
    John P. Van Ness and Marcia his wife, Plaintiffs in error vs. Perez Pacard, Defendant in error.
    Action on the case against the defendant for'waste, committed by him while tenant of the plaintiff; the owner of the reversionary interest, hy pulling down and removing from the demised premises, a dwelling house erected thereon, and attached to the freehold. The question raised in the case was, what fixtures erected by the tenant during his term aré movable by him.
    The general rule of the common law undoubtedly is, that whatever is once annexed to the freehold becomes part of it, and cannot be afterwards removed, except by him who is entitled to the inheritance. This rule, however, never was inflexible, and without exceptions. It Was construed most strictly between executor and heir, in favour of the latter; and more liberally between tenant for life and in tail, and remainderman or reversioner; in favour of the former; and tenant, in favour of the tenant. A more extensive exception to the rule has been of fixtures erécted for the purposes of trade. Fixtures which were erected to carry on trade and manufactures, were from an early period of the law allowed to be removed by the tenant, during his term; and were deemed per- ’ sonaliy for many other purposes. [143]
    The common law of England is not to be taken in all respecte to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth right. But they brought with them, and adopted only that por- . tion which was applicable to their situation. • [144]
    It might deserve consideration, whether, if the rule of the common law of England which -prohibits the removal of fixtures erected by the tenant for agricultural purposes, were not previously adopted in a state by some authoritative practice or adjudication; it ought to be assumed by this Court, as a part of the jurisprudence of such-state, upon the mere footing of‘its existence in the common law. -, [145]
    The question whether fixtures erected for the purposes of trade, are. or are not .removable by the tenant, does not depend upon the,form or size of the building ; whether it has a brick foundation or not, or is one or two stories high; or has a brick or other chimney. The sole question is, whether it is designed for. the purposes of trade or not. [146]
    If-the house were built principally for a dwelling house for the family, independently of carrying on a trade, then it .would doubtless be deemed a fixture falling under the general rule, and irremovable. But if the residence of the family were merely an accessary for-the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. [147]
    Every demise between landlord and. tenant in respect to matters in which the parties are Silent, may be fairly open to explanation by the general usage and custom of the country, or of the district where the land lies. Every person, under such circumstances, is supposed .to be conusant of this custom, and to contract with a tacit reference to it. .[148]
    A. court cannot be required to' give an instruction to the jury as to the relation, right and credibility of the. testimony adduced by file parties in a cause. [149]
    
