the advancements made from the general | Section 43 of the Conservancy Act, which au-county fund of Franklin county, Ohio, which thorizes this levy, specifically designates the warrant was then and there refused and is purposes for which the proceeds of this levy now brought into this court and deposited shall be used. with the clerk hereof, subject to the acceptance of the relators and the orders of this -court.

To this answer, relators filed a general demurrer. Pending the hearing of this cause upon the demurrer, by agreement of parties and upon approval of the court, the warrant for $38,131.69 was delivered by the clerk of this court to Fred M. Sayre as secretary and ex officio treasurer of the Franklin county conservancy district, upon a stipulation in writing that the acceptance of the same should not prejudice the rights or claims of any of the parties to the action.

Webber, McCoy & Jones and O. E. Davis, all of Columbus, for relators. Robert P. Duncan, Pros. Atty., W. J. Ford, Asst. Pros. Atty., A. Ward Clutch and Robert J. Beatty, all of Columbus, for defendant.

DONAHUE, J. [1] Section 6828-43, General Code (section 43 of the Conservancy Act of Ohio, 104 O. L. 13, 35), provides:

"As soon as any district shall have been organized under this act, and a board of directors shall have been appointed and qualified, such board of directors shall have the power and authority to levy upon the property of the district not to exceed three-tenths of a mill on the assessed valuation thereof as a level rate to be used for the purpose of paying expenses of organization, for surveys and plans, and for other incidental expenses which may be necessary up to the time money is received from the sale of bonds or otherwise."

The expenses incurred by the board of directors of the Franklin county conservancy district, and paid from time to time from the general fund of Franklin county, Ohio, were for the purposes named in this section, for which this levy of three-tenths of a mill is authorized.

It follows, therefore, if the general funds of the county are but loaned or advanced to the preliminary fund of the conservancy district, in anticipation of the levy, that the proceeds of this levy must be applied to the reimbursement of the general funds of the county.

If there were any doubt upon this proposition, the facts in this case would, nevertheless, require that the proceeds of this levy should be applied to the reimbursement of the general funds of the county. The same section that authorizes the payment of these expenses out of the general funds of the county also provides that:

"Upon receipt of funds by the district from the sale of bonds or by taxation or assessment the funds so advanced by the counties shall be repaid."

This plain provision of the statute is mandatory. It would be idle to discuss the questors to order repayment to the county fund out tion of the authority of the board of direcof other funds in its possession or control, when it has received no funds except this one arising from the tax levy of three-tenths of a mill upon the assessed valuation of the property within the conservancy district.

[2] While the fund arising from this levy is undoubtedly the proper and primary fund out of which repayment should be made to the county fund, nevertheless the General Assembly of Ohio has safeguarded the general funds of the county by this mandatory provision requiring reimbursement upon the receipt of funds from any source whatever. The board of directors of the conservancy district has no discretion to delay the reimbursement of the general fund of the county after it receives funds from any source proThe fund arising from this levy, together vided by the statute, but must forthwith apwith advancements made from the general ply these funds to the repayment of the adcounty fund, as authorized by the same sec- vancements made from the general fund of tion, constitutes the preliminary fund named the county; and even if some other funds in section 6828-42, General Code. It is were so applied it would seem from this legclear that this preliminary fund is the pri-islation to be the clear duty of the board of mary fund from which these expenses for or- directors to immediately reimburse the fund ganization, surveys, and plans, and other in- so depleted from the proceeds of its levy for cidental expenses, should be paid. It is the preliminary fund, for it is expressly for equally clear that the money from the gener-the payment of these expenses that this levy al funds of the county used for the payment is authorized. of these expenses was not intended by the The demurrer to the answer is overruled, Legislature as a permanent addition to the and, the relators not desiring to plead furpreliminary fund, but merely an advance- ther, a peremptory writ is refused, and the ment or loan to it in anticipation of the col- petition dismissed at cost of relators. lection of this levy; so that the final and only Writ refused. source of the preliminary fund defined in section 42 of the Conservancy Act is this levy of three-tenths of a mill upon the assessed valuation of the property of the district.

NICHOLS, C. J., and JOHNSON, NEWMAN, JONES, and MATTHIAS, JJ., concur. WANAMAKER, J., not participating.

On a bill to restrain a lessor's grantee from enforcing any claim of ownership in two dwelling houses alleged to be owned by the complainant, or from disturbing her in the use and enjoyment of the lot of land and the houses before A question to such witness whether houses the expiration of an existing lease, and for a on such lots were ordinarily transferred by bill decree that the houses were complainant's prop-of sale, and whether they had ever been insured erty, evidence held to sustain a finding that the by the owners of the land, did not harm defendhouses were removable personal property, as ant, where the witness stated that he did not distinguished from fixtures.

[Ed. Note. For other cases, see Records, Dec. 13. FIXTURES Dig. 9(13).]

