1905. but I think that dog grates resting by their own weight are capable H. C. OF A. of being treated as annexed to the freehold." He might have given another illustration in the case of an iron bridge which rests by its own weight. I suppose no one will suggest now that that is an ordinary chattel. On the authority of that case, the rule suggested by Blackburn J. must, I think, be taken to be the recognized rule of English law. In the case of De Fulbe-in the House of Lords, Leigh v. Taylor (1)—the Lord Chancellor and Lord Macnaghten made some observations, which are relevant in the present case, with reference to the supposed rule of the old cases that annexation. was necessary for the purpose of proving a change in the character of the chattel, making it become part of the realty. In that case the question was whether certain things, whether actually fixed to the freehold, or removable or not, retained their character of chattels, and the observations are equally applicable in principle to the present case. Lord Hulsbury L.C., said (2):-" One principle, I think, has been established from the earliest period of the law down to the present time, namely, that if something has been made part of the house it must necessarily go to the heir, because the house goes to the heir and it is part of the house. That seems logical enough. Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or other (I will say a word in a moment about the degree of attachment) to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable, and goes to the executor. My Lords, we have heard something about a suggested alteration of the law ; but those two principles appear to have been established from the earliest times, and they are principles still in force. But the moment one comes to deal with the facts of each particular case, I quite agree that something has changed very much; I suspect it is not the law or any principle of law, but it is a change in the mode of life, the degree in which certain things have seemed (1) (1902) A.C., 157. (2) (1902) A.C., 157, at p. 158. REID SMITH. Griffith C.J. 1905. REID v. SMITH. Griffith C.J. H. C. OF A. susceptible of being put up as mere ornament, whereas at an earlier period the ruder constructions rendered it impossible sometimes to sever the thing which was put up from the realty." Lord Macnaghten, in the same case, said (1):-" Mr. Levett has spoken of the Courts changing the law. I do not think the law has changed. The change I should say is rather in our habits and mode of life. The question is still as it always was, has the thing in controversy become parcel of the freehold? To determine that question, you must have regard to all the circumstances of the particular case-to the taste and fashion of the day as well as to the position in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case, and not always the most important-and its relative importance is probably not what it was in ruder or simpler times." The earliest forms of structure, or some of the earliest familiar to us in this country, are what are called slab buildings. They are fixed to the freehold, because the slabs are let into the ground. There is, perhaps, an earlier form of structure-a structure consisting of rough saplings let into the ground side by side. I have seen many structures of that kind, which were undoubtedly fixtures; and, as civilization advanced, a more comfortable and more permanent style of building was adopted; yet, according to the contention in this case, that would not be a fixture, but remains a mere chattel. In the present case, the original building was spoken of by the learned Judge as if it was obviously part of the freehold, and as if it was quite sufficient to show that a thing was attached to the house to show that it also becomes part of the freehold. Of course, that is not conclusive. In America, the law appears to be in accordance with what one would expect it to be. We were referred to the State Savings Bank v. Kircheval (2), which is a decision of the Supreme Court of Missouri. That is valuable as containing a statement of what, in the American States, is the law on this subject. The learned Judge, in delivering the judgment of the Court, quotes from the decisions of other Courts. He first quotes this passage:-" The destination which gives a (1) (1902) A.C., 157, at p. 162. (2) 27 Am. Rep., 310, at p. 312. 1905. REID v. SMITH. Griffith C.J. movable object an immovable character, results from facts and H. C. OF A. circumstances determined by the law itself, and could neither be established nor taken away by the simple declaration of the proprietor, whether oral or written." After mentioning Snedeker v. Warring (1), he said :-" In Goff v. O'Conner (2) the Court said- Houses in common intendment of the law are not fixtures, but part of the land. . This does not depend, in the case of houses, so much upon the particular mode of attaching, or fixing and connecting them with the land, upon which they stand or rest, as upon the uses and purposes for which they are erected and designed.' In Cole v. Stewart (3) the building was intended by the owner to be temporary, and was built with a view to ultimate removal. In a contest between the mortgagee, whose mortgage was executed subsequent to the erection of the house, and a purchaser of the building from the mortgagor, it was held to be a fixture. In the light of these cases, and many others which we have examined, we do not regard the fact that the building in question was erected as a temporary building, and with an intention of ultimate