Westlaw Delivery Summary Report for FULLER,DONIA JOE

Date/Time of Request: Monday, October 4, 2010 14:48 Caracas, La Paz

Client Identifier: DONIA FULLER
Database: LAW-RPTS
Citation Text: [1954] 1 Q.B. 70
Lines: 266
Documents: 1
Images: 1

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[1954] 1 Q.B. 70
[1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P. 569 (1953)
97 S.J. 764 [1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P.
569 (1953) 97 S.J. 764 (Cite as: [1954] 1 Q.B. 70)
Billing v Pill
[1953] 3 W.L.R. 758
Divisional Court
Lord Goddard, Sellers, and Havers C.J.
1953 Oct. 15.
Criminal Law—Larceny—Fixture—Army hut—
Erected for temporary purpose—Bolted to concrete
foundation—Whether "attached to or forming part"
of the realty— Larceny Act, 1916 (6 & 7 Geo. 5, c.
50), s. 1 (3) .
By section 1 (3) of the Larceny Act, 1916 :
"Everything which has value ... and if adhering to the
realty then after severance therefrom, shall be
capable of being stolen: Provided that - ... anything
attached to or forming part of the realty shall not be
capable of being stolen by the person who severs the
same from the realty, unless after severance he has
abandoned possession thereof."
An army hut, which was constructed in seven
sections, rested on a concrete foundation, the floor of
the hut being, secured to the foundation by bolts let
into the concrete. The hut was one of a number
erected by the War Office during the war on land
used as a gun emplacement. In 1946 the army
vacated the huts, and in 1947 the local authority was
instructed to demolish them. In 1951 the appellant,
without lawful authority, dismantled the hut in
question, removed it from the site and re-erected it on
his own land. He was convicted by justices of
stealing the hut. On appeal, on the grounds that the
justices were wrong in law in convicting as the hut
was attached to or formed part of the realty within the
meaning of the proviso to section 1 (3) of the
Larceny Act, 1916 , and was not capable of being
stolen since the appellant had not abandoned
possession after severing it:-
that the Larceny Act, 1916 , was a consolidating Act
not intended to alter the law; that the proviso to
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section 1 (3) was intended to preserve the old
common law position; that the words *71 "anything
attached to or forming part" of the realty in it should
be read as meaning, "anything, attached so as to form
part" of the realty; and that when something in the
nature of a chattel was affixed to land the true test
was whether it was meant to be a temporary fixture
not intended to form part of the realty. The hut was a
chattel erected for a purely temporary purpose and
did not become attached to or form part of the realty
merely because, in order to steady it, it was bolted to
the concrete foundation. It remained a chattel capable
of being stolen and the appellant had been rightly
convicted.
Holland v. Hodgson (1872) L.R. 7 C.P. 328
considered.
CASE STATED by Cornwall justices.
On February 27, 1953, an information was preferred
against Cecil Lloyd Billing, the appellant, under
section 2 of the Larceny Act, 1916 , for that he did
between January 1 and October 31, 1952, feloniously
steal an army hut valued at £50, the property of the
War Office.
At the hearing of the information the following facts
were proved or admitted: During the war the War
Office erected a number of huts on a site at Tregantle,
Cornwall, which was used as a gun emplacement.
The huts were sectional in construction, and the hut
which was the subject of the charge comprised seven
sections without doors or windows and rested on a
concrete foundation, the floor of the hut being
secured to the concrete base by bolts let into the
concrete. The army vacated the huts in 1946, but they
remained under the control of the War Office.
Squatters occupied the huts, and between 1947 and
1952 the St. Germans rural district council, at the
request of the Ministry of Health, cleared the site of
squatters by removing the doors and windows of the
huts and demolishing them as they became vacant. In
May or June, 1951, the appellant, without lawful
authority, dismantled the hut in question and, without
abandoning possession thereof, took seven sections
[1954] 1 Q.B. 70
[1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P. 569 (1953)
97 S.J. 764 [1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P.
569 (1953) 97 S.J. 764 (Cite as: [1954] 1 Q.B. 70)
away, subsequently re-erecting the hut on his own
land. He later informed the police that he had bought
the hut from a contractor who had been demolishing
huts on an adjoining site.
It was contended on behalf of the appellant that the
hut was not capable of being stolen under section 2 of
the Larceny Act, 1916 , as it was attached to and
formed part of the realty, and that, after severing it
from the realty, he had not abandoned possession of
it before removing it from the site.
For the respondent it was contended that the hut was
not attached to nor formed part of the realty so as to
prevent it forming the subject of a charge under
section 2 of the Act.*72
The justices were of the opinion that the hutted camp
was a temporary camp and that the huts were
movable buildings which did not form part of the
realty; that the hut was a purely temporary structure
which was capable of being stolen within the
provisions of section 2 of the Act. The other facts
necessary to constitute the offence of larceny having
been proved, they convicted the appellant.
W. M. Huntley for the appellant. The justices found
that the floor of the hut was secured to a concrete
base by bolts let into the concrete. "Secured" is a
stronger word than "attached," and if a thing is
secured it must follow that it was attached so as to
come within the proviso to section 1 (3) of the
Larceny Act, 1916 . This hut accordingly came
within the words "anything attached to or forming
part of the realty" in the proviso to subsection (3) and
the appellant not having abandoned possession of it,
it was not capable of being stolen. Although there are
many authorities - mainly divergent - on the question
of attachment to land, they are irrelevant to this
matter. At common law, before the Larceny Acts
were passed, lands, tenements, incorporeal and
corporeal hereditaments could not from their very
nature be the subject of larceny. The effect of the
Acts was to extend the field of larceny to certain
things which were not capable of being stolen at
common law: see section 8 of the Larceny Act,
1916 .
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[LORD GODDARD C.J. Is it your submission that a
person who steals a temporary building does not
commit an offence?]
Yes, and reliance is placed on a passage in the
judgment of Blackburn J. in Holland v. Hodgson to
the effect that an article affixed even slightly to the
land should be considered as part of the land unless
the circumstances are such as to show that it is
intended all along to continue as a chattel, the onus
lying on those who contend that it is a chattel. The
