See also post, §§ 50 b, c, 51-54.

a. A chattel, to become an irremovable fixture, must have been annexed to the realty by the owner of the fixture, or with his consent. Eisenhauer v. Quinn, 14 L.R.A. (N.S.) 435, 36 Mont. 368, 93 Pac. 38.

b. No title, as against the true owner, can be conferred by the owner of real estate upon a bona fide purchaser thereof to a building which the owner of the realty had wrongfully seized, and moved upon and attached to his property. Eisenhauer v. Quinn, 14 L.R.A. (N.Ś.) 435, 36 Mont. 368, 93 Pac. 38. (Annotated)

§ 4. Intent in making annexation. Burden of proof as to intent to annex, see EVIDENCE, § 204 1.

Evidence as to, see EVIDENCE, § 1189 i.

tributes of personal property cannot be predicated of the thing attached, as when it cannot be removed without practically destroying it or when it or a part of it, is essential to the support of that to which it is attached. Schellenberg v. Detroit Heating & Lighting Co. 57 L.R.A. 632, 130 Mich. 439, 90 N. W. 47.

i. An intention on the part of one making an erection on the land of another, that it shall not become a permanent accession thereto, is of no avail where he has no right to erect the same as property distinct from the land unless his intention is communicated to the owner of the realty and assented to by him. Wright v. Du Bignon, 57 L.R.A. 669, 114 Ga. 765, 40 S. E. 747. § 5. Purpose or use for which annexation is made.

a. The tendency is to make the question whether articles are fixtures or not, depend upon the intention with which they were affixed. Hook v. Bolton, 17 L.R.A. (N.S.) 699, 199 Mass. 244, 85 N. E. 175.

b. Whether an annexation to realty is or is not a fixture is determined by the intention of the party making the annexation. Fletcher v. Kelly, 21 L.R.A. 347, 88 Iowa, 475, 55 N. W. 474.

c. The intention of a party making an annexation of personalty to a freehold to make a permanent accession thereto is of paramount importance in determining whether or not an article is a fixture. Thomson v. Smith, 50 L.R.A. 780, 111 Iowa, 718, 83 N. W. 789.

d. The intention of the parties is one of the strongest elements in determining whether machinery in a building became part of the realty. Bromich v. Burkholder, L.R.A.1916F, 1275, 98 Kan. 261, 158 Pac.

63.

e. The intention of the party annexing a fixture is to be determined not from what he says, but from the nature of the article annexed, the relation of the party making the annexation, the manner thereof, and its purpose or use. Western & A. R. Co. v. State, 14 L.R.A. 438 (Ga. Spec. Jud. Com.).

f. The intention of a person to create a fixture is ordinarily to be inferred from the nature of the article, the manner and object of its use, and the mode of its annexation. Thomson v. Smith, 50 L.R.A. 780, 111 Iowa, 718, 83 N. W. 789.

g. An intention to make a fixture a permanent part of real estate may be, and is inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made. Snuffer v. Spangler, L.R.A: 1918E, 149, 79 W. Va. 628, 92 S. E. 106.

h. An intention that articles attached to land shall not become a part of the freehold will be given effect unless the subject

d, 37 b, 47 a.

a. One of the tests of whether personal property retains its character or beco es a fixture is the uses to which it is put. If it is placed on the realty to improve it and make it more valuable, it is some evidence that it is a fixture; but if it is placed there for a use that does not enhance the value of the realty, this is some evidence that it is personal property. Atchison, T. & S. F. R. Co. v. Morgan, 4 L.R.A. 284, 42 Kan. 23, 21 Pac. 809.

b. If an article be specially adapted for use in the place where it is annexed, it hecomes a fixture. Bergh v. Herring Hall Marvin Safe Co. 70 L.R.A. 756, 136 Fd. 368, 69 C. C. A. 212.

c. Whether a structure is a fixture or not depends on the nature and character of the act by which it is put in its place and the purpose for which it is intended to be used. Hopewell Mills v. Taunton Sav. Bank, 6 L.R.A. 249, 150 Mass. 519, 23 N. E. 327. (Annotated

d. An article which it is evident would not have been placed upon the freehold except with the expectation and intention that it should be enjoyed in connection with the right to the enjoyment of the realty, or which has a special adaptation to the use to which the freehold is being applied, and the removal of which would seriously impair its value, may be regarded as constructively annexed to the realty and the fact is to be considered in determining the character of the article whether chattel or fixture. Hill v. Munday, 4 L.R.A. 674, 89 Ky. 36, 11 S. W. 956.

e. A sale for partition will pass title to show cases, racks, and hangers attached by the owner to the building to aid in the prosecution of his business, with the intention that they shall become permanently a part of the building. Owings v. Estes, 43 L.R.A. (N.S.) 675, 256 Ill. 553, 100 N. E. 205. (Annotated)

f. Shelving nailed and fastened to the walls of a store house, and large counters, tables, and a meat box placed therein, to carry out the purpose for which the build

g. An old, partially broken sugar-cane boiler placed under a building in a large horse stable, and supplied with water from a well, and used as a watering place for farm stock, becomes a part of the realty. Brigham v. Overstreet, 10 L.R.A. (N.S.) 452, 128 Ga. 447, 57 S. E. 484.

