chinery; third, the intention to make the annexation a permanent accession to the freehold.

In Laber v. Cooper, 7 Wall., 565 [74 U. S., XIX., | the use or purpose of the application of the ma151], we held that such an objection came too late after a trial and verdict below as if the pleadings had been perfect in form. Judgment affirmed.

GEORGE HILL, JR., Appt.,

v.

The same tests were adopted by the Supreme Court of Ohio in Teaff v. Hewitt, 1 Ohio St., 511; see, also, Hill, Fixt., secs. 6-9 and authorities; Van Ness v. Pacard, 2 Pet., 137.

Now, in the present case, in the utter absence of any circumstances to show the mode or char

THE FARMERS' AND MECHANICS' NA- acter of annexation or the object of the annexa

TIONAL BANK.

(See S. C., 7 Otto, 450-454.)

Res judicata-sale in parcels.

1. Where the court decreed that, on a sale under a trust-deed, the several parcels therein described should be sold together, the decree on that point is res judicata, and both parties are barred from litigating it a second time.

3. Where the realty, the water-power and the machinery, constitute a paper-mill, which cannot be disintegrated and the parts sold separately without large depreciation, and a diminished amount in the aggregate of the yield, they should be sold together. [No. 54.]

tion, or the intentional purpose with which it was made, the court declared all the machinery part of the realty, and decreed it to be sold as such.

The grant of the water is a grant to the appellant and his assigns for twenty years. The agreement does not attach the waterpower to the land, but that the grant is personal only or in gross.

Ang. Water Courses, 7th ed., 1877. sec. 143, and cases set out in notes.

The cases of Goodrich v. Burbank, 12 Allen, 459; Lansdale Co. v. Moses, 21 L. R., 664; and Amidon v. Harris, 113 Mass., 59, there cited,

Argued and Submitted Nov. 1, 1878. Decided are identical with the present, and the last two

The case is fully stated by the court. Mr. F. W. Jones, for appellant: A sale in mass is prima facie not within the deed; but to sustain such a sale, its justice and expediency must be shown.

Nesbitt v. Dallam, 7 Gill. & J., 512; Woods v. Monell, 1 Johns. Ch., 502; Stead v. Course, 4 Cranch, 403; Jackson v. Newton, 18 Johns., 355; Ryerson v. Nicholson, 2 Yeates, 516; Rowley v. Brown, 1 Binn., 62; Berry v. Griffith, 2 Har. & G., 337.

Indeed, a sale under this very deed was set aside by the court below, because it was a lumping sale.

Hill v. Shoemaker, 1 McArthur, 305.

show that restriction as to place of use does not charge or make the easements appurtenant.

See, also, Washb. Easements, marg. 10, 313. Mr. Charles M. Matthews, for appellee: The leading case of Elwes v. Maw, 3 East, 38, establishes the principle that whatever is erected by the owner of the freehold for the benefit of the inheritance belongs to the heir, as against the executor, claiming the personalty, and in the comments thereon in 2 Smith's Leading Cases, 269, it is stated that whatever is essential to the particular use to which the realty is applied at the time when the question arises, shall be considered a fixture, even when the connection between them is such that it may be severed without physical or lasting injury to both, citing: Lawton v. Salmon, 1 H. Bl., 259, note.

The machinery of a manufactory is to be regarded as a part of the realty, whether it be attached to the body of the building or merely connected with the other machinery by bands or gearing, which may be thrown off at pleasure, or without injury to the freehold.

In Voorhees v. McGinnis, 48 N. Y., 278, the question of fixtures as between mortgagor and mortgagee is ably and elaborately examined, citing Potter v. Cromwell, 40 N. Y., 287; Capen v. Peckham, 35 Conn., 88; Voorhis v. Freeman, Kirwan v. Latour, 1 H. & J., 289; Powell v. 2 Watts & S., 116; Pyle v. Pennock, 2 Watts & Munson Mfg. Co.,3 Mas., 467; Buckley v. BuckS., 390; Murdock v. Gifford, 18 N. Y., 28; Wins-ley, 11 Barb., 43; McKin v. Mason, 3 Md. Ch., low v. Ins. Co., 4 Met., 306; Swift v. Thompson, 9 Conn., 63.

In Potter v. Cromwell (supra), the tests are declared to be: first, actual annexation; second,

gagee.

NOTE.-Fixtures as between mortgagor and mortThe same rules as to fixtures apply generally between mortgagor and mortgagee as between grantor and grantee and executor and heir. Main v. Schwarzwaelder, 4 E. D. Smith, 273; Burnside v. Twitchell, 43 N. H., 393; Thomas v. Davis, 76 Mo., 76; Longstaff v. Meagoe, 2 Ad. & E., 167; Buckley v. Buckley, 11 Barb., 43; Wadleigh v. Janvrin, 41 N. H., 503.

