[Van Ness vs. Pacard.] fendant could be justified in recovering the house in question; and that there being no such usage the plaintiffs are entitled to a verdict for the value of the house which the defendant pulled down and destroyed. The instructions were also refused. The plaintiffs by their bill of exceptions presented the whole of these matters for the consideration of this Court. Mr. Coxe, for the plaintiff, contended, that the Court erred in giving and refusing the instructions. The question *in this [*140 case is one of great interest to the owners of property in the city of Washington. The evidence offered by the defendant was insufficient to establish a usage; and if, upon such testimony, a usage can be made out, there is no safety to any owner of property. To establish a usage the evidence must be clear and certain, and uncontradicted; and the Court should take care to apply this principle whenever a usage is claimed; as when it has been established it becomes the law of all cases under similar circumstances. The principles of law relative to usage are settled in 1 Gallison's Rep. 444. Collings & Co. vs. Hope, 3 Wash. Cir. Court Rep. 149. It cannot be contended that the building could be recovered by the defendant, upon the principles which Courts have established in favour of trade. No case can be found, in which a building fixed to the freehold was allowed to be taken away. All the adjudged cases go to the extent of permitting instruments and machinery used for the purposes of trade to be carried away, but nothing more. The freehold is never to be injured, and must always be left in the condition it was when the lease commenced. Cited 3 East, 35. Woodfall's Landlord and Tenant, 223. This building was erected for the accommodation of the family of the defendant. It could not therefore be considered as required for the trade of the defendant; nor was it appropriated to a particular trade; the defendant being a carpenter, and also employing himself in vending milk. Mr. Barrett and Mr. Jones, for the defendant, argued. 1. That independent of the benefit from the usage, which was set up as matter of defence; the buildings removed from the premises were erected and used by the tenant for the purposes of his trade, and he had therefore a right to remove them under the general law of landlord. 2. The usage of the city of Washington which was fully proved, recognises the right of tenants to remove buildings put up by them, on lots which before the lease were in an unimproved state. 3. The instructions given by the Court, and their refusal *to instruct the jury as required by the counsel for the plaintiffs were correct. [*141 In support of the first point, were cited 1 H. Bl. 258. 2 East, 88. Elwes vs. Maw, 3 East, 37. 7 Johns. 227. 20 Johns. 30. In the English cases a distinction is taken between fixtures on buildings for agricultural purposes and those for trade. This dis [Van Ness vs. Pacard.] tinction upon a fair view of those cases cannot be sustained. The principles which have always been applied in those cases to trade, may be as well applied to agriculture. In the city of Washington, where there is and for a long period will be a large space upon which no buildings will be placed, the application of more liberal principles than those found in the English cases is proper and necessary. Cited Woodfall's Landlord and Tenant, 224. Buller's Nisi Prius, 34. 2. 3. The Court properly submitted the question of usage to the jury. It was regularly a question for them. Had the Court prescribed a rule which would have taken from the jury the question of usage, it would have been error; but here whether the usage was proved was submitted and correctly. Mr. Justice STORY delivered the opinion of the Court. This is a writ of error to the Circuit Court of the District of Co lumbia, sitting for the county of Washington. The original was an action on the case brought by the plaintiffs in error against the defendant for waste committed by him, while tenant of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised premises a messuage or dwelling-house erected thereon and attached to the freehold. The cause was tried upon the general issue, and a verdict found for the defendant, upon which a judgment passed in his favour; and the object of the present writ of error is to revise that judgment. By the bill of exceptions, filed at the trial, it appeared that the plaintiffs in 1820 demised to the defendant, for seven years, a vacant lot in the city of Washington, at the yearly rent of one hundred and twelve dollars and fifty cents, with a clause in the lease that the de*142] fendant should have a right to purchase the same at any *time during the term for one thousand eight hundred and seventyfive dollars. After the defendant had taken possession of the lot, he erected thereon a wooden dwelling-house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation and a brick chimney. The defendant and his family dwelt in the house from its erection until near the expiration of the lease, when he took the same down and removed all the materials from the lot. The defendant was a carpenter by trade; and he gave evidence, that upon obtaining the lease he erected the building above mentioned, with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in his said business; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils of his said business were kept and scalded, and washed and used; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as a carpenter, and two apprentices in the house, and a work-bench out of doors; and carpenter's work was done in the house, which was in a rough unfinished state, and made partly of old materials. That he also erected [Van Ness vs. Pacard.] on the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before the expiration of his lease. Upon this evidence, the counsel for the plaintiffs prayed for an instruction, that if the jury should believe the same to be true, the defendant was not justified in removing the said house from the premises; and that he was liable to the plaintiffs in this action. This instruction the Court refused to give; and the refusal constitutes his first exception. The defendant farther offered evidence to prove, that usage and custom existed in the city of Washington, which authorized a tenant to remove any building which he might erect upon rented premises, provided he did it before the expiration of the term. The plaintiffs objected to this evidence; but the Court admitted it. This constitutes the second exception. [*143 Testimony was then introduced on this point, and after *the examination of the witnesses by the defendant, the plaintiffs prayed the Court to instruct the jury that the evidence was not competent to establish the fact, that a general usage had existed or did exist in the city of Washington, which authorized a tenant to remove such a house as that erected by the tenant in this case; nor was it competent for the jury to infer from the said evidence that such a usage had existed. The Court refused to give this instruction, and this constitutes the third exception. The counsel for the plaintiffs then introduced witnesses to disprove the usage; and after their testimony was given, he prayed the Court to instruct the jury, that upon the evidence