give, and the refusal
constitutes his first exception.
The defendant further offered evidence to prove that a usage and
custom existed in the City of Washington which authorized a tenant
to remove any building which he might erect upon rented premises,
provided he did it before the expiration of the term. The
plaintiffs objected to this evidence, but the court admitted it.
This constitutes the second exception.
Testimony was then introduced on this point, and after
Page 27 U. S. 143
the examination of the witnesses for the defendant, the
plaintiffs prayed the court to instruct the jury that the evidence
was not competent to establish the fact that a general usage had
existed or did exist in the City of Washington which authorized a
tenant to remove such a house as that erected by the tenant in this
case, nor was it competent for the jury to infer from the said
evidence that such a usage had existed. The court refused to give
this instruction, and this constitutes the third exception.
The counsel for the plaintiffs then introduced witnesses to
disprove the usage, and after their testimony was given he prayed
the court to instruct the jury that upon the evidence given as
aforesaid in this case, it was not competent for them to find a
usage or custom of the place by which the defendant could be
justified in removing the house in question, and there being no
such usage, the plaintiffs were entitled to a verdict for the value
of the house, which the defendant pulled down and destroyed. The
court was divided and did not give the instruction so prayed, and
this constitutes the fourth exception.
The first exception raises the important question what fixtures
erected by a tenant during his term, are removable by him.
The general rule of the common law certainly is that whatever is
once annexed to the freehold becomes part of it, and cannot
afterwards be removed, except by him who is entitled to the
inheritance. The rule, however, never was, at least as far back as
we can trace it in the books, inflexible and without exceptions. It
was construed most strictly between executor and heir in favor of
the latter, more liberally between tenant for life or in tail, and
remainder man or reversioner, in favor of the former, and with much
greater latitude between landlord and tenant in favor of the
tenant. But an exception of a much broader cast, and whose origin
may be traced almost as high as the rule itself, is of fixtures
erected for the purposes of trade. Upon principles of public policy
and to encourage trade and manufactures, fixtures which were
erected to carry on such business were allowed to be removed by the
tenant during his
Page 27 U. S. 144
term, and were deemed personalty for many other purposes. The
principal cases are collected and reviewed by Lord Ellenborough in
delivering the opinion of the court in
Elwes v. Maw, 3
East 38, and it seems unnecessary to do more than to refer to that
case for a full summary of the general doctrine and its admitted
exceptions in England. The court there decided that in the case of
landlord and tenant, there had been no relaxation of the general
rule in cases of erections
solely for agricultural
purposes, however beneficial or important they might be as
improvements of the estate. Being once annexed to the freehold by
the tenant, they became a part of the realty and could never
afterwards be severed by the tenant. The distinction is certainly a
nice one between fixtures for the purposes of trade and fixtures
for agricultural purposes, at least in those cases where the sale
of the produce constitutes the principal object of the tenant and
the erections are for the purpose of such a beneficial enjoyment of
the estate. But that point is not now before us, and it is
unnecessary to consider what the true doctrine is or ought to be on
this subject. However well settled it may now be in England, it
cannot escape remark that learned judges at different periods in
that country have entertained different opinions upon it down to
the very date of the decision in
Elwes v. Maw, 3 East
38.
The common law of England is not to be taken in all respects to
be that of America. Our ancestors brought with them its general
principles and claimed it as their birthright, but they brought
with them and adopted only that portion which was applicable to
their situation. There could be little or no reason for doubting
that the general doctrine as to things annexed to the freehold, so
far as it respects heirs and executors, was adopted by them. The
question could arise only between different claimants under the
same ancestor, and no general policy could be subserved by
withdrawing from the heir those things which his ancestor had
chosen to leave annexed to the inheritance. But between landlord
and tenant, it is not so clear that the rigid rule of the common
law, at least as it is expounded in 3 East 38,
Page 27 U. S. 145
was so applicable to their situation as to give rise to
necessary presumption in its favor. The country was a wilderness,
and the universal policy was to procure its cultivation and
improvement. The owner of the soil as well as the public had every
motive to encourage the tenant to devote himself to agriculture and
to favor any erections which should aid this result, yet in the
comparative poverty of the country, what tenant could afford to
erect fixtures of much expense or value if he was to lose his whole
interest therein by the very act of erection? His cabin or log-hut,
however necessary for any improvement of the soil, would cease to
be his the moment it was finished. It might, therefore, deserve
consideration whether, in case the doctrine were not previously
adopted in a state by some authoritative practice or adjudication,
it ought to be assumed by this Court as a part of the jurisprudence
of such state upon the mere footing of its existence in the common
law. At present it is unnecessary to say more than that we give no
opinion on this question. The case which has been argued at the bar
may well be disposed of without any discussion of it.
