10 3~\;fd

-. .....

There is a distinction here. At COmmon law the facl of the destruction and lncomplereness rendeJ:t:4 by the removal merely helps in determiningthe intenrion witlJ. which !hI: Mnr;Xor atJi.xed the chattel and the intention to make it permanen; Or not is the controlling factor. Under the St. Lucia Civil Code it appears that the fact of incompleteness and destruction ill conclusive of the question as to the intention with which .t W;I::; done. But these tests of incompleteness and destruction are used only when the land itself'belong to the person who used the material.

I ;:

. "


,.. ..


8S:G1 110G/EG/10

sidenote and the tenor of the provision suggest that it was passed to cure this. defect in the law of fixtures. The provision in Barbados should not be construed to give it an effect which goes beyond this need, that is) it should apply only when by the various tests, it can be said that there was a fixture.

St. Lucia

Article 369 of the Civil Code of St. Lucia provides that

"Ownership of the soil earries with it ownership of what is above and what is below it; except that a mine

may be alienated and owned apart from the land above: it."

And by section 368:

"Whatever becomes united or incorporated with a thing belongs to the proprietor, according to the rules hereinafter establisht:d."

This is an enactment ofthe.civil law doctrine superficies solo cedit. This law is subject to the provisions containedin Articles .369 to 379. This. doctrine allows an owner of land who builds on his . land by using materials belonging to another person to retain the materials. but accords to. the owner of the.materiale. the. rigb~ to .. recoverdamages from the owner of the

lanq.. Article 371 provides: .

. ~. "The Owner of the soil who has constructed building~ or works with materials whic~ do not belong to him,

must pay the value ofthe materials. He may also be condemned to pay damages, if there be any; but the

'owner of the materials has no dght to take them away." .

Where the materials were used by their owner to effect improvements onthe land of another person, the rights of the parties depend on

(a) the nature of the improvement and

(b) the good or bad faith of the person who effected the improvement with his materials on the land of the other party,

~'When improvements have be~n made by a possessor with his ?wn materials, the dghJef'the owner to such Improvements depends on thel! nature and the good or bad faith of such possessor.'

If the improvements were effected by their owner in bad faith the owner of the land has the option of either keeping them upon paying the actual value of the materials or permitting the owner of the. materials to remove them, if that could be done without any deterioration in the value of the land." If the improvement is so extensive and costly that the owner of the land cannot pay for them, the owner of the materials can be compelled by the court to pay for the land and recover the land together his materials from the owner of the land."

Where the improvements are found to be necessary, the owner of the land must pay the cost of the improvements)' except where the owner of the materials effected the improvements in bad faith, in which case the owner of the materials would only be entitled to compensation.

,6 Article 372 .

~7Artide 371 !;If the Civil Code.

'~Article 373: ". __ ._ if the improvements made by the possessor be so extensive and costly that the owner of'the land cannot pay for them, he may, according to the circumstancesand the discretion of the court. compel the possessor to keep the property, and to pay the estimated val)).e Mit" ..



\ \

demand against the will of the tenant to buy him out of his property which was used for trade, ornamental or agricultural purposes.

It is significant to notice that the courts have jurisdiction to intervene only where there is a dispute over the value of the chatrel, which the landlord seeks to acquire. There is no power to prevent the landlord from purchasing the fixture ifhe so desires.

""""'--1 The provision in Trinidad 311d Tobago, Belize..and Ouyana_has one remedial effect. l' exte'fids the comIDQn law right of remoyal wbic.h...hltherto had been confine to tra e. agricultural and ornamental flxtll[es to cover si.tu~e-Jixe used, or residential purpo~s. Under this provision a fixture which is used for residential purpose can

~Il1oved by the tenant at the end of his tenancy, subject to the conditions stated above.

