White's Appeal

As this is a case between landlord and tenant, or rather a contest between the creditors of. the latter, the claim, to have the articles. considered as personal property, is received with latitude ■ and indulgence. That which would otherwise be held as part of the realty, and inseparable from it, is treated, in favour of trade, as personalty, with all the incidents and liabilities of that species of property. Here, the engine and other machinery erected by the lessee to carry on the works, with the building, which is nothing more than a covering for the machinery, extending into the mines, by which the mines are worked, and are useless for any purpose unconnected with the working the mines, and transporting the coal, are personal property. This is clear on the authority of Lawton v. Salmon, 1 H. Bl. 259, n.; Elwes v. Maw. 3 East. 53; 2 Pet. 137; Lemar v. Miles, 4 W. 330, and other cases. The building being attached to the freehold, makes no difference: Voorhis v. Freeman, 2 W. & S. 116. Besides, if there was any doubt on general principles, that doubt is removed by the contract; for the lessors and lessee agree, that all the. steam-engines, fixtures, and improvements erected by the lessee on the premises, from materials furnished by him, may be removed and taken away at the expiration of the lease, or other determination thereof, unless the lessors or their assigns elect to retain the same.

*254The sixth clause of the contract, as has been contended, does not interfere with this construction; for it extends to such houses only as may be required for the accommodation of the miners, (obviously dwellings,) opening and fitting up mines, making railroads, and other repairs or work done by the lessee about the demised premises. Such, according to the agreement, are to be made at the costs and charges of the lessee, without any claim on the lessors. The lessors assert no right to this machinery. It is admitted to be the property of the lessee. That consent will change property, otherwise real, into personal estate, is ruled in Piper v. Martin, 8 Barr, 211, and Mitchell v. Freedley, antè, 198. For, whether attached to the realty or not, or in whatever manner attached, is immaterial, when the parties agree to consider it personal property: 8 Barr, 211; 2 W. & S. 116. The building, then, and machinery, although fixtures, being chattels, are not the subject of a mechanics’ lien, as is ruled in Church & Carothers v. Griffith & Dixon, decided at Pittsburgh, at our last term. The act of the 28th of April, 1840, has no bearing on this question, as its only effect is to modify the remedy for the recovery of a mechanics’ lien, so that no greater estate, in the premises charged with the lien, can be sold, than was vested in the person in possession, at the time the building was erected; and this, whether the lien was created before or since the passage of the act: Evans v. Montgomery, 4 W. & S. 218; O’Conner v. Warner, Ib. 223. The act curtails, but does not enlarge the right of the mechanics’ lien creditor. On what species of property the lien attaches, is left as before the passage of the act. As the cases cited show that this is not a case where mechanics are entitled to a lien, not being a building within the meaning of the act, we are of opinion that the decree of the court, awarding $545.15, the amount of the mechanics’ lien, to Richard Hart, be reversed.

The record is remitted to the Court of- Common Pleas, with orders to carry this decree into effect.