THE RULE IN ENGLAND 263 



plants. l However, in this case the injury appears to have 

 been considered a malicious destruction, outside the regular 

 course of business, and with no reasonable object. The 

 modern English rule undoubtedly is that gardeners and nurs- 

 erymen may not only remove greenhouses and other trade 

 equipment 2 but may remove trees and shrubs which have 

 been planted by them with an express view to sale if they 

 are susceptible of removal without destruction, 3 but a per- 

 son not professing to be a nurseryman or gardener, who 

 raises young trees on demised land with a view to trans- 

 planting them on the same premises is not entitled to sell or 

 remove such stock at the end of his term. 4 



171. Trees and Nursery Appliances as Fixtures in 

 the United States. The refusal of Lord Ellenborough in 

 Elwes v. Maw to except agricultural fixtures from the gener- 

 al common law rule has been followed by the courts in 

 America, but there has been a tendency through judicial 

 decisions and legialstive enactments to bring such fixtures 

 into the field of trade fixtures. In agricultural fixtures 

 the intention of the annexor has constant ly received an in- 

 creased attention, while less importance has been attributed 

 to the physical character of the annexation. In the United 

 States today, not only are greenhouses and similar struc- 

 tures erected by a nurseryman for business purposes con- 

 sidered trade fixtures, G but trees grown for sale purposes 

 are likewise subject to removal as trade fixtures. 7 



1. Wetherell v. Howells, 1 rump. X. P. C. 227 (1SOS). 



2. Mears v. Cullender (1901) 2 Cli. 3SS, 65 .). P. (115, 70 L. .J. (Ml. (521, S-l L. T. 



Rep. X. S. (US, 4!) Wkly lie]). 5S4. 



3. Wardall v. Usher 3 Scott, X. K. f>()X (1S41). 10 L. .J. X. S. C. P. 316. 7 Taunt. 191. 



(Cannot sell trees cultivated for fruit they will produce.) 



Oakley v. Monck, L. R. 1 Exeh. 159, 4 H. and C. 251. 12 Jour. X. S. 25:5; 35 

 L. J. Exch. 87, 14 L. T. Hep. X. S. 20, 14 Wkly Rep. 406 (1S66). 



4. Wyndham v. Way 4 Taunt. 310, 13 Rev. Rep. C>07 (1S12). See Grey v.Cuth- 



bertson 2 Chit. 4S2, IS E. C. L. 397. 



5. See Van Ness v. Picard, 2 Pet. (L". S.) 137, 7 L. Ed. 374; IFarkness v. Sears 26, 



Ala. 493, 62 Am 

 Dec. 238; Wing \ 



Dec. 742; Holmes v. Tremper 20 Johns (X. Y.) 29, 11 Am. 

 . dray 3(5 Yt. 261, Law of Fixtures, Bronson, Keefe-Davidson, 



St. Paul, Minn. 1904, p. 31 et seq.; 13 Am. & Enn. Em:. Law (2 Ed.) p. 640. 



6. Free v. Stuart, 39 Neb. 220, 57 X. W. 991. 



7. Fox v. Brisac 15 Cal. 223 (1S(50); Maples v. Millon 31 Conn. 59S; Adams v. Bea- 



dle 47 Iowa 439; 29 Am. Rep. 4S7; Price v. Brayton 19 Iowa 309; Whit marsh 

 v. Walker 1 Mete. (Mass.) 313; Miller v. Baker 1 Mete. (Mass.) 27; 

 Brooks v. dalster 51 Barb. (N. Y.) 196, 1S6S; King v. Wilcomb 7 Barb. (N. 

 Y.) 263 (1849); DuflTus v. Bangs 122 X T . Y. 423, 427 (1890) AfT'g 50 Supr. Ot. 

 (43 Hun) 52, 53 (1887). Soo also Dubois v. Bowles 30 Colo. 44, 69 Pac. 1067; 

 Smith v. Price 39 111. 2S, 89 Am Dec. 2S4; Holmberg v. Johnson 45 Kan. 197 

 (1891); Adams v. St. Louis Etc. Ry. Co. 13S Mo. 242, 250, (1897); Hamilton 

 v. Austin 36 Hun. (N. Y.) 138. 



