
    George Jackson v. The State of Ohio.
    The rule of the common law, that things savoring of the realty are not the subjects of larceny, only applies to things issuing out of or growing upon the lands, and such as “ adhere ” to the freehold, but not to personal chattels which are constructively annexed thereto — ex gra : a leathern belt connecting certain wheels in a sawmill, and which may bo removed readily and without injury.
    This is a writ of error to the court of common pleas of Belmont county.
    At the March term, 1858, of said court, George Jackson, the plaintiff in error, was indicted for stealing “ one leather sawmill belt, of the length of forty-eight feet, and the width of fourteen inches, and weighing about one hundred pounds, of the value of thirty-five dollars; and one leather sawmill •belt, of the length of fifty feet, and of the width of six inches, and of the value of ten dollars, of the goods and chattels of John Helpbringer,” etc.
    The larceny was charged to have been committed on the 26th of January, 1858, at the township of Smith, in the county of Belmont.
    Jackson pleaded not guilty, and afterward, at the June •term, 1858, of said court, went to trial.
    It appears from the bill of exceptions taken on the trial, that it was agreed by the parties that, in relation to the kind and situation of the property charged to have been stolen, the following was, in substance, the evidence: “ That John Helpbringer was, at the time and place mentioned in the indictment, the owner of a steam sawmill; that straps like those described in the indictment were, at the time, used in the mill, and had been nearly eighteen months, and were indispensable to the running of the mill; that in said mill there is a large drum on a shaft connecting with the engine, and a •small drum on the saw shaft; and the large strap worked on these two drums, passing over them; that the smaller strap was used in a similar manner, being connected with what is called the continual running wheel, and another called the bull wheel, the purpose of that machinery being to draw up logs from the yard; that said straps were put together with cement, except in one place, and near each end of the straps ; •at that place small holes were made, and thongs were put through those holes so as to tie the ends together; that the way to take off those straps was to untie the thongs, which •could be done without difficulty; and there was no other way to remove the straps entirely, without cutting them; that when the saw was not running the straps were sometimes permitted to stand as when in actual use, and sometimes they were slackened by means of a pulley, though the straps could be and frequently were thrown off the drums; that such straps would wear five or six years ; and that the straps were taken off by cutting the same with a knife while the mill was not running.”
    
      “ Whereupon the counsel for the defendant asked the court to charge the jury that if this is the evidence as to the kind-of property, that there can be no conviction, for the reason that such property is not subject to larceny in Ohio.”
    The court refused so to charge, but on the contrary charged “ that whether this was the proof, must be determined by the jury, but if it was, that the property thus situated and used-is the subject of larceny in this State; and that if the crime has been otherwise proved against the defendant beyond a reasonable doubt, he is guilty of larceny, although the proof may show that the property was thus situated 'and used.”
    To which refusal to charge, and to the charge as given', the defendant excepted; and the jury having returned a verdict of guilty, the defendant moved the court for a new trial on the ground that the court had misdirected' the jury; but the motion was overruled, and the defendant sentenced to imprisonment in the penitentiary.
    To review this sentence this writ of error was allowed.
    
      M. L. Hatcher, for plaintiff in error.
    It was claimed on the part of the counsel for the defense-in the court below, that this property — the two sawmill belts— savored of the realty, or were fixtures, and were, therefore, not the subject of larceny in Ohio. And it is claimed that if there is a doubt as to what the law is upon this subject, that it should be resolved in favor of the prisoner.
    For the purpose of ascertaining whether this property was a fixture or not, the attention of the court is called to the following parallel cases :
    
      Allison v. McCune, 15 Ohio Rep. 729, in which the running gear of a steam grist and sawmill were held to be fixtures, and passed to the mortgagee.
    