removal, at all decisive as to whether it became a part of the realty or not. The manner in which a building is placed upon land whether upon wooden posts, or a rock, or brick foundation, does not determine its character. As was said by Parker J., in Snedeker v. Warring above cited'A thing may be as firmly fixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection.' In Teaff v. Hewitt (4) it was held that: The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention to be 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 of which the annexation has been made,' is a controlling circumstance in determining whether the structure is to be regarded as a fixture or not. In the case of Benjamin F. Butler (Adm.) v. Page (5), Shaw C.J. delivering the opinion of the Court, said—All buildings erected and fixtures 1905. REID v. SMITH. Griffith C.J. H. C. OF A. placed on mortgaged premises by the mortgagor, must be regarded as permanently annexed to the freehold. They go to enhance the value of the estate, and will, therefore, inure to the benefit of the mortgagee, so far as they increase his security for his debt, and, to the same extent they enhance the value of the equity of redemption, and thereby inure to the benefit of the mortgagor." That appears to be the settled doctrine in the American States, where these questions, which can only arise in the State Courts, must depend upon the law in the particular State. There is no case in the Supreme Court that we know of, but it seems to be settled doctrine in the American States, that houses are regarded as annexed to the freehold, and form part of the freehold, unless the contrary is shown. I agree, therefore, in the conclusion the learned Judge came to, that, the question being as stated by Blackburn J., there is a general principle that, if buildings are not actually annexed to the freehold, the onus may probably lie upon the person person claiming them as real property to show affirmatively that they were erected with the intention that they should become part of the land. I differ from the learned Judge in thinking that it is not sufficient to show that the thing in question is a dwelling-house -an ordinary dwelling-house, on a town allotment, in an inhabited town. In the case of a similar building in another part of the country, erected under entirely different circumstances, a different conclusion might be drawn. For instance, in the case of a manager's house, erected on a gold-mining lease, the same conclusion might not necessarily follow. But in the present case, it appears to me that the proper inference to be drawn from the facts is that these houses became part of the freehold. I think, indeed, this case might be rested even on narrower grounds. This was, as I said, a building lease, and although the tenant, of whom the defendant is the assignee, was bound by the covenants of the lease only to erect a building of £50 in value, I think it ought to be inferred from the lease itself that the intention was that any dwelling-house put on the land should be considered annexed to the freehold. For these reasons I think that the conclusion of the learned Judge was erroneous, and that the appeal must be allowed. 1905. REID SMITH. Barton J. BARTON J. Notwithstanding his advantage with regard to the H. C. of A onus of proof, it seems to me that the defendant has engaged in a difficult contention; that is, the contention that a dwellinghouse of the kind ordinarily inhabited, and annexed to the soil with the degree of annexation ordinarily employed in the part of the country where the structure exists, is a chattel, and not to be treated as a dwelling-house. The evidence, which is succinctly stated in the judgment of Chubb J. is as follows:[His Honor here stated the facts as already given by Griffith C.J. and proceeded]—I regard the last-stated piece of evidence as of great importance, showing, as it does, that the dwellings in question are annexed to the soil in the degree and manner found sufficient in the part of the country where they are erected. Now there is, of course, some difficulty imported into this case by the fact that a number of the decisions relied upon for the plaintiff are cases in which the relation between the parties has been that of mortgagor and mortgagee. Of English cases in the line of his contention, in which the relation has been that of landlord and tenant, there are few. On the other hand, no case has been cited for the defence which goes to show that a building which would be ordinarily known as a dwelling-house-placed on the soil without any other attachment to it, without any greater degree of immobility than its weight on the ground, or on the piers which sustain it—is a chattel, and I think that it is rather a startling proposition, especially in a country like this, to undertake to establish that a building with the ordinary substantiality of a dwelling-house such as the majority of the people live in, is not to be considered a dwelling-house but simply a chattel, because of the absence of a certain number of nails or screws, not necessary at the outset, and the absence of which would never be material unless some huge flood arose, and floated the building off the piers on which it rested. The respondent, however, argues that there must be an annexation by some method of attachment, and he cites certain cases in which, many years ago, there appeared to be an idea among Judges that there must be some kind of physical attachment made, beyond that of mere gravitation, fixing the contested building to the freehold, VOL. III. 47 |