dissenting:
The district court rendered a judgment against appellants for the value of certain machinery, by them taken from the land of respondent. The court finds that they removed therefrom “ a certain steam engine, steam boiler, circular saws, and other machinery appurtenant to and belonging to a certain saw-mill situated upon said land ; that the said mill was attached to the soil by foundation planted in the ground, upon which the frame-work of the mill ivas built, and that said engine, boiler, saws and other machinery pertaining to said mill, were attached thereto by being bolted to the frame-work of the mill, and by means of belts, shafts and steam-pipes, in such a manner as to make said mill available for the manufacturing of lumber ; that said engine, boiler, saws, and other machinery, were fixtures and a part of said real estate.”
Were they so fixtures, and part of the real estate ? There would at first seem to be very considerable confusion of authority in the decided cases touching the constituent qualities necessary to change a chattel into a fixture, personalty into -realty; but a careful examination of the leading cases will dissipate this fog, more apparent than real. The first thing to bo looked for is a rule of decision; and as to'that, it will be found' in many instances that a looseness of language has been indulged in, and there has been failure to clearly express as premise, Avhat, upon revieAA^ of conclusions, will be seen to have been generally accepted and acted upon. In a very elaborate opinion, touching the question in all its bearings, and upon a careful comparison of decided cases, Chief Justice Bartley proposes the folloAving, saying : “ I have reached,the conclusion that the united application of the folloAving requisites will be found the safest criterion of a fixture: 1st. Actual annexation to the realty, or something appurtenant thereto. 2nd. Appropriation to the use or purpose of that part of the realty Avith which it is connected. 3d. The intention of the party making the annexation to make the ar*47tide a permanent accession to the freehold — this intention being inferred from the nature of "The article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose' and use for which the annexation has been made. This criterion furnishes a test of general and uniform application, and by which the essential qualities of a fixture can, in most instances, be certainly and easily ascertained, and tends to harmonize the apparent conflict in the authorities relating to the subject.” Teaff v. Hewitt, 1 Ohio St. 511. This rule is approved in the recent ease of Potter v. Cromwell, 40 N. Y. 287.
The facts of this case, so far as it is necessary to recite them, are, that Sharon, by his agents, entered upon the land in question on or about the fourth day of November, 1867, for the purpose of running the saw-mill > before mentioned. That he was the grantee of the Brothers Knox, who, as lessees of one Cleaveland, (claiming title to the land) had gone thereon, erected the saw-mill with the intention of cutting the available timber, and then removing. The machinery put up for this purpose had been brought from another place, where it had been similarly used and, with its housing constituted one of a class of mills such as the witness Andrian testifies “ are built in this country; they are built to saw the timber in their vicinity, and when the timber is sawed, the machinery is moved away and the frame left, as a general thing.” At the time of this erection by the Knox Brothers, their lessor was in possession of the land, having a house upon it, and claiming to purchase or obtain title from the state. There was a contest about the land, between Cleaveland and another party not interested in this suit; but afterward a receipt was endorsed upon the land warrant of Cleaveland, filed with the state register, which constituted, under the act of 1867,prima facie evidence of title in him for the time being. (Stats. 1867-68, Sec. 9.) Cleaveland afterward, on the 9th of March, 1869, as is claimed by respondent, forfeited all claim to the land, and a patent ivas issued to the latter on the twenty-seventh day of October, 1869.
Whether that be so or not is no pertinent inquiry in this case under the pleadings, and this statement with regard to the title is made simply to show how the appellants happened to be upon the *48land, to which respondent, so far as this case is concerned, has the absolute legal title.
Respondent never has been in possession of the land ; and appellant so being, on or about the eighteenth,of November, 1869, removed the machinery in dispute. The land was selected by the state, under the act referred to, in July 3d, 1868. For six months from that date, by the express terms of the statute, “ an occupant or party in possession” had a preferred right to purchase. What position did the occupant or possessor take after the expiration of that period ? Evidently not that of a naked trespasser, as claimed by counsel for respondent, for the whole tenor of the statute is encouragement of said occupants or possessors. The condition would seem to be analogous to that of a party in possession, under agreement or permission to purchase after the agreement is ended. Not a tenant in the ordinary sense of the word, “for the possession was evidently taken in such case with the understanding of both parties —that the occupant should be owner, not tenant; and the other party cannot, without his consent, convert him into a tenant, so as to charge him with rent; but if the vendee remain in possession after the .agreement is ended, he is liable in use and occupation for the period of his occupancy.” Taylor’s Landlord and Tenant, 19-20. The author adds in a note: “The vendee’s right is a bare right to occupy — called a strict tenancy at will — and being nothing more than a license determinable by more demand, upon which ejectment lies without any notice to quit. To the same effect upon the general proposition, see Frisbie v. Price, 27 Cal. 253.
