The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-09-18
DIGEST OF HAWAIIAN LAWS.
BY M. Thompson, Of the Honolulu
Bar.

Movable and Immovable Fixtures-Con-
tinued.
The law regards with peculiar favor the
right OF tenants to remove articles annexed
by them to the freehold, and extends much
greater indulgence to them in this respect
than it comedies to executors, remainder
men, or any other class of persons. a Gray,
236; East, SO; Smiths Lead. Cas-, 228).
Public policy requires that the tenant should
be permitted SO to use the premises he occu-
pies, as to derive from them the greatest
amount of profit and comfort consistent
with the rights of the owner of the freehold.
The general rule has been stated to be that
any one who has temporary interest in
land and who makes additions to it or inn
provements upon it, for the purpose of the
better use or enjoyment of it, while such
temporary interest continues, may, at any
time before his right of enjoyment expires,
rightfulIy remove snch additions and i'm
provements. But if he omit to sever the
addition or improvement until his right of
enjoyment ceases, such omission is to be
deemed an abandonment of his right, and
thereafter the addition or improvement he
has made becomes, to all intents, a part Of
the inheritance, and the tenant, as we'll as
any other person who sewers it, becomes
trespasser. q Barb, 263; Metc. Mass. !,
3O6; 2 Kent's Com, 344, and notes.. Solar as
concerns landlord and tenant, the general
rule is, that the tenant has the right to
remove fixtures during his original term,
and during such further period of posses
sion by him, as he holds under a right still
to consider himself tenant. q Mees, L.
W., IA; IL Ohio St.. 4s2; B. & Ad., 394.l An
outgoing tenant has no right to enter for
the purpose of severing and removing fix
lures after the expiration of his term, and
new tenant has been let into possession. Is
G. q B. IN. ST., GAG; SO Mass, 55; SO Penn.
ST. 346. Nor can the tenants fixtures be
removed after the determination Of the
lease by the landlords re-entry for breach
of condition. e Eq., &c., In the case of
tenants for life, and at will, however, whose
terms, from the nature Of the tenancy, are
of uncertain duration, the above rule is
relaxed, and they, or their represen tatives,
have been allowed the right to remove tx
lures after the expiration OF their term.
q Atk., 10; Mees. 4 W., IA; 10 Ohio St.,
1922 As between landlord and tenant,
this whole subject lies open to agreement,
and they may determine themselves what
shall be fixtures and at what time they are
to be removed. q Inda., 80; 4 Zeb'r. lEsJ. |,
287; 12 Eng. NJ, 577.) If tenant quit pos
session Of the land without removing such
fixtures as he is entitled to, the property in
them immediately vests in the landlord, and
although they are subsequently severed, the
tenants right to them does not revive. If,
therefore, tenant desires to have any such
things upon the premises after the expira-
ton of his term, for the purpose of valuing
them to an incoming tenant, or the like, he
should take care to get the landlords con-
sent; otherwise he may lose the property in
them entirely. 4 B. Ad., 394; II. and
W., $50. The general maxim of the lawzis,
that whatever is fixed to the realty, becomes
q part of it, and partakss of all its incidents
and properties. This is the rule even in re-
lation to landlord and tenant. ne N. Y.
234, $40. But, as we have seen, many ex-
ceptions have been engrafted upon it, al !
though the rule itself has not been revoked. |
A person cannot remove buildings which !
he voluntarily and without contract, !
ereets upOn another's land. (16 Mass, !
449; IL Am. r., 371.) But if house is
erected by one man upon the land of an
other by his assent.and upon an agreement |
or understanding that the builder may
remove it when he pleAses, it does not be-
come q part of the real estate, but remains
a personal chattel and removable. (38 N.
Y, 429; 10 Penn. ST., 252; SO Me-, 516).
A mortgage of lands is not to be construed
to pass any different rights with respect to
fixtures than an absolute conveyance.
Mortgages stand. therefore, upon the same
footing in this regard with ordinary
and are entitled to every thing
thar is actually or constructively annexed
to the freehold. Il G. B., N. s., It's; 81
Conn, 500; "a N. J. Eq., $50; 8 Nd. CHI.
1861; and whether the annexation was
made before the mortgage was given, or