Fixtures annexed to the freehold, either before or after the execution of the mortgage, essential to its enjoyment, will pass by the mortgage, though not mentioned in it. Bond v. Coke, 71 N. C., 97: Wood v. Whelen, 93 Ill., 153: Longbottom v. Berry, 5 L. R. Q. B., 123; Union Bk. v. Emerson, 15 Mass., 159; Cole v. Stewart, 11 Cush., 181; Burnside v. Twitchell, 43 N. H., 393; Clore v. Lambert, 78 Ky., 224; Meriam v. Brown, 128 Mass., 391; Roberts v. Dauphin Dep. Bk., 19 Pa. St., 71; Southbridge Sav. Bk. v. Stevens Tool Co., 130 Mass., 547; Climie v. Wood, 3 Exch., 256; aff'd 4 Exch., 328; Mather v. Frazer, 2 Kay & J.,

|

186; Trull v. Fuller, 28 Me., 545; Corliss v. McLagin, 29 Me., 115: Winslow v. Ins. Co., 4 Met.,306; Walmsley v. Milne, 97 E. C. L., 7 C. B. (N. S.), 129; Hellawell v. Eastwood, 6 Exch., ,295.

536; Cullwick v. Swindell, 3 L. R. Eq., 249; Metropolitan Soc. v. Brown, 28 Beav., 454; Lynde v. Rowe, 12 Allen, 100.

Hop poles used in the raising of hops upon a farm are covered by a mortgage of the land, whether they are upon farm when the mortgage was given, or were subsequently brought on to it. Sullivan v. Toole, 26 Hun, 203; Noyes v. Terry, 1 Lans., 222.

While the mortgage is in force, fixtures cannot be removed or disposed of by the mortgagor without the consent of the mortgagee. Wight v. Gray, 73 Me., 297; Bartholomew v. Hamilton, 105 Mass., 239. While it is not possible to lay down any fixed rule as to what are fixtures, the following tests are in many cases applied together: actual annexation to the realty, or to something appurtenant thereto; application to the use or purpose to which the realty is appropriated; the intention of the party making the annexation to make it a permanent part of the realty. Teaff v. Hewitt, 1 Ohio St., 511; Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57; S. C., 24 Am. Rep., 719; Thomas v. Davis, 76 Mo., 72;

Mr. Justice Swayne delivered the opinion | the water away. * of the court:

This is a case in equity. On the 15th of January, 1864, Hill, the appellant, executed a deed of trust to Edward Shoemaker, conveying in fee simple four lots in Georgetown to secure the payment of three promissory notes therein described. The notes were executed by Hill. All of them bore date on the 21st of October,1863, and were payable to the order of Judson Mitchell and John Davidson. They were each for the sum of $2,210.33. and were to be paid respectively, at one, two and three years from date, with interest at the rate of six per cent. per annum, to be paid half yearly. In the event of any default of payment by Hill, the trustee was authorized to sell the premises for the satisfaction of the debt. The lots were numbered 1, 2, 3 and 4, and were all contiguous. On each of three of the lots there was a brick tenement. Lot 4 was unimproved. The appellant bought the premises with the view of using them for a paper-mill. This purpose he proceeded to carry out. He altered the buildings, put in the requisite machinery, and took a lease of water power from the Chesapeake and Ohio Canal Company, "To be used at his property at the corners of Potomac and Water Streets (being the premises in question), and to be used in propelling the machinery of a paper-mill and appurtenant works." He introduced the water upon the premises, and applied it according to the terms of the lease.

The several notes were duly assigned and transferred to the complainant. Hill having made default by allowing all the notes to become overdue without payment, the trustee, under the power conferred by the deed, advertised and sold the real estate as it was when the deed was executed, and irrespective of the water-power and the paper mill machinery. A bill was thereupon filed by Hill to set the sale aside. The Supreme Court of the District sustained the bill and annulled the sale, upon the ground that the realty, the water power and the machinery constituted an entirety, and should have been sold together. The court said: "The complainant placed in these structures, at great expense, all the machinery necessary to a paper-mill, and procured from the Chesapeake and Ohio Canal Company a water-power, which he conveyed underground some three or four hundred feet to the mill property, for the purpose of operating the machinery, and also incurred a heavy expense for an underground tail-race, to conduct

Clore v. Lambert, 78 Ky., 226; McRae v. Cent. Nat. Bk., 66 N. Y., 489; St. Sav. Bk. v. Kercheval, 65 Mo., 682; McMillan v. N. Y. W. P. P. Co., 29 N. J. Eq.. 610. The following authorities hold that the rolling stock of a railroad is part of the realty: Meyer v. Johnston, 53 Ala., 332; Douglass v. Cline, 12 Bush., 630; Morrill v. Noyes, 56 Me., 458; Youngman v. Elmira, etc., R. R. Co., 65 Pa. St., 278; Farmers', etc., Trust Co. v. Hendrickson, 25 Barb., 484; Scott v. Clinton, etc., R. R. Co., 6 Biss., 529; Galveston, etc., R. R. Co. v. Cowdrey. 78 U. 8., XX.. 199.

Other authorities hold that it retains the character of personal property: Williamson v. N. J.,etc., 29 N. J. Eq., 311; Coe v. Col., etc., R. R. Co., 10 Ohio St., 372; Hoyle v. Plattsburgh, etc., R. R. Co., 54 N. Y., 314; S. C., 13 Am. Rep., 595.