It, however, does not. provide a definition of a fixture or a chattel. The abolition of the doctrine quicquid solo plantatur, solo cedit rather compounds the problem of definition. The doctrine is of evidential importance. It enables the court in its effort to determine whether a

-. chattel has, become a fixture or not to start with a presumption that if a chattel is affixed to land it is presumed to have become part of the land." The doctrine quicquid solo has the effect of casting the onus on the owner of the chattel to prove the contrary. The effect of the abolition of the common law doctrine of quicquid solo does not therefore so"1Vel"llefoolem w~ether a c~attel has__Eecome ~~~e or u~~d m..2'!{imPQrtantly. wb!illler a chattel house. is a fixture Or not. The l,nappfi'cability of the doctrine merely .shifts the burden of proof: which

--18 now cast on the owner of the land to prove that the title to the chattel has become merged with the title to the land and vested in the owner of the land.

The provision explicitly deals with fixtures. It follows that if the chattel in question cannot by-the-various tests be said to have become a fixture it will not fall within. the terms of the provision and the owner can remove it without being subjected to the compulsory acquisition powers of the landlord in the provision under discussion. It is therefore important to distinguish the issue of'the status of a. chattel from the question of the right to remove it. It . is after the quesrion as to whether the chattel has become a fixture has been resolved in the l,.·------/ ' affinnative that the.issue ofright of removal arises. The second issue ofright ofremoval will therefore not arise where it is determined that the chattel has 'retained its character as personalty and not realty. 'Where the determination yields to the conclusion that the chattel retains 'its character as a chattel there canbe l:1o!esort to the: provision which deals only with fixtures, and the tenant can CaTI:Y away his chattel without let orhin~~liill:ce.

I. '/ ,', " I ," ..


The Barbados Property Act, 1979. differs from the provisions in Guyana, Trinidad and Tobago, and Belize. It~ PIQxides explicitly that. . .the right of. removal created ,and the cotppYlsory acquisition powers vested in the l~dlord by the statute are subject to ~y contrary intention exrFsSea'"OrcOiitiined in lease or tenancy agreemenfS4 Though the""i-e !suo sue express provision in the provision in Trinidad and Tobago) Be ize and Guyana,

• ' I i:

S~Sec the fourth test of Wooding C.J. proposition in Mitcheti 1'- Cowie ~·Section Hi3(6)(a) of the: Property Act, 1979,


are 10 remain in force, .that it is too late to PLlISUtl a co~ij"ary course; and it would btl productive of much inconvenience if this practice were now to be disturbed.'

Parties are deemed to know this custom and to transact with tacit reference to it. Such is the custom and usage surrounding the peculiar structure of the chattel house which-to the lay West Indian serves as a dwelling as well as a movable possession.

It evolved as a result of the insecurity ofland tenure which followed emancipation. While the workers attempted to escape from the hegemony of the plantation complex. the symbol of coercion and inferiority, they had difficulty in finding land and housing accommodation away from the plantation, The planters had a near monopoly of the land market. The plantations were the only institutions capable of meeting the workers) demand for accommodation. This helped the planters to secure labour. They then introduced a tenancy system where workers became tenants of land and houses on the several plantations under terms and conditions specific to the individual plantations. They were given the house and spot for which they rendered labour in part payment. They were tenants at will. They could be evicted at a short notice. And on eviction they had to leave the plantation. What the worker needed was a movable house.

"Something that the labourer could take with him if ~d when he was expelled from the dwelling land owned by the plantation OWIlw-","

This is the origin of the chattel house. It is urged that the courts should decide this issue "in accordance with commonly prevailing mental conception and ideas!l50 relating to the II chattel house" It is noted that the "conclusive criterion whether or not '3. fixture is within the . common conception of an improvement on land is in some cases the intent or lack of intent

of the land owner appropriate it to that case," . ,

It is this commonly prevailing mental conception that a chattel house is personalty that presumably led to the distress cases in which the courts held that a chattel house was a fixture and could not be distrained, This is the point of criticism by Martson Gibson of Liverpool's condemnation of the decision making the chattel house a fixture. It may have been noticed that in most of the distress cases issues were not joined on the question whether tl1e house was personalty or realty.

