"PART OF THE FREEHOLD."

Otago Daily Times, Issue 2036, 14 August 1868, Page 3

"PART OF THE FREEHOLD."

■Williams v. Green.—The following important judgment was delivered by Mr Justice Chapman, at the sitting of the Supreme Court hi Banco; bnMoriday : —

I am of opinion that this rule, which is: for a new trial ;of the issue submitted to the jury, ought to be discharged, on the | ground that: there was-evidence of sufficient affixing to the land to make the buildings part of the freehold. The defendant's case depended on the fact that the building, which is of timber, simply rested on the stone foundation, and was kept, in its position by its own. weight; and a small model was produced and shown "to the jury, to prove that with force enough the building could be lifted away from the foundation and from the chimneysjj leaving them; standing : alone. But I thought at the trial, and think now,, that the chimneys are ail important element. They are imbedded in the. soil, and. are part and parcel of the whole.. Ido not think it competent to. the defendants ito sever them from the rest of the building, and say, as their counsel said—"The chimneys are aflixed; we leave them to you, for they are yours ; and we claim to remove everything else.". , I am also of opinion, that the jury were entitled totake into consideration the nature of the building,/and the nature of the < land >on which it 'is erected. ■> The- buildings,thoughcalled two,- and though erected at different times, now constitute one threestoreyed building, in the. principal business street of Dunedin.". It presents a uniform frontage to the street. Although the lease contains no covenant to build certain: buildings on the land, there is . a provision sufficient ;■ to show that building on the land was contemplated by the parties,; for the landlord stipulates to pay a sum of money for buildings left on the. land at the end of the term. The .very nature of the land, namely, town laiid in the business part of the town, seems to imply that the land could not have been .let or leased for any other purpose. We have heard of a town in New Zealand in: the early : days of the Colony described as-being ■■•" very well adapted to agriculture," and possibly parts of J)unedin -may still- be eminently- deserving of > a like .commendation ; but Princes street has long passed from that stage—if y indeed,; it ever occupied it. ,It is emphatically town. \ ; Landlet there, not by the acre, rood,; or perch, but measured, like ..some precious .article, by the foot,: cannot be brought reasonably within the ■same rules as are made to apply to,land; on which barns, granaries, \ windmills, and: : numerous buildings of a secondary naiture,;are erected; and:the:refore it is that I 'think that the quantum or degree of ariinexatiqn to the freehold,; taking all the circumstances into consideration, is a question for the jury. What.they had to. guide them was as follows : They had the fact thatiromthe very nature of the lands, and the stipulation as .to the payment for buildings left, building was contemplated, ihoT3ghthe tenant was riot Tinder covenant. . The building they find on the ground is of woody three storeys in height, and of extended frontage : to.-the. street. Then |they had evidence that there were two chimneys, one erected outside a part of the building—the portion first erected. ■This chimney is secured on the outside by iron bands, riot fastened into, the chimney, but merely embracing it y. but there;; are;' openings, that is, : open fire places^ to some of the rooms. The other chimney is of a different ,It was provided, for in .theoriginal plan of the; building. Openings jwere left'in every floor, and in the roof, 'for the intended chimney. The bricklayers then, commenced from the foundation, and built it up through each floor,, leaving openings, or fire- places, and so proceeding until it was carried above the: roof; This chimney, as well as the outside chimney, was embedded in the earth in the, usual way, but the former was not designed as part of. the building, and was erected "by/a casual sub-tenant for his own convenience. But the inside chimney was part of the building, and was intended to be so ; and I think the jury were justified in so treating it, and in considering that part being fixed, the yhole*was/fixed. The cases cited were not cases of town buildings, or, indeed, of the principal erection or mansion, but of mere accessories ,to the principal build 7 ing. The only case which has the slightest similarity to this is the case of the cottage or varnish "house, with the chimneyespecially relied upon by Mr Barton— namely Penton ©.Roberts, 2 East, 88; but on .examining the. judgment of Lord Kenyon, as well as that of Mr Justice Lawrence, it appears that the right to remove was not founded upon the circumstance^ relied on by Mr Barton, namely, that the building could be separated from the chimney, .but on the fact that it was a trade fixture. Lord Kenyon says that 1 in modern times the leaning has always been the, other way, in favor; of the tenant, in support' of the interests ,of trade,which is become the pillar of the State;" and Mr Justice, Lawrence says, •'? it is admitted now that the tenant had a right to take these :things away 4uring the term, and all that, he admits upon this record is, that he was a trespasser, in coming upon the land, but not,a trespasser del)onis aspertatis f accordingly the verdict was entered for the plaintiff, as to the trespass in entering and breaking, with nominal damages, and for the defendants a3.to the rest.: In the important case of Elwes v. Mawe, Penton v. Roberts, is commented upon^ and is treated by the Court as a case of a trade^ fixture. As to the extension of the right to remove, after the expiration, of the term, Penton v. Roberts may be considered a3 a doubtful authority, as maybe collected from the observations of Mr Smith in his notes to,Elwes©, Havre,

and those of Mr Amos, in his work on fixtures, as cited by Mr Smith; but, being undoubtedly a case of trade fixtures, it cannot be relied upon as an authority for the defendants, I certainly think that in a contest between the heir and the executors, the whole of the circumstances would show that the building in this case would pass with the inheritance. I also think that the building could- not be treated as a chattel by the Sheriff, on behalf of an execution creditor of the tenant. In the case of landlord and tenant, the lawis more lenient in favor of traded but; in other respects it is subject to the same rules. Taking, however, the' ques-; tion as presented to the juryy I think there was evidence in favor of the finding for:the plaintiffon the issue, and that their finding; ought' not to be disturbed. Rule discharged. V ■