-"how, then, can it be said that a chattel is converted into realty when it was neither the intention of the owner of the chattel nor that of the owner of the freehold to annex it? If it be considered as annexed it must be purely on account of its physical attachment or because the mortgagee had acquired a lien upon it. The latter was not the fact, and the former we shall show is not the criterion of the law." In this opinion the term "annexed" seems to be used in the same sense as in the maxim of the common law. But, generally, the term is used in the authorities as signifying that the chattel has been, in some degree, placed in contact with the realty, but does not signify that it is a part of the realty. If the writer's contention be sound, as to the real meaning of this maxim, then it is clear that there can be ro exceptions to the maxim, and the very serious error of attempting to establish nearly the whole law of fixtures upon supposed exceptions to a maxim or rule of law which has no exceptions is apparent.

A very common error arises out of this maxim or rather is an instance of it. It is the supposed general rule that "whenever a tenant has affixed anything to the demised premises during his term, he can never again sever it without the consent of the landlord; that the property by being annexed to the land immediately belongs to the freeholder; that the tenant by making it a part of the freehold is considered to have abandoned all future right to it, so that it would be waste in him to remove it afterwards; it therefore falls in with his term and comes to the reversioner as part of the land."'14 When the term "annexed" is used, as it generally is used in the authorities, it may be said, consistently with them, that the general rule is to the contrary, i. e., that whenever a tenant has made annexations to the freehold during his term, he may remove the same at any time during the continuance of the term. In King v. Wilcomb,15 it is said: "The ancient rule that whatever was attached to the freehold by the tenant became a part of the freeholl, and could not afterwards be removed by him, has gradually been relaxed in favor of the tenant, until now I understand the

14 Ferard on Fix. 15; Ewell on Fix. 81; Broom's Leg. Max. 416.

15 7 Barb. 263.

general rule to be, that any one who has a temporary interest in land, and makes additions to it, or improvements 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 enjoy. ment expires, rightfully remove the additions and improvements. I think this may now be stated to be the general rule with respect to fixtures which a tenant attached to the freehold. There may be exceptions to the general rule I have stated. But I think they will be found limited to the cases where the removal of the additions or improvements made by the tenant, would operate to the prejudice of the inheritance, by leaving it in in a worse condition than when the tenant took possession."

Another error, very generally entertained, is, that the right of the tenant to remove things, which he has annexed to the freehold during the continuance of his term must, in all cases, be exercised during the term and not after the expiration thereof.1 16 But this rule has not an universal application; it cannot apply to things which in their nature, the manner and extent of their annexation, or by other circumstances, they could not be considered as having been intended to become a part of the realty; but those things only become a part of the freehold when a tenant abandons and leaves them annexed thereto, which would be deemed a part of the realty if annexed by the owner of the freehold, or in any other case where the presumption that things annexed by tenants were not intended to become a part of the realty, was absent. In other words, articles which are in some degree connected with or annexed to the realty, but which to the eye of the world are not considered as being a part of the realty, will not become a part thereof, merely because the tenant abandons or leaves them after the expiration of his term. This principle is correctly stated by Mr. Ferard in his work on Fixtures, and seems to be supported in Holmes v. Tremper, and is certainly very strongly supported by reason. There are, perhaps, no cases which are really opposed to the distinction, but it seems to have been

17

16 Tiedeman on Real Prop. (2d Ed.) sec. 7, and cases cited; Minshall v. Loyd, 2 M. & W. 450. 17 20 Johns. 29.

very generally lost sight of.