      ERROR to the circuit court of the county of Washington, in the district of Columbia.
    - The plaintiffs in. error instituted their aétion of trespass on the case, in the court below; to recover damages for the removal of certain buildings from- a lot of ground in the city of Washington, the property of the plaintiffs; which had been leased to the defendant by the plaintiffs for a term of years, reserving a rent. The jury gave a verdict in favour of the defendant.
    Upon the trial of this cause, the plaintiffs gave in evidence to the jury, an indenture of lease between them and the defendant, for á lot of ground in the city Of Washington for a term of years, reserving a certain rent, with the privilege to purchase out the fee at a. stipulated. sum; and offered evidence to the jury to prove, that after the defendant had taken possession of the land described in the lease, he erected thereon a búilding, two stories high in front, with amellar of stone or brick, and a she'd of one story; and that the principal bpilding, which had a brick chimney, rested'upon, this stone oir brick foundation.. Tháfthe. defendant was a carpenter by trade, and resided in the house from the commencement of his. lease to about the period of its expiration,' and that, before the teriri had expired„he took. down and removed the said hoüse from off'thé premises,.
    .. The defendant gave evidence, that, upon. obtaining the said lease, he erected the ^building with a view to carry on the business of a dairyman, and for the residence of: his family and servants engaged in his said business;,and:.that the cellar, in which was a spripg, was made and,used exdu-'sively for ..a milk cellar; that in thq upper part' of the house were kept, and .scalded, and washed, f be utensils of his said business; and,that thát pártwas also:occupied as a dwelling for his family; that he was also a carpenter, and had tools and two apprentices in the house,, and a work-behch out of doors; and that he worked in- said house' at .his trade of a carpenter; that the house wasrin a rough unfinished state, and made, partly of old'materials;; and that he klso erected cm said lot a stable for his cows, of plankandtimber, fixed upon posts fastened into the ground; and. that the stable was pulled down and removed at the same time with the principal building.
    Upon this evidence the counsel for the plaintiffs prayed the instructions of the court to the jury, that if they should believe the same to be true, the defendant was not justified in removing the housé from the premises; and. that he is liable in .this action to the plaintiffs, for the valué of the house; which instructions the court refused to give.
    The defendant also offered evidence to .prove, that a usage and custom existed in the city of Washington, which author-ised a tenant to remove any building which he might érect upon leased premises; provided the same was removed before the expiration of the term.
    Upon this evidence the counsel, for the plaintiffs asked from the court instructions to l!the. jury, that the same was not competent to establish the fact, that a general, usage did exist in the city of Washington, which authorised a tenant to remove such a house as that which has been erected by the defendant; nor was ii competent for the jury to infer from the evidence, that such a usage existed. These instructions Were refused by the court.
    The plaintiffs then gave evidence, by the examination of a numbér of persons; who, as owners of real property in the city of Washingtpn, were claimed to know all that appertained to it; to show that the usage, under which the deV fendant asserted a right to remove the buildings erected by him, did not exist; and thereupon moved the court to instruct the jury, that upon the evidence, it is not competent for them to find a usage or custom of the place, by which the défendant could be justified in recovering the house in question; and that theré being no such usage the plaintiffs are entitled to a verdict for the value of the house, which, the defendant pulled.down and destroyed. These; instruc-tioh's were also refused.
    : The plaintiffs by their bill , of exceptions presented the whole of these matters for the consideration of this Court.
    Mr Coxe,, for the plaintiff,
    contended, that the , court erred in giving and refusing the instructions. The question in this case is one of great interest to the owners of property in the city of Washington. 'The evidence offered by the defendant was insufficient to establish _ usage; and, if upon such testimony i a usage can be made out/there is no safety to any owner of property. To establish a usage the-evidence must be clear and certain, and unGontradicted; and the court should take care to apply this principle whenever .a usage is claimed; as when it has been estabtished it becomes the law of all cases under similar circumstances., The principles of law .relative to usage are settled in 1 Gallison's Rep. 444. Collings &, Co. vs. .Hope, S M ash. Cir. Court .Rep. 149.
    It cannot Be contended that the building could be recovered by the defendant, upon the principles which courts have established in favour cf trade. No case can be found, in which a building fixed to the freehold was allowed to be taken away. All the adjudged, cases go to the extent of permitting, instruments and machinery used for the purposes of trade tó be carried away; but nothing more. The freehold is never to be injured, and must always be left in the condition it was when the lease commenced. Cited 3 East, 35. WoodfalVs Landlord & Tenant, 223. This building was erected for the accommodation of the family of the defendant. If could hot therefore be considered as required for the trade of the defendant; nor was it appropriated to a particular radé; the defendant being a carpenter, and also employing himself in vending milk.
    Mr Barrett and Mr. Jones, for the defendant,
    argued,
    1. That independent of the .benefit' from the usage, which whs set up as matter of defence; the buildings removed from the premises, were erected and used by the tenant for the purposes of his trade, and he had therefore a right to remove them under the general law of landlord.
    2. The usage of the city of Washington which was fully proved,, recognizes the right of tenants, to remove buildings put up by them, on lots which before the lease were in an unimproved state.
    3. The'instructions given, by thé'court, and- their réfusal to instruct the jury as required by the counsel for the- plaintiffs were correct.
    In support of the first point, were cited 1 H. Bl. 258. 2 East, 88. Elwes vs. Maw, 3 East, 37. 7 Johns. 227. 20 Johns. 30.
    . In the English cases Sa' distinction is taken between fixtures on buildings for agricultural purposes and those for trade.. This distinction iipon a fair view of those cases cannot, be sustained. The principles which have always been , applied in those cases to trade, inay be as well applied to agriculture.' In the city of Washington, where there is and for a long period will be a large space upon which rió buildings will be placed,, the application of moré liberal principles than those found in the English cases is proper arid necessary. Cited Wood/all’s Landlord & Tenánt,224. Bfil-ler’s JYisi Prius, 34. 2. 3. The court properly submitted the question of usage to the jury. It was regularly a question for thérn. Had the- court proscribed a rule which would have taken frorii the jury'the question of usage, it would have been error; but here whether the Usage was proved was submitted and correctly.
   Mr Justice Story

delivered the opinion of the Court.

This is a writ of error to the circuit court of the district of Columbia, sitting for .the county of Washington.