Thus these defendants stand at the date of plaintiffs’ patent— tenants at will of the state of Nevada, having a saw-mill upon, the land in question, built for a fugitive and temporary purpose, .with the intention of removal according to a general custom of the trade they were exercising. Now, apply the rule in the light of decided cases, and test the status of the property in question : and first, without reference to the termination of the tenancy.
One Coombs by permission of Doty moved a building on the premises of the latter, and occupied it as a shop. It was sold at constable’s sale upon execution against Coombs to Grorham, who entered upon Doty’s premises and removed it. Ip an action of *49trespass by Doty against Gorham, for entering his close, destroying his fence and removing the shop, there was a judgment for defendant, which was sustained by the court upon the ground that the shop was a chattel, which Coombs, tenant at will, might rightfully have removed while he continued to own it during such tenancy. Doty v. Gorham, 5 Pick. 487.
“ A. being the owner of a mill privilege, bargained by parol to sell it to B & 0, who went on by permission of A and built a mill 'thereon. Soon afterward a creditor of B & C, in a suit against them, attached the mill as their personal property, and caused the same to be sold on execution, D being the purchaser, and A being present at the sale, and stating that he did not claim it. About three years after this, the mill in the mean time having been in possession of A, was sold by him with the privilege for a valuable consideration to E, conveying it by deed of warranty; E having no notice of the claim of B & C, or D, the purchaser under them. Held, that under the circumstances the mill never was part of the freehold, but was the personal property, first of B & C, and then of D, and that the latter might maintain trover for the mill against E on his conversion of it.” Russell v. Richards, et al., 1 Fairfield, 429.
If one man builds a house on land of another by his permission, the house is personal property, and does not pass by the conveyance of the land to a third person, but remains the property of the builder. Tapley v. Smith, 18 Maine, 12. It was held in Wisconsin, upon the ground of custom, that a house might be removed by an outgoing tenant who had built upon a vacant lot, though no such permission was given by the lease. Keogh v. Darnell, 12 Wis. 163. So with a cider-mill and press in New York, on the ground of trade fixtures. Holmes v. Kemper, 20 Johns. 28. So in England, a building upon a brick foundation let into the ground with a chimney belonging to it. Renton v. Robart, 2 East, 88. So in Washington, a wooden dwelling house two stories high in front, with a shed of one story, upon a cellar of stone or brick foundation and a brick chimney. Van Ness v. Packard, 2 Peters, U. S., 137; see also Wall v. Hinds, 4 *50Gray, 256; Wells v. Barmeister, 4 Mass. 514; Raymond v. White, 7 Cowen, 319; Eleves v. Marr, 3 East, 34.
These cases, though perhaps formally based upon some expressly stated reason, not including the united elements of the rule quoted, will yet be found upon thorough examination to have their logical basis thereon, as in the facts of each there is shown a want of the united elements necessary to work the change from chattel to fixture ; and in them will be found full warrant for saying that the finding of the district court in this case was incorrect, and that the property in question never became in the strict and proper sense of the word, fixtures. The machinery was annexed to an appurtenance to the realty, but so that it might be removed without serious damage thereto. It had no special appropriation to that portion of the realty with which it was connected. The intention of the party making the annexation as declared and as naturally to be inferred : “ the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made,” can be accomplished only by considering and treating the machinery precisely as it was treated by the defendants, as chattel property.
Judge Bartley says, with reference to the rule quoted : “ This criterion furnishes a test of general and uniform application; one by which the' essential qualities of a fixture can, in most instances, be certainly and easily ascertained, and tends to harmonize the apparent conflict in the authorities relating to the subject. It may be found inconsistent with the reasoning and distinctions in many of the cases, but it is believed to be at variance with the conclusion in but few of the well considered adjudications. Adopting this as the criterion, there will be found no occasion for giving an ambiguous meaning to the term fixtures; no occasion for denominating an article a fixture at one period of time, which with the same annexation would not be such at another period; no occasion for determining that to be a fixture as between vendor and vendee, which under like circumstances of annexation would not be such as between landlord and tenant; or finding that to be a fixture as *51between heir and executor which under like circumstances of annexation would not be such as between tenant for life and remainder man or reversioner. Sturges v. Warren, 11 Vermont Rép. 433. It is true, the time of the annexation and the relation and situation of the parties may constitute very important considerations in ascertaining the intention and object of making the annexation.