We will conclude with a consideration of the construction which is placed upon the celebrated case of Elwes v. Maw." 18 Mr. Ewell in his work on Fixtures, says: 19 "Among those who concede the binding authority of Elwes v. Maw, there has hitherto existed some difference of opinion as to the exact scope of that case as an anthority, some contending that the case is conclusive against the privilege of all agricultural tenants to remove any kind of fixtures erected on the farm during their term, and others construing the case somewhat strictly, and contending that the judgment has no reference to any other species of fixtures than those then under the consideration of the court, no reference to manufacture, or machinery, but were erected for mere

agricultural purposes. The latter seems to be the more prevalent, and the better opinion; and it may probably be taken as a correct statement of the law, even where Elwes v. Maw is regarded as a binding authority on the question, that mere implements or articles of machinery, used as a means of facilitating the labor of the tenant not intended to be a permanent accession to the realty, and removable integre salve et commode, may be removed by the tenant for years during his term, even though erected for agricultural purposes." It seems, however, that the case of Elwes v. Maw is not, and ought not to be, considered as an authority against the removal of any kind of annexation, not even those made by a tenant for mere agricultural purposes. The case cannot reasonably be construed as going further than to lay down a rule that buildings, when annexed by a tenant for purposes of agriculture only, shall be deemed a part of the freehold, if from the manner and extent of the annexation, the nature of the buildings themselves, and other circumstances which may concur, it is evident that they were intended by the party who annexed them, at the time of their annexation, to become permanent accessions to the realty; and in determining this question of intention (actual or implied), the fact that the buildings were annexed for the purpose or con

18 3 East, 38.

19 Ewell on Fix. 119.

venience of agriculture shall be excluded as evidence, as not tending to show whether they were or were not intended to become a permanent accession to the freehold. Where things are annexed for purposes of trade the law generally deems this fact conclusive evidence that the thing annexed was not intended to become a permanent accession to the realty, and accordingly it follows that the tenant may remove such annexations as personal property. But if things are annexed to the realty for agricultural purposes only, can it be said that this fact is evidence that the thing annexed was intended as a permanent accession to the freehold, and, therefore, actually does become a part and parcel of the realty, not removable by the tenant. No such rule can be gathered from Elwes v. Maw. The case goes no further than to lay down a rule that the fact that buildings were annexed by a tenant for purposes of agriculture only, shall not be evidence that the building was not intended to become a permanent accession to the freehold, as it would be if the building had been annexed for purposes of trade. But after all, whatever be the rule which this case is thought to establish, the case itself hardly merits the very extensive discussion which may be found in the text books and reports with reference to it; especially is this true, in view of what seems to be the present state of the law in the United States at least, on this subject. Running through all the reports there will be found a seeming distinction between so-called "trade fixtures" and "agricultural fixtures" as to the right of a tenant who has annexed them, to sever and remove them, but the writer believes that this distinction is rather seeming than real, for the reason that the courts are strongly inclined to hold that the purpose of nearly every annexation is trade, or the mixed purpose of trade and agriculture, in either of which cases the presump. tion is that the articles annexed were not intended as permanent accessions to the realty.20 But where such a finding would be inconsistent, the doctrine of an implied agreement will be often invoked.21 Omaha, Neb.

A. W. CANTWELL.

20 Van Ness v. Picard, 2 Pet. 137.

21 Duboys v. Kelley, 10 Barb. 496; Merchants' Nat.

Bank v. Stanton, 55 Minn. 211, 56 N. W. Rep. 821.

TRADES UNIONS-INJUNCTION-CONSPIRACY AGAINST PERSONS NOT MEMBERS.

PLANT v. WOODS.

Supreme Judicial Court of Massachusetts, Sept. 6, 1900. The members, agents and servants of a non-incorporated labor union may be restrained from con. spiring to compel the members of the complainant union to rejoin the defendant union by such coercion, threats of loss of property by strikes and boycotts, as will induce their employers to get the complainants to ask for reinstatement in the defendant union, or, that failing, to discharge them, where such acts were done intentionally to cause damage to complainants, and actually did cause it.

Holmes, C. J., dissenting.

