Reid v Smith

3 CLR 656
(1905) 12 ALR 126

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(Judgment by: Barton J)

Reid
vSmith

Court:

Judges: Griffith CJ
Barton J
O'Connor J

Case References:
Holland v Hodgson - (1872) LR 7 C.P 328 E
Monti v Barnes - (1901) 1 QB 205

Hearing date: 6 December 1905
Judgment date: 8 December 1905

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Judgment by:
Barton J

Notwithstanding what has been said in some cases with respect to the onus of proof, it seems to me that the defendant engaged in a difficult contention; that is, the contention that a dwelling-house of the kind ordinarily used, and annexed to the soil with the degree of annexation ordinarily employed in the part of the country where the structure exists, is a chattel, and not to be treated as a dwelling-house. The evidence, which is succinctly stated in the judgment of Chubb, J, is as follows, -- [His Honour here stated the facts as already given by Griffith, C.J, and proceeded] -- I regard the last-stated piece of evidence as of great importance, showing, as it does, that the dwellings in question are annexed to the soil in the degree which is usual in the country where they are erected. Now, there is, of course, some difficulty imported into this case by the fact that a number of the decisions relied upon for the plaintiff are cases in which the relation between the parties has been that of mortgagor and mortgagee. Of English cases in the line of his contention, in which the relation has been that of landlord and tenant, there are few. On the other hand, no case has been cited for the defence which goes to show that a building which would be ordinarily known as a dwelling-house -- placed on the soil without any other attachment to it, without any greater degree of immobility than its weight on the ground, or on the piers which sustain it -- no case has been cited to show that a building of that kind is a chattel, and I think that it is rather a startling proposition, especially in a country like this, to undertake to establish, that a building with the ordinary substantiality of the dwelling-house, such as, probably, the majority of the people live in, is not to be considered a dwelling-house, but simply a chattel, because of the absence of a certain number of nails or screws, not necessary at the outset, and the absence of which would never be discovered, unless some huge flood arose, and floated the building off the piers on which it rested. The respondent, however, argues that there must be some sort of annexation, by some method of attachment, and he cites certain cases in which, many years ago, there appeared to be an idea among Judges that there ought to be some kind of physical attachment made, beyond that of mere gravitation, fixing the contested building to the freehold, before it can be held to belong to the land. The case of Penton v Robart , 4 Esp 33, cited by Mr Macgregor, had reference to a wooden structure, 7 x 12, used in the business of varnish-making, which had been removed from the premises to some other place, and which was held not to be a fixture. That was a case, as between landlord and tenant, of a trade fixture, removable, or capable of severance, without injury. In the case of R v The Inhabitants of Otley , Suffolk, 1 B. & Ad., 161, the question arose with reference to a pauper, who had acquired a settlement by reason of the rental value of certain premises, and they included a windmill and a brick cottage and garden. The mill was of wood, and had a foundation of brick; the word-work was not inserted in the brick foundation, but rested upon it by its own weight alone. In that case, it was held, probably for want of a closer or stronger annexation, that the mill could not be reckoned as an element in the rental value upon which the pauper acquired the right. There was the case of Wansbrough v Maton , 4 Ad. & Ed 884, which was in reference to a barn, resting on brick and stone foundations, which were let into the ground. The barn was resting on the foundations by its weight alone, and under the circumstances, damages were held to be recoverable in trover by the out-going tenant, who sued his landlord for refusing to let him take it away, the principle, according to the judgment, being that, not being united to the freehold, and not attached to the stone or brickwork, it was not part of the freehold. Now, these three cases seem to be the principal ones upon which Mr Macgregor relied, and not one of these, in the first place, is a case of a dwelling-house. In the second place, one was the case of a trade fixture, and another was a case of a wooden barn, resting by its own weight, and used only as a barn. The third case, which was one of a mill, was in relation to principles, whch are not the same as those which govern mortgagor and mortgagee, or landlord and tenant, and I doubt its relevancy to the matters in dispute here. It is quite clear that, what has been called the rigid rule on this question, has suffered some degree of relaxation in recent years, and that a structure may now be held to be annexed to the soil, merely by its own weight. That was very clearly put in the case of Holland v Hodgson , of which the passage most important to the present case was read by the Chief Justice. Following that at some considerable distance in time, but closely following it in principle, was the case of Monti v Barnes , (1901) 1 QB 205. That was a case in which the mortgagor in possession removed the ordinary fixed grates from various fire-places, and substituted what were called dog-grates, of considerable weight, but not attached to the structure in any way. Under the circumstances, the inference was drawn that the mortgagor placed the dog-grates there in place of the other fixed grates, and that they were fixtures, and passed to the mortgagee. It must be recollected that these were mortgagor and mortgagee, and not landlord and tenant; still, there are passages in the judgment which are of considerable application to the principle, which should guide us in this case. A. L. Smith, M.R , said, --

A question which arises in this case is, whether, as between mortgagor and mortgagee, certain dog -- grates were fixtures, or mere personal chattels. There were in the house which was the subject of the mortgage, the ordinary fixed grates. The mortgagor, after the mortgage, removed a number of these, and substituted for them dog-grates, which are of considerable weight. The question, as I have said, is, whether they, in this case, became fixtures or remained chattels. It is urged for the plaintiff that, as they were not affixed in any way to the freehold, this factor showed that they remained chattels.

