IQO HARVARD LAW REVIEW. vives and gives him the superior right to the chattel. This case may be said to repre- sent the better law, and is well distinguished by the court from Bridges v. Hawkesworth, 21 L. J. Q. B. 75- Property — Fixtures — Mortgages. — Held, that a furnace, so placed in the cellar of a house that it can be removed without substantial injury to the building, does not pass under a prior mortgage of the house, in case it was placed therein under a contract providing that it should remain the property of the seller until paid for. Duffus V. Howard Furnace Co., 40 N. Y. Supp. 925. See also Willis v. Munger Manufacturing Co., 36 S. W. Rep. loio (Tex.). The principal case raises an exceedingly interesting legal question. At least three judicial views have been advanced as to whether a chattel, when attached to the realty, is to become, under all circumstances, a fixture, and thus part of the real estate, or whether the chattel may not retain its character of personalty, if it is the subject of a chattel mortgage or of an agreement between the vendor of the chattel and the owner of the realty. In New York it is held that a chattel mortgagee holds even against a subsequent mortgagee, or purchaser, of the realty. See Ford v. Cobb, 20 N. Y, 344. In that jurisdiction, also, an agreement between the mortgagor of the realty and the vendor of the chattels that the chattels shall remain the property of the vendor until paid for, has the same effect as a chattel mortgage in preserving to the chattels the character of personalty, when otherwise they would have become fixtures and passed with the mortgage of the realty. See Tifft v. Horton, 53 N. Y. 377. The second view obtains in Massachusetts, where a mortgagee of the realty holds even against a subse- quent chattel mortgagee. See Clary v. Owen, 15 Gray, 522. The third view is held in Vermont, where a mortgagee of realty holds the chattels annexed to the real estate prior to the execution of the mortgage, even though the mortgagor and the vendor of the chattels had agreed that they should continue as personalty, but where he does not hold chattels annexed after the execution of the mortgage. See Davenport v. Shanis, 43 Vt. 546. It will be observed that the principal case follows the New York doctrine of Ford V. Cobb, but is, nevertheless, strictly in accord with the position taken by the court in Davenport v. Shants. Either the New York or the Massachusetts doctrine seems too extreme to be finally adopted as the true rule of law on the point under discussion. The Vermont view, however, appears to be entirely equitable. An innocent purchaser or mortgagee of realty without notice certainly advances his money in the belief that the fixtures are part of the real estate, and the chattel mortgagee or conditional vendor must be under- stood as having agreed that the chattels should be thus affixed to the realty. On the other hand, when a chattel is annexed after the execution of the mortgage of the realty, the mortgagee is not misled into thinking that the fixture is part of his pur- chase, and no injustice results, if it is not included in the mortgage. Property — Landlord and Tenant — Default of Lessee available only TO Lessor. — Held, a provision avoiding a lease on failure of the lessee to fulfil the covenants is available only at the option of the lessor. Edmonds v. Mounsey, 44 N. E. Rep. 196 (Ind.). The courts formerly drew a distinction between leases that were to be void upon a breach of conditions, and such as were voidable only. If a lessee for life was guilty of any breach, the lease was merely voidable, even though, by its terms, it was to become thereby entirely void; and the landlord might waive his right of re-entry by some act, such as the acceptance of rent, after the breach. In the case of a lease for years, on the other hand, the breach of a condition made the lease wholly and absolutely void. Taylor, Landlord and Tenant, § 492, The tendency of modern decisions has been, however, both in England and in the United States, to obliterate this distinction ; and it now seems pretty well settled that the effect of a provision that failure on the part of the lessee to comply with certain requirements shall render the lease null and void, makes it void only at the option of the lessor. Liggett . Shira, 28 Atl. Rep. 218. Cochran v. Pew, 28 Atl. Rep. 219. Creveling v. West End Iron Co., 16 Atl. Rep. 184. The principal case is in line with this tendency of the law, and seems to be perfectly sound. Property — Interference with Subterranean Stream. — Held, that the owner of land, through which flows a well defined subterranean stream, has no greater rights with respect to the stream than he would have if it flowed upon the surface. Tampa Waterworks Co. v. Cline, 20 So. Rep. 780 (Fla). The English law seems to be still unsettled with respect to the point decided. See Acton V. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. C. 349. In this country, however, there are now a number of decisions favoring the view here taken. See Whetstone v. Bowser, 29 Pa. St. 59; Haldeman v. Bruckhart, 45 Pa. St. 514; Bur-
