tions presented on this appeal. But nothing | fuse to pay for the fixtures attached to the contained in this opinion should be con- building, if there is nothing in the notice of strued as an intimation that if the court condemnation to show that only a portion had jurisdiction of the subject of the action of the property was to be taken. it would deem the statute in question, or the special election held thereunder, to be invalid.

A the Appellate Division of the Supreme PPEAL by claimant from a judgment of Court, Third Department, affirming a judg ment of the State Board of Claims disallowing his claim for the value of fixtures attached to a building on land taken by the Mil-state for barge canal purposes. Reversed. The facts are stated in the opinion. Messrs. Hickey, Thompson, & Gold, for appellant:

|

Supp. 908; | promulgated any doctrine at variance with 127 N. Y. the settled rules of law.

118 App. Div. 865, 103 N. Y.
Phipps v. State, 69 Misc. 295,
Supp. 260; Allen v. Boston, 137 Mass. 319;
White v. Cincinnati, R. & M. R. Co. 34 Ind.
App. 287, 71 N. E. 276; Price v. Milwaukee
& St. P. R. Co. 27 Misc. 98; Lewis, Em.
Dom. § 488; Re New York (Re Improve-
ment of Water Front) 192 N. Y. 295, 18
L.R.A. (N.S.) 423, 127 Am. St. Rep. 903, 84
N. E. 1105; Re New York, 101 App. Div.
527, 92 N. Y. Supp. 8.

Messrs. Thomas Carmody, Attorney
General, and Joseph P. Coughlin, for the
State:

The state has not adopted any policy or

court considering that the question was whether the machinery was a part of the realty or not.

Voorhees v. McGinnis, 48 N. Y. 278; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Tyson v. Post, 108 N. Y. 217, 2 Am. St. Rep. 409, 15 N. E. 316.

Cardozo, J., delivered the opinion of the court:

The state appropriated the claimant's warehouse in the village of Middleport for the use of the barge canal. The board of claims found that the value of the building was $9,000 and that of the land $1,300. The claimant had an award for those proved the decision of the trial court, where the building on the land in question had been fitted up, and was used at the time of In White v. Cincinnati, R. & M. R. Co. 34, the taking, for Turkish and other baths, Ind. App. 287, 71 N. E. 276, where the rail-with permanent fixtures, which had been way company was condemning a right of taken with the building by the respondent, way by bridge over the owner's land, oc- and there was evidence as to the worth of cupied by a paper mill, it was held that the these fixtures for use in the business then owner's right to compensation as regards carried on in said building. The court had fixtures was not preserved by an instruction refused to instruct the jury "that, in adthat if "there was machinery in such build-dition to the value of the building, the pe ings, and attached thereto, and intended to titioners are entitled to recover the value be permanently used in connection there- of the fixtures taken with the building," with, and was attached in such a manner but instructed them that, in their estimate that it could not be detached and removed of damages, the fixtures were to be taken without material injury to such real estate into account as being a part of the building, or buildings, then such machinery became and that allowance should be made for them and was a part of the real estate to which so far, and only so far, as they enhanced it was so attached. This is a matter for the the market value of the estate for any purjury to determine from the evidence." The pose for which it might be used. court considered that machinery permanent in its character, and essential to the purpose for which the buildings were used, was a fixture and realty, and that the attachment to the freehold might be real or constructive.

But in New York C. & H. R. R. Co. v. Albany Steam Trap Co. 161 App. Div. 329, 146 N. Y. Supp. 674, a decision by the same department of the court whose decision in Jackson v. State [160 App. Div. 110, 145 N. Y. Supp. 131] is now reversed in the principal case, the court, in holding machinery in a building, part of which building was taken, to be personal property, said: "It appears that the greater portion of the heavy machinery has been owned by the appellant for about twenty years, and has been twice moved as appellant changed its business location. The machinery has been carried up on appellant's inventory as personal property. It has been fastened and held in place by screws, and can be moved without injury to the real estate."

The fixtures are to be considered as part of the building, and its value with them is the amount to be paid. Allen v. Boston, 137 Mass. 319: Re Park Comrs. 1 N. Y. Supp. 763; Re North River Water Front, 118 App. Div. 865, 103 N. Y. Supp. 908, affirmed in 189 N. Y. 508, 81 N. E. 1162; Re Avenue A, 66 Misc. 488, 122 N. Y. Supp. 321.

In Allen v. Boston, 137 Mass. 319. cited in JACKSON V. STATE, the appellate court ap

Rule same as between vendor and vendee.

In determining whether a thing is a fixture and so a part of the realty, the rule to be applied is that between vendor and vendee, and not that between landlord and tenant. Re Post Office Site, 127 C. C. A. 382, 210 Fed. 832 (N. Y.); Re New York, 39 App. Div. 589, 57 N. Y. Supp. 657; Phipps v. State, 69 Misc. 295, 127 N. Y. Supp 260.