That is to say, an article may become annexed to the freehold, without, in a physical sense, being affixed to it. The case of Holland v Hodgson , already referred to, was cited by the Master of the Rolls, and he quotes from the judgment of Blackburn, J. He then refers to the instance of blocks of stone, placed one on top of another, without any mortar or cement, for the purpose of forming a dry stone wall, "which, nevertheless, would become fixtures, and that of stones in a stone mason's yard, which would not." "Applying these principles," he said,

to the present case, we have here the fact, first, that the articles in question are of considerable weight, and, as regards the intention with which the mortgagor placed the dog-grates in the house, it is obvious that he could not have intended that the house should be without grates; and I have no doubt that the dog-grates were put in to fill the place of the old fixed grates which he took out, and to pass with the inheritance. The question which has to be considered in such a case is, whether, having regard to the character of the article, and the circumstances of the particular case, the article in question was intended to be annexed to the inheritance, or to continue a mere chattel, and not to become part of the freehold.

There is a principle laid down there, which has an application to the present case, due regard being had to the different relations of mortgagor and mortgagee, and landlord and tenant. Collins, LJ, adopted that passage in Holland v Hodgson , as to the circumstances, the degree of annexation, and the object of the annexation. And if care is taken to distinguish between the wide word annexation, and the more restricted word affixation, one may see that the degree of annexation may depend largely on the weight of the articles originally annexed. "With regard to the latter" -- the object of the annexation --

it is obvious that a most material consideration is the character in which a person places the article in question on the land. Here we are dealing with a case of mortgagor and mortgagee, which, in this connection, differs widely from that of landlord and tenant. A mortgagor, bringing an article on to the mortgaged premises, although it may be after the mortgage, would generally not regard the premises as belonging to anyone but himself, and would, therefore, be the more likely to intend the article to be for the improvement of the property, from which he does not contemplate being ousted. Then, with regard to the degree of the annexation, there was, in the case of these dog-grates, no doubt, the difficulty that there was no physical annexation, but it is clear that, as a matter of law, there may be annexation, so as to constitute a thing a fixture, by mere weight, and without any physical attachment by nails or screws, or otherwise, as in the case of the movable statues forming part of the architectural design of a building, which were the subject of the decision in D'Eyncourt v Gregory .

Stirling, LJ, in the same case, after expressing his approval of the law as stated by Blackburn, J, in Holland v Hodgson , says, -- "The contention for the plaintiff really involved the proposition that some degree of physical annexation is essential" -- and that, I take it, is Mr MacGregor's proposition --

and that an object simply resting on the land by its own weight, could not be said to be annexed at all. But clearly, this was not the meaning of Blackburn, J, for he proceeds to deal with the question in relation to articles no further attached to the land than by their own weight, and gives as an example of fixtures, blocks of stone placed one on top of another, without mortar or cement, for the purpose of forming a dry stone wall.

Stirling, LJ, states the true rule as apprehended by Blackburn, J, and puts another illustration, which might have some effect as an illustration, although it is not in relation to any of the various facts shown in the present case. He says, --

On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to show that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the ship-owner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of a suspension-bridge, would be part of the land.

That is a passage which I cite in illustration of the fact that the object and purpose of the annexation is so important, and that the same kind of article may be annexed to the soil in precisely the same way in two different instances, and yet be in one instance part of the realty, and in another part a mere chattel. That constitutes a discrimen. Now, in regard to dividing houses, there was one case mentioned by Mr Macgregor, of which he was unable to obtain a full report. I think he cited from 23 Federal American Digest, Griffen v Ransdell , 17 Indiana Reports 404, which is not in the library, and that is a case, if I heard correctly what he said, of a dwelling-house resting on land, but not fixed otherwise than by its own weight, and it was held as between landlord and tenant that it was realty, and the onus lay upon anyone claiming it to be personalty, to establish the fact that it was a chattel. That was, I think, a correct decision, and of course it strongly supports the contention of the plaintiff, although cited by Mr Macgregor in the fairness with which he dealt with the whole question. Now, as to this relationship of landlord and tenant, there is the case of Boyd v Storrock , LR 5 Equity 72. That was a case in which looms had been put up by the lessee of a cotton mill for his convenience during the existence of his term, and fastened to the floor by nails driven through the loom feet into wooden plugs fitted into the floor. They were easily movable without injury to the freehold. The case is not of particular value to the decision of this case, but I mention it for the value of a passage in the judgment of Page-Wood, VC. After looking at the various authorities, he says (at p 77), --

