U.S. Supreme Court
Van Ness v. Pacard, 27 U.S. 2 Pet. 137 137 (1829)
Van Ness v. Pacard
27 U.S. (2 Pet.) 137
Action on the case against the defendant for waste, committed by him while tenant of the plaintiff, the owner of the reversionary interest, by pulling down and removing from the demised premises a dwelling house erected thereon and attached to the freehold. The question raised in the case was what fixtures erected by the tenant during his term are movable by him.
The general rule of the common law undoubtedly is that whatever is once annexed to the freehold becomes part of it, and cannot be afterwards removed except by him who is entitled to the inheritance. This rule, however, never was inflexible and without exceptions. It was construed most strictly between executor and heir in favor of the latter, and more liberality between tenant for life and in tail and remainderman or reversioner in favor of the former, and tenant in favor of the tenant. A more extensive exception to the rule has been of fixtures erected for the purposes of trade. Fixtures which were erected to carry on trade and manufactures were from an early period of the law allowed to be removed by the tenant during his term, and were deemed personalty for many other purposes.
The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them and adopted only that portion which was applicable to their situation.
It might deserve consideration whether, if the rule of the common law of England which prohibits the removal of fixtures erected by the tenant for agricultural purposes were not previously adopted in a state by some authoritative practice or adjudication, it ought to be assumed by this Court as a part of the jurisprudence of such state upon the mere footing of its existence in the common law.
The question whether fixtures erected for the purposes of trade are or are not removable by the tenant does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high or has a brick or other chimney. The sole question is whether it is designed for the purposes of trade or not.
If the house were built principally for a dwelling house for the family, independently of carrying on a trade, then it would doubtless be deemed a fixture falling under the general rule, and irremovable. But if the residence of the family were merely an accessory for the more beneficial exercise of the trade and with a view to superior accommodation in this particular, then it is within the exception.
Every demise between landlord and tenant in respect to matters in which the parties are silent may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies. Every person, under such circumstances, is supposed to be conusant of this custom and to contract with a tacit reference to it.
A court cannot be required to give an instruction to the jury as to the relation, right, and credibility of the testimony adduced by the parties in a cause. chanrobles.com-red
The plaintiffs in error instituted their action of trespass on the case, in the court below to recover damages for the removal of certain buildings from a lot of ground in the City of Washington, the property of the plaintiffs, which had been leased to the defendant by the plaintiffs for a term of years, reserving a rent. The jury gave a verdict in favor of the defendant.
Upon the trial of this cause, the plaintiffs gave in evidence to the jury an indenture of lease between them and the defendant for a lot of ground in the City of Washington for a term of years, reserving a certain rent, with the privilege to purchase out the fee at a stipulated sum, and offered evidence to the jury to prove that after the defendant had taken possession of the land described in the lease, he erected thereon a building, two stories high in front, with a cellar of stone or brick and a shed of one story, and that the principal building, which had a brick chimney, rested upon this stone or brick foundation. That the defendant was a carpenter by trade, and resided in the house from the commencement of his lease to about the period of its expiration, and that, before the term had expired, he took down and removed the said house from off the premises.
The defendant gave evidence that upon obtaining the said lease, he erected the building with a view to carry on the business of a dairyman and for the residence of his family and servants engaged in his said business, and that the cellar, in which was a spring, was made and used exclusively for a milk cellar; that in the upper part of the house were kept and scalded and washed the utensils of his said business, and that that part was also occupied as a dwelling for his family; that he was also a carpenter, and had tools and two apprentices in the house and a workbench out of doors; and that he worked in said house at his trade of a carpenter; that the house was in a rough unfinished state, and made partly of old materials, and that he also erected on said lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, and that the stable chanrobles.com-red
was pulled down and removed at the same time with the principal building.
Upon this evidence, the counsel for the plaintiffs prayed the instructions of the court to the jury that if it should believe the same to be true, the defendant was not justified in removing the house from the premises, and that he is liable in this action to the plaintiffs for the value of the house, which instructions the court refused to give.
The defendant also offered evidence to prove that a usage and custom existed in the City of Washington which authorized a tenant to remove any building which he might erect upon leased premises, provided the same was removed before the expiration of the term.
Upon this evidence, the counsel for the plaintiffs asked from the court instructions to the jury that the same was not competent to establish the fact that a general usage did exist in the City of Washington which authorized a tenant to remove such a house as that which has been erected by the defendant, nor was it competent for the jury to infer from the evidence that such a usage existed. These instructions were refused by the court.
The plaintiffs then gave evidence by the examination of a number of persons who, as owners of real property in the City of Washington, were claimed to know all that appertained to it, to show that the usage under which the defendant asserted a right to remove the buildings erected by him did not exist, and thereupon moved the court to instruct the jury that upon the evidence, it is not competent for it to find a usage or custom of the place by which the defendant could be justified in recovering the house in question, and that, there being no such usage, the plaintiffs are entitled to a verdict for the value of the house which the defendant pulled down and destroyed. These instructions were also refused.
The plaintiffs by their bill of exceptions presented the whole of these matters for the consideration of this Court. chanrobles.com-red