proviso qualifies the substantive part of subsection
(3) and creates exceptions to the general rule with
regard to things attached to the realty. If there is any
doubt about the meaning of the word "attached" in
the subsection the meaning should not be extended so
as to make something an offence which the Act did
not intend should be one.
Malcolm Wright for the respondent. The hut in
question is not attached to the realty. The fact that a
chattel is in some way fastened to the land or to a
building to keep it in position *73 does not mean that
it is "attached" so as to form part of the land or
building within the meaning of the proviso to
subsection (3) ; e.g., a carpet which is nailed to a
floor to keep it in position is not "attached to the
realty." The purpose of the attachment must be taken
into consideration, and the question in this case is
whether it was intended to make the hut a fixture or
not. Construing subsection (3) of section 1 of the Act,
"attached to" corresponds with "fixtures," and
"forming part of the realty" corresponds with the
words "growing things and ore from mines." A useful
statement of the law regarding landlord and tenant
fixtures is to be found in Halsbury's Laws of
England, Hailsham ed., vol. 20, para. 107.
In the old common law there was a broad distinction
between chattels and land; probably the earliest
reported case referring to this distinction is The
Foresters Case, where a forester was indicted for
stealing growing trees but was not arraigned as the
trees were part of the land. Then the doctrine
developed that after severance of a growing thing it
might be stolen if there was a fresh act of taking after
the severing. The Larceny Act, 1916 , a consolidating
Act, has given effect to the common law. Another
interpretation of subsection (3) which is in the
[1954] 1 Q.B. 70
[1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P. 569 (1953)
97 S.J. 764 [1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P.
569 (1953) 97 S.J. 764 (Cite as: [1954] 1 Q.B. 70)
respondent's favour is that the proviso can be
reconciled with the first part if it is read as stating
that a person who severs an article shall not be guilty
of theft unless before taking it he has abandoned
possession of it. That is simply an extension of the
old common law rules.
Huntley replied. LORD GODDARD C.J.
This is a case stated by justices for the county of
Cornwall, which raises an interesting and short point
on the law of larceny, in the course of which we have
had the advantage of a clear and careful argument of
Mr. Huntley for the appellant and Mr. Wright for the
respondent. [His LordsHip stated the facts and
continued:] There is no question that there was
evidence upon which the justices could find that the
hutted camp was a temporary camp. They found that
the hut in question could be moved and that it was a
purely temporary structure.
We have to turn now to the Larceny Act, 1916 ,
remembering that that Act was intended to be a
consolidating Act and was not meant to alter the law
in any way. There are dicta in cases in the Court of
Criminal Appeal of Avory J. who, it is well known,
*74 was the draughtsman of the Act, that it was not
intended to alter the law of larceny. By the old
common law of larceny there were many difficulties
in the way of preferring a charge of theft. in respect
of anything which, if I can use a convenient
expression, savoured of the land. A great many
additions were made to the law from time to time by
statute, most of which will be found in section 8 of
the Larceny Act of 1916 , but the section with which
we are concerned is section 1 (3) , which defines the
offence of larceny. That subsection provides:
"Everything which has value and is the property of
any person, and if adhering to the realty then after
severance therefrom, shall be capable of being
stolen." If one stops there, it is clear that what the
Larceny Act says is that anything adhering to the land
that can be severed may be stolen. There follows a
proviso, which has given rise to the difficulty in this
case: "Provided that - (a) save as hereinafter
expressly provided with respect to fixtures, growing
things, and ore from mines, anything attached to or
forming part of the realty shall not be capable of
being stolen by the person who severs the same from
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Page 3
the realty, unless after severance he has abandoned
possession thereof."
The construction which I put upon that section is this:
it starts by saying that things which adhere to the
realty can be stolen after they have been severed, but
a person who actually severs them, subject to the
provisions of section 8 of the Larceny Act , and one
or two other sections with which we are not
concerned, cannot be convicted of larceny unless
after the severance he has left the thing on the land
and then returned, on what one may call a separate
excursion, and taken the thing because, when he has
taken it, it has reverted to the possession of the
person on whose land it was. Therefore, the whole of
this case depends on the meaning of the words
"anything attached to or forming part of the realty."
Those words might be read as meaning "attached so
as to form part." It seems odd that a thing can be
attached to the realty and yet not form part of the
realty. If it is really attached to the realty and will
form part of it, one has to consider whether the thing
is attached to the realty in the sense in which those
words are used in the subsection.
In my opinion, the proviso is intended to preserve the
old common law position that one cannot be charged
with stealing real property. What is real property?
Land is real property, and if there are things that are
so attached to the land that they become part of it
then, in the language which conveyancers and others
have generally applied, those things become, as
between *75 a landlord and tenant, landlord's fixtures
as they are sometimes called. I do not need to go into
the elaborate distinctions which were dealt with by
Lord Ellenborough in Elwes v. Maw in Smith's
Leading Cases (13th ed., vol. 2, p. 193) as to how
fixtures pass between mortgagor and mortgagee and
landlord and tenant. The question is: is the thing a
fixture? What is a fixture? The commonest fixture is
a house which is built into the land, so that in law it is
regarded as part of the land. The house and the land
are one thing. If, therefore, one has something, such
as lead pipes, which are an integral part of the house,
it follows that as the house is an integral part of the
land, the pipes are also, and therefore the pipes will
be fixtures and they will be attached to or will form
part of the land. If there is a thing which by its nature
is a chattel which is affixed in some way, it seems to
[1954] 1 Q.B. 70 Page 4
[1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P. 569 (1953)
97 S.J. 764 [1954] 1 Q.B. 70 [1953] 3 W.L.R. 758 [1953] 2 All E.R. 1061 (1953) 37 Cr. App. R. 174 (1953) 117 J.P.
569 (1953) 97 S.J. 764 (Cite as: [1954] 1 Q.B. 70)

