Where a corporation organized to carry on "a general building and wood-working business," purchases and places in its mill, machinery which is adapted to its work, which is more or less securely fastened to the building and remains stationary it will be treated as a fixture in preserving the rights of a mortgagee. Lee v. Hubschmidt Bldg. & Wood- Working Co., 55 N. J. Eq. 623 (37 Atl. Rep. 769).

Sec. 359. Right of tenant to remove fixtures. Where a lease stipulated that fixtures erected by the tenant shall be his property and be removed by him, he is entitled to reasonable time after the expiration of the tenancy within which to remove such fixtures. Chalifoux v. Potter, 113 Ala. 215 (21 So. Rep. 322). A tile floor laid by a tenant in a building for his own convenience, may be removed by him, where he restores the building to its original condition. Ross v. Campbell, 9 Colo. App. 38 (47 Pac. Rep. 465). A cotton gin placed on leased premises by a tenant, with the intention of removing it, may be removed by him or his successors in title during the tenancy. Hicks v. Blakeman, 74 Miss. 459 (21 So... Rep. 7). A lessee's covenant to deliver up the premises at the end of the term “and all future erections and additions to or upon the same," is limited in purpose and effect to new buildings erected, or old buildings added to, and cannot be extended so as to deprive the lessee of his right to remove trade fixtures placed by him upon the premises during the term. Liebe v. Nicolai, 30 Or. 364 (48 Pac. Rep. 172). Citing, Holbrook v.. Chamberlin, 116 Mass. 155 (17 Am. Rep. 146). Machinery which would otherwise be treated as realty, may be treated as personal property, as between lessor and lessee, where there is an express stipulation in the lease to that effect. Keefe v. Furlong, 96 Wis. 219 (70 N. W. Rep. 1110). An attachment of ornamental bars, complete in themselves when they were brought on the premises, to the floor and wall of a saloon by adjustable screws and angle and stay irons, for the sole purpose of retaining them in their places, and of a beer pump and accompanying pipes to pump beer from a cellar, is not such an annexation as will convert this personalty into realty, so as to become an improvement of the demised premises, within the meaning of a covenant that "improvements

made upon said premises " the lessee should leave undisturbed. Ames v. Trenton Brewing Co., 56 N. J. Eq. 309 (38 Atl. Rep. 858.) A tenant may be enjoined from removing a building which he has constructed as an addition to an existing building, fastening it to the old building by permanent and nonadjustable attachments, and in such a manner that neither can be separated from the other without opening both to the weather; the new structure being used for the same purpose as the old, and the use of both for those purposes being necessary to the complete enjoyment of either, the removal of either being practically a destruction of the property for that use, the construction having been made without leave obtained from the owner, and without contract therefor, and with no definite intention to remove the new erection. Fortescue v. Bowler, 55 N. J. Eq. 741 (38 Atl. Rep. 445). Particular evidence held sufficient to justify a finding that a certain heating plant put into a building by a tenant was, as between him and the landlord, a part of the realty. Pond & Hasey Co. v. O'Conner, 70 Minn. 266 (73 N. W. Rep. 159). Particular case in which the lessee was held to have the right to remove buildings after the expiration of his lease. Merriam v. Ridpath, 16 Wash. 104 (47 Pac. Rep. 416).

Sec. 360. Right of tenant to remove fixturesEffect of taking new lease or renewal of lease. lessee in possession enters into a new lease for a term of years, there is not such a termination of the original lease as will bar his right to remove fixtures previously annexed by him. Ross v.. Campbell, 9 Colo. App. 38 (47 Pac. Rep. 465). A tenant erecting fixtures which cannot be removed without an injury to the freehold, under a lease which gives him the right to remove them, loses this right where he renews the lease for another term without reserving this right and covenants to keep the premises in good repair and deliver possession of them at the expiration of the lease in as good condition as they were when entered upon. Sanitary Dist. of Chicago v. Cook, 169 Ill. 184 (48 N. E. Rep. 461; 61 Am. St. Rep. 161; 39 L. R. A. 369). The court say: "We have been cited to no case and know of none in which the precise question here presented has been considered by this court. In