7. APPEAL AND ERROR 847(1) — REVIEW SCOPE-EQUITY.

Testimony of an associate with lessor that he sold the lot to the defendant, and that he Under St. 1913, c. 716. § 4, providing that wrote a statement entitled "Meetings of such upon an appeal of suit in equity, questions rais-tenants," was immaterial to the issue. ed shall be subject to revision, exceptions taken [Ed. Note.-For other cases, see Fixtures, at the hearing before a judge of the superior Cent. Dig. §§ 73, 74; Dec. Dig. 35(2).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

HARM- streets and roads, the title to which before the Commoners of Salisbury. During that 1903 was vested in a corporation known as year the Salisbury Land & Improvement Company became the owner of the beach land including "lot 44," and continued to own the property until it was conveyed by the company by deed dated April 25, 1911, to Walter Coulson and others. On the same date, Coulson and others made a deed of the property to themselves as trustees of the Salisbury Beach Associates, and thereafter the property was held by the grantees under a declaration of trust.

"The sole question to be tried under the bill ised upon the lot by White, but have considerthe title to the buildings referred to in the bill ed it carefully and are of opinion that it of complaint." could not be ruled as matter of law that the

[1, 2] At the outset the question arises title to the houses was in the defendant, whether these two buildings are personal nor can it be found that the findings of the property or fixtures. This is a mixed ques-judge, including the finding that the houses tion of fact and law, depending upon other were personal property, were plainly wrong. facts and circumstances and the reasonable inferences to be drawn therefrom, including the manner in which the buildings were attached to the land and the intention of the parties. Rowse, Pet'r, 195 Mass. 216, 80 N. E. 822. Natural Autoforce Ventilator Co. v. Winslow, 215 Mass. 462, 102 N. E. 705. There was evidence to show that "the houses are built on the sand, and rest on posts with no cellars"; that the front house "has a brick chimney built about three years ago which runs through the ell of the building to the ground; the chimney in the rear house is on brackets and does not go through the floor." There was evidence that when the beach land was owned by the Commoners, the buildings on lots leased were the property of the lessees, that the rent paid was for the rent of the land and did not include the structure upon it, and that the Commoners, as the owners and lessors of the lots, treated the houses as personal property, and never made any claim of ownership in the houses which had been built thereon by tenants.

There was also evidence to show that while the ownership of the lots was in the Salisbury Land & Improvement Company, the company made no claim of title to the buildings erected on the lots, but that it was understood by both the company and the tenants that the houses were owned by the latter; that the amount of the rentals was fixed without reference to the character of the buildings upon the lots leased, and was so fixed without reference to whether there was any house on the lot or not.

One Shaw, who was formerly president of the company, testified that he never knew of the company or of its officers ever making any claim of ownership to any of the houses on the lots.

There was also evidence to show that the Salisbury Beach Associates treated the lessees who had built houses on the lots as the owners thereof, and that the lessees were allowed to remain there with the consent of the Associates; that when sales of lots were made, tenants who had built houses were given the option of buying the lots upon which the buildings stood or of buying less expensive back lots and removing the buildings thereto, and that when a lot was so sold to a tenant, it was sold without reference to any building which might be upon it. The defendant testified that before he purchased "lot 44" he knew of the lease to White and that the latter claimed to own the houses on the lot.

We do not attempt to recite all the evidence before the court bearing upon the question of the ownership of the houses plac

[3, 4] The rule is well settled that fixtures annexed to real estate by a tenant become a part of it. They may be removed by the tenant during the term, but if, without having done so, he voluntarily quits the premises at the expiration of his term without any agreement with his landlord, he cannot afterward claim them as against the owner of the land. Wall v. Hinds, 4 Gray, 256, 64 Am. Dec. 64; Bliss v. Whitney, 9 Allen, 114, 85 Am. Dec. 745; Watriss v. National Bank of Cambridge, 124 Mass. 571, 26 Am. Rep. 694. We have no reason to question the soundness of the rule of law as stated in Watriss v. National Bank of Cambridge, ubi supra, but are of opinion that it is not applicable to the facts as found in the case at bar. This case is not governed by the rule relating to the removal of fixtures, because of the finding of the judge that the houses are personal property and were so considered by all the parties. The court found that the houses are removable chattels as distinguished from fixtures. We are of opinion that such finding upon the evidence was warranted. First Parish in Sudbury v. Jones, 8 Cush. 184; Hinckley v. Baxter, 13 Allen, 139; O'Donnell v. Hitchcock, 118 Mass. 401; Rowse, Pet'r, ubi supra. There was ample evidence to show that the different lessors and the lessees treated the buildings on all the lots as personal property. Swift v. Boyd, 202 Mass. 26, 88 N. E. 439. In view of the finding that the houses are personal property, the question whether, if fixtures, the right to remove them has been lost, becomes immaterial.

