¶1It is urged that a rehearing should be granted, upon the ground that the opinion already filed misapprehended the facts in assuming that the acts of the plaintiff, relied on as constituting a conversion, took place at the time of the expiration of the lease and the surrender of the premises. There was a misapprehension in that respect, as it appears that those acts took place about the 20th of September, whereas the lease did not expire until the first of October.
¶2We have had some doubt whether the motion ought not tó be granted for this reason, but, after a careful examination, have come to the conclusion that this circumstance does not substantially vary the character of the facts, and ought not to affect the result already arrived at.
¶3The question is, whether enough is stated to show a conversion by the plaintiff of the articles mentioned in the defendant’s counterclaim. The argument on the motion for a rehearing seems to assume, that if, at the expiration of the lease, when the lessee was about to exercise his right of removing such property as belonged to him, the lessor should claim certain articles attached to the premises as his own, and forbid the tenant to remove them, it would be a conversion. This there would seem to be no room to doubt. It would clearly be such a wrongful assumption of control over the property, and such an interference with the owner’s right, as would constitute a conversion. The only doubt that arises upon the point is, whether the same acts, occurring before the expiration of the lease, and while the tenant remains in the undisturbed possession of the premises, not attempting to exercise his right of removal, would also amount to a conversion. It may well be, that in general the assertion by one person of a claim to property in the undisturbed possession of another, even though accompanied by a forbiddance of its use, would not be a conversion. But, without *327attempting to settle any general rule upon the subject, we are of the opinion, that where a dispute arises between a landlord and tenant in respect to the ownership of articles, which, if they belong to the tenant with a right of removal, are personal property, but which, if they belong to the landlord, are fixtures and a part of the realty, and the landlord, just before the expiration of the lease, but contemplating that result, and with a view to affect the action of the tenant at such approaching expiration, claims title to such articles and forbids the tenant to remove them, and threatens him with an injunction if he attempts it, the tenant may, on surrendering the premises, leave the articles, and treat the acts' of the landlord as a conversion. The fact that these acts occurred a few days before the actual surrender of the premises is not material, so long as they were so near that event, and were intended and understood by both parties to have direct reference to it. A landlord claiming, such fixtures may.obtain an injunction against an outgoing tenant who threatens to remove them. Gibbons on the Law of Fixtures, p. 70 (11 Law Library). And to make such remedy effectual, he would have to obtain it before the tenant actually removed the fixtures. It is one of the instances where equity would interfere to prevent the threatened wrong. Such being the case, the landlord being in a position, by reason of the peculiar character of the property, to enforce his threat, if he will take the responsibility of forbidding the tenant to remove such articles at the expiration of a lease then about to expire, under threat of an injunction, this should fairly be regarded as such an assump- . tion of control- over the property, and such an interference with the tenant’s right, as to amount to a conversion. For, if the property, although consisting of fixtures, really belongs to the tenant, and he has the right of removal, a wrongful prevention of the exercise of that right is a conversion; for, as between landlord *328and tenant, it is personal property. Ford v. Cobb, 20 N. Y. 344; The State v. Bonham, 18 Ind. 231.
¶4It is probable that counsel, in stating the counterclaim, designed to rely upon the alleged agreement which it discloses. But it sufficiently shows the facts constituting the wrongful interference with the right of the tenant. It alleges that the plaintiff asserted his own title, and forbade the defendant to remove the property ; and if, in law, this is sufficient to sustain an action for the tort, we must so hold, though stated with a view to show a different cause of action.
¶5And it may fairly be doubted whether this alleged agreement was capable of any practical enforcement. The very condition of the promise of the plaintiff to pay for the property was, that the defendant should first obtain an adjudication that it belonged to him. The appellant’s counsel contended — and it would seem difficult to hold otherwise — that no action could be maintained on the promise, as such, without showing that such an adjudication had first been obtained. But such an adjudication could only be obtained in some action brought to assert the tenant’s right to the property ; and whenever, in such suit, he obtained an adjudication of title, he would also obtain the appropriate judgment for relief, which would supersede the necessity of any further action on the plaintiff’s promise.
¶6This so-called agreement seems, therefore, to have amounted to nothing. It expressly refers the whole difficulty for adjustment to some suit to be brought by the tenant upon his original rights, wholly independent of this agreement itself. It does not profess to modify or enlarge the rights or obligations of either. It was as though one engaged in committing' a trespass, on being ordered to desist, should say : “ Let me alone, and when you recover a judgment against me for the damages, I will pay it.” The fair construction of it, therefore, is, that the parties contemplated that the tenant should *329resort to any action warranted by the facts to test Ms right to the property, and that an action for a conversion, in assuming control over it by the plaintiff, and forbidding the defendant to remove it, would be such an action. We have thus alluded to this agreement because, if it had furnished any new basis for the adjustment of the rights of the parties, in which their former rights had become merged, it might have been impossible to sustain the view we have taken of this counterclaim. But as it furnishes no such basis, as it expressly referred the whole matter to a suit, to stand or fall entirely independent of its provisions, it does not stand in the way of our conclusion, that, upon the facts, the defendant had a good cause of action for a conversion, and that, upon the grounds stated in the former opinion, it may be sustained as a counterclaim in this suit.
¶7By the Court. — The motion for a rehearing is denied.