George Bauernschmidt Brewing Co. v. McColgan

Page, J., delivered the opinion of the Court. This suit was brought to recover the value of certain property which was removed by the appellant from the premises of the appellee. On the 2 2nd of March, 1895, the appellee leased to one George E. Klise, certain property in Baltimore City, to be used “only for the sale of liquors and tobacco,” for the term of one year, beginning on the first day of April, 1895, and ending on the thirty-first day of March, 1896. Klise occupied the property but a short time.

On the thirtieth day of April, he assigned the lease to Frederick A. Wineke, who, having entered into possession made such changes in the building as seemed to him requisite for the business and put in certain bar-fixtures, consisting of counter, buffet, beer-pump and fittings, mirror, &c. These fixtures were fastened securely to the wall by nails and spikes so that they could not be removed without causing considerable damage to the building. On the seventeenth day of October, 1895, Wineke assigned the lease and turned over the possession of the property to Alfred R. DeAlba. On the eighteenth day of October, DeAlba executed a bill of sale transferring the fixtures to the appellant in consideration of the sum of eleven hundred and fifty dollars.

On the second day of April following, DeAlba took from the appellee a new lease of the property for the term of one year from the first day of April, 1897. In this there is no reference made to the former .lease and there are no reservations of any right of the tenant to the fixtures that had been placed in the building. DeAlba remained in possession of the ¹³⁷ premises until the sixteenth day of July, 1896, when he vacated. A few days before he left, the appellant, without the permission of the appellee, entered upon the premises and removed the fixtures, claiming the right so to do under the bill of sale, already mentioned.

The questions in the case arise upon the action of the Court in passing on the instructions offered by the parties respectively ; the appellee having offered one, which was granted, the appellant two, which were rejected. The general rule at common law is, that whatever is affixed to the soil becomes a part of it, and cannot be removed except by him who is entitled to the inheritance. This rule still obtains, so that trade-fixtures that have been attached to the soil, are, while so attached, a part of the freehold. But in the interests of trade and manufacture the tenant will be permitted to remove them, provided he does so during the existence of his term or of such farther time as he may be in possession as tenant.

This right of the tenant, whereby he may sever fixtures from the freehold and restore them to their former condition as chattels, is referred to in the books as a “ privilege.” The limitation upon its exercise, viz., that he must do so while in possession as tenant, is obvious. If he does not exercise his privilege during that period, or indeed if he does acts inconsistent with a claim to the fixtures as distinct from the land, he is regarded as having waived his right, and the fixtures in such case, being a part of the freehold, belong to the landlord. N. C. R. Co. v. Canton Co., 30 Md. 355 . Van Ness v. Pacard, 2 Peters, 143.

This whole matter has been considered by this Court with so much care in the case of Carlin v. Ritter, 68 Md. 478 , that we need cite no other authority. The principle we are now affirming, is in that case clearly stated as follows; that “ where a tenant quits possession or surrenders the premises unqualifiedly to his landlord, without removing or reserving fixtures, he is understood to make a dereliction of them to his landlord.” The Act of 1898, chap. 92, has no application to this case, ¹³⁸ the rights of the parties having accrued before its passage. Now, in the case at bar, the fixtures were put on the