## Facts

- Landlords owned a fee simple lot in the City of Washington and leased it to a tenant for years for rent, with an option for the tenant to purchase the fee at a fixed price.
- During the lease term, the tenant erected a substantial two-story building with a stone or brick cellar/foundation, and also erected a cow stable of plank and timber set on posts placed in the ground.
- The tenant was a carpenter and lived in the building during the lease, but asserted it was built to operate a dairy business.
- Evidence showed the cellar (with a spring) was used exclusively as a milk cellar; upper portions were used for storing, scalding, and washing dairy utensils; the building also housed the tenant’s family and dairy workers.
- Before the lease expired, the tenant dismantled and removed the building and stable from the premises.
- The landlords sued in an action on the case for waste, claiming the tenant unlawfully removed a house annexed to the freehold.

## Issues

1. Whether a tenant may remove, during the term, a substantial building and related structures erected on leased land when used for trade but also used as a residence.
2. Whether strict English common-law limits on a tenant’s removal of fixtures (including limits associated with agricultural use) should be assumed as American law absent local adoption.

## Decision

- The Supreme Court affirmed the judgment for the tenant.
- The Court held the tenant was entitled to remove the building and stable as trade fixtures during the term.
- The circuit court properly refused the landlords’ requested instruction that removal was unjustified as a matter of law and that the tenant was liable for the building’s value.

## Legal Principles

- General rule: whatever is annexed to the freehold becomes part of the realty and is not removable by the tenant.
- The rule is applied with greater liberality in landlord–tenant disputes than in heir–executor disputes, allowing established exceptions.
- Trade fixtures exception: fixtures erected to carry on trade or manufactures may be removed by the tenant during the term and are treated as personalty for that purpose.
- Removability of a trade fixture does not depend on the building’s size, form, or construction (e.g., brick foundation, stories, chimney); the controlling inquiry is whether it was designed for trade.
- Mixed use test: if a structure is built principally as a family dwelling independent of trade, it is generally irremovable; if residence is merely accessory to operating the trade, it falls within the trade-fixture exception.
- English common law is not automatically controlling in the United States in all respects; whether particular restrictive fixture rules apply may depend on authoritative local practice or adjudication.
- Where a lease is silent, general local usage and custom may inform landlord–tenant obligations regarding improvements and removals.

## Conclusion

The Court held that a tenant who erects structures primarily to conduct a trade may remove them during the lease term, even if the structures are substantial and include incidental residential use; the classification turns on the purpose and use of the improvement rather than its physical permanence.


Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829)