Why is a tenant for life, or for years, or at will, favored with the right of removing articles which he attaches to the land during his term ? The Supreme Court of Massachusetts say, in Whiting v. Brastow, 4 Pick. 311: “ There seems to be no doubt that, according to the later decisions in England, and several cases in our own books, a tenant for life, for years, or at will, may, at the expiration of his estate, remove from the freehold all such improvements as were erected or placed there by him, the removal of which will not injure the premises, or put them in a worse plight than they were when he took possession.” All that is required of a tenant is, to leave the land in as good condition as it was when he received it. When, therefore, a tenant erects expensive structures for carrying on his trade or business, which can be removed without their desstruction, or material injury to the freehold, the presumption is a rational one, that it was not the intention of the tenant to make them permanent accessories to the freehold, and thereby donations to the owner of it. The intention of the tenant, clearly inferable from his situation and relation to the landlord, is the real foundation of the right of removal with which he has been favored. It is true, other reasons of great subtlety and' considerations of public policy have been frequently assigned for this right of removal; but they are doubtless attributable in some degree to a laudable desire on the part of the courts to carry out the real intention of the party. It is said that the right of removal must be exercised by the tenant before the expiration of his term, or in some cases within a reasonable time afterwards; that the tenant can remove things which he has attached to the land for the purposes of trade or manufacture, when not contrary to some prevailing custom, or where it can be done without material and essential injury to the freehold, or where the erections in themselves were strictly chattels in their nature before they were put up, and can be removed without being entirely *52demolished, or losing their essential character or value. Amos & Eeraud on Fixtures, 40 and 44. All these circumstances furnish considerations bearing upon the' intention of the tenant in making the' erections, and their temporary nature and want of adaptation to the permanent use and enjoyment of the freehold, and show the application of the criterion here adopted.”
Whether the facts of this case be tested by the broad and logical theory of the rule announced in Teaff v. Hewitt, or be treated under the more narrow construction applied to trade-fixtures, still the result is'the same. Such fixtures might properly be removed within the term of a tenant at will, or within a reasonable time after the determination thereof. Doty v. Gorham, 5 Pick. 487; Rising v. Stannard, 17 Mass. 282; Whitney v. Brastow, 4 Pick. 310; Davis v. Thompson, 13 Me. 209; Ellis v. Paige, 1 Pick. 43.
The first and third of the decisions last cited are criticised in White v. Arndt, 1 Wharton, 91, but it is difficult to see upon what principle a tenant at will could be denied a reasonable time after the determination of his tenancy to take away whatever he would rightfully have been entitled to remove during his term, had he been a tenant for any specific period. The law may raise a presumption against such last-named tenant, if he' does not remove his fixtures, that he intends to leave them for the benefit of the estate; and it is upon such theory only that the landlord holds : but no such presumption arises in the case of the tenant at will, as he cannot know in advance the termination of his tenancy,' and therefore cannot know when to remove ; and must always be open to this baseless presumption, unless fie is to be allowed a reasonable time after such termination to remove.
In Penton v. Robart, however, this right of the tenant was extended to one actually in possession after lease ' expired, against whom a judgment in ejectment had been obtained; and the verdict was for the plaintiff landlord, as to trespas? in breaking and entering, damages one shilling: and for the defendant tenant, as to the rest of the trespass. This case, it is claimed, is shaken, so far as it would authorize a tenant thus holding over to remove fixtures; but it is upheld in Holmes v. Tremper, cited above ; the court saying ; “ And when it is said that the removal must be within the *53term, or else he will be a trespasser, it means only a trespasser as regards the entry and such would seem to be the logical sequence of the rule for the protection of tenants. However that may be, it is not necessary to rely upon any extreme decision in this case, for, even if not entitled to notice to quit before they could be held trespassers, on- which point no opinion is here expressed, still defendants were rightfully holding until their estate was determined. Accepting the view most strongly against the defendants, there is nothing in the facts of the case from which such termination can be gathered, prior to the act of the state in giving to plaintiff a patent, upon the twenty-seventh day of October, 1869 ; and upon the eighteenth of the next month the property was removed, certainly not any unreasonable time, upon the facts of the record. So, whether the machinery bePeld to-be chattel property, or trade fixtures, in either case the defendants had the right to remove it. The patent of the state of Nevada consequently could not pass the property to respondent.
Holding these views, I dissent from the opinion of the majority of the court.