The original was an actiori bn the case bróught by the plaintiffs in error against the defendant for waste committed by him, while tenarit of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised prernises a messuage or dwelling house erected thereon and attached to the freehold. The-cause was tried upon the gerieral issúe, and a verdict found for the defendant, upon which a judgment passed m his favour; and the object of th‘é'present writ of érror is to'revise that judgment.-"

By the bill" of exceptions; filed at the trial, it appeared that the plaintiffs in 1B20 demised to'the defendant, fori seven years, a vacant lot ip the city of Washington, at the' yearly rent of ,$112'50 cents, with a clause in'the léase tháf the defendant should have a right to purchase the sathe at anytime daring the term for $1875.■ After the defendant had taken possession of the lot, he erected thereon, a wooden dwelling house, two stories high in front, with ashed of one story, a cellar of stone or brick foundation and a brick chimnéy. The defendant and his family dwelt, in the house from its erection until near the expiration of the lease, when he took the same down and removed all the materials from the ,íot. The defendant was a carpenter by trade .; and he gave evidence, that upon obtaining the lease he erected the building, above mentioned, with a view to carry on the business of a dairy man, and for' the residence of his family and servants- engaged in his said business; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils of his said bdr siness were kept and scalded, and washed, and used; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as á carpenter, and two apprentices in the house, and a work-bench out of doors; and carpenter’s work was done in the house, which was in a rough unfinished state and made partly of old materials. That he also erected, on. the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before. the expiration of his lease.

Upon this evidence, the. counsel for the plaintiffs prayed for an instruction, that if the' jury should believe the same to be true, the defendant was not justified in removing the said house from the premises; and that he was liable to the plaintiffs iii this action. This instruction the court refused to give; and' the refusal constitutes his first exception.

The defendant farther offered, evidence to prove, that a usage and custom existed in the city^pf Washington, which authorised .a tenant to remove any building'whic'h he might erect upon rented premises, -provided he did it before the expiration of the term. The plaintiffs objected to this evidence; but. the court admitted it.; This constitutes the second exception- ...

Testimony was then introduced on .this point, and after. the examination' of the witnesses for the defendant, the plaintiffs prayed the court to instruct the jury that the evidence was not competent to establish the fact, that a ger netal usage had existed-or did exist in the city of Washings ton,, which authorised a tenant, to remove such a :house as that erected by the . tenant in this case; nor was it competent for the jury to infer from the said evidence, that.such a usage ha<j existed. The court refused to give this instruction, and this constitutes the third exception.

The counsel for the plaintiffs then introduced witnesses to disprove the usage; and after théir testimony was.given, he pray.ed the court to instruct the jury, that upon the evidence given as aforesaid in this case, it is not competent for them to find a usage or custom of the place fey which • the defendant could be justified in removing the house in-question; and there being no such usage, the plaintiffs are entitled to a verdict for the value of the house,.which the defendant pulled down and destroyed. The court, was divided and did not give the instruction so prayed;. and this constitutes the fourth exception.

The’first exception raises the important question, what fixtures erected-by a tenant during his term, are removable by him

The general rule of the common law certainly is, that whatever is once annexed to the freehold becomes párt of . it, and cannot afterwards be removed, except by him who is . entitled to the inheritance. The rule, however, never was, at least as- far back as we can trace it in .the books, inflexible, and without exceptions. It was construed most strictly between executor and heir in favour of the latter; more liberally between tenant for life or in tail, and remainder man or reversioner, in favour of the former; and with much greater latitude between landlord and tenant, in favour of the tenant. But an exception of a much broader cast, and whose origin may be traced almost as high as the rule itself, is of fixtures,erected for the purposes of trade. Upon principles of public policy, and to encourage trade and manufactures, fixtures which were erected to carry on such business, were allowed to be removed by the tenant during his term, and. were deemed personalty for maiiy other purposes. The principal cases are collected and reviewed by Lord Ellenborough in delivering the opinion of the eoiirt in Elwes vs. Maw, 3 East’s R. 38 ; and it seems unnecessary to do more than to refer to that case for a full summary of the general doctrine and its admitted exceptions in England. The court there decided, that in the case of landlord and tenant, there .had been no.relaxation of the general rule in casés of erections, solely for agricultural purposes, however beneficial or important they might be as improvements of •.the estate. Being once annexed to the freehold by the tenant, they became a part of the realty, and could never afterwards be severed by the tenant. The distinction is certainly a nice one between fixtures, for the purposes of. trade, ■ and fixtures for agricultural purposes; at least in those cases, where the sale of the produce constitutes the principal qbjec.t of the tenant, and the erections are for the purpose of such a beneficial enjoyment of the estate. But that point is not now before us ;■ and. it is unnecessary to. consider what the true doctrine is or .ought to. be on this subject. However well settled it may now be in England, it cannot escape remark, that learned judges at different periods in that country, have entertained different opinions upon it, down to the. very date of the.decision in Elwes vs. Maw, 3 East’s R. 38.

