262 TREES AND EQUIPMENT AS FIXTURES 



had formerly been held to destroy their identity and mov- 

 able character. 



In view of the confusion that has arisen because of the 

 ambiguous use of the term "fixtures," it has been suggested 

 that the word be used to designate any personal chattel or 

 movable object attached to realty and that the qualifying 

 words "movable" or "irremovable" be prefixed to the word 

 "fixtures" so as to clearly indicate the character of the 

 chattels annexed. The ultimate test now recognized as to 

 trade fixtures is not so much the degree of annexation as the 

 intent and purpose of the annexor. The character of the 

 annexed thing as realty or personalty is dependent upon the 

 establishment of certain facts as to the circumstances sur- 

 rounding the annexation. 



170. Trees and Nursery Appliances as Fixtures in 

 England. Under the early common law fixtures, being 

 considered a part of the freehold, were exempt from distress 

 for rent, fines, duties, etc. An early statute * modified this 

 rule to the extent of allowing landlords to distrain fructus 

 industriales, such as corn, grass and hops; but trees and 

 shrubs in nursery grounds were considered to partake of the 

 nature of frutcus naturales to an extent which removed them 

 from the operation of this law. 2 



In Penton v. Robert 3 Lord Kenyon held that nurserymen 

 and gardeners might remove greenhouses and similar struc- 

 tures erected at their own expense in connection with the 

 prosecution of their business on leased premises, but in the 

 case of Elwes v. Maw 4 which was decided subsequently, 

 Lord Ellenborough declined to extend to agricultural tenants 

 the privileges of removal which had been granted tradesmen 

 by statutory exception. 5 An English case also held that an 

 outgoing tenant of a garden ground could not plow up the 

 strawberry beds in full bearing at the end of his term, even 

 though he had purchased them of the preceding tenant and 

 though it was shown to be the custom for the incoming 

 tenant to pay the outgoing one the appraised value of such 



1. 11 Geo. 2 Chap. 19 Sec. 8. 



2. Law of Fixtures, Amos and Ferard, Gould & Banks, New York, 1830. 



3. 2 East 88. 91, 4 Esp. 33, 6 Rev. Rep. 376 (1801). 



4. 3 East 38. 56, 6 Rev. Rep. 523, 2 Smith's Lead. Cas. (7th Ed.) 162. (K. B. 



Misc. I 1802). See Buckland v. Butterfleld 2 Brod. & Bing. 58. 



5. See Law of Fixtures, Amos and Ferard, N. Y. (1830), p. 46, 52. 