      Farran v. Stackpole, 6 Greenlf. Rep. 154, in which it was-held that a chain used for drawing logs into a sawmill, and which was attached to the draft chain by a hook, was a fixture.
    It is also well settled that mill stones, though detached from the bed, mill wheels, and a saw of a sawmill, are fixtures. 20 Wend. 636; 2 Kent Com. 546, n.
    The attention of the court is next called to the rules laid; down for the purpose of ascertaining whether an article is a fixture or not.
    The ancient rule was, that anything connected with th« freehold, either actual or constructive, was a fixture.
    Lord Mansfield declared articles fixtures upon the principle that they were accessories to the freehold, and necessary to its use and enjoyment. Lawton v. Salmon, 1 H. Bla. 259.
    Another class of cases lay down the rule, that the true test of a fixture is the adaptation of the article to the use or purpose to which the realty is appropriated, however slight its physical connection with it. Farran v. Stachpole, 6 Greenlf. Rep. 157; Gray v. Holdship, 17 Serg. & Rawle, 413; Voorhes v. Freeman, 2 Watts & Serg. 114; Pyle v. Pennock, Ib.
    As to actual annexation to the freehold, and adaptation to its purpose, see 12 New Hamp. Rep. 225.
    As to the intention of the party making the annexation, see 4 Mete. 306.
    In Teaff v. Hewitt et al. 1 Ohio St. 511, three rules are laid down by which to determine a fixture : 1. Actual annexation to the realty, or something appurtenant thereto. 2. Appropriation to the use or purpose of that part of the realty with which it is connected. 3. The intention of the party making the annexation.
    The belts in question were actually annexed to the freehold; and the mode of annexation was the only one that could be adopted to make them accessory to the use and enjoyment of the mill. See 20 Wend. 636. The mode of annexation must depend upon the office which the article performs; a.nd in the present case the belts were sewed around the drums, making a portion of the permanent machinery of the mill.
    Again, the belts were appropriated to the use of that part of the realty with which they were connected.
    It was undoubtedly the intention of Helpbringer to make a permanent accession to the freehold. This is evident from the fact that such belts must always be in such a mill, and that the mode of annexation was such as must always be made to make a permanent accession, and to accomplish the purpose of such annexation, that is, to run the mill.
    
      The engine, shafts, drums, saw, and bull wheel are fixtures Must not the necessary gearing connecting these different park he fixtures ?
    
    But these belts were not the subject of larceny if they savored of the realty. This is something less than a fixture — ■ more nearly approaches personal property — merely partaking of the nature or quality of the realty. See 4 Bla. Com. 232; Roscoe’s Crim. Ev. 564; Russell on Crimes, 62, n.; Wharton’s Am. Crim. Law, 1753.
    The cutting and carrying away was one continued act.
    
