277. Lien of Innkeeper. An innkeeper has a right to retain possession of the goods of his guests until he receives his compensation. This is called an innkeepers' lien. At common law, a boarding-house keeper has no lien on the goods of the boarder. Some states provide by statute for a boarding-house keeper's lien upon the goods of a boarder. Even though the goods brought to an inn are the goods of a third person, the innkeeper has a lien thereon for the charges of the guest, unless the innkeeper knows at the time of receiving the guest, that the goods belonged to another. Unless otherwise provided by statute, an innkeeper cannot sell the goods of a guest upon which he has a lien, but must file a bill in equity, a petition in a court of equity requiring the goods to be sold under order of court for the payment of his charges.
REAL PROPERTY
278. Real Property Defined. The great English legal writer, Blackstone, divides all property into two kinds, real and personal. The latter embraces everything of a movable nature, while the former embraces everything of a permanent nature. Blackstone defines real property as consisting of lands, tenements and hereditaments. By land is meant the soil, and everything above and beneath the soil, the trees and vegetation above as well as the deposits beneath the soil. By tenement is meant anything that may be held, such as a franchise or right of way. By hereditament is meant everything that can be inherited. It includes lands and tenements. Under the English law, heirlooms were considered hereditaments. They are not so considered under our law.
279. Trees, Growing Crops, and Emblements. Growing trees are part of the land and are considered real property. Nursery trees may be planted by a tenant for the purpose of the tenancy. In this event, they are considered personal property. Trees cut down and cut into logs are personal property. Trees blown down or cut down, but not cut into logs are real property. Trees sold, but not cut, are regarded as personal property. A practical distinction between real and personal property is that real property passes to the heirs at the death of the owner, while personal property passes to the executors or administrators of the owner's estate. Personal property is first subjected in the satisfaction of judgments at law against the owner.
Emblement is the term applied to crops which must be planted annually. Such crops as corn, potatoes, wheat, and melons are emblements. They are personal property even though not severed from the soil. They belong to the tenant who plants them. Apples, peaches, clover, and similar things which are harvested annually, but are grown from roots or trees which are not planted annually, are real property. They are a part of the real estate, and pass with it when the latter is transferred.
280. Party Walls. A wall between two estates standing partly on the land of each estate is a party wall. If injured or destroyed by one of the adjoining owners, the other has an action for damages against him by reason thereof. If a wall stands wholly upon the land of one owner, and another constructs his house using a part of the wall as a foundation, he is a trespasser and is liable in damages, or may be compelled to remove his house therefrom. If, however, he is permitted to use the wall in such a manner for twenty years, the wall is regarded as a party wall. The party so using the wall for twenty years is said to acquire an easement by prescription. Party walls are owned in common by adjoining owners. Each party does not own half the wall. Both parties own the entire wall together.
281. Fixtures. By attaching a piece of personal property permanently to the land, or to something permanently connected with the land, the personal property, in law, becomes a part of the realty. A tenant may so attach personal property to the land of his landlord as to lose title thereto. No distinct line can be drawn between articles which may constitute fixtures and those which may not. It is something of a matter of intention of the one so attaching the articles to the land. It is now usually conceded by the courts that a tenant may attach such articles to the real property as are necessary and desirable for the purpose of his tenancy, and may remove them at or before the expiration of his lease, if the same can be done without injury to the real estate or to the fixtures to which they are attached. A different rule is applied in case of an owner as against a purchaser or mortgagee. For example, if A leases a building for the purpose of operating a dry goods store, he is permitted to put in shelves and to remove them at the expiration of the tenancy. If A were the owner, and permanently attached the shelves, he could not remove them as against a purchaser of the building or a mortgagee.
282. Fences. Most of the states have statutes regulating the building and maintenance of fences. Parties may enter into a contract relating to partition fences if they choose. The duty to maintain certain portions of a partition fence may result from usage. If A and B are adjacent owners of a farm, and A has for a period of twenty years maintained a certain portion of the partition fence, he may be compelled to continue to maintain that portion of the fence. A partition fence constructed jointly by the adjacent owners is their common property. It is their joint duty to keep it up. Either one has a right to go upon the premises of the other for that purpose. One person may construct a fence on his own premises, which he may rebuild or take away at pleasure. A person constructing a fence must use reasonable care in seeing that it is so constructed and kept up that stock coming in contact with it is not injured.