They have not been removed with the intention of changing them to chattels. Field stones or stones from a wall gathered for use on another part of the same premises, for the purpose of reannexing them to the same parcel of land as part thereof, remain real property during the process, though they would become personalty if taken from their original place for the purpose of use elsewhere, since in the first case there would be no intent of permanently severing them, while in the latter case such intent would necessarily exist. In the case of trees cut down and converted into rails, or boards, or lumber of any kind for the purpose of building or repairing fences or buildings on the same premises, it has been stated that such rails or timber remain a part of the land before reannexation, so as to pass therewith under a deed of conveyance. The cases, however, do not bear out this proposition, and the better view would seem to be that such rails or lumber cut from trees on the same premises to which reannexation is to be made, become and remain personalty until so reannexed. Such rails or boards or sticks of timber are personal property in their nature, with all the attributes thereof. There is no intent to restore the trees as such to the land. The trees have been changed from part of the land into a commodity, an article of commerce with all the characteristics of personalty, and they become part of the land. again only when re-annexed. This seems to be the prevailing view under the cases."

4

2. Goodrich v. Jones, 2 Hill (N. Y.) 142; Harris v. Scovel, 85 Mich. 32; McLoughlin v. Johnson, 46 Ill. 163.

3. Noble v. Sylvester, 42 Vt. 146. 4. Washburn R. P. 25.

5. Cook v. Whiting, 16 Ill. 480 (in which case hewed timbers, posts and a round log, severed from the same premises and lying loose on the ground intended for the purpose of erecting a granary, were held to be personalty); Wincher v. Schrewsbury, 2 Scam. R. 283 (where rails cut by one having no title were held to be personal property when piled on the land, and did not pass with the

land); Clark v. Burnside, 15 Ill. 62 (holding that rails in fence were realty, while rails stacked on the ground were personalty).

See, also, Conklin v. Parsons, 2 Pinney (Wis.) 264, and Ripley v. Page, 12 Vt. 353, where it was held that rails distributed along obviously for the purpose of a fence were part of the land because appropriated to the land by being so distributed. If cut on the same land, it follows that they were personal before being so distributed. See, also Wing v. Gray, 36 Vt. 261; Carkin v. Babbitt, 58 N. H. 579; Robertson v. Phillips, 3 Greene (Iowa) 220.

841. Other Cases of Constructive Annexation.-Another class of cases of fixtures said to be constructively annexed are parts of machinery or appliances used habitually as essential parts of the permanent machines or other equipment of manufacturing plants, or things personal of any kind actually appropriated to permanent use in connection with the land, though there be no permanent attachment to any specific part of the premises in question. The rolls of an iron rolling mill, of varying sizes, for use in the rolling machines, as they may be required, but kept in reserve until needed, are as much a part of the machines while not attached as the rolls actually in position. So, also, extra rolls kept in reserve to take the place of those in use, in case of emergency, are part of the machines, and therefore part of the freehold." Rails distributed obviously for the purpose of repairing or building a fence have been held so far appropriated to the fence as to become a part of the land. In these cases there is annexation of a permanent kind, and as a matter of fact the rolls or other parts of machinery are brought on the premises and are assigned a permanent use in connection with the machines which makes them part thereof. This annexation is constructive only in the sense that they are not fastened in any way to any fixed part of the premises. The fence rail cases above referred to can be justified only by regarding the rails as sufficiently appropriated to the fence as to become a part thereof. It is well settled that where building material for buildings or a stone for a door-step, in fact, any article intended for permanent annexation, are brought upon the premises they do not become part of the land until actually placed in the position. which they are to occupy permanently.

6. Voorhis v. Freemen, 2 Watts & Searg, 116; Farrar v. Stackpole, 6 Me. 154; D. L. & W. R. Co. v. Oxford Iron Co., 36 N. J. Eq. 452; Pierce v. Goddard, 108 Mass. 78; Ex parte Astbury, L. R. 4 Ch. App. 630.

7. Ripley v. Paige, 12 Vt. 353; Conklin v. Parsons, 2 Pinney (Wis.) 264; Hackett v. Amsden, 57 Vt. 432.

8. Woodman v. Pease, 17 N. H. 282; Carkin v. Babbitt, 58 N. H. 579; Cook v. Whiting, 16 Ill. 480; John

In one case where heavy

son v. Mehaffey, 43 Pa. St. 308 (rolls for rolling mill, never attached, and left on premises in a rough state, remained personalty, though brought on the premises for the purpose of the mill); Spruhen v. Stout, 52 Wis. 517 (tubs brought on premises, but not attached did not become part of realty, but might be included under mechanic's lien).

