I concur in reversing the order and judgment appealed from, and I also concur in the opinion of Mr. Justice Paterson, except in that portion thereof wherein he holds that the deed to the re*102spondent of May 29, 1886, carried with it the right to operate and use the property therein conveyed for the purpose and in the manner it had been theretofore operated by the defendant, and also the right to occupy sufficient land for the purpose of such use and operation. The instrument itself purports to be nothing more than a transfer of the interest of the plaintiff and Hill “ in and to the buildings, tanks, derricks, pipes, pipe lines, fixtures, and all other personal property ” that was then or at any other time upon the twenty-thousand-acre tract of land. There is nothing in the instrument which requires a construction to be given to it that will include more than is expressed in the words of the description, nor is there any evidence of surrounding circumstances which justifies an inference that the parties to the instrument had in their minds any other property than that which is described, or that it was their intention to transfer any right in addition to the property therein specified. With the exception of “ pipe lines,” the terms of description used in the instrument are peculiarly applicable to personal property, and the subsequent clause, “ and all other personal property,” shows that only personal property was intended. A “ building,” without any qualification or other term of description, is essentially personal property, and in this state especially it is frequently the subject of sale and transfer as personal property. Whether in any instance it is other than personal property by virtue of its being attached to the soil is a question of fact to be determined from the circumstances of that case. (Miller v. Waddingham, 91 Cal. 379.) Even if any of the buildings that were upon the land in question had been so affixed, they would have passed by the subsequent term “ fixtures,” which was doubtless used to obviate the possibility of any dispute concerning the character of the property transferred. Although the title to fixtures will pass under a grant of the realty, it is not the rule that the realty or a right to its use will pass under a transfer of the fixtures. In the absence of any other evidence, *103the use of the term “ fixtures ” in the instrument would be limited to the fixtures themselves, and would imply that they were to be severed and taken away. A sale of the “ trees ” upon a tract of land is not a transfer of the land itself, and gives to the grantee merely the permission to go upon the land for the purpose of removing the trees; and the transfer of buildings or other improvements upon land is not within the statute of frauds, and may be made by parol.
. The use, in the instrument, of the words “ grant, bargain, and sell,” does not vary the construction to be given to it. These terms are expressly limited therein to the “ interest ” of the grantors in the property described, and the other terms “ transfer and set over,” which are used therein instead of the word “ convey,” have reference exclusively to personalty.
It is held that a conveyance of a “ mill ” or a “ wharf” or a “well ” or a “ bridge” will, without the use of any term expressly descriptive of real estate, pass the land connected therewith, upon the principle that in such a case the land is an essential element' of the thing described, and passes by the use of a term which is sufficiently comprehensive to include it. So, too, when a conveyance is made of a “ dwelling-house ” or a “ barn,” and it is shown that the parties to the transaction were negotiating in reference to the place, including the land on which the structure was situated, it is held that the land will pass. Such construction rests upon the principle that when land is occupied or improved by a structure designed for a particular purpose, which comprehends a practical enjoyment and use of the land, and in which the land is of subordinate consideration to that of the purpose, a term which is descriptive of the purpose to which the land is appropriated will be as apt for a conveyance of the land as would a description of the land itself. (Johnson v. Rayner, 6 Gray, 110.)
There is nothing, however, in the term “building,” or in any of the terms used in the present instrument, which can be said to be descriptive of any purpose or *104use in which the land is an essential element for its enjoyment; nor does the record in the present case disclose the nature or character of the “ buildings ” or “ fixtures”, intended by the transfer, or throw any light upon the circumstances attending the transaction; and in the absence of such evidence, there is no warrant for giving to the terms of the instrument any other than their ordinary construction. It does appear, however, from the record that Dietz had been the lessee from Carpentier and Steinbach of the entire tract of twenty thousand acres, and had made improvements upon the portions outside of the four-hundred-acre tract involved in this controversy, and it is as consistent to suppose that the terms used were intended to have reference to the improvements outside of the four-hundred-acre tract. It also appears that after the deed to Dietz of this four-hundred-acre tract, the defendant had erected the improvements in question within the boundaries of that tract. Whether these structures were of such a character as to become fixtures, and thus belong to Dietz, or whether they were of a temporary character, does not appear, but the use of the term “ fixtures ” in the instrument of transfer, in addition to the term “ buildings,’ would imply that the buildings themselves had not become fixtures. ■
It is not shown whether the pipe lines were upon the ground or imbedded beneath its surface; nor whether or to what extent they were used as conduits for oil from without the four-hundred-acre tract. If these pipe lines were part of a continuous conduit, or were imbedded beneáth the surface of the ground, the effect of their conveyance would be to create an easement in the ground for their use, and to authorize their continuance in the same position for such use, with the right to the defendant to enter upon the land for necessary repairs, but the transfer to it of the other property named in the instrument gave to it no right to occupy the land for its use, and the plaintiff had the right to maintain this action *105for the purpose of removing the defendant from the land held by it for the purposes of such use.