In Re Post Office Site, supra, the United States, in taking property for a postolice, was required to pay for the machinery of an engraving plant some of which rested on concrete pillars built up from the ground, and the rest was attached to or built into the floors or walls, the court considering that the rule to be applied was analogous to that between vendor and vendee, and not to that between landlord and tenant, and that the owners might conclude that they could not resume business in any other location with profit, and should not be left with a large amount of useless machinery on their hands.

In Re New York, supra, cited in JACKSON v. STATE, it was held that a city taking part of the land of a gas company must take and pay for such machinery in the buildings on the land taken as was a fixture, and that it could not claim that the gas company should move the machinery onto its adjoining land.

amounts. The board also found that the, surrender to the owner a stock of secondbuilding contained machinery, shafting, ele- hand machinery and in so doing discharge vators, and conveyers of the value of $4,353.20. The form in which these articles were annexed to the freehold, and the purpose of the annexation, were such that, as between the vendor and vendee, they would have constituted fixtures. For the enhancement of value due to the presence of these fixtures, the board of claims refused to award compensation to the claimant. The ruling has been affirmed at the appellate division on the ground that the state, after appropriating the warehouse, had the right to reject the fixtures and refuse to pay for them.

We think that the power of the state is not so great, nor the plight of the citizen so helpless. Condemnation is an enforced sale, and the state stands toward the owner as buyer toward seller. On that basis the rights and duties of each must be determined. It is intolerable that the state, after condemning a factory or warehouse, should

In Phipps v. State, supra (Ct. Claims), it was held that an engine and derrick in an engine house, used in connection with a factory for the manufacture of fertilizer, were fixtures, where the engine rested upon a foundation of concrete which was about 4 feet thick, sunk in the earth, and was connected, by means of six inch bolts, 4 fect, 6 inches long, with metal bars laid on the bottom of the concrete, the concrete covering the bottom flange of the engine base, and the derrick was set up in the earth and was supported by five metal guys, the lower end of each being anchored to a beam buried in the ground.

-leaseholds.

This rule is particularly illustrated in cases where there is a leasehold or tenancy. In such cases the fixtures are real estate although the tenant has the right to take them away. Re Park Comrs.; Re North River Water Front; and Re Avenue A, supra.

The tenant should be allowed for such of his buildings and fixtures as would be real estate if he were the owner, the property in the first place to be valued in its entirety. Re Park Comrs. supra.

The rule between landlord and tenant does not apply so that a beneficial use of the property is to be taken from the tenant without making him a fair compensation for the property as a whole. Re North River Water Front, supra, where it was held that on the condemnation of property the owners of the buildings and leasehold are entitled to be paid the fair market value of the buildings as they exist, together with such permanent machinery as has been built into the buildings and used in connection with the leasehold estate for business purposes. The court said: "Assuming that, if

Re

the full measure of its duty. Severed from the building, such machinery commands only the prices of secondhand articles; attached to a going plant, it may produce an enhancement of value as great as it did when new. The law gives no sanction to so obvious an injustice as would result if the owner were held to forfeit all these elements of value. An appropriation of land, unless qualified when made, is an appropriation of all that is annexed to the land, whether classified as buildings or as fixtures, and so it has frequently been held. North River Water Front, 118 App. Div. 865, 103 N. Y. Supp. 908, affirmed in 189 N. Y. 508, 81 N. E. 1162; Re New York, 39 App. Div. 589, 57 N. Y. Supp. 657; Phipps v. State, 69 Misc. 295, 127 N. Y. Supp. 260; Allen v. Boston, 137 Mass. 319. we say "unless qualified when made," because we do not need at this time to decide whether the landlord elected to purchase the building under the provisions of the lease, it would not be required to pay for such property, and the tenant would be required to remove it, when the city condemns the property it takes from the tenant the building of which this machinery is a part, and it is only just that the tenant should be paid what the building as a whole is worth. What the tenant is entitled to is the fair market value of the property that is taken. That property is the value of the leasehold, whien includes the probability of a renewal of the lease, which would result in his being allowed to continue as lessee and use all this property in connection with the building, and it seems to me, in view of this right that the tenant had in connection with his occupation of the property, that justice requires that the city should pay him for the property which is a part of the building, and which has little or no value separated from the property which the city takes for its own purposes." Partly quoted in Re Willcox, 142 App. Div. 680, 127 N. Y. Supp. 177.

