Northern Central Railway Co. v. Canton Co.

Bkest, J., delivered the opinion of the Court. It appears from the facts in this case, that the Northern Central Railway Company, after the year 1855, and before 1859, constructed, at its^ole cost and charge, a railway track upon the lands of the Canton Company, with the license and permission of the latter. The route adopted was agreed upon between them, and at the time of the construction of the road, the appellant had reason to believe it yyas laying its railroad upon land over which it had the free right of way. Whatever may have been the misunderstanding, as subsequently developed, between the companies, it was then believed by both of them that arrangements could be effected by which a continuous road,. resulting in their mutual benefit, would be constructed from some point, in or near Baltimore city, on the main stem of the appellant’s road to navigable water.

Its construction, however, was prevented by circumstances, which it is unnecessary for the purposes of this case to notice in detail. The appellee, satisfied that the connection would not be made, thought proper in 1859 to revoke the license under which the appellant was in possession of its land. This was followed in 1860 by two suits; one an action of ejectment, and the other of trespass quare clausum fregit. During ³⁵² the pendency of these suits, which had been referred by agreement to an arbitrator, the appellant filed a bill for specific performance, and also praying for an injunction.

The appellee was successful in having the bill dismissed, and. recovered judgment in both actions at law. A subsequent action of ejectment was brought in January, 1865, for the road-bed, which had not been embraced in the previous ejectment suit. A judgment therein was obtained in June following, and under a writ of habere facias possessionem, possession was delivered to the appellee in October of the same year. The rails and other materials, which formed a part of the railway constructed by the appellant under the circumstances above stated, were upon the land at the time, and the question arises who is the rightful owner of them ?

The fact that they had been taken up and severed from the soil shortly before the execution of the writ of possession is immaterial. If the appellant had no title to them while attached as a railway to the soil, thesseverance did not confer any. The . general rule of the common law certainly is, that whatever is fixed and annexed to the soil becomes a part of it, and cannot be removed except by him who is entitled to the inheritance. But this rule is by no means inflexible and ■ without exception.

Trade fixtures have been held by the earliest cases in which the question arose, to form an exception. No matter how strongly attached to the soil or firmly imbedded in it, they are treated as personal property, and as such subject to removal by the person erecting them. In the leading case of Elwes vs. Mawe, 3 East, 38, (2 Smith’s L. C., 251,) the earlier and more important decisions upon this subject are very fully reviewed by Lord ElleNBoeoug-h, and his conclusion from them, that trade fixtures and buildings for trade have always been recognized as an allowed exception to the general rule, has been acquiesced in, without an exception, as correctly stating the law. The distinction which he makes against fixtures for agricultural purposes has been doubted, ³⁵³ and regarded as too nice and technical, but there is no case in which the exception has not been held to apply to trade fixtures.

In Van Ness vs. Pacard, 2 Peters, 37 , the exception is recognized by the Supreme Court of the United States, Story, J., delivering the opinion, and the doctrine applied to a house, which had been erected as an accessory to the business of a dairyman, although it was occupied as the residence of his family and those employed by him. It is also recognized and asserted in Holmes vs. Tremper, 20 John. Rep., 29 ; White’s Appeal, 10 Barr., 252, and authorities there cited. Another exception to the general rule is, that of structures upon the land of another, which have been erected by the builder at his own cost and for his own exclusive use, as disconnected with the use of the land.

If so erected with the knowledge and assent of the owner of the land, the title remains in the builder; and the property is held by him as a personal chattel. Thus it is not so much the character of the structure as the circumstances under which it was erected, that will determine whether it passes with the realty, or is to be treated as personal property. In the notes to the cases of Prince vs. Case and Rerick vs. Kern, 2 Amer. L. C., 747, it is cori’ectly said, the American Courts have repeatedly held that a house or other building will not be merged in the land on which it stands in consequence of the solidity of its structure or the connection between it and its foundations, if the agreement of. the parties and the purposes.of justice require, that the title to both should be kept separate, and that the owner of the house should have the right to enter for the purpose of using it as his own, or removing it.” In the case of Dame vs. Dame, 38 N. H., 429, this doctrine was applied