HAMMOND, J.: This case arises out of a contest for supremacy between two labor unions of the same craft, having substantially the same constitution and by-laws. The chief difference between them is that the plaintiff union is affiliated with a national organization having its headquarters in Lafayette, in the State of Indiana, while the defendant union is affiliated with a similar organization having its headquarters in Baltimore, in the State of Maryland. The plaintiff union was composed of workmen who, in 1897, withdrew from the defendant union. There does not appear to be anything illegal in the object of either union, as expressed in its constitution and by-laws. The defendant union is also represented by delegates in the Central Labor Union, which is an organization composed of five delegates from each trades union in the city of Springfield, and had in its constitution a provision for levying a boycott upon a complaint made by any union. The case is before us upon the appeal of the defendants from a final decree in favor of the plaintiffs, based upon the findings stated in the report of the master.

The contest became active early in the fall of 1898. In September of that year the members of the defendant union declared "all painters not affiliated with the Baltimore headquarters to be non-union men," and voted "to notify bosses" of that declaration. The manifest object of the defendants was to have all the members of the craft subjected to the rules and discipline of their particular union, in order that they might have better control over the whole business, and to that end they combined and conspired to get the plaintiffs, and each of them, to join the defendant association, peaceably, if possible, but by threat and intimidation if necessary. Accordingly, on October 7th, they voted that, "If our demands are not complied with, all men working in shops where Lafayette people are employed refuse to go to work." The plaintiffs resisting whatever persuasive measures, if any, were used by the defendants, the latter proceeded to carry out their plan in the manner fully set forth in the master's report. Without rehearsing the circumstances in detail, it is sufficient to say here that the general method of operations was substan

tially as follows: A duly authorized agent of the defendants would visit a shop where one or more of the plaintiffs were at work, and inform the employer of the action of the defendant union with reference to the plaintiffs, and ask him to induce such of the plaintiffs as were in his employ to sign applications for reinstatement in the defendant union. As to the general nature of these interviews the master finds that the defendants have been courteous in manner, have made no threats of personal violence, have referred to the plaintiffs as non-union men, but have not otherwise represented them as men lacking good standing in their craft; that they have not asked that the Lafayette men be discharged, and in some cases have expressly stated that they did not wish to have them discharged, but only that they sign the blanks for reinstatement in the defendant union. The master, however, further finds, from all the circumstances under which those requests were made, that the defendants intended that employers of Lafayette men should fear trouble in their business if they continued to employ such men, and that employers to whom these requests were made were justified in believing that a failure on the part of their employees who were Lafayette men to sign such reinstatement blanks, and a failure on the part of the employers to discharge them for not doing so, would lead to trouble in the business of the employers in the nature of strikes or a boycott; and the employers to whom these requests were made did believe that such results would follow, and did suggest their belief to the defendants, and the defendants did not deny that such results might occur; that the strikes which did occur appear to have been steps taken by the defendants to obtain the discharge of such employees as were Lafayette men who declined to sign application blanks for reinstatement; that these defendants did not in all cases threaten a boycott of the employer's business, but did threaten that the place of business of at least one such employer would be left off from a so-called "fair list" to be published by the Baltimore union. The master also found that, from all the evidence presented, the object which the Baltimore men and the defendant association sought to accomplish in all the acts which were testified to was to compel the members of the Lafayette union to join the Baltimore union, and as a means to this end they caused strikes to be instituted in the shops where strikes would seriously interfere with the business of the shops, and in all other shops they made such representations as would lead the proprietors thereof to expect trouble in their business. We have, therefore, a case where the defendants have conspired to compel the members of the plaintiff union to join the defendant union, and, to carry out their purpose, have resolved upon such coercion and intimidation as naturally may be caused by threats of loss of property by strikes and boycotts, to induce the employers either to get the plaintiffs to ask for reinstatement in the defendant union, or, that