    
      C. P. Wolcott, attorney general, submitted the following points for the State.
    1. The record does not present the question whether these belts were or were not fixtures. Prima facie, the belts are personalty, and the burden of showing the contrary is with the accused. They could become fixtures only by annexation, in some mode, to the realty. It is nowhere stated in the bill of exceptions that the engine and shaft, or the engine itself, or the “ saw shaft,” or indeed any of the machinery with which either of the belts was connected, wa-s in any way attached to the soil or freehold. Non constat but that all this machinery, nay even the sawmill itself, was personal property, in no way affixed or accessory to the freehold. Nor ca.n the court imply that this machinery, or the mill itself, was a fixture, for that would be to presume error, contrary to the maxim of universal application, that every intendment is to be made in support of the judgment of a court of general jurisdiction. The record must show affirmatively and positively that error has intervened to the prejudice of the complaining party. Reynolds v. Roger's ex’rs, 5 Ohio Rep. 171; May v. The State, 14 Ib. 467; Coil v. Willis, 15 Ib. 28; Scovern v. The State, 6 Ohio St. Rep. 288.
    2. Assuming, however, that the machinery with which the belts were connected was permanently affixed to the freehold, the belts themselves were not fixtures. Under the rule declared in this State, one of the criteria of a fixture is “ actual annexation to the realty, or something appurtenant thereto.” And it was held acc< ,'dingly, that the machinery in a factory,, consisting of cardg and spinning machines, looms, etc., connected with thf motive power by bands and shafts, but in nowise attache . to the building except, by cleats or otherwise, to keep them .n their proper places, and subject to removal without injur /, are not fixtures, but personal property. Teaff v. Hewitt, 1 Ohio St. Rep. 511.
    This decision relieves the court from a consideration of the' very embarrassing questions growing out of the general subject of the h;rr of fixtures; and finding this ground to stand on, it may be presumed that the court will not, without the strongest zfwuon, depart from it, and plunge again into the general di/,dressing uncertainty of the law upon this vexed question.
    8. Eve'/i if these belts, when in place, could be deemed fixtures, immediately upon their severance they surely became persor.uJty, and the felonious asportation of them was larceny. The old books, upon some subtle notion, started, doubtUos, in favorem vitae, assert that where the severance and t¡>f) asportation were one and the same act, the articles could never be said to have been in their newly acquired value as personalty, in the actual or constructive possession of any one but the trespasser, and hence it was held that some definite interval must elapse between the severance and the asportation, to constitute larceny. And piling fiction upon fiction, and refinement upon refinement, the courts have ruled that this interval must be a day at least, because the law takes no notice of the fraction of a day! It is high time that some little common sense should be exercised in regard to this question, and that courts in the administration of criminal justice should recognize the fact, doubted by no one, that a fixture severed from the freehold becomes eo instanti the personal goods of the owner, the felonious taking away of which, lucri causa, with or without interval between the severance and asportation, constitutes larceny. These subtle distinctions may have found some excuse in the bloody code of the times which gave them birth — larceny of property to the-value of one shilling being punished with death — but under -our humane code they can only tend to bring the administration of criminal law into utter and deserved contempt.
    4. The highest principles of public policy forbid any exemption of fixtures when once severed, from the general rule .governing all other personal property. If any such exception be made, the direct result will be to withdraw all that large and immensely valuable species of movable property used in the trade, and manufactures, and arts, which by the necessity of things are, while in use, actually or constructively attached to the freehold, from the protection of the ■criminal law, unless the thief is fool enough to permit some ascertainable interval to elapse between the act of carrying away and that of separation.
   Peck, J.

The charge which the court refused to give, assumes that, upon the evidence detailed in the bill of exceptions, the two leathern belts had, by their annexation to the machinery of the sawmill, lost their original character, and thereby became fixtures, and ceased for the time to be the subjects of larceny. For aught that appears in the bill of exceptions, not only the leathern belts, but the mill and machinery also with which they were connected, may have been merely personal property, and as much the ’subject of larceny as a wagon, or the wheels upon which it is moved. It was a steam sawmill, it is true, and the bull wheel which connected with the smaller belt, was used to draw up the logs; but it .nowhere appears from the bill of exceptions that the sawmill itself was a fixture, or in anyway attached to the soil; It may have been one of the movable mills, so common in modern times, which are not attached to the soil, but transported from place to place, and operated where the owner may desire. The fact of annexation to the realty should appear clearly in the bill of exceptions, and not be left to mere inference or presumption. Error is never presumed, but, on the contrary, the presumption is always in favor of the validity of the judgment. 40 Maine, 274; 3 Litt. 315. Or if attached to the soil, it may have been erected by Helpbringer -as a lessee for his own use, and therefore subject to removal, and in no legal sense a fixture. If not a fixture, it was the subject of larceny. 5 Blackford, 417. We may suspect there was error in the rulings complained of, but we can by no means say, on the mere facts set forth in the bill of exceptions, that such error affirmatively appears upon the record submitted to us. Scovern v. The State, 6 Ohio St. Rep. 294. The leathern belts may have been fixtures, but the facts stated ■do not establish it.