me that the true test is: was it really meant to be a this hut was attached to or formed part of the realty.
temporary fixture, not intended to be part of the It was not so attached any more than if one takes a
house or the land. In a house it may be for the garden seat out into one's garden and, because the
purposes of decoration. Many questions have arisen seat may be in an exposed position and liable to be
with regard to tapestries, fireplaces, ornamental blown over, one drives a spike through it to hold it to
chimney-pieces and other things of that kind. the ground. In one sense that is an attachment, but it
is not an attachment sufficient to make it part of the
The matter is summed up admirably by du Parcq L.J. realty. It is simply a spike put in to hold the chattel
in the Laws of England, Hailsham ed., vol. 20, para. firm. In my opinion, this hut was a chattel, remained
107: "Whether a chattel has been so affixed to the a chattel and is capable of larceny. Therefore, the
land or buildings as to become a fixture depends on justices came to a right decision in law in
the object and purpose of the annexation, and if the convicting.SELLERS J.
chattel can be removed without doing irreparable
damage to the premises, neither the method nor the I agree with my Lord's judgment, for the reasons
degree of annexation, nor the quantum of damage which he has given.HAVERS J.
that would be done to the chattel or to the premises
by the removal, affect the question save in so far as I agree.Appeal dismissed. ([Reported by Mrs. E. M.
they throw a light upon the object and purpose of the WELLWOOD, Barrister-at-Law.] )
annexation. If the object and purpose was for the END OF DOCUMENT
permanent and substantial improvement of the land
or building, the article will be deemed to be a fixture,
but if it was attached to the premises merely for a
temporary purpose or for the more complete
enjoyment and use of it as a chattel, then it will not
lose its chattel character and it does not become part
of the realty." That is a useful exposition of the law,
and if one requires authority to support it, there is a
very good instance in Holland v. Hodgson.
Blackburn J., than whom there was no higher
authority on these matters, giving his judgment in
that case, emphasized that one must look at the
circumstances: and that is also *76 pointed out in the
paragraph I have read from the Laws of England.

Can anybody doubt that the hut in question was

erected for a temporary purpose? It can be removed
without doing any damage to the freehold at all. It
rests upon a concrete bed which is let into the land. I
should say that there is no question but that the
concrete bed has become part of the land, but the hut
which stands upon it has not become part of the land
merely because some bolts have been put through the
floor of the hut to stabilise or steady it. It was erected
merely for a temporary purpose so that the Army
personnel who were going to the site for a presumed
temporary purpose, to man a gun emplacement
during the war, would have somewhere to sleep.

In my opinion, it would be quite wrong to hold that

Copr. © West 2010 No Claim to Orig. Govt. Works