The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its^general principles, and claimed it as their, birthright; but they brought with them and adopted only that portion which was applicable, to their situation. There could be little or no reason for doubting that the genera! doctrine as to things annexed to the freehold, so far as .it respects heirs ami executors, was adopted by them. The question .could arise only between different claimants under the same ancestor, and no general policy could be subserved, by withdrawing from the heir those things which his ancestor had chosen to leave annexed to the inheritance. But, between landlord, and tenant, it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, was so applicable to their situation, as to give rise to necessary presumption in its favour. The country was a wilderness, and the universal policy Was to procure its cultivation and improvement; ' The owner of the soil as w'ell as the public,. had every motive to encourage the tenant to devote himself to agriculture, and to favour any erections which should aid this result; yet, in the comparative poverty of the country, what tenant could afford to erect fixtures of much expense or value, if he was to lose his whole interest therein by the very act of erection % His cabin or log-hut, however necessary for any improvement of the soil; would cease to be. his the moment it was finished. It might; therefore, deserve consideration, whether, in cáse the doctrine were not previously adopted in a state by some Authoritative practice or adjudication; it ought to be assumed by this Court as a part of the jurisprudence of such state, upon the mere footing of its existence in the common law. At present, it is unnecessary to say iliore, than, that we give no opinion on this question. The casé which has been argued, at the bar, may well be disposed of without any discussion of.it.

; It has been already stated that the exception of buildings and other fixtures, for. the purpose of carrying on a trade .or manufacture, is of very ancient date, and was recognised almost as early as the rule itself. The very point wás decided in 20 Henry VIL. 13, a. and 6., where it was .laid down, that if a lessee fo’r years made a furnace for his advantage, or a dyer made his vats or vessels to occupy Ms occupation, during the term, be may afterWards remove them. That doctrine was recognised by lord Holt, in Poole’s case,. 1 Suift. 36S, in favour of a soap-boiler who was tenant fiar years.' He -held that the party might well remove the vats he set up in relation to trade; and. that he might do .it by the common law, (and not by virtue of any; custom) in favour of trade, and to entourage industry. .In Lawton vs. Lawton, 3 Atk. R. 13, the samé doctrine, was held in the.case of á fire .engine, set up to work á colliery by a tenant for life. Lord Hardwicke there said, that since the time of Henry the seventh, the general ground the courts have gone, upon of relaxing the strict construction of law is, that it is for the benefit of the public, to encourage tenants for life; to do what is advantageous to the estate during the term. He added, “ one reason which weighs with me is, its being, a mixed case, between enjoying the profits of the land, and carrying on a species of trade; and id considering it in this light, it comes very near the instances in brewhouses, &c. of furnaces and coppers.” The case too ofacider mill, between the executor and heir, &c. ;is extremely strong, for ^though cider is a part of the profits of the real estate,, yét, it was held by lord chief baron Comyns, a very able common lawyer, that the cider .mill was personal estate, notwithstanding, and that it should go to the executor. “It does not differ it, in niy opinion, whether the shed be made of brick or wood, for it is only intended to cover it from the weather and other inconveniences.” In Penton vs. Robart, 2 East, 88, it was further decided that a tenant might remove his fixtures for trade, even after the expiration of his term, if he yet remained in possessionj and lord Kenyon recognised the doctrine .in its most liberal extent.