The rule that things savoring of the realty are not the subject of larceny, is thus stated and qualified in 1 Hale’s P. C. 510: “ Neither can larceny be committed of things that adhere to the freehold, as trees, grass, bushes, hedges, stones or lead of a house, or the like ; but if they are severed from the freehold, as wood cut, grass in cocks, or stones digged out of a quarry, then felony may be committed by stealing them, for they are personal estate. But if a man comes to steal trees or lead of a church or house and severs it, and after about an hour’s time or so, comes and fetcheth it away, this hath been held felony, because the act is not continuated, but'interpolated, and with that interval the property lodgeth in the right owner as a chattel; and so it was agreed by the court of King’s Bench, in 9 Car. 1, upon an indictment for stealing the lead of Westminster Abbey.” These rules of Sir Matthew Hale are cited and followed in all the more modern treatises as the rules of the common law;'except in some the interval between the severance and the asportation is required to be one day, because of the fiction, that the law does not recognize the fraction of a day. 4 Bla. Com. 232; 2 Russell on Crime, 62-3; Roscoe Crim. Ev. 617; Wharton’s Am. Crim. Law, 641.

This rule of the common law has, however, been greatly-modified in England by acts of parliament, protecting property fixed to the freehold, where, from its nature, it is particularly exposed to theft. Amos & Eerard on Fixtures, 328. And the same protection ought to be extended in all countries where the rules of the common law are recognized and enforced.

The rule that things savoring of the realty can not be the sub ject of larceny, where the severance and asportation are continuous acts, is, to say the least of it, very subtle and unsatisfactory. The wrongful severance does not destroy the title nor the constructive possession of the owner; it is still his property in its altered condition, and its felonious asportation,, though immediate, would seem to be as much a felonious taking of the personal property of another from his possession and without his consent, as if the wrongdoer had severed it-on one day and removed it the next. In every case there is-necessarily a point of time between its severance and its asportation, and, upon principle, we can see no difference between one instant of tim'e and a period of twenty-four hours,, for in that interval, brief as it may be, “ the property lodgeth in the right owner as a chattel,” anda felonious taking thereof should be larceny. Still, as the rule has received the sanction of ages, and as our legislature seems to have recognized its existence, by the act of March 11, 1857 (54 O. L. 81), making it larceny to sever and carry away any trees, fruit or vegetables growing upon the lands of another, in such manner as would amount to larceny if previously severed, its abrogation, as to articles not specified in that act, should properly be left to future legislation. We may, however, as was done in 5 Blackford, 417, refuse to carry this rule any further than it has already been carried. In that case the court, acting upon this principle, held that a key, though in the lock of a door in a house, was not a fixture, but the subject of larceny. The leathern belts, originally personal property, were applied and used to propel the machinery, and were necessary, indeed, to its propulsion ; still they were, so far as the proof went, only constructively annexed to the soil at most, and might be removed without any injury to of disturbance of it. In the language of the rule, they “ did not adhere to the freehold; ” and we have not seen any decisions to the effect that mere constructive annexations are not the subjects of larceny. The rule had its origin in times when manufactures were far less extensive than at the present time, and the instances stated in the rule, and in all the cases we have seen,, are all instances of things growing upon the land, or of ae tual annexations to the freehold, and not removable without: injury thereto.

Public policy requires that the apparatus for manufacturing; establishments should be protected from felonious appropriations, as much, if not more, than other personal property, as its loss oftentimes involves consequences much more serious than the mere value of the thing taken.

The whole apparatus of which the belts formed a part, may or may not have been a fixture, dependent upon the intention of the party making the annexation and the persons-between whom the question might arise, whether between heir and personal representative ; tenant for life and reversioner ;• vendor and vendee ; or landlord and tenant; and as to each of which relations, different and peculiar rules are to be applied. To hold that the felonious appropriator of such accessions may, in his defense, avail himself of these peculiar relations, and avoid responsibility to the criminal law, because the accession chanced to have been made by one class rather than the other, not only shocks the moral sense, but renders the application of a wholesome provision of that law extremely precarious.

In restraining the rule, that larceny can not be committed of things savoring of the realty, to such annexations as actually adhere to the soil, and excluding from it such as are only constructively annexed, we do no violence to the adjudged cases, and extend to property employed in manufacturing the protection it so eminently demands.

We are therefore of the opinion that there was no error in refusing the charge asked by the defendant, nor in the charge actually given to the jury.

Judgment affirmed.

Brinkerhoff, C.J., and Scott, Sutliee, and Gholson, JJ., concurred.  