Statute regulates this in some States. Laws of N. Y., 1868, chap. 779; Civil Code of Cal., sec. 2955, et seq. Mortgagees stand upon the same footing as to fixtures as ordinary purchasers, and are entitled to everything constructively or actually annexed to the freehold. Quinby v. Manhattan, etc., Co., 24 N.

The great mischief done, as we think, was not in selling the lots together, but in selling them without reference to the fixed machinery and water-power connected therewith. * * We are governed in our conclusion in setting this sale aside by the fact that both parties had a right to permanent improvements upon the premises, so far as the same were inalienably fixed upon each other, and that there was no exclusive right of either to divide them."

This bill was thereupon filed by the Bank against Hill and the Chesapeake and Ohio Canal Company to enforce the payment of the amount due upon the notes by a decree for the sale of the lots described in the deed of trust, together with the water-power and machinery used upon the premises, if the court should deem that the two latter could be included in the sale. The court below finally decreed "That the said real estate and premises, including said fixtures and machinery, and also said water power, according as the same are referred to, mentioned or described in said bill, be sold as an entirety, and as forming and being a paper manufactory, according to a suitable description thereof, to be made for the purpose of a sale by the trustees to be hereinafter appointed to make said sale." This decree was affirmed at the General Term. The appellant has brought the case here for review, and assigns three errors:

(1) That the court erred in decreeing the sale of lot 4 with the other property.

(2) In decreeing the sale of machinery not permanently annexed, without evidence as to the mode, object and intention of the annexation. (3) In decreeing the sale of the water-power as appurtenant to the land.

The appellant does not deny that the debt is bona fide; that it is overdue; that it belongs to the appellee; nor that the decree is for the proper amount. His objections are only those assigned as errors. To all three of them there is a common answer. The points are res judicata between the parties. In setting aside the sale made by the trustee, upon the appellant's bill filed to bring about that result, the court adjudged, expressly, that the entire premises, including lot 4 and the machinery and waterpower, should be sold together as an entirety; and the sale was set aside because it was not so made. The appellant now asks that the decree before us be reversed, because it requires the sale to be made in the manner prescribed in the former case. This cannot be done. The ques

J. Eq., 260; Voorhees v. McGinnis, 48 N. Y., 273;
Maples v. Millon, 31 Conn., 598; McKim v. Mason, 3
Md. Ch. Dec., 186; Walmsley v. Milne, 7 C. B. N. 8.
115; Ex parte Colton, 2 M. D. & DeG., 725.

A steam-engine and boiler, with the appurtenances, and the shafting, belting, pulleys and coup lings to communicate the power, are fixtures which pass under a mortgage of the realty. Bigler v. Nat. Bk., 26 Hun, 520; Coleman v. Stearns Mfg. Co., 38 Mich., 30; Keeler v. Keeler, 31 N. J. Eq., 181; Ot tumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57; S. C., 24 Am. Rep., 719.

A portable iron furnace held not a fixture (Rabway Sav. Inst. v. Irving St. Bapt. Ch., 36 N. J. Eq., 61); nor gas fitting screwed onto the pipes; nor mirrors supported by hooks driven into the wall (MoKeage v. Hanover F. Ins. Co., 81 N. Y., 38; S. C., 3 Am. Rep., 471); nor heavy machines screwed to the floor and connected with the shafting, but removable without injury to the factory. Hubbell v. E. Cambridge, etc., Sav. Bk., 132 Mass., 447; S. C., 42 Am. Rep., 446.

1. Where an invention is developed in different and independent forms, all original and yet all bearing a somewhat general resemblance to each other, if one inventor precedes all the rest and strikes out something which includes and underlies all that they produce, he acquires a monopoly and subjects 2. But if the advance towards the thing desired is gradual and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of device which he pro3. The Stevens brake for cars is no infringement

tions raised by the assignments are concluded by the former decree, and both parties are barred from litigating them a second time. 2 Story, Eq. Jur., sec. 1523. The law of estoppel is founded in reason and justice. It makes the acts and conduct of a party binding against him whenever it should be so, and will not permit him to assert any claim to the contrary. He thus himself makes the law of his case, and he must abide the consequences. When the appellant challenged in the former case the sale by the trustee, the appellant and the appellee were both before the court with their proofs, and the case was fully heard. We have shown the result, and we do not sit here to review or reverse it. The decree upon the points in issue, and decided, is as binding upon the parties as a judg ment or decree would be in any other case. 2 APPEAL from the Circuit Court of the United Story, Eq. Jur. supra; Big. Estop., 812-815.

Patentable invention-specific device-brake for cars-enlarging specification.

on that of Thompson and Bachelder's or Tanner's.
4. The law does not permit such enlargements of
an original specification as would interfere with
other subsequent inventors.
[No. 84.]

Argued Oct. 29, 30, 31, 1878. Decided Nov. 18,

P is a perpendicular lever; all other levers in each figure are horizontal.

See 7 OTTO.

U. S., Book_24.

66

1053