failing, then to discharge them. It matters not that this request to discharge has not been expressly made. There can be no doubt, upon the findings of the master and the facts stated in his report, that the compulsory discharge of the plaintiffs in case of non-compliance with the demands of the defendant union is one of the prominent features of the plan agreed upon. It is well to see what is the meaning of this threat to strike, when taken in connection with the intimation that the employer may "expect trouble in his business." It means more than that the strikers will cease to work. That is only the preliminary skirmish. It means that those who have ceased to work will by strong, persistent, and organized persuasion and social pressure of every description do all they can to prevent the employer from procuring workmen to take their places. It means much more. It means that, if these peaceful measures fail, the employer may reasonably expect that unlawful physical injury may be done to his property; that attempts in all the ways practiced by organized labor will be made to injure him in his business, even to his ruin, if possible; and that by the use of vile and opprobrious epithets and other annoying conduct, and actual and threatened personal violence, attempts will be made to intimidate those who enter or desire to enter his employ; and that whether or not all this be done by the strikers or only by their sympathizers, or with the open sanction and approval of the former, he will have no help from them in his efforts to protect himself. However mild the language or suave the manner in which the threat to strike is made under such circumstances as are disclosed in this case, the employer knows that he is in danger of passing through such an ordeal as that above described, and those who make the threat know that as well as he does. Even if the intent of the strikers, so far as respects their own conduct and influence, be to discountenance all actual or threatened injury to person or property or business except that which is the direct necessary result of the interruption of the work, and even if their connection with the injurious and violent conduct of the turbulent among them or of their sympathizers be not such as to make them liable criminally, or even answerable civilly in damages to those who suffer, still, with full knowledge of what is to be expected, they give the signal, and in so doing must be held to avail themselves of the degree of fear and dread which the knowledge of such consequences will cause in the mind of those-whether their employer or fellow workmen-against whom the strike is directed; and the measure of coercion and intimidation imposed upon those against whom the strike is threatened or directed is not fully realized until all those probable consequences are considered. Such is the nature of the threat, and such the degree of coercion and intimidation involved in it. If the defendants can lawfully perform the acts complained of in the city of Springfield, they can pursue the plaintiffs

all over the State in the same manner, and compel them to abandon their trade, or bow to the behests of their pursuers. It is to be observed that this is not a case between the employer and employed, or, to use a hackneyed expression, between capital and labor, but between laborers all of the same craft, and each having the same right as any one of the others to pursue his calling. In this as in every other case of equal rights the right of each individual is to be exercised with due regard to the similar right of all others, and the right of one be said to end where that of another begins. The right involved is the right to dispose of one's labor with full freedom. This is a legal right, and it is entitled to legal protection. Sir William Erle, in his book on Trades Unions (page 12), has stated this in the following language, which has been several times quoted with approval by judges in England: "Every person has a right under the law, as between himself and his fellow subjects, to full freedom in disposing of his own labor or his own capital according to his own will. It follows that every other person is subject to the correlative duty arising therefrom, and is prohibited from any obstruction to the fullest exercise of this right which can be made compatible with the exercise of similar rights by others. Every act causing an obstruction to another in the exercise of the right comprised within this description, done not in the exercise of the actor's own right, but for the purpose of obstruction, would, if damage should be caused thereby to the party obstructed, be a violation of this prohibition." The same rule is stated with care and discrimination by Wells, J., in Walker v. Cronin, 107 Mass. 555: "Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. He has no right to be protected against competition, but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss come as the result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract, or otherwise, is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition, or the service of any interest or lawful purpose, it then stands upon a different footing." In this case the acts complained of were calculated to cause damage to the plaintiffs, and did actually cause such damage; and they were intentionally done for that purpose. Unless, therefore, there was justifiable cause, the acts were malicious and unlawful. Walker v. Cronin, ubi supra; Carew v. Rutherford, 106 Mass. 1, and cases cited therein.

The defendants contend that they have done nothing unlawful, and in support of that contention they say that a person may work for whom he pleases, and, in the absence of any contract to the contrary, may cease to work when he pleases, and for any reason whatever, whether the same be good or bad; that he may give notice of his