In Re Avenue A, 66 Misc. 488, 122 N. Y. Supp. 321, the court said: "The city took the entire buildings as they stood, including the trade fixtures therein, and for purposes of this proceeding they must all be regarded as real property. That is as between the tenant and the city, the trade fixtures were real property and must be paid for by the city the same as a building, and the tenant was under no more obligation to remove them than he would be to remove a building if he were the owner. As between the tenant and the owner, however, the trade fixtures were personalty, and could be removed, and therefore any award made for them would go to the tenant."

While the question whether buildings are fixtures is without the scope of this note,

Compensation for depreciation in fixtures necessitating the removal of the business,

was a fixture or not, and the other Pennsylvania cases do not seem to go into that question.

the machinery as such, it being personal property."

Schreiber v. Chicago & E. R. Co. 115 Ill. 340, 3 N. E. 427, is to obscurely reported to be of much value on the question; it seems to have been there held that where a tenant was allowed to remain after condem

of his lease, he was not entitled to compensation for, nor to the cost of removal of, such of his buildings, machinery, etc., as were trade fixtures.

In James McMillin Printing Co. v. Pittsburg, C. & W. R. Co. 216 Pa. 504, 65 Atl. 1091, the court said: "If, as was the case here, a tenant engaged in a business requiring the use of heavy machinery and ap-nation proceedings were begun until the end pliances should secure a new place equally well adapted to his business, and at the same rent, he would still be at the expense of removal and at a loss because of the stoppage of his business. These are matters to In Re New York, 101 App. Div. 527, 92 N. be considered in connection with others, not Y. Supp. 8, affirmed in 182 N. Y. 281, 74 N. as substantive elements of damage, but as E. 840, and in further proceedings in same tending to prove the value of the leasehold matter in 192 N. Y. 295, 18 L.R.A. (N.S.) 423, interest." 127 Am. St. Rep. 903, 84 N. E. 1105, modiIn Diamond Mills Emery Co. v. Philadel-fying 122 App. Div. 890, 106 N. Y. Supp. phia, 22 Pa. Co. Ct. 9, where the city took 1117, the question was simply as to the divifor a park land on which was a mill and sion of fixtures or fixture value between machinery, the court said: "The true landlord and tenant. B. B. B. theory would seem to be that the city took the whole property and was liable for the whole, but that its liability was abated to the extent of the value of the machinery taken by the plaintiff. The value to the plaintiff was the market value."

The general rule, however, is that an allowance is not to be made for the removal of personal property. See note to Blincoe v. Choctaw, O. & W. R. Co. 4 L.R.A, (N.S.) 890.

Miscellaneous.

In Gibson v. Hammersmith & C. R. Co. 9 Jur. N. S. 221, 2 Drew & S. 603, 1 New

Reports, 305, 32 L. J. Ch. N. S. 337, 8 L. T. N. S. 43, 11 Week. Rep. 299, the company, intending to take a small part of premises or buildings occupied by the plaintiff under a ninety-nine year lease, on which he carried on the business of manufacturing engineer, acquiesced in his demand that it should take the whole of the "manufactory" under § 92 of the statute, and it was held that it was bound to take not only the land and buildings and ordinary fixtures, but also the trade fixtures, consisting of fixed machinery, etc. The said statute, § 92, provided "that no party shall be required at any time to sell or convey to the promoters of the undertaking a part only of any house, or other building or manufactory, if such party be willing and able to sell and convey the whole thereof."

Where the government destroys the water power used by the claimant in his sawmill, he should be compensated for the machinery therein, as immovable under the statute. Lefebvre v. Reg. 1 Can. Exch. 121.

Re Public Parks, 53 Hun, 280, 6 N. Y. Supp. 750, is not very clearly reported. The court there states that the owner could not object "that no award was made for the difference in value between the machinery as in use and occupation upon the premises, and such machinery if moved to another manufactory," and says: "It is clear that the commissioners have made an allowance for the depreciation in value of the machinery by removal, and that they would have no authority whatever to make an award for

NORTH CAROLINA SUPREME
COURT.

Will

W. A. ROBERSON et al.,

V.

C. MOORE, Appt.

(168 N. C. 388, 84 S. E. 351.)

loan rule in Shelley's Case. Since in a will the word "lend" is equivalent to "give" or "devise," a loan in such an instrument of land to one for life, with

a devise of it in fee to his heirs at his death passes the fee to him.

In a deed or will the word "lend" and its derivatives have usually been held equivalent to give, grant, devise, or words of similar meaning; that is, it does not limit the estate to a mere lease, or one different from that which would be created if the words give, grant, devise, etc., had been used. The governing factor, however, in the interpre tation of instruments in which this word is used, is the intention with which it was used; and if this requires a different construction, such construction will be given.

A statute in Georgia provides that the word "lend" when occurring in a will will be construed to mean "give" unless the context requires its restricted meaning. Britt v. Rawlings, 87 Ga. 146, 13 S. E. 336.