'. The parties together with their counsel laboured throughout the litigation under the commonly prevailing mental conception that a chattel house was personalty and therefore distrainable. It is significant to note that this fact of a chattel house being a fixture arose in the distress cases at the instance of the Bench.

In Baptiste v. Supersad it was only at the close of the case that Wooding C.J. raised that issue 011 the distrainability at law of the house. He then overruled an objection to plaintiffs counsel's application to amend the statement of claim whichhad not raised that issue."

In the case of Dolan v. Ramlakan and Abdod, the same Chief Justice was the first to think

that the house in question could be a fixture. He said:

"But we think there is a martel' to which arteanon should be drawn- • ·11 is not clear from the evidence in this case whether the house which was Ievied Oil was a fixture though being supported On wooden COncrete pillars fixed in the b'lound"

In George v. Brunton. in. which WOQding,C.J.. did not preside. the case proceeded to judgment without anybody raising the issue that the chattel house was a fixture.

4?Hutton 1'. Wamm(l836) 1 M, & W, 466, 475 5~S!:tl (1907) 7 Columbia Law Review p. 1,6. "see page 143 of Mitchell's case ill C.A.


!'Thl' decisions recognising substantial loss of value in the fixture as a basis tor transferring ownership to the landlord are founded Oil. a policy of minimizing the economic loss caused by dismantling the annexation ........ However, the consequences of making a tenant's a.one~a.tions part of the realty differ !l'om those: in the

. inheritance cases. In the lutter the court's function is to divide: items among parties who previQusly had no interest in them. The landlord-tenant relationship, on the other hand, is not designed to effect 11 transfer of interest to the landlord. Awarding the landlord the tenant's chattel not only gives him an unmerited-and unintended acquisition of property, it also Imposes financial loss on the tenant. (f the public interest in preserving land resources is to be impleme:nte:d in landlord-tenant cases, its weight must be great enough to

. oven-ide the harsh effect On tenants."

Purpose of Annexation test:

As stated by Cheshire and Burn, Modern Law of Real Property."

"The test he.re is to ascertain whether the chattel has been fixed for its more convenient use as a chattel, or for the more convenient use of the land Or building"

The question is whether it can be inferred from the nature of the chattel and Itsaffixation that it was annexed to the realty for the purpose of.permanent improvement of the land Or to

)facilitate the use of the chattel. The case of tapestry fixed in Leigh 'yo T(.ly/or42 to the walls by tacks to a framework of wood and canvas which was nailed on to the wall. together with moulding fastened to the wall can be explained On this test.F or the attachme~t was necessary for the adommentMld proper enjoyment oft9.em~§ tapestrY and not for the improvement of

~ . - .. 7-.

In Berkeley v, Poulett"

"pictures were fixed in the recesses ofpanelling of'two rooms of the estate of the defendant and in the grouna~ there was a heavy marble statute of a Greek atblete standing on a plinth and a sundial r~sting on a stone baluster. After the estate had beenpurchasedby th'e plaintiff at an aucitiopsale, the: defendant removed these items. The: plaintiff sued the defendant for the delivery up of the Items and compensation tor the loss of Or to damage them .. "

In .. ,:tliC:tYieWof,s.c3nnan.··L.J.~ what was placed on the plinth was.v.ery -. ~uqg.J~.ll1.~tterJpr.the

'j" !~stp 9fthe0ccupierci·f~e.h9;u5e· f~rih~Jlme beillg. ... . . ..

• . " The degree of physical connection with or attachment to the land may not be. decisive. In

the opinion of Blackburn, J., in Holland v. Hodgson"

''''Blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming iii dry stone wall would become part of the land, though the same: stones, if deposited in a builder's yard and for' convenience sake stacked on the top of each other in the form of a wall, would remain eharte I. "II

The object might have been the improvement of the land. In which case, the chattel becomes a realty. Statutes, stone seats, and ornamental vases constructed to be an integral part of the architectural design of the estate were held to be fixtures in the case of D 'Eyncourt

v. Gregori' . . ..'

