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3. Engines, machinery, and other fixtures, affixed by a tenant to his holding, erected under a tenancy to which the Agricultural Holdings Act, 1875, applies. (1)

Provided

§ THE RIGHT OF

(i) All obligations to the lessor have been performed by the tenant;

(ii) No avoidable damage is done;

(iii) All damage occasioned by the removal is
made good;

(iv) One month's notice in writing is given to
the lessor, to elect to purchase the fixtures;
(v) That, in the case of a steam engine, prior to
its erection,

(a.) The tenant had given notice in writing to
his lessor, of his intention to erect it;
(6.) The lessor had not objected to its erec-
tion by a notice in writing. (7)

REMOVAL is a question, which arises between

1. The heir and the executor of the tenant for life;

2. The remainderman and the executor of the tenant for

life;

3. Landlord and tenant.

[NOTE.

The general rule is, that whatever has once been affixed to the freehold cannot be severed therefrom.

§ This rule has, from time to time, been relaxed; especially between landlord and tenant.

The law shows a less degree of favour to the freeholder in the 3rd class, than in the 2nd; and in the 2nd than in the 1st.

The relaxation has been made, principally, in favour of articles erected by the tenant for trade

(1) 38 & 39 Vict. c. 92, s. 53.

purposes and has been extended to articles of

ornament, which can be severed without

materially injuring the freehold.]

S THE RIGHT OF REMOVAL EXISTS ONLY DURING THE CONTINUANCE

OF THE TERM, AND UNTIL THE TENANT GIVES UP POSSESSION; upon which a presumption of law arises that they are a gift in law to the reversioner. (a)

(a) Penton v. Robart, 2 East 88.

CHAPTER III.

TRESPASS TO LAND.

A TRESPASS TO LAND is committed, where one enters upon land in the occupation, or possession, of another without lawful excuse.

§ AN ENTRY will have been made, and a trespass committed, 1. If a man walk upon the land.

2. If he throws stones, rubbish, &c., upon it.

3. If he allow water, filth, &c., to be discharged thereon. 4. If he suffers his cattle, poultry, or domestic animals, to go thereon.

§ LAWFUL EXCUSES.

1. Where the entry is made with the leave of the occupier.

[NOTE. Where the license or other lawful excuse is departed from, a trespass will have been com

mitted ab initio. (b)

Illustration. Watts was bailiff to Lord Dartmouth (Lord of the manor of A.), and impounded a horse, which was an estray. After impounding the horse, he worked it, which was, admittedly, an unlawful act. It was held that he was a trespasser ab initio. (c)] 2. Where made upon unenclosed land adjoining a highway, in order to drive off cattle, freshly straying thereon. (d)

(b) See the Six Carpenters' Case, 1 Sm. L. C. 7th ed. vol. 1, p. 133. (c) Oxley v. Watt, 1 T. R. 12.

(d) Goodwin v. Cheveley, 4 H. & N. 631.

3. Where made to recover chattels, improperly removed thither, by the owner of the land. (a)

4. Where made in order,

(i) To escape pressing danger. (b)
(ii) To prevent a murder. (c)

(iii) To make an arrest for felony. (d)

5. To abate a nuisance, after previous notice, and request that it be abated.

Illustration. Davies encroached on a common in Cardiganshire, called Mynydd Pencarreg, by erecting a house, and making an enclosure upon it. Williams who had rights of common over this waste, gave him notice to remove it; and on his refusing to do so, pulled it down. It was held that he was entitled to act as he had done. (e)

6. Where made in the exercise of a right, as in the user

of an easement.

§ FOR DAMAGE DONE BY RIOTERS to buildings and machinery, the

inhabitants of the hundred are liable. (f)

(i) Where it exceeds £30, the claim is made by action. (ii) Where it is under £30, the claim is made before

$ REMEDY

justices.

WHERE ANIMALS OR CHATTELS ARE TRESPASSING 66 DAMAGE FEASANT."

The occupier of the land may seize and impound until fair compensation be tendered or paid, all animals and chattels

1. Unlawfully upon his land; and

(a) 2 Roll. Abr. 565, pl. 9.

(b) 37 Hen. 6, 37, pl. 26.

(c) 2 B. & P. 260.

(d) Smith v. Shirley, 3 C. B. 142.

(e) Davies v. Williams, 16 Q. B. 556.

(f) 7 & 8 Geo. 4, c. 31, ss. 2, 8.

2. Doing damage to his land at the time of seizure.

Provided they are not, at the time, under the immediate personal control of their owner, or his

servants.

Illustration. Field drove a cart and horses across the land of Adames. Whereupon Adames and his servants distrained the horses, cart, and harness, damage feasant, in spite of resistance on the part of Field. Field sued them for the assault, which the defendants justified as being necessary to the exercise of Adames' right of distraint. But the court held that as the chattels in question were at the time under Field's personal care, Adames had no right to seize and impound them. (g)

§ Duties of the distrainor.

1. He may not sell the distraint (except as hereafter mentioned).

2. He must, at his peril, provide a proper pound.

3. He must, under a penalty of £20, provide impounded animals with sufficient food and water. (h)

4. He may sell the distress in open market, to meet the expenses of providing the food and water and sale, rendering the balance to the owner of the animal.

After (i) Seven clear days have elapsed.

(ii) Three days public, printed, notice has been given. (i)

(g) Field v. Adames, 12 Ad. & E. 649.

(h) 12 & 13 Vict. c. 92, s. 5.

(i) 17 & 18 Vict. c. 60, s. 1.

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