It has been suggested at the bar,' that this exception in favour of trade has never been applied to cases like that before the Court, where a large house has been built and ufeed in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, /whether it has a brick foundation or not, or is one of two stories high, or has a brick or other chimney. The sole question is, whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a soap boilery of one or two stories high, and on whatever foundations he may choose. In Lawton vs. Lawton, 3 Atk. R. 13, lord Hardwicke said, (as we have already seen) that it made no difference whether the shed of the engine be made of brick or stone. In Penton vs. Robart, 2 East’s R. 88, the building had a brick foundation, let into the ground, with á chimney belonging to.it, upon which there was a superstructure of wood. Yet the court thought the building removable. In Elwes vs. Maw, 3 East’s R. 37, lord. Ellenborough expressly stated, that there was no difference between the building covering any fixed engine, utensils, and the latter. The only point is, whether it is ac-cessary to carrying on the trade or not. If bona fide intended for this purpose, it falls within the exception in favour of trade. The cáse of the Dutch barns, before lord Kenyon, is to the same effect;

Then as to the residence of the family in the house, this .resolves itself into the same consideration. If the . house were built principally for a dwelling house for the family, independently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule,, and1 immovable. But if the residence of the family were merely an accessory for the more beneficial exercise of the trade, and with a. view to superior accommodation in this particular, then it is within the exception. There are many trades which cannot be carried on well, without the presence of máhy persons by night as well as by day. It-is so in some valuable manufactories. It is not Unusual for persons employed in% bakery to sleep in the same building. Now w.hat was the evidence in the present case*? It was, “ that the defendant, erected the building before mentioned, with a view to carry.on the business of a dairy man, and for the residence of his family and servants engaged in that business.” The .residence of the family was then auxiliary to the dairy; it was for the accommodation and'beneficial operationsof this trade.

Surely, it cannot be doubtedj that in. a business .of this nature, the immediate presence of the family and servants, was, or might .be of Very great utility-and importance. The defendant was also a carpenter, and carried on his business, ás such, in the, same building. It is no objection that he. car-* ried on two trades ihstead of one.; There is not the. slightest evidence of this one being a mere' covet or evasion to conceal another, which was the principal design ; and, unless we were prepared to say (wliich we arc not j>; that the .mere fact that the house was used for á dwelling house, as well as for a trade, superseded the exception in favour of the latter, there is no. ground to declaré that the tenant was not entitled to remove it. At moct, it would be deemed only a mixed case, analogous in principle to those Before lord chief baron Comyns, and lord Hardwicke; and therefore entitled to the benefit of the exception. The case of Holmes vs. Tremper, 20 Johns. R. 29, proceeds upon principles equally libe- , rab; and it is quite certain that the supreme court of New York, were not prepared at that time to adopt the doctrine of Elwes vs. Maw, in respect to erections for agricultural purposes. In our opinión, the circuit court was right in refusing the first instruction.

The second exception proceeds upon the ground that it Was not competent to establish a usage arid custom in the city Of Washington for tenants to make such removals of buildings during their term. We can perceive, xio objection to such proof. Every demise between landlord and tenant in respect to matters in which the parties are silent, may be fairly open to explanation by the general.usage and'custom of the country or of the district where the land lies. Every person under such circumstances is supposed tó be conusant Of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books; as fqr instance, to prove the right of a tenant to an away-going crop. In the very class of cases now. before the Court the custom of the country has been admitted to decide the right of the tenant to remove ,fixtu’-es. The case before lord chief justice Treby turned upon that point.

The third exception turns upon the consideration, whether the parol testimony was competent to establish such a usage and custom. Competent it certainly was, if by competent is meant, that it was admissible to go to the jury. Whether it was such as ought to have satisfied their minds on the matter of fact was solely for their consideration; open indeed to such commentary and observation as the court .might think proper in its discretion to lay before them for their aid and guidance. We cannot say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect ' upon their judgment; but in a legal sense it was within their, own province to weigh it as proof or as usage.

The last exception professes to call upon the court to institute a comparison between the testimony introduced by the plaintiff and that introduced by the defendant against and fo.r the usage. It requires from the court a decision upon its relative weight and credibility, which the. court were not justified in giving to the jury in the shape of a positive instruction.

Upon the whole in our judgment there is no error in the judgment of the circuit court; and it is affirmed with costs.

This cause came on to be . heard on a transcript of the record from the circuit court of the United States, for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that there is no error in the judgment of the said circuit court. Whereupon it is considered, ordered and adjudged by this Court, that the judg-meñt of the said circuit .court in this.cause, be, and the same is hereby affirmed with costs. 
      
       Dean vs. Allalley, 3 Esp. Rep. 11 Woodfall’s Landlord & Tenant, 219.
     
      
       2 Starkie on Evidence, Part XV. p. 468.
     
      
      
        Woodfall’s Landlord & Tenant, 218,
     
      
      
        Buller’s Nisi Prius, 34.
     