Opinion by
Mb. Justice Dean,The facts in this case are fully found and orderly stated in the able opinion of the learned judge of the court below. The questions raised by this appeal, are whether his conclusions of law from the facts are warranted. Those conclusions are as follows:
“ 1. That under the agreements set forth in the first paragraph of plaintiffs ’ bill, the plaintiffs had the right to terminate the estate of the second party, and his assigns, by forfeiture for nonpayment of the royalty stipulated for in said agreement. And, under the evidence in this case, such forfeiture was regularly made and declared, and by it all the estate created by said agreements was duly terminated and ended.
“ 2. That when the second party to said agreements, or his assigns, put upon the land in question fixtures necessary and essential for the mining of the coal in the land, these fixtures became a part of the estate created by the said agreements (which in law is a fee simple estate in the coal and mining rights and privileges granted), and therefore a forfeiture of the estate granted by said agreements would carry the fixtures with it.
“ 3. That said fixtures being a part of the fee simple estate of the second party, and his assigns, under said agreements, *92were in fact and in law a part of the realty, and conld not be sold on execution against the owner of the said fee simple estate as personal property without there being first a legal severance, of which severance there is no evidence in this case.
“ 4. That under said agreements there is no right of removal of appurtenances and fixtures until there is a legal abandonment of the estate created by the said agreements, and there being no evidence in this case of any abandonment by the .owner of said estate, no right of removal of said appurtenances and fixtures existed.”
The decree was that the property in dispute be delivered to plaintiffs.
It will be noticed that the conclusion from the facts, in substance, is, that the chattels by annexation to the realty asp necessary to the operations of the mines, became fixtures and a part of the fee simple estate of the lessor. But the mere physical attachment to the realty does not constitute them part of it. The whole subject is most exhaustively discussed by Agnew, J., in Hill v. Sewald, 53 Pa. 271. It is held, quoting Voorhis v. Freeman, 2 W. & S. 116, that the old common-law doctrine of physical attachment as a criterion is exploded in this state. In Seeger v. Pettit, 77 Pa. 437, it is held that the true rule to be deduced from all the authorities, is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex and identify the property with the realty. What was the intention of the parties to the contract for sale in place of the coal, concerning the boilers, engines and other machinery indispensable to mining operations, and which of necessity were placed upon the land of the lessor ? The first agreement dated February 10, 1870, conveys all the coal upon the tract to Egbert and then comes this stipulation: “ And the second parties or their assigns shall have the right to abandon said lands and mining at any time and remove all their buildings and fixtures.” Two agreements .supplementary to this one, were afterwards made between the parties, and some of the provisions in the first were expressly modified, but the stipulation as quoted was neither abrogated nor modified, nor did the parties so far as appears, intend it should be touched. These words negative any thought of destroying the identity of the personalty by *93attaching it to the realty; if it had been the intention so to do, and make it part thereof, so as to subject it to forfeiture under the contract, the parties could easily have said so, as was said in the Egbert and Wick contract offered in evidence, where it is stipulated, that on default the lessor shall have the right to declare the contract null and void, and possess himself of the property with all the buildings and fixtures. They, however, were not even silent on the subject, but by affirmative words established the lessees ’ right to the separate ownership and possession of his personal property. If it did not become part of the realty by the conveyance of the coal and its connection therewith, then its subsequent use by the lessee as an incident to his enjoyment of the estate in the coal did not make it such; nothing less than a change in the written agreement could have changed it from personal property, which it was, into land, which it was not.
The learned court below was of the opinion, that the property had the stamp of personalty only, on abandonment of the mine by the lessee, and there was no abandonment; that during his possession, it was realty. The stipulation is much broader than this; it reserves the right to abandon the mine at any time and remove the property; that in effect, preserved to it from the very beginning the character of personalty, that is, the right to remove it when he chose so to do, for the removal necessarily was a stoppage of work and abandonment. Nor as argued by appellee does the provision in the second agreement, that Egbert was to mine all the merchantable coal in the tract affect this intention to preserve to the property its character as personalty; this provision might have the effect of postponing the date of abandonment, and a violation of it by Egbert might subject him to an action on his covenant, but neither expressly nor by implication does it turn into realty that which the parties had plainly agreed should be personalty; in fact in the third agreement they say: “ In other respects the original contract to remain unchanged,” that is, where there had been no express modification, the three agreements were to stand together, as embodying the intention of the parties.
But by the first conclusion of law, the court is of opinion, that under a forfeiture clause for nonpayment of royally, the title to the property had become vested in plaintiffs.
*94In clause X of the second agreement, occurs this provision: “It is further understood between the parties to this contract, that a failure to pay any of the semi-annual payments-as they fall due on the first days of July and January of each year during the continuance of this and the original contract for a period of six months after the same has become due and payable, then the original contract or lease and this contract shall become null and void at the election of said Vernam, and time is of the essence of the contract in this respect.”
Under this clause on April 24, 1897, the lessor gave notice of forfeiture or his intention to declare null and void the contracts. It is not necessary to discuss the point made by appellant, that under another agreement, made pending certain litigation in the common pleas of Mercer county, there was no default in payment when the lessor declared the forfeiture, for even if there was default, the lessor could not, under this clause take possession of the lessee’s personal property. Forfeitures are odious to equity; it is seldom it will enforce them even in a clear case, but never in a doubtful one. The provision here is, that the lessor may elect to declare the contract null and void; what is the effect of thus eliminating the contract ? Just this, and no more, all the estate, rights and privileges, which by the contract passed to the lessee, revested in the lessor. By that contract, the mining fixtures and machinery were the personal property of the lessor, and so continued; destroying, forfeiting or making void his contract, affected hot that which was excluded from the operation of it; the intention of both in the beginning to distinguish it as personalty from realty,' could not be defeated by the act of one of them. Declaring the contract void enabled the lessor to resume possession of that which he had granted, not of that of which he never had possession, and to which by his own contract he had no claim.
The decree of the court below is reversed and bill dismissed at costs of appellee.