Mason v. Fenn, 13 Ill. 525, it was said: 'As between landlord and tenant, improvements put on the demised premises by the latter, for purposes of trade or manufacture, and which can be detached without material injury to the estate, may be removed by him before he quits possession.' As to this proposition there can be no doubt. But the great weight of authority seems to be that where, at the expiration of a lease during which trade fixtures have been erected on the premises by the tenant, a new lease is taken of the same premises, containing no reservation of any right or claim of the tenant to the fixtures still remaining on the premises, and without recognizing the right of the tenant to remove them, such fixtures erected under the former lease, can not be removed by the tenant during or at the end of the new lease, notwithstanding his actual possession of the premises has been continuous. Fitzherbert v. Shaw, 1 H. Bl. 258; Heap v. Barton, 74 E. C. L. 273; Thresher v. Water-Works Co., 2 Barn & C. 608; Sharp v. Milligan, 23 Beav. 419; Merritt v. Judd, 14 Cal. 59; Loughran v. Ross, 45 N.Y. 792 (6 Am. Rep. 173); Watriss v. Bank, 124 Mass. 571 (26 Am. Rep. 694); Carlin v. Ritter, 68 Md. 478 (13 Atl. Rep. 370; 16 Atl. Rep. 301; 6 Am. St. Rep. 467); Hedderich v. Smith, 103 Ind. 203 (2 N. E. Rep. 315; 53 Am. Rep. 509); Marks v. Ryan, 63 Cal. 107; Tayl. Landl. & Ten., par. 552; Ewell, Fixt. 174, 175; Tyl. Fixt. 437-439; Wood, Landl. & Ten., par. 532. The reason given is 'because the fixtures set up on the premises at the time of the lease are part of the thing demised, and the tenant, by accepting a lease of the kind without reserving his right to the fixtures, has acknowledged the right of his landlord to them, which he is afterwards estopped from denying.'" Md. Pub. Laws, art. 53, has been amended by adding § 27, which provides that," the right of a tenant to remove fixtures erected by him under one demise or term shall not be lost or in any manner impaired by reason of his acceptance of a new lease of the same premises without any intermediate surrender of possession." Laws 1898, p. 174.

FORCIBLE ENTRY AND DETAINER.

EPITOME OF CASES.

Sec. 361. As to what constitutes forcible entry and detainer. Construing and applying Ga. Penal Code, § 338, which defines forcible entry as "the violently taking possession of land and tenements with menaces, force and arms and without authority of law," it is held that in order to constitute the offense the entry must be accompanied by some act of actual violence or terror directed towards the person in possession; that breaking and entering an unoccupied house in the absence of the person who has previously been in possession and control thereof and who still claimed the right to possession, does not constitute the offense. Lewis v. State, 99 Ga. 692 (26 S. E. Rep. 496; 59 Am. St. Rep. 255). Construing How. Ann. Mich. Stat., § 4284, which provides that "no person shall make any entry into lands, tenements, or other possessions, but in cases where entry is given by law, and in such cases he shall not enter with force but only in a peaceable manner," it is held that where a tenant's term has been terminated for nonpayment of rent by notice to quit, a peaceable entry by the landlord in the tenant's absence, and a removal of the latter's goods from the premises, does not constitute a forcible entry and the landlord may defend such possession against the tenant if he uses no more force than is necessary. Smith v. Detroit L. & Bldg. Ass'n, 115 Mich. 340 (73 N. W. Rep. 395; 39 L. R. A. 410). Citing, Smith v. Reeder, 21 Ore. 541 (2 Ballards' Law of Real Property, §§ 260-263).

Sec. 362. Who may maintain the action. One having merely a possessory right to lands may maintain the action against a mere trespasser. Kelly v. Johnson, Ind. Ter. (39 S. W. Rep. 352). Construing Ill. Rev. Stat., ch. 57, § 2, giving the right to maintain the action to a grantee holding under a conveyance from "any grantor in posses

sion," it is held that a conveyance by an owner of land who has improved the same by the erection of buildings, leased it and lives with one of the tenants is a conveyance by a grantor in possession; that the grantee in a trust deed executed by such a grantor may claim the benefit of the statute and may maintain the action against his devisees. The statute does not contemplate the trial of title in the proceedings, but in an action by a grantee he may introduce his deed to show that he is a grantee of one in possession. Muller v. Balke, 167 Ill. 150 (47 N. E. Rep. 355); Peters v. Balke, 170 Ill. 304 (48 N. E. Rep. 1012); and in the last case it is held that the action may be maintained against a tenant of a grantor in possession under him. Ill. Rev. Stat., ch. 57, § 2, cl. 2, 3, construed and applied-who may maintain forcible entry and detainer and when the action lies. Fitzgerald v. Quinn, 165 Ill. 354 (46 N. E. Rep. 287). Mass. Pub. Stat., ch. 175, gives the right to maintain forcible entry and detainer only to "persons entitled to the premises," and where such a person forcibly ousts another from the possession lawfully obtained, the latter cannot maintain the action against him. Page v. Dwight, 170 Mass. 29 (48 N. E. Rep. 850; 39 L. R. A. 418). See opinion for review of Massachusetts statutes and decisions upon this subject. Construing S. Dak. Comp. Laws, § 6073, providing that an action of forcible entry and detainer may be maintained "when a lessee in person or by subtenant * * fails to pay his rent for three days after the same shall fall due," it is held that a clause of reentry need not be contained in the lease to authorize the action. The giving of a notice to quit, as provided for by § 6074, is a substitute for the formal demand for the rent, and a payment or tender of the rent by the lessee within three days after the notice is served prevents a forfeiture. Dakota Hot Springs Co. v. Young, 9 S. Dak. 577 (70 N. W. Rep. 842).

*

The construction of the Oklahoma statute, given in the case of Oklahoma City v. Hill, 4 Okla. 521 (see Ballards' Law of Real Property, Vol. V, § 344), is followed in the case of Chisholm v. Weise, 5 Okla. 217 (47 Pac. Rep. 1086), in which the court say: 66 Under the statutes of this territory in force when this action was commenced, the action of forcible entry and detainer might be maintained against any person