Having analysed the case of Turner v. Cameron, Wooding C}. in Mitchell v, Cowie held:

"In like manner, in my view, ifa house Isaftlxec1 to land by a tenant who took the tenancy for the purpose of building or maintetining the house thereon and who intends to retain the house there so long as the tenancy subsists, he does so for the better enjoyment of the land of which he is the tenant and Of which while it remaine thereto affixed the house forms part; the house is so far permanent that it is intended to remain on the land at

41 13th ed, p. 138 42[1902] A.C. 157. 4~[t 976] 120 s.r 836

44(1872) L.R. 7 C.P. 328, 335: 45(1866) L.R. 3 E.Q. 382.


. has become a fixture that the determination of the question of removal arises. In the case of

Burke v. Bernard.'l5 Def'reitas C.J. said:

"The relaxation of [he ancient rule in certain clrcumstances is not un alteration in tho rule which determinea whut is or what is not a fixture.but it is a relaxation of the rule as to the right to remove those things which are

fixtures. A fixture is a fixture stlll not withstanding MY relaxation of the rule". 26

Wooding C.J. sounded a note of caution in Mitchell v. Cowie:

"I repeat, therefor~, that it is essential nor to confuse what are really two separate and wholly independent issues: the rlrst, whether the thing ill question is a chattel or a flxture: If it is a chattel, cadit quaestio since its owner may dispose of it without let 01' hindrance whenever he pleases; but if it is a. fixture, then and only them,

the second issue may be raised " whether it is subject to any right to removal" .l7

Damage to the attached chattel on removal

Where the circumstances, the situation and the nature of a structure placed on land are such that the removal of the structure would lead to its destruction, the-cbvious infer"pce is that it was.not lnt~nded·to be removed from the site, and that ~t was.intended to remain

.. permanentlyon theland, It therefore ranks as a fixture, . .

. In Eva Fields lJ, Rosie Modeste and Jurine Josepli" "[the house] was built of tapia,

plastered with concrete nogging, measuring 20ft by l Oft, comprising two rooms resting on

wooden pillars, covered withgalvanized iron sheets, with kitchen meaning 10ft by 9ft attached thereto erected and standing thereon". The Court of Appeal considered that a house built of tapia.could not "be moved without its complete disintegration. That,in our view,

would.make it.a fixture." .

The headnote of the report of Eva Fie-leis v. Rosie Modeste and Jurine Josepb" clearly shows that the Court of Appeal was of the view that the house in question in the case was not a chattel house .. The analysis of the principle and the facts of Eva Fields' case by Wooding C.J. is consistent with this view of the editor of the report. The Court found that the house was affixed to the laud and therefore could not fall within the third of the six principles of Wooding C.J. in Mitohell's case." Secondly, there was no fact or circumstance to displace

. the presumption that since it was affixed it was a fixture. In view of the substance with which the house was constructed, i.e., tapia, the conclusion that the house was a fixture and not a chattel house was irresistible. As observed by the Court of Appeal such a house would not have .. one of the characteristics of a chattel, i.e., "it is moveable and transferable by delivery"." For it could not be moved without complete disintegration." For, as was observed in Salad v, Eljofri and Anar.,:33 it is

"difficult to appreciate how a house of the nature in question Call properly be said to be 11 chattel ~~~r It could only, 1 suppose be 'completely transferred by delivery' by reducing it to pieces of wattle wood and dried mud

2'[1930] L.R.B.G. 59.

~"Atp. 59. Joyce, 1. in re Chesterfield'$ SI!Ull;!.d Estates [1911] I Ch. 237, 242 was cited in support Of this view, 27Mitchell v, Cowie (1964). 7 W.l.R. 118 at 124.

~~(1966·69) vol, 19 Trin. L.R. 251.

2~(1966.69) vol. (9 Trin. L.R. 251.

30Sec supra, p . .4 ..

~Ial p. 252.

~2At p. 252.

33(1950) Kenya L.R. 17.