I can come to no other conclusion than that the principle enumerated in Ex parte Barclay , 5 D.M. and G. 403, is the right one. That principle, which I followed in Mather v Fraser , 2 K. and J 536, seems to be that, if the tenant has affixed to the freehold, during his tenancy, articles in such a manner as to make it appear that during the term they are not to be removed, and that he regards them as attached to the property, according to his interest in the property, then, in any dealing by him with the property to which these articles are affixed, the court would presume that he meant to deal with the property as it stood, with all these things so attached, and to pass the property in its then condition.

I am fain to confess, in view of the evidence in this case, and the nature of the structure, that I find a difficulty in seeing how any other inference could be drawn in relation to the buildings on this land, than the inference, which was said to be the true one by the Vice-Chancellor in the case I have just mentioned. There was another case -- The State Savings Bank v Kircheval -- on the rule of mortgagor and mortgagee, which was cited by the Chief Justice as an expression of the state of the law in the United States, or, at any rate, in some of them, and it seems to me to be a reasonable expression of what can be gathered from the cases in England. In that the learned Judge says, -- "In determining whether a building is part of, and passes with the land, a good deal depends upon the object of its erection, the use for which it was designed." It would be hard to imagine any purpose implying greater permanency than the erection of a dwelling-house for a man to live in.

The intention of the party making the improvement, ultimately to remove it from the premises, will not, by any means, be a controlling fact. One may erect a brick or a stone house, with an intention, after brief occupancy, to tear it down and build another on the same spot, but that intention would not make the building a chattel.

Certainly not, because a man might say that he would put up another dwelling-house, but in the meantime, with regard to the dwelling-house that he had erected, it would be clear that he had taken it for the purpose of an occupation to endure for whatever might be the length of life of the building. If that is clear, it is a strong factor in discharging the onus mentioned by Blackburn, J, as resting upon the person who claims for the freehold an article wholly attached to the freehold by its own weight.

The destination which gives a movable object an immovable character results from facts and circumstances determined by the law itself, and could neither be established nor taken away by the simple declaration of the proprietor, whether oral or written.

Then the learned Judge quotes from the case of Goff v O'Connor , 16 Ill. 422, --

Houses in common intendment of the law are not fixtures, but part of the land ... This does not depend in the case of houses, so much upon the particular mode of attaching or fixing and connecting them with the land upon which they stand or rest, as upon the uses and purposes for which they were erected and designed.

That is a very strong passage, and it seems to me that it is one which must be awarded great weight in considering a question of this kind. It is evidently common sense, and it is quite consistent with all the law upon the subject. I may mention the case of Meig's Appeal , which was cited by the defendant, which shows the law in at least one of the United States, --

There was in the borough of York a certain common, which was occupied, not, perhaps, after obtaining the consent, but with the acquiescence of the authorities of the borough, by the Government of the United States, which placed upon it barrack-rooms and hospitals, to be used during the war of the rebellion. It was held

'that the circumstances showed that these buildings were intended for temporary use, and not as permanent structures, and that the borough, by lying by, and suffering them to be erected upon a public common, where, as permanent structures, they would be nuisances, is estopped from declaring that the United States intended to Annex their chattels to the freehold.'

The Quartermaster-General of the United States Army, when further use of the buildings for army purposes became unnecessary, or when it became necessary to remove them to some other place, possibly for similar use, began to remove them, whereupon proceedings were taken to restrain him, and on a pro formá decree, the matter came before the Supreme Court of Pennsylvania. Agnew, J, who appears to have delivered the judgment of the court, said, at p 374, --

The buildings were chiefly set upon posts let into the ground, and, therefore, the argument of the plaintiff maintains that the question of fixture or not a fixture depends, not on the character of the foundation, but always on the question whether it is let into the soil. This is the old notion of a physical attachment, which has long since been exploded in this State. On the contrary, the question of fixture or not depends on the nature and character of the Act by which the structure is put in place, the policy of the law connected with its purpose, and the intentions of those concerned in the Act.

That also applies to the considerations upon which this case depends. Without saying that the present case is so strong in favour of the plaintiff as it would be if it involved the relation of mortgagor and mortgagee, still, I think, having due regard to the relation of landlord and tenant, the plaintiff has a good right to claim these erections as buildings attached to the land, which, upon their erection and use for the permanent purposes of dwellings, became part of the freehold, their attachment being sufficient for the purpose, if the object and purpose of their annexation was such as to indicate that the inference from their use was that they were part of the property on which they were built. That is the only inference we can fairly draw in this case, and I think the plaintiff, therefore, has discharged the onus laid upon him, and he is entitled to succeed in this appeal.