[5] The recital in the leases that the lessee "shall deliver up the premises in as good condition, reasonable use and wearing thereof, fire and other unavoidable casualties alone excepted, as the same now are * or that the lessee "shall not suffer any waste thereof or make any alteration therein" is not conclusive upon the question of the ownership of the buildings. It is evidence bearing upon that question to be considered in connection with all the other facts and circumstances, including the character of the construction, and the intention of the parties. Manufacturers' Ins. Co. v. Western Assur. Co., 145 Mass. 424, 14 N. E. 632; Phinney v. Foster, 189 Mass. 182, 75 N. E. 103.

[6] The registration of the title in the land court is not a bar to the plaintiff's claim of ownership in the buildings. The buildings are found to be personal property. The decree of registration obviously included the land therein described and buildings thereon which were annexed to it in such manner as to have

become a part of the freehold, but it did not was admissible. It was evidence of an acinclude or affect the title to removable chat-knowledgment on the part of the lessor that tels located on the land. it did not own the houses.

The testimony of Shaw, that when the leases in question of "lot 44" to White were signed, neither he (Shaw) nor the company nor the committee made any claim of ownership in the houses thereon, was admissible for the reasons above stated.

[7] The exceptions taken at the hearing before the judge of the superior court to his refusal to make the rulings requested by the defendant, as well as the exceptions saved to the admission and exclusion of evidence, are subject to revision by this court upon appeal by virtue of the provisions of St. [12] One Pettingill, who was an assessor of 1913, c. 716, § 4, in the same manner as if Salisbury for several years, was allowed to they were contained in a bill of exceptions. testify that at one time the taxes on the As to the rule before the enactment of St. houses at the beach were assessed to the re1913, c. 716, § 4, see Pigeon's Case, 216 Mass. spective owners of the houses, and that the 51, 55, 102 N. E. 932, Ann. Cas. 1915A, 737. land was not assessed to the owners of the The defendant made twenty-three requests houses. If it be assumed that this evidence for rulings, all of which except the third was incompetent, we are of opinion that its were refused by the judge; some have be-admission did not injuriously affect the subcome immaterial, and from what has been stantial rights of the defendant. St. 1913, c said, we are of opinion that none of them 716, § 1. See Enfield v. Woods, 212 Mass. could have been given. The exceptions taken 547, 99 N. E. 331. at the trial to the admission of evidence may be disposed of briefly.

[8-10] We are of opinion that the witness Moulton, who was collector and treasurer

[13, 14] The witness Coulson, who was a member of the Salisbury Beach Associates, testified that he sold "lot 44" to the defendant. He was also permitted to testify that for many years of both the Commoners and he wrote a certain statement entitled "Meetthe Salisbury Land & Improvement Company, ings of such tenants." This evidence would could properly testify that no claim was ever made by either of those owners of the land, seem to have been immaterial to any issue inthat it owned any houses at Salisbury Volved, but as the witness was allowed to exBeach. The questions put to Moulton wheth-plain fully his reasons for his action, it does er houses at the beach were ordinarily trans- not appear that the rights of the defendant ferred by bill of sale, and whether they had were prejudiced by the evidence even if it was incompetent. ever been insured by the owners of the land, did not harm the defendant as the witness stated in answer to both questions that he did not know. The reports of Moulton as collector and treasurer were admissible as tending to show that the rents collected were for the rent of the land and did not include buildings thereon. The admission of the records of the land company, as well as the records of its directors showing that the executive committee had charge of the lots and was authorized to fix the rent to be paid

therefor, was not error.

[15] This witness, also, was asked if he told the defendant that the deed to the defendant would cover the buildings. The question does not seem to have been answered directly and so the defendant was not harmed by the answer. We do not mean to intimate that if a responsive answer had been given it would have been inadmissible.

We find no error of law on the part of the judge in his conduct of the hearing, either in his refusal to rule as requested, or with respect to his rulings upon the admission or exclusion of evidence.

[16] The defendant contends that during the hearing the judge, without evidence, assumed certain facts, but as it does not appear that any objection thereto was taken by the defendant, by exception or otherwise, it is plain that upon this record we cannot revise such action of the court.

[11] The witness Shaw, who for many years was one of the Commoners, and afterwards was president of the land company, testified that to his knowledge the company never claimed to own the houses on the lots owned by the company; that houses upon the lots were usually sold by the owners by bill of sale; that neither the Commoners nor the land company ever had any fire insur- [17] As the plaintiff's term under the last ance upon any house on the beach, and nev-lease expired on April 30, 1916, the final deer had any insurance on the houses on "lot cree should be modified by adding at the 44." The whole of this evidence was admissible as tending to show that all the houses, including those on "lot 44," were personal property and were so treated and understood by the lessors.

The testimony of Shaw that as president and director of the land company, he protested to the tax commissioner against an assessment of the houses on the lots at the

end of the second paragraph the following:

"Except that the plaintiff shall remove the buildings standing upon lot 44 and owned by Sarah A. White within a reasonable time from the date of the filing of the rescript in this case.”

The last paragraph of the decree is also to be modified by including the costs of the appeal. As so modified, the final decree is affirmed.