"the surfa.ce of tim ground was prepared by having ballast spread upon it; sleepers were then embedded in the ballast and the ballast were packed, and the rails were fastened to the sleepers by nails. In order to remove the mlil s thc::y were ' .... reached off the sleepers by rn'~n~ of bars and picks; and to remove the sleepers it was necessary to loosen the ballast by means of picks, and them with levera to raise them. The removal of the

sleepers made holes in the ballast".

A comparison of this with the construction ofa chattel house is far-fetched.

The analogy with the army huts in Billing v. Pill.21 which was cited and discussed in Mitchell's case, is closer to a chattel house than is that of the railway lines in Turner v. Cameron.

. In Billing v. Pill

"a hut used by the army was described as resting on concrete foundation to which its floor was secured by bolts let into the concrete. The hut could be easily dismantled and re-erected elsewhere. An English Court found.that the huts in Eilting v. Ptl/ were erected to provide temporarily sleeping accommodation for the army personnel despatched to the site to man gun emplacements during the war, and since the huts could be removed without doing any damage at all to the freehold, they were not annexed to or t'onn any part of the realty and that they

were and remained chattels."

This is the nature of a chattel house. The degree of annexation of the railways, Md the possibility of damage to the land by removal of the railways in Turner v, Cameron make the facts completely different from the nature and situation of a chattel house. These features of Turner's case are not different from the nature of the house in Muchell'» case. They are, however. not similar to the situation and nature of what is ordinarily conceived as a chattel house. The learned C.J. in Mitchell's case observed: '

"There: still exist in this country wooden-houses - not very many, it is true, and certainly not nearly so many as may be' seen in some of the: neighbouring West Indian islands - which rest by their own weight upon stone or brick foundations. The stone.~ or bIick~ lire so put togethc:r a:; ~o form iii base: wall, in some instances let into the ground but mare often themselves restifl.[t by their OW11 weight ali the ground. In either case, they WOUld, I think, be like the: wooden bam in WQm'broough v. Maton in which the wood work comprised the entire barn, that notwithstanding it w~s placed on stone. caps which. wer~ let i~to . the ground it WQ8 not it~lf in anyway affIXed thereto but was supported thereon by IIWr~ pressare, tha: to ~iove it would therefore in nO way disturb

. ... . ... . ..... '2f' .

f the/reehold, and.accordingly that it was and remained a chattEd." .'.

The comparison of a, chattel house with the barn in Wansbrough 11. Maton is apt. rt~ d~e house in Mit~he~i 11. Cowie was afixture ~hould not therefore ~e construed

l~_~eneral pnnclJ2!e .!hat a chat~ house 1S a fixture. For, having o6serveu that a chatte.,l ;bouse is like a wooden barn, which, according to the authorities, is a chattel, Wooding, Co]. could not have decided that the house in Mitchell's case was a fixture were it not for the peculiar facts of the case.

Undoubtedly, the nature of the house in Mitchell's case makes it completely different from

what is ordinarily considered as a "chattel house".

"Ihehcuse in Mitchell's case was built of hollow (or tiles) clay blocks, plastered, and stood on concrete pillars and was covered witlrgalvanized iron sheets. Such a: house could not be removed without being disintegrated iIIlQ could not bavebeen intended to be dislocated without losing its identity."

This affords a solid ground on which Mitchell's case can be distinguished.

Wooding, C.J.'s analysis and application of the principles leave the distinct impression that a chattel house is a fixture. His Lordship) was influenced by the decision in Turner v. Cameron on which reliance was placed for the view that the

"critical consideration, therefore, is whether the tenant in affixing his house to the land has manifested a purpose

to attach it thereto 1;0 that it becomes and remains a part thereof oo-terminously with his interest as tenant".

~1[1953] 2 AIL E. R. 1061. (, ,~ .. ~2(1964), 7 W.l.R. 116 at 122 Otalic(> added) ,

", I I


~efore be- deemed as.fW ~p~ovement o~ inheri~·Constrlictive annexation was therefore developed to explain situations wherelliere was temporary removal from the land Or cases where integration was so obvious that the court felt impelled to ignore lack of physical annexation.