It has been already stated that the exception of buildings and
other fixtures for the purpose of carrying on a trade or
manufacture is of very ancient date, and was recognized almost as
early as the rule itself. The very point was decided in 20 Henry
VII 13, a. and b., where it was laid down that if a lessee for
years made a furnace for his advantage, or a dyer made his vats or
vessels
to occupy his occupation, during the term, he may
afterwards remove them. That doctrine was recognized by Lord Holt
in
Poole's Case, 1 Salk. 368, in favor of a soap boiler
who was tenant for years. He held that the party might well remove
the vats he set up in relation to trade, and that he might do it by
the common law (and not by virtue of any custom)
in favor of
trade and to encourage industry. In
Lawton v. Lawton,
3 Atk. 13, the same doctrine was held in the case of a fire engine
set up to work a colliery by a tenant for life. Lord Hardwicke
there said that since the time of Henry the Seventh, the general
ground the courts have gone upon of relaxing the strict
construction of law is that it is for the
Page 27 U. S. 146
benefit of the public, to encourage tenants for life to do what
is advantageous to the estate during the term. He added,
"one reason which weighs with me is its being a mixed case
between enjoying the profits of the land and carrying on a species
of trade, and in considering it in this light, it comes very near
the instances in brewhouses, &c., of furnaces and coppers."
The case too of a cider mill, between the executor and heir,
&c., is extremely strong, for though cider is a part of the
profits of the real estate, yet it was held by Lord Chief Baron
Comyns, a very able common lawyer, that the cider mill was personal
estate notwithstanding, and that it should go to the executor.
"It does not differ it, in my opinion,
whether the shed be
made of brick or wood, for it is only intended to cover it
from the weather and other inconveniences."
In
Penton v. Robart, 2 East 88, it was further decided
that a tenant might remove his fixtures for trade even after the
expiration of his term if he yet remained in possession, and Lord
Kenyon recognized the doctrine in its most liberal extent.
It has been suggested at the bar that this exception in favor of
trade has never been applied to cases like that before the Court
where a large house has been built and used in part as a family
residence. But the question whether removable or not does not
depend upon the form or size of the building, whether it has a
brick foundation or not, or is one or two stories high or has a
brick or other chimney. The sole question is whether it is designed
for purposes of trade or not. A tenant may erect a large as well as
a small messuage, or a soap boilery of one or two stories high and
on whatever foundations he may choose. In
Lawton v.
Lawton, 3 Atk. 13, Lord Hardwicke said (as we have already
seen) that it made no difference whether the shed of the engine be
made of brick or stone. In
Penton v. Robart, 2 East 88,
the building had a brick foundation, let into the ground, with a
chimney belonging to it upon which there was a superstructure of
wood. Yet the court thought the building removable. In
Elwes v.
Maw, 3 East 37, Lord Ellenborough expressly stated that there
was no difference between the building covering any fixed
engine,
Page 27 U. S. 147
utensils, and the latter. The only point is whether it is
accessory to carrying on the trade or not. If
bona fide
intended for this purpose, it falls within the exception in favor
of trade. The case of the Dutch barns, before Lord Kenyon,
[
Footnote 1] is to the same
effect.
Then as to the residence of the family in the house, this
resolves itself into the same consideration. If the house were
built principally for a dwelling house for the family,
independently of carrying on the trade, then it would doubtless be
deemed a fixture, falling under the general rule and immovable. But
if the residence of the family were merely an accessory for the
more beneficial exercise of the trade and with a view to superior
accommodation in this particular, then it is within the exception.
