Bing Kee and Lung Chung v. Yick Chong

(oral).-The recognized rule for the determination of cases where constructions have been placed upon leased land is stated by Lord Blackburn, in delivering the judgment of the court, in Holland v. Hodgson(1), at pages 334-335, where he says: depend on the circumstances of each case and mainly on two circumstances as indicating the intention, viz., the degree of annexation, and the object of the annexation.

When the article in question BiNo is no further attached to the land than its own weight it is generally to be considered a mere chattel (see Wiltshear v. Cottrell and the cases there cited).

But even in such a case if the intention is ap- Davies J. parent to make the articles part the land they become part of the land.

D'Eyacourt v. Gregory(2).

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Perhaps the true rule is that articles not otherwise attached to the land than their own weight are not to considered as part of the land unless the circumstances are such as to shew that they were intended to part the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to chattels and that, on the contrary, an article which is to the land even slightly is to considered as part of the land unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it j chattel.

This case, like all others of its kind, depends upon the special circumstances and intentions under and with which the constructions were made, and the facts as to their being affixed to the soil.

In the record before us, we have not sufficient evidence of what the circumstances were in which the building was placed upon the land, nor are we able from the evidence to reach a conclusion that the building in question was affixed to the freehold or placed there with the intention that it was to become part of the freehold. In the circumstances of this case we think there was an onus on the plaintiff to shew that the building was intended to be part of the land, which he failed to discharge, and having failed the appeal must be dismissed with costs.

L.R. Eq.