The Court of Appears decision in Burke v. Bernard can be explained on this factor.

"The late.Bernard, the brother of the plaintiff, put.up a two "storey house, "with the LIpper storey of wood resting on masonry pillars and wocden pillars .... The sleepers ot· the upper floor rested on masonry ledges on the ground, The sleeper of rhe upper floor rested on the top offour square masonry pillars One. at each corner, and on the top of masonry steps in the middle, outside. Then: were also five wooden pillars leH1H'S"thc'ground and nailed to and supporting the sleepers and runners of the upper floor. On the ground floor, the spaces between full masonry pillara were occupied. by bOOildii, windows and doors. The sides of the buildings were shingled on the exterior. The windows were glass windows with properly hunS sashes. The roof was covered with wallaba shingles."

An order for the sale of the house in execution of judgment 41:bt was given by the court. The Registrar's advertisement for the sale did not mention the hOLlS!:, the valuer's report equally failed to mention it. The will of the judgment debtor Thomas Bernard, the estate duty account of the estate of Thomas Bernard also failed to mention it, Significantly soon after the purchase of the house by the defendant, Burke, the late Bernard quietly vacated the house and it was after his death that his brother, the executor of his willla.id claim to the house. When Burke, who had then effected improvements to the; house, failed to give up possession, Bernard sued Burke for "£50 damages "for conversion of a chattel house situate On a lot of land at Mt. Sinai ... ," The claim was for the house and not the land. The plaintiff's claim succeeded in the trial court. The: defendant proceeded to the Court of ~ppe'!l> ~~~~ .t~~51aim ~the plai~!l!llpondent was rejected on th~ g,o'jFii'nlia(tDii"~jijjSii"otiCAAtter£ a fixtlJI!'. The fast tfia~1Wpwood!:,n storey \:Va'! not pb)'8kally ~dtotbe lQwe~ stQ.(eJL.!lia not make ~ upperstoreya chattel. The court said:

-'~e'"JbWcl"rrr\:a~;'Citfi'Y"ftorey of the house was built into the land and is clearly a fixture: the wooden upper storey is an essential and integral part of the house and by its attachment to the wooden pillars in the ground it is also a

. fixture." . . ,

The emoval of the upper wooden storey would have resulted in unroofing the sub-structure and that would have been a damage to the freehold. It is obvious from the nature of the property and the relationship of Thomas Bernard to it that he intended to make it part of the

land which belonged to him, ...

The decision ofthe Court of Appeal can also be justified on the ground that the removal of the upper house would have resulted in damage to the lower house if the upper house had been considered as a chattel.

"The modern developments of long term commercial leases and improved capital planning techniques have

minimised the value of the affixed item after the end of the lease. With thc. ability to bargain for a leasehOD1d. .. term that matches the life expectancy of his additions a tenant today will adjust the _period of the lease so that '

he obtains the maximum value from his mostexpensive inputs of production. Simply stated, a. tenant norm.aJly

will not put a valuable machine with a life expectancy of fifty years in a building which he !t;IIliCS for ten

" 13 '

____ , years • . .. . . .

Where there is a permanent relationship of tenure between the owner of the land and the ner of the "chattel") an inference of an intention to make the chattel part of the land of ther person to which the chattel is affixed will not be far fetched. Where a tenancy of a bare land is short or can be determined with a short notice of one month, it is unreasonable to impute to the tenant an intention to permanently attach his "chattel" to the land so as to form part of the land) in which, under such circumstance) he has an unsecured tenure. However) Fraser) J.) in the trial court in the case of Mitchell v. Cowie, said:

"I do not think that the duration ofthe tenancy, providing it is certain, has any influence on the status of the building,"



t ~

•... :,.- ...

quicquid plantatur was invoked to safeguard the economic waste involved in giving the land to the heir and the severed chattel to the personal representative, and to avoid the destruction involved in the severance from the freehold"

"[when (chattels) are fixed they are tor the continual profit of the house; and therefore it is more re~sQnabk that the heir should have them, to whom the freehold to which tlley are joined belongs, than the executors, who have

nothing to do with thetreehold". 7 . .