given as aforesaid in this case, it is not competent for them to find a usage or custom of the place by which the defendant could be justified in removing the house in question; and there being no such usage, the plaintiffs are entitled to a verdict for the value of the house, which the defendant pulled down and destroyed. The Court was divided and did not give the instruction so prayed; and this constitutes the fourth exception. The first exception raises the important question, what fixtures erected by a tenant during his term are removable by him? The general rule of the common law certainly is, that whatever is once annexed to the freehold becomes part of it, and cannot afterwards be removed, except by him who is entitled to the inheritance. The rule, however, never was, at least as far back as we can trace it in the books, inflexible, and without exceptions. It was construed most strictly between executor and heir in favour of the latter; more liberally between tenant for life or in tail, and remainderman or reversioner, in favour of the former; and with much greater latitude between landlord and tenant, in favour of the tenant. But an exception of a much broader cast, and whose origin may be traced almost as high as the rule itself, is of fixtures erected for the purposes of trade. Upon principles of public policy, and to encourage trade and manufactures, fixtures which were erected to carry [Van Ness vs. Pacard.] on such business were allowed to be removed by the tenant during his *term, and were deemed personalty for many other pur*144] poses. The principal cases are collected and reviewed by Lord Ellenborough in delivering the opinion of the Court in Elwes vs. Maw, 3 East's R. 38; and it seems unnecessary to do more than to refer to that case for a full summary of the general doctrine and its admitted exceptions in England. The Court there decided, that in the case of landlord and tenant, there had been no relaxation of the general rule in cases of erections, solely for agricultural purposes, however beneficial or important they might be as improvements of the estate. Being once annexed to the freehold by the tenant, they became a part of the realty, and could never afterwards be severed by the tenant. The distinction is certainly a nice one between fixtures for the purposes of trade, and fixtures for agricultural purposes; at least in those cases where the sale of the produce constitutes the principal object of the tenant, and the erections are for the purpose of such a beneficial enjoyment of the estate. But that point is not now before us; and it is unnecessary to consider what the true doctrine is or ought to be on this subject. How ever well settled it may now be in England, it cannot escape remark that learned judges at different periods in that country have enter tained different opinions upon it, down to the very date of the de cision in Elwes vs. Maw, 3 East's R. 38. The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation. There could be little or no reason for doubting, that the general doctrine as to things annexed to the freehold, so far as it respects heirs and executors, was adopted by them. The question could arise only between different claimants under the same ancestor, and no general policy could be subserved, by withdrawing from the heir those things, which his ancestor had chosen to leave annexed to the inheritance. But, between landlord and tenant, it is not so clear that the rigid rule of the common law, at least as it is ex *145] pounded in 3 East, 38, *was so applicable to their situation, as to give rise to necessary presumption in its favour. The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil, as well as the public, had every motive to encourage the tenant to devote himself to agriculture, and to favour any erections which should aid this result; yet, in the comparative poverty of the country, what tenant could afford to erect fixtures of much expense or value, if he was to lose his whole interest therein by the very act of erection? His cabin or log-hut, however necessary for any improvement of the soil would cease to be his the moment it was finished. It might, therefore, deserve consideration, whether, in case the doctrine were not previously adopted in a state by some authoritative practice or adjudication, it ought to be assumed by this Court as a part of the [Van Ness vs. Pacard.] jurisprudence of such state, upon the mere footing of its existence in the common law. At present, it is unnecessary to say more, than that we give no opinion on this question. The case, which has been argued at the bar may well be disposed of without any discussion of it. It has been already stated, that the exception of buildings and other fixtures, for the purpose of carrying on a trade or manufacture, is of very ancient date, and was recognised almost as early as the rule itself. The very point was decided in 20 Henry VII. 13, a. and b., where it was laid down, that if a lessee for years made a furnace for his advantage, or a dyer made his vats or vessels to occupy his occupation, during the term, he may afterwards remove them. That doctrine was recognised by Lord Holt, in Poole's case, 1 Salk. 368, in favour of a soap-boiler, who was tenant for years. He held that the party might well remove the vats he set up in relation to trade; and that he might do it by the common law (and not by virtue of any custom) in favour of trade, and to encourage industry. In Lawton vs. Lawton, 3 Atk. R. 13, the same doctrine was held in the case of a fire engine, set up to work a colliery by a tenant for life. Lord Hardwicke there said, that since the time of Henry the Seventh, the general ground the Courts have gone upon of relaxing the strict construction of law is, that it is for the *benefit of the public to encourage tenants for life to do what [*146 is advantageous to the estate during the term. He added, "One reason which weighs with me is, its being a mixed case, between enjoying the profits of the land, and carrying on a species of trade; and in considering it in this light, it comes very near the instances in brewhouses, &c. of furnaces and coppers." The case too of a cider mill, between the executor and heir, &c., is extremely strong, for though cider is a part of the profits of the real estate, yet, it was held by Lord Chief Baron Comyns, a very able common lawyer, that the cider mill was personal estate, notwithstanding, and that it should go to the executor. It does not differ it, in my opinion, whether the shed be made of brick or wood, for it is only intended to cover it from the weather and other inconveniences." In Penton vs. Robart, 2 East, 88, it was further decided that a tenant might remove his fixtures for trade, even after the expiration of his term, if he yet remained in possession; and Lord Kenyon recognised the doctrine in its most liberal extent. It has been suggested at the bar, that this exception in favour of trade has never been applied to cases like that before the Court, where a large house has been built and used in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole question is, whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a soap boilery of one or two stories high, and on whatever foundations he may choose. In Lawton vs. Lawton, |