
    Philip C. and Elizabeth Haflick, by their Guardian, v. John Stober.
    Where a tenant for years of arable land, holding under a tenant for life, builds a barn and other structures thereon, for farming purposes under an agreement with his landlord that he shall have the privilege of removing the same ; such agreement can not so bind an infant remainderman as to entitle the tenant to remove the structures after the termination of the life estate.
    ■Error to the district court of Richland county.
    
      This action was originally brought in the court of common pleas of Richland county, by the plaintiffs, as owners in fee, to restrain, by injunction, the defendant, who occupied certain premises described in the petition, as a tenant of the plaintiffs, from removing a certain barn which was upon the premises.
    During the pendency of this action, the defendant pulled down and removed the barn described in the petition from the premises. A supplemental petition was then filed by the plaintiffs, setting forth the removal, and the damage sustained thereby. The petitions and answers disclose the following facts: That Rebecca Carper, wife of one Philip Carper (and the mother of these infant plaintiffs), while intermarried with her said husband, was the owner in fee of said premises, and previous to the 1st of April, 1848, died, leaving Philip Carper tenant by the curtesy. Philip Carper, shortly after the death of his wife, executed a written lease to the defendant, John Stober, by virtue of which he was to possess and enjoy the premises until the 1st day of April, 1851; a copy of this lease is attached to the answer. It is alleged in the answer, “ that some time during the period embraced in said written lease, it was found inconvenient to the pecuniary interests of this defendant to carry on the business of farming said premises without a barn, and sundry additional bar-posts and bars, and gates and gate-posts, of which the said premises were then deficient; .that in consideration of the premises, the said Carper as such tenant, and during his lifetime, entered into a verbal arrangement and contract with this defendant, by and in which this defendant agreed on his part to erect on said premises a barn, and to make certain other improvements thereon that he might find to be convenient and necessary in carrying on the business of said farm; in consideration of which it was agreed, upon the part of the said Carper, that this defendant should have the privilege of removing the said barn, and other fixtures so by him erected.” Defendant alleges that he erected said fixtures, admits that he permitted them to remain until after the expiration of his term, and then removed the barn; and claims the right, by virtue of said contract, to remove and convert the same to his own use.
    
      After trial and judgment in the common pleas, the case was taken to the district court by appeal. The case was submitted to the district court, without the intervention of a jury, and a judgment rendered for the defendant.
    From a bill of exceptions taken on the trial in the district court, and embodied in the record, it is evident that the state of facts disclosed in the evidence did not materially vary from that apparent on the face of the petition and answer.
    To reverse the judgment of the district court, in favor of the defendant, this petition in error is prosecuted; and the giving of such judgment is assigned for error.
    
      Sherman & Hedges and Burns & Dickey, for plaintiffs in error.
    
      L. B. Matson, for defendant in error.
   Brinkerhoff, J.

It is very dear that the structures, the removal of which is complained of in this case, were of such a character that, in the absence of any contract on the subject, they would, in law, constitute a permanent accession to the estate. And it will be seen that the state of fact disclosed in the pleadings, presents the question, Whether a tenant for life, can, by contract with his tenant, so far bind the remainderman, as to authorize the removal of such structures, by the under tenant, after the determination of the life estate ?

The case of White v. Arndt, 1 Wharton’s Rep. 91, is completely analagous, in every essential, and in almost every unessential particular, to the case before us, and is evidently well considered. It was there held, that:

1. Even as between landlord and tenant, fixtures erected by the latter, and which he is entitled to remove, must be removed during the term; after the expiration of the term, the tenant can neither remove them, nor recover their value from the landlord.

2. “ This rule prevails more strictly between tenant for life, or his lessee, and the remainderman; the latter of whom is not bound by any agreement between the tenant for life and his lessee, under which the lessee may have erected buildings on the land.

3. “ The acceptance of rent from the lessee by the remainderman, will not be deemed a ratification of such agreement where it is collateral to the lease, and it does not appear that the remainderman was apprised of it.”

These rulings seem to us to be correct, and are decisive of the case before us. To repeat or paraphrase the reasoning of the supreme court of Pennsylvania in that case would be but useless labor.

The general rule is, that the tenant must remove fixtures put up by-him before he quits the possession, on the expiration of his lease; if not removed during the term, they become the property of the landlord. 2 Kent, 346; Taylor’s Landlord and Tenant, 90; Lyde v. Russell, 1 B. and Ad. 394; Reynolds v. Shuler, 5 Cowen, 323.

In the case of tenants for life and at will, however, whose terms, from the nature of the tenancy, are of uncertain duration, this rule is relaxed, and they, or their representatives, have been allowed the right to remove fixtures after the expiration of their term. Lawton v. Lawton, 3 Atk. 13. But cases of this kind have, so far as we can ascertain, been confined to fixtures which the tenant was entitled to remove as a matter of legal right, without reference to any contract on the subject; and White v. Arndt, above referred to, is a direct authority against the extension of such right of removal, after the expiration of the term, to things which can not be remove! except in virtue of a special contract.

Judgment reversed, and cause remanded.

Scott, C.J., and Sutliff and Gholson, JJ., concurred.

Peck, J., dissented.  