intention in advance, with or without stating the reason; that what one man may do several men acting in concert may do, and may agree beforehand that they will do and may give notice of the agreement; and that all this may be lawfully done, notwithstanding such concerted action may, by reason of the consequent interruption of the work, result in great loss to the employer and his other employees, and that such a result was intended. In a general sense, and without reference to exceptions arising out of conflicting public and private interests, all this may be true. It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement appears in the first headnote in Allen v. Flood, as reported in (1880) App. Cas. 1, as follows: "An act lawful in itself is not converted, by a bad or malicious motive, into an unlawful act, so as to make the doer of the act liable to a civil action." If the meaning of this and similar expressions is that, where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate. In so far as a right is lawful it is lawful, and in many cases the right is so far absolute as to be lawful whatever may be the motive of the actor,-as, where one digs upon his own land for water (Greenleaf v. Francis, 18 Pick. 117), or makes a written lease of his land for the purpose of terminating a tenancy at will (Groustra v. Bourges, 141 Mass. 7, 4 N. E. Rep. 623); but in many cases the lawfulness of an act which causes damage to another may depend upon whether the act is for justifiable cause, and this justification may be found sometimes in the circumstances under which it is done, irrespective of motive, sometimes in the motive alone, and sometimes in the circumstances and motive combined. This principle is of very general application in criminal law, and also is illustrated in many branches of the civil law, as in cases of libel, and of procuring a wife to leave her husband. Tasker v. Stanley, 153 Mass. 148, 26 N. E. Rep. 417, 10 L. R. A. 468, and cases therein cited. Indeed, the principle is a prominent feature underlying the whole doctrine of privilege, malice, and intent. See, on this, an instructive article in 8 Harv. Law Rev. 1, where the subject is considered at some length. It is manifest that not much progress is made by such general statements as those quoted above from Allen v. Flood, whatever may be their meaning.

Still standing for solution is the question, under what circumstances, including the motive of the actor, is the act complained of lawful, and to

what extent? In cases somewhat akin to the one at bar this court has had occasion to consider the question how far acts manifestly coercive and intimidating in their nature, which cause damage and injury to the business or property of another, and are done with intent to cause such injury, and partly in reliance upon such coercion, are justifiable. In Bowen v. Matheson, 14 Allen, 499, it was held to be lawful for persons engaged in the business of shipping seamen to combine together into a society for the purpose of competing with other persons engaged in the same business, and it was held lawful for them, in pursuance of that purpose, to take men out of a ship if men shipped by a non-member were in that ship to refuse to furnish seamen through a non-member, to notify the public that they had combined against non-members and had "laid the plaintiff on the shelf, to notify the plaintiff's customers and friends that the plaintiff could not ship seamen for them, and to interfere in all these ways with the business of the plaintiff as a shipping agent, and compel him to abandon the same. The justification for these acts so injurious to the business of the plaintiff, and so intimidating in their nature, is to be found in the law of competition. No legal right of the plaintiff was infringed upon, and, as stated by Chapman, J., in giving the opinion of the court (page 503): If the effect of these acts was to destroy the business of shipping masters who are not members of the association, it is such a result as, in the competition of business, often follows from a course of proceedings that the law permits." The primary object of the defendants was to build up their own business, and this they might lawfully do to the extent disclosed in that case, even to the injury of their rivals. Similar decisions have been made in other courts where acts somewhat coercive in their nature and effect have been held justifiable under the law of competition. Steamship Co. v. McGregor (1892), App. Cas. 25; Manufacturing Co. v. Hollis, 54 Minn. 223, 55 N. W. Rep. 1119; Macauley v. Tierney, 19 R. I. 255, 33 Atl. Rep. 1, 37 L. R. A. 455. On the other hand, it was held in Carew v. Rutherford, 106 Mass. 1, that a conspiracy against a mechanic-who is under the necessity of employing workmen in order to carry on his business-to obtain a sum of money from him, which he is under no legal obligation to pay, by inducing his workmen to leave him, or by deterring others from entering into his employ, or by threatening to do this, so that he is induced to pay the money demanded under a reasonable apprehension that he cannot carry on his business without yielding to the demands, is illegal, if not criminal, conspiracy; that the acts done under it are illegal, and that the money thus obtained may be recovered back. Chapman, C. J., speaking for the court, says that "there is no doubt that, if the parties under such circumstances succeed in injuring the business of the mechanic, they are liable to pay all the damages done to him." That case bears a close analogy to the one at bar.