US this doctrine evolved to. resolve title between the personal representative and the heir

ho did not make any investment or incur expenditure, or suffer any detriment, in the velopment of the structure or in the procurement of the land in dispute~ut the princip!e ~s been unduly stretched to govern matters between landlord and tenant and mortgagw:..and mGcl,gagee, who stand to lose their invest.men! by the a.P.Ellcation of the maxim~w~,jtL

l~qyg.!tQ[~~t~&.Q§mIL9J1:1,.lj~!il . .by . the .st.l:'io.ta.pplica.tion of" Uli'!Jllaxim,..made .. #xc.ep~ ',t9the:ru1e,m.'~l vype:re: a ~~.~.tt~lhas:.hec0mea;.tixture .. it eanriotberemoved by.tht owner .of tb~.·chatt~~l.i.hese:':exce.ptioIi.s,allow,a .. fixture,·u~ed-r.e~"~".m;~~.v4~·e~:~am_~'1 6ID9.~~!~,~:l'e!n.q¥~."ISincesuch a right cf removel is exercisable underwell defined conditions, it is neces~ary to determine in eacl; case

l .wbetherthechattelhasbecomea fixture or not, and

2. whether tlle law would p,~it the owner of the cha,~teLto.:~¢lIlove thefixture,

It is only when the first issue is answered affirmatively that it becomes necessary to address the second question; ~9r where thSi chattel has not by law_become a fixture, the owner of it has the right to remove it without let or hinderance, There is no exception to the quicquid

--- . .

plantatur maxim, the exception relates to the question whether the fixture is removable. The

question as to whether such a chattel has become a fixture is to be distinguished from the issue as to whether the owner of the chattel, which has assumed the character of realty) can remove it from the land. This is the view sought to be established by this dictum

~ • ... ,.,.whatever is fixed to the freehold of land becomes part of the freehold inheritance. The other is quite u different and a separate rule, .,;" - whatever Once becomes part of the inheritance cannot be severed by a limited

ownet .... To the first rule which I have stated .. .thereis, 50 fur Wi 1 am aware, no exception whatever".8

Three main tests have been gleaned from the authorities for resolving the issue whether an object is or has become a fixture. Chief Justice Bartley in the American case of Teaffv. Hewitt said:

"--- the united application of the following requisites will be found the safest criterion of a fixture: .

• I 1 ,t Actual wmexatiQn to the realty or something appurtenant thereto. . .

2'vJ Appropriation to the usc; 01' purpose of'that part of the realty with which it is connected,

3rd Th~ intcmioQ of th~ O!ll1ymaking the anncxatjpn, to ~ak£': the.article ~ ppImUmimt UCClfi;siQll to the freehold - 'tfils antentlOn Ile)ng irlfen'edcIromlhe lIature.oft.qe ar~lcle.atfixed. the rf!tdMm ana..)'I$UatIOn or tile party makmg

the annexation, the structure and mode of annexation, arid the purpose or usefor which the aanexadon has been

.. made" ". '

To the same effect, Blackburn, 1. in the case of Holland v, HodgsonlO said:

"Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight ure not to be considered.as patt of the land, unless the eireumstanees are sucb as to show that tbey were to"teoded.to be

~Hmi$Qn, Cases 0" Land Law. Sydney, p, 60,

·'Y,B. Trin 21 Hen 7, 27 p, 14 (1506) (Kingsrnil), quoted in Amost & Ferard, Fixtures 153, 2nd ed, 1847

aOaln v, Brand (1 876), A.C. 762· 766:' ,. ..

~(1853)lOhjo St, 511, 527-530.' ·'1

1°(1872) LR. 7 C,P, 328, 335.


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