alent, for the protection of the premises against encroachment by cattle.' And in Biggerstaff v. Railway Co., 60 Mo. 567, it is said: 'Where a statute requires railroad companies to fence their tracks along "inclosed or cultivated fields," it is not necessary that, in order to be entitled to this protection, the enclosure of the fields should be by lawful fences.' This meaning was adopted in Taylor v. Welbey, 36 Wis. 42, cited in 6 Am. & Eng. Enc. Law, p. 638. Inclosed lands, therefore, åre lands surrounded by a fence; and a fence is a visible or tangible obstruction which may be a hedge, ditch, wall, or a frame of wood, or any line of obstacle interposed between two portions of land so as to part off and shut in the land, and set it off as private property." Florida has a new statute covering the subject of fencing railroads. Laws 1899, p. 98.

Sec. 355. Farm crossings over railroads-Cattle guards. Construing and applying Miss. Code 1892, § 3561, which requires railroad companies "to make and maintain" suitable crossings for plantation roads, it is held that where a railroad company constructs a proper crossing within a reasonable time after having received authoritative information of the right of the land owner to have a crossing, it will not be required to pay the penalty provided for by the statute. Alabama & V. Ry. Co. v. Odeneal, 74 Miss. 827 (21 So. Rep. 52). Citing, McDowell v. Railroad Co., 37 Barb. 198; Spinner v. Railroad Co., 67 N. Y. 156. Ky. Stat. 1894, §§ 1791-1797, construed and applied-fencing railroads-erecting cattle guards. Younger v. Louisville & N. R. Co., Ky. (41 S. W. Rep. 25). Tex. Rev. Stat. 1895, arts. 4523-4527, construed and applied-construction of cattle guards by railroad company. St. Louis S. W. Ry. Co. v. Blackwell, Tex. Civ. App. (40 S. W. Rep. 860). Ind. Rev. Stat., § 5320-right of landowner to construct and maintain wagon and drive way over railroad right of way, amended Laws 1899, p. 485.

FIXTURES.

EPITOME OF CASES.

Sec. 356. Personal property attached to real estateEffect of contract reserving title or chattel mortgage to secure purchase price. In the recent case of Wickes Bros. v. Hill, 115 Mich. 333 (73 N. W. Rep. 375), the supreme court of Michigan say: "The rule is settled beyond controversy in this state that, as to conditional sales of personal property retaining the title in the vendor until paid for, no subsequent vendee obtains the title while the property remains personalty. This is upon the theory that the possession of movable property, known as chattels, is not conclusive of ownership or right of possession, and that he who buys takes subject to the title of the real owner. When personal property is attached to, and becomes a part of, the realty, a different rule applies. Title of record and possession of real estate are usually conclusive, and a bona fide holder takes title free from any existing equities. As between the original vendor and vendee, no title passes, and as between them the vendee cannot make it realty contrary to his agreement. In such cases the intention of the parties must govern. When, however, the vendor sells machinery, which it is well understood may, and, in the absence of agreement, does, become part of the realty by being so attached that it cannot be removed without injury, and thereby places it in the power of his vendee to so attach it, and sell or mortgage to innocent third parties, the better and more just rule is that he must suffer. Haven v. Emery, 33 N. H. 69; Voorhees v. McGinnis, 48 N. Y. 278; Taylor v. Collins, 51 Wis. 123 (8 N. W. Rep. 22); Machinery Works v. Gellentine, 99 Ind. 525; Jenks v. Colwell, 66 Mich. 428 (33 N. W. Rep. 528); Davenport v. Shants, 43 Vt. 546; Ewell, Fixt. 316 et seq; Porter v. Steel Co., 122 U. S. 267 (7 Sup. Ct. Rep. 1206); Fryatt v. Sullivan Co., 97 Mass. 279." The rule laid down in the principal case

is followed by the supreme court of Oregon. Landigan v. Mayer, 32 Ore. 245 (51 Pac. Rep. 649). But it is held by the supreme court of Washington that "standing finish" consisting of window and door sashes, jambs, trimmings, wainscoting, etc., placed in a house by a contractor under a contract with the owner, that the contractor retains title until they are paid for, do not become fixtures so as to become subject to the lien of a prior mortgage, where they are attached to the building with screws only, and can be removed without injury to it. German Sav. & L. Soc. v. Weber, 16 Wash. 95 (47 Pac. Rep. 224; 38 L. R. A. 267). Citing with special approval Tifft v. Horton, 53 N. Y. 377 (13 Am. Rep. 537).

Particular case in which a boiler and engine sold on condition that the title was to remain in the seller until the purchase price was paid was held not to become a fixture on account of being attached to the land. Lansing Iron & Engine Works v. Wilbur, 111 Mich. 413 (69 N. W. Rep. 687). Where one purchases machinery under an express contract that title is to remain in the seller until the machinery is paid for and places it upon land which he holds under a contract of purchase, such machinery does not pass to the landowner who subsequently takes posssession of the land on account of the purchaser's failure to perform his agreement and before the machinery is paid for. Palmateer v. Robinson, 60 N. J. L. 433 (38 Atl. Rep. 957). In Texas it is held that a purchaser of land sold under a decree foreclosing a vendor's lien thereon, acquires title to machinery permanently attached to such land as a fixture, as against the holder of a prior recorded chattel mortgage given for the purchase price of such machinery, of which mortgage the purchaser has no actual notice. Ice, Light & Water Co. v. Lone Star Engine & Boiler Works, 15 Tex. Civ. App. 694 (41 S. W. Rep. 835). The court say: "The weight of authority is that where a third party, without notice of any such agreements, makes a bona fide purchase of the realty, and the chattel has been attached thereto as a permanent fixture, in such manner that it cannot be detached without injury to the freehold, he will not be affected by such private agreements of which he had no notice. Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519 (23 N. E. Rep. 327; 15 Am. St. Rep. 235; 6 L. R. A.