In Byrne v. Werner, 138 Mich. 328, the court held that structural iron

spike machines, weighing several tons, were made to order and shipped to a manufacturing plant, where stone foundations had been prepared for them, were levied upon as personalty after they had been brought on the premises but before they were placed in position, it was held that they had become part of the realty and that the levy was therefore void." This case, and the like case of trim made to order and brought on the premises, cited below, may be supported by the argument that such articles are of value principally as part of the real property for which they were made to order, and to treat them as mere chattels, to be sold on execution as such apart from the land, would destroy that value. Therefore they should be regarded as fixtures identified with the land when brought on the premises, though not as yet placed in their permanent position.

§ 42. Application of the Test of Intent.-Having determined that the chattel has been affixed to the land by either actual or constructive annexation, the permanency of such annexation, which is essential to convert the chattel into a fixture, is determined by applying the test of the intent with which the owner made the annexation. If all the facts and circumstances under which the annexation was made are sufficient to establish that the average man under the same circumstances would have intended to annex the chattel as a permanent accession to the freehold, then the law declares the annexation to be permanent, and the chattel annexed a fixture.10 The secret unexpressed intent of the owner is imma

and cut stone, prepared and fitted for use in the completion of a building, brought on the premises and on an adjoining lot ready to be placed in the building, were personal property, but nevertheless passed with the land as chattels, under the peculiar facts of the case. See, also, First Com. & Sav. B. v. Milling Co., 144 Mich 188, holding that machines brought on premises, but not annexed, though intended to be, were chattels.

9. McFadden v. Crawford, 36 W. Va. 671. See Rahm v. Domayer, 137 Iowa 18, holding that doors, transoms

and other prepared finishing trim, made to order for building in course of erection became realty when brought on the premises though not attached.

10. Hopewell Mills v. Tauton Savings Bank, 150 Mass. 519; Snedeker v. Waring, 12 N. Y. 170; Voorhis v. Freeman, 2 W. & S. (Pa.) 116; Potter v. Cromwell, 40 N. Y. 287, McRea v. Central Nat. Bank, 66 N. Y. 489; Ottuman Woolen M. Co. v. Hawley, 44 Iowa 57, and cases cited and discussed in the sections and notes immediately following.

terial, as it furnishes no general test of permanency.1 Parol statements, made at the time of annexation, while admissible as throwing light on the actual intent and purpose of the annexation, are by no means controlling. The question must be determined from the facts and circumstances under which the annexation was made, and the uses for which the chattel was intended in connection with the use of the land.3

§ 43. Intent as Shown by Character of Annexation and Adaptability for Use with the Land.-The way in which the annexation is made, and the adaptability of the thing attached to

the uses and purpose for which the freehold has been given over, are important only as tending to establish the intent of the owner, as an average man, in annexing the chattel. If it is annexed in such way that it is not easily removable, the intention of making it a permanent part of the land is indicated; on the other hand, if the attachment be slight, or only by mere weight, that will be some evidence of a contrary intent. The important and usually controlling test of intent is, however, the chattel's adaptability for permanent use in connection with the land, for if it is adaptable for use permanently as a part of the equipment of the premises, and incident to the permanent use to which the land has been appropriated, it was unquestionably annexed to remain for all time or until worn out as a fixed part of the establishment. The best way of considering these tests is by considering in some detail selected cases of characteristic classes which illustrate the principles above set forth. These cases involve a consideration of both tests of intent above referred to, and they will be considered as illustrating how intent may be established, not only by employing these tests, but also by considering all the facts and circumstances connected with the annexation and uses of the chattel which throw light on this question of intent. It will be found that practically all of such facts and circumstances will fall naturally into one or the other group, either as showing the nature of the annexation, or as indicating the adaptabliity of the thing annexed in connection with the permanent use of the land.

§ 44. Specific Illustrative Cases-Machinery.-Where a parcel of land has been appropriated to the purposes of a manufacturing establishment of a permanent kind, such as cotton and woolen mills, steel and iron mills, grist mills, and the like, machines used therein as permanent parts of the mill, and forming necessary parts of its equipment, are fixtures.* Essential parts of such machines

4. Hopewell Mills v. Tauton Sav. B., 150 Mass. 519 (looms in cotton mill, and beams on which they rest, though temporarily removed); McRea v. Cent. Nat. B., 66 N. Y. 489 (machines in paper mill); Potter v. Cromwell, 40 N. Y. 287 (grist mill);

D. L. & W. R. Co. v. Oxford Iron Co., 36 N. J. Eq. 452 (machinery and belting of a factory); Feder v. Van Winkle, 53 N. J. Eq. 370 (machinery in iron works. The court said the use need not necessarily be intended to be perpetual, merely that the chat