Page:Harvard Law Review Volume 4.djvu/101

Rh based on any authority; and this phrase really lends no aid to the Rhode Island decision. It is a novel idea, that a chattel can be so affixed to an easement as to become the real property of the owner of the easement. If, for instance, the owner of a right of way should affix stone steps to the land, would they not pass to the owner of the land? Could they be claimed as affixed to the right of way? There are other objections to the Rhode Island theory, but this seems conclusive.

It remains to consider whether the pipes are personal property. It seems to me that they clearly are not, and that the English and New York theory is preferable to that of Tennessee. The pipes are put in the ground to remain there, or to be removed only when they become worn out and it is necessary to replace them with other pipes. Suppose the licence of the company to use the streets were revoked, the company would clearly have no right, after that, to dig up its pipes. This is, to be sure, consistent with continued ownership by the company; but intention settles the question whether or not they become part of the realty, and the fact that the company can remove its pipes only with the concurrence of the authorities is important as indicating a probable intention that they shall remain in the soil.

In fact, when a worn-out pipe is replaced by a new one, the old iron is carried away by the company. But this is consistent with the theory that the pipe is part of the realty. Suppose a tenant chooses to repair a brick walk on the leased premises, putting in new bricks; would he not be entitled to the old ones? Could the landlord bring trover if he destroyed them? Much more should it be so here. The company having a right to do so enters the land and severs certain old iron from the soil; the iron becomes a new article of property, and may well go to the company.

Suppose, instead of laying pipes through the streets, a gas or water company should dig a tunnel, cementing the sides of it to prevent leakage. There can be no doubt that the cement would become part of the realty. Is there any difference when iron is used in place of cement for the same purpose? As iron pipe is it not functus officio, having become the wall of a tunnel, to be removed, if at all, not as iron pipe but as old junk?

This view, which is that of the English courts, seems to me the only one tenable. If it is correct, the remaining question is merely one of interpretation of the statute providing for taxation.