249); and authorities cited; Hunt v. Iron Co., 97 Mass. 279; Thompson v. Vinton, 121 Mass. 139; Manufacturing Co. v. Garven, 45 O.St. 289 (13 N. E. Rep. 493); Cross v. Commission Co., 153 Ill. 499 (38 N. E. Rep. 1038; 46 Am. St. Rep. 902, 910, note and authorities cited); Fifield v.Bank, 148 Ill. 163 (35 N. E. Rep. 802; 39 Am. St. Rep. 166, 172, note and authorities cited); Pierce v. George, 108 Mass. 78 (11 Am. Rep. 810); Butler v. Page,7 Metc. (Mass.) 40 (39 Am. Dec. 757); Richardson v. Copeland, 6 Gray 536 (66 Am. Dec. 424); Frankland v. Moulton, 5 Wis. 1; Smith v. Waggoner, 50 Wis. 161 (6 N. W. Rep. 568)."

Sec. 357. Right to fixtures-Vendor and VendeeMortgagor and mortgagee. Particular conveyance of a saw mill site held to pass the machinery as fixtures. Bemis v. First Nat. Bank, 63 Ark. 625 (40 S. W. Rep. 127). Counters, sideboards, meat block, meat rack and ice box, used in a saloon and grocery business in a building and which were attached thereto, do not pass to a vendee where they are not mentioned in the deed. Griffin v. Jansen, Ky. (39 S. W. Rep. 43). Movables permanently attached to a factory if the factory is an immovable property are also immovable, and as such are subject to a mortgage bearing upon the whole factory. New Orleans Canal & Banking Co. v. Leeds & Co., 49 La. 123 (21 So. Rep. 168). Fixtures actually or constructively annexed to real estate after the execution of a mortgage upon it become a part of the mortgage security, and. while the mortgage is in force, cannot be removed or otherwise disposed of by the mortgagor, or by one claiming under him, without the consent of the mortgagee. Ekstrom v. Hall, 90 Me. 186 (38 Atl. Rep. 106). Where persons claiming to own land, whose title was subject to a cloud, constructed thereon a wooden opera house resting on sills on the ground, the roof being supported by the sides and iron columns running from the basement to the roof, resting upon a stone and wooden foundation, the stage and furnace being in excavations made in the ground for that purpose, intending to treat such building as a fixture if their title became perfect, and to claim the right to remove it in case their title failed, after the removal of the cloud from their title, mortgaged the

land and its "tenements, hereditaments and appurtenances," it is held that the mortgage covered the opera house. Miles v. McNaughton, 111 Mich. 350 (69 N. W. Rep. 481). In Washington a recent statute makes it a misdemeanor for "the owner, mortgagor, lessee or occupant," of mortgaged real estate to destroy or remove fixtures thereon, without the written consent of all mortgagees or lien holders. Laws 1899, p. 122.

Sec. 358. Machinery as a fixture-Rights of mortgagor and mortgagee. Mining machinery purchased by a lessee of a mine, the purchase price of which he secures by a chattel mortgage thereon, will be treated as personalty between the lessor and the mortgagee. Hewitt v. General Electric Co., 164 Ill. 420 (45 N. E. Rep. 725). Particular case in which a boiler and engine in a mill were held to be fixtures. Albert v. Uhrich, 180 Pa. St. 283 (36 Atl. Rep. 745). Particular case in which it is held to be a question for the jury as to whether or not a machine was a fixture within the purview of the mechanic's lien law. American Brick & Tile Co. v. Drinkhouse, 59 N. J. L. 462 (36 Atl. Rep. 1034).

Machinery placed in a factory to replace and repair old machinery, is subject to a purchase money mortgage previously given for the price of the factory. National Bank v.

Levanseler, 115 Mich, 372 (73 N. W. Rep. 399). Machinery. permanently attached to land and belonging to the owner thereof, which was used in a manufactory, will be treated as a fixture and pass by a real estate mortgage given by him, although a chattel mortgage was given at the same time upon the machinery for the purpose of insuring against a possible mistake as to its character. Studley v. Ann Arbor Sav. Bank, 112 Mich. 181 (70 N. W. Rep. 426); Homestead Land Co. v. Becker, 96 Wis. 206 (71 N. W. Rep. 117). Where the mortgagors of a mill, as a part of the contract under which the loan is procured, agree to place therein the machinery essential to the operation of the mill for the purposes contemplated, such machinery subsequently placed therein, is subject to the lien of the mortgage and will be treated as a fixture between them and their mortgagee. Appeal of Muehling, 181 Pa. St. 483 (37 Atl. Rep. 527; 59 Am. St. Rep. 674).