There are many trades which cannot be carried on well without the
presence of many persons by night as well as by day. It is so in
some valuable manufactories. It is not unusual for persons employed
in a bakery to sleep in the same building. Now what was the
evidence in the present case? It was
"that the defendant erected the building before mentioned
with a view to carry on the business of a dairy man, and for
the residence of his family and servants engaged in that
business."
The residence of the family was then auxiliary to the dairy; it
was for the accommodation and beneficial operations of this
trade.
Surely it cannot be doubted that in a business of this nature,
the immediate presence of the family and servants was or might be
of very great utility and importance. The defendant was also a
carpenter, and carried on his business as such in the same
building. It is no objection that he carried on two trades instead
of one. There is not the slightest evidence of this one being a
mere cover or evasion to conceal another, which was the principal
design, and unless we were prepared to say (which we are not) that
the mere fact that the house was used for a dwelling house as well
as for a trade superseded the exception in favor of the latter,
there is no ground to declare that the tenant was not entitled to
remove it. At most, it would be deemed only a mixed
Page 27 U. S. 148
case, analogous in principle to those before Lord Chief Baron
Comyns and Lord Hardwicke, and therefore entitled to the benefit of
the exception. The case of
Holmes v. Tremper, 20 Johns.
29, proceeds upon principles equally liberal, and it is quite
certain that the supreme court of New York was not prepared at that
time to adopt the doctrine of
Elwes v. Maw in respect to
erections for agricultural purposes. In our opinion, the circuit
court was right in refusing the first instruction.
The second exception proceeds upon the ground that it was not
competent to establish a usage and custom in the City of Washington
for tenants to make such removals of buildings during their term.
We can perceive no objection to such proof. Every demise between
landlord and tenant in respect to matters in which the parties are
silent may be fairly open to explanation by the general usage and
custom of the country or of the district where the land lies. Every
person under such circumstances is supposed to be conusant of the
custom and to contract with a tacit reference to it. Cases of this
sort are familiar in the books, as for instance to prove the right
of a tenant to an away-going crop. [
Footnote 2] In the very class of cases now before the
Court, the custom of the country has been admitted to decide the
right of the tenant to remove fixtures. [
Footnote 3] The case before Lord Chief Justice Treby
turned upon that point. [
Footnote
4]
The third exception turns upon the consideration whether the
parol testimony was competent to establish such a usage and custom.
Competent it certainly was if by competent is meant that it was
admissible to go to the jury. Whether it was such as ought to have
satisfied its mind on the matter of fact was solely for its
consideration, open indeed to such commentary and observation as
the court might think proper in its discretion to lay before it for
its aid and guidance. We cannot say that it was not at liberty, by
the principles of law, to infer from the evidence the existence of
the usage. The evidence might be somewhat loose
Page 27 U. S. 149
and indeterminate, and so be urged with more or less effect upon
their judgment, but in a legal sense it was within their own
province to weigh it as proof or as usage.
The last exception professes to call upon the court to institute
a comparison between the testimony introduced by the plaintiff and
that introduced by the defendant against and for the usage. It
requires from the court a decision upon its relative weight and
credibility which the court were not justified in giving to the
jury in the shape of a positive instruction.
Upon the whole in our judgment there is no error in the judgment
of the circuit court, and it is
Affirmed with costs.
This cause came on to be heard on a transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is the opinion of this
Court that there is no error in the judgment of the said circuit
court. Whereupon it is considered, ordered, and adjudged by this
Court that the judgment of the said circuit court in this cause be
and the same is hereby affirmed with costs.
[
Footnote 1]
Dean v. Allalley, 3 Esp. 11; Woodfall's Landlord &
Tenant 219.
[
Footnote 2]
2 Starkie on Evidence Part IV 453.
[
Footnote 3]
Woodfall's Landlord & Tenant 218.
[
Footnote 4]
Buller's Nisi Prius 34.