h. The mere fact that an owner intends machinery to be used in a mill, in the business in which the mill itself was designed to be used, will not make that real estate which in all its characteristics is essentially personal property. Southbridge Sav. Bank v. Mason, 1 L.R.A. 350, 147 Mass. 500, 18 N. E. 406.

i. Machinery and similar appliances used in connection with real estate become ir

removable fixtures when attached to the real estate and adapted to the use made thereof, with the intention to make it a permanent accession to the freehold. Snuffer v. Spangler, L.R.A.1918E, 149, 79 W. Va. 628, 92 S. E. 106.

j. Machinery is sufficiently attached to the realty where it is placed thereon, and both the machinery and realty are used together for the accomplishment of the same purpose or design. Snuffer v. Spangler, L.R.A.1918E, 149, 79 W. Va. 628, 92 S. E.

106.

k. Machinery in a cotton mill, procured for use in manufacturing cotton cloth, most of it being heavy and not intended to be moved from place to place, but, when put in position, to be used with the building until worn out or for some unforeseen cause the real estate is put to a different use, constitutes part of the realty. Hopewell Mills v. Taunton Sav. Bank, 6 L.R.A. 249, 150 Mass. 519, 23 N. E. 327.

1. Loom beams, although not fastened to the looms or to the buildings, constitute part of the realty when the looms to which they belong are permanently fixed in a cotton mill. Hopewell Mills v. Taunton Sav. Bank, 6 L.R.A. 249, 150 Mass. 519, 23 N. E. 327.

m. Machinery placed in a mill and attached to the structure, or to the ground therein, by a tenant, with intent that it should become a part of a plant intended as a whole to effect a certain result, becomes a part of the leasehold so as to be subject to a mechanics' lien for the improvement. Horn v. Clark Hardware Co. 45 L.R.A. (N.S.) 100, 54 Colo. 522, 131 Pac.

405.

n. Wagon scales set upon a foundation of stone and mortar within which the platform is hung, and from which supporting rods extend through the wall under a building, through its floor to the beam on the inside, where the weight is ascertained, are fixtures, when they are set up for the express purposes of the business, and every

o. A track scale used in connection with a hopper, for the purpose of conveying grain to a grain elevator, and mainly in the business of such elevator, is a fixture to the elevator, although situated on land of another adjacent to that occupied by the elevator under a license from the owner. McGorrisk v. Dwyer, 5 L.R.A. 594, 78 Iowa, 279, 43 N. W. 215.

p. A wharf affixed to the soil for the better enjoyment thereof becomes part of the real estate, although the owner has only a base, qualified, or determinable fee therein. Prichard v. Pasquotank & N. R. S. B. Co. L.R.A.1916A, 961, 169 N. C. 457, 86 S. F. 171. (Annotated)

§ 6. Mode and sufficiency of annexa. tion.

As controlling intention of parties, see ante, § 4 h. Effect of agreement, to control test of mode of annexation, see post, § 30 c. Mode of annexation as controlling agreement, see post, § 30 e, f. Conflict of law as to, see CONFLICT OF LAWS, § 115.

See also ante, § 5 c, f, j, l, n.

a. A permanent annexation to the soil, of a thing in itself personal, makes it a part of the realty. Goddard v. Winchell, 17 L.R.A. 788, 86 Iowa, 71, 52 N. W. 1124.

b. In determining what is a fixture the simple criterion of physical annexation is so limited in its range and so productive of contradiction that it will not apply with much force. Atchison, T. & S. F. R. Co. v. Morgan, 4 L.R.A. 284, 42 Kan. 23, 21 Pac. 809.

c. Physical attachment to the realty is not always essential to constitute an article a fixture. Thomson v. Smith, 50 L.R.A.. 780, 111 Iowa, 718, 83 N. W. 789.

d. The practicability of the removal of a building is not the sole test of its character as personalty. Cutler v. Keller, L.R.A. 1917C, 1116, 88 Wash. 334, 153 Pac. 15.

e. Wooden structures merely resting by their own weight upon the ground are not fixtures. Ogden v. Garrison, 17 L.R.A. (N.S.) 1135, 82 Neb. 302, 117 N. W. 714.

f. Stock mantels sold separately and made adaptive to any kind of a house, and which support themselves without any fastenings, or may be fastened merely by screws to render them more stable, and bath tubs resting upon legs and attachable to any heating system, and a hot-water heater attached to a building only by its plumbing connections, -do not constitute fixtures as matter of law, but may be found by a jury to be removable. Philadelphia Mortg. & T. Co. v. Miller, 44 L.R.A. 559, 20 Wash. 607, 56 Pac. 382.

g. The attachment to the realty of an engine merely by bolts and the necessary fittings is not such that its character as personalty cannot be protected by agree