Page:Harvard Law Review Volume 4.djvu/251

235 NOTES. 235 question as to the intention with which the annexation was made; for ii was not made by human agency. If then by falHng upon and becoming embedded in the land when there was no tenant there, they became a part of the soil, it is clear that the mere existence of a lease at the time of the fall can make no difference. For the physical an- nexation is the same whether there is a lease or not. The question then is, has the tenant any right to sever; and it is submitted that he has not. Even when a fixture is erected by the tenant himself the general rule is that it becomes the absolute property of the landlord. To this rule there are, no doubt, many exceptions by which the tenant is given a right to sever; but in a case where he had no previous ownership in the thing annexed, it seems impossible to devise any reason whatever for departing from the general rule. A closer analogy, however, is found in the case of accretion, — an addition of land to land. For, though a meteorite is a mineral differing in crys- talline structure from any mineral native to this earth, it is, in outward characteristics, like any other stone, and stones are in large measure the stuff that land is made of. A meteorite is, of course, a sudden addi- tion to land, and true it is that sudden accretion to A.'s land from the sea, or by the sudden movement of a river, does not become the property of A., — but no more does it become the property of A.'s tenant. The only reason, moreover, that it does not become A.'s property is that it had a former owner (either the king or a private individual), and can be identified. As to the question between landlord and tenant, therefore, the case of the meteorite and the case of gradual accretion (the kind of accretion which is deemed to have had no former owner, or rather to be lost to its former owner) seem to be exactly the same. And we do not know that it has ever been contended that a tenant for years may cut off the land which, in the course of the tenancy, has been added by gradual accretion from the sea or by the slow move- ment of a river from its bed, and return to the landlord the exact number of square feet which he received from him. To return to Baron Parke's decision and dictum, we have found that, on the supposidon that the stones became a part of the land, it is im- possible to support the dictum ; and on the facts of the case it is impossible to support any other supposition. For the only other sup- position is that stones embedded in land are chattels unconnected with the land, the objection to which is that it is not true. It would be extraordinary, for instance, to hold that the executor, and not the heir, of the owner of the fee would take such stones. We feel that we have been rash in venturing to question even a dictum of Baron Parke's, and are glad to be able to refer to a case in the Kings* Bench,^ in 1835, containing at least dicta in support of the view we have expressed. The case was trespass for carrying away sand which had been blown from the sea-shore and formed mounds upon the land. The defendants justified by a custom, and since there cannot be a custom to take a profit in alieno solo, the question was whether it was a taking of a part of the ground, and the court held that it was. It may be possible to support the case merely upon the ground that the sand which had drifted in could not be distinguished from that originally there. Littledale, J., said, however: "Of what is soil in general composed? 1 Blewetty. Tregonning, 3 A. & E. 554, 574-5.