RELATIONSHIP BETWEEN PARTIES 265 



stands in which is the thing in controversy, then it will pass 

 on or not according as the thing is or is not in law a part of 

 the realty." 1 



Many court decisions and some legal treatises on real 

 estate and the law of fixtures have even considered as fix- 

 tures trees which have grown naturally on land. 2 In some 

 American states there are statutes declaring that where 

 there is an indictment for the unlawful taking of trees, the 

 trees shall not be considered as fixtures. 3 It seems to the 

 author that trees which have grown naturally can never 

 properly be considered as fixtures, except possibly within 

 a nursery and while yet small enough to be removed in the 

 regular course of business. 



173. Sawmills and Related Structures or Mechani- 

 cal Devices as Fixtures. These principles of the law of 

 fixtures are of interest to foresters and lumbermen, not only 

 as they affect the right to remove young trees which have 

 been planted in nurseries, but also because of their bearing 

 upon the right to remove sawmills and other trade fixtures 

 used in the lumbering industry. Thus it has been held that 

 a sawmill was not a part of the realty as between a chattel 

 mortgagee of the same and a vendor of the land on which it 

 stood, 4 but of course in each case that arises the decision 

 as to the nature of the property must depend upon the mode 

 of annexation, the purpose for which the annexation was 

 made, and the intention of the annexor. It is apparently 

 well settled that a sawmill built upon timbers lying upon 

 the surface of the ground, and erected with a view to re- 

 moval when the timber within convenient reach shall be cut 



1. Ewell's Fixtures, 2d Ed. Callaghan & Co., Chicago (1905) p. 386. cf . Murdock v. 



Gifford 18 N. Y. 28 (1858). 



2. Johnson v. State 100 Ala. 55 (1893); McCaU v. State 69 Ala. 227 (1881); Holly. 



v. State 54 Ala. 238. Bonham v. State 65 Ala. 456 (1880) Nelson v. Nelson 

 6 Gray (Mass.) 385 (1856) ; State v. Thompson 93 N. C. 537, (1885) ; State v. 

 Pay 82 N. C. 679 (1880); Comfort v. Fulton 39 Barb. 56 (N. Y. 1861). See 

 Jackson v. State 11 Ohio St. 104. Schulenberg v. Harriman 88 U. S. 44. 64 

 (1874); Nelson v. Graff 12 Fed. 389 (U. S. C. C. Mich. 1882) Reg. v. Harris 

 11 Mod. 113. Blackstone 4 vol. p. 232. Law of Fixtures, Amos & Ferard 

 p. 266. Law of Fixtures, Ewell, pp. 65, 70, 668. Law of Fixtures, Bronson. 

 p. 393. 



3. Revised Statutes of Nebraska, 1913, Sec. 8683. Cf. Civil Code of Cal. 1915, 



Deering, Sec. 660. 



4. Burrill v. Wilcox Lumber Co., 65 Mich. 571. (1887). Cf. Ewell's Fixtures, 2d 



Ed. 1905, pp. x42 (60), x272 (381). 



