FIXTURES, in the law of England, are those personal chattels (q.v.) which are let into the soil, or otherwise actually affixed to the freehold; a definition which is suffi ciently accurate to afford a principle for the solution of the questions which arise between landlord and tenant as to'the right of the former to retain, or of the latter to remove—but a principle, the application of which is attended with many practical difficulties. If the chattels be entirely clear of the soil, they are not F. at all, and may be carried off at pleasure like any other.species of personal property. The general rule as to what constitutes a fixture legally immovable is that it must be either let into the earth, or cemented or otherwise united to sonic erection previously attached to the ground, so that it would be waste to remove it afterwards (Woodfall, pp. 466, 467). But it must be remarked, that a tenant may in all cases construct any erection he may make in such a manner as that it shall not become a fixture. Thus, if he even erect buildings—as barns, granaries, sheds, and mills—upon blocks, rollers, patters, pillars, or plates, resting on brick-work, they may be removed, although they have sunk into the ground by their own weight (lb. 467). - To this rule various exceptions have been made in favor of what have been called trade-fixtures, or F. put up for the purpose of carrying on a trade; and the statute mentioned below has greatly modified the law as to those erected for agricultural purposes. It is difficult to state the limits of the excep tion with reference to trade-fixtures With any approach to accuracy. The following is perhaps as near an approach as the varying circumstances of each individual case will admit of: " Whenever the following circumstances occur, it may be confidently pro nounced that there the tenant may safely remove the article. Thus, things which the tenant has fixed to the freehold for the purposes of trade or manufacture, may be taken away by him whenever the removal is not contrary to any prevailing practice; where the articles can be removed without causing material injury to the estate, and where of themselves they were of a perfect chattel nature before they were put up, or at least have in substapcOthat character independently of their union with the soil—or, in other words, where they may be removed without being entirely demolished, or losing their essential character or value" (ib. p. 468); see also the case of Hellawell v. Eastwood, 6 Excheq. Rep. 312. Nurserymen have been allowed to remove trees and shrubs which they have planted expressly for purposes of sale, but not to plow up strawberry-beds, out of the ordinary course of management of the nursery-ground. Neither can they remove hot-houses, green-houses, forcing-pits, or other erections of that description; and in no case can private persons sell or remove fruit-trees, though planted by them selves (Amos and Farand on Fixtures, 343, 2d ed.). The provision of the common law
of England with reference to agricultural F. has been modified by 14 and 15 Viet. c. 25, s. 3, which provides, that if any tenant of a farm or land shall, with the consent in writing of the landlord for the time being, at his own cost, erect any farm-buildings, dither detached or otherwise, or put up any other building, engine, or machinery, either for agricultural purposes or for the purposes of trade, and agriculture (which shall not have been put up in pursuance of some obligation in 'that behalf), then all such build ings, engines, and machinery shall be the property of the tenant, and shall be removable by him, notwithstanding the same may consist of separate buildings, or that the same, or any part thereof, may be built in or permanently fixed to the soil, so as the tenant making such removal do not in anywise injure the land or buildings belonging to the land l•d, or otherwise do put the same in like plight and condition as the same were in before the erection of anything so removed, provided that no tenant shall be entitled to remove any such matter or thing without giving to the landlord or his agent one Month's previ ous notice in writing of his intention so to do; and thereupon it shall be lawful for the landlord, or his agent, °wilts authority, to elect to purchase the matters and things pro posed to he removed; and the right to remove the same shall thereby cease, and the same shall belong to the landlord; and the value thereof shall be ascertained by two referees, one to be chosen by each party, or by an umpire to be named by such referees, and shall be paid or allowed in account by the landlord who shall have so elected to purchase." This act is confined to. England; but in questions of F., as Mr. Hunter observes, the common law of England having been deemed practically authoritative in Scotland, the clause affords valuable matter for consideration, as showing what has been held advisable in England (Landlord and Tenant, p. 290, 3d' ed.). In Scotland, it has been customary, in agricultural leases more particularly, to determine the respective rights of landlord and tenant by positive stipulation, and, for this reason, fewer points have been decided by the courts than in England.
As regards urban tenements, the rule seems to be, that the tenant may remove what ever he has fixed up for ornament or domestic use—e.g., hangings, wainscot, stoves, etc., but not such erections as have become part of the tenement, and constitute permanent improvements. Thus, he cannot remove a conservatory fixed to and communicating with rooms in a dwelling•house by Windows :and doors. (fp