tract with the builder, the subcontractor is entitled to a joint lien on all the buildings because of the original contract being joint."1

74

Effect of Destruction of Building.

§ 177. The Pennsylvania doctrine is that the lien of mechanics attaches to land only as incident to the building. So if the building is destroyed by fire the lien is gone, so far as relates to the land and to materials left standing after the destruction of the building, and to buildings appurtenant only to the main one.72 This rule also governs in Wisconsin,73 and there are dicta to the same effect in Missouri; while it is held in New York that under a statute allowing a lien upon a building, and upon the lot upon which the same shall stand, no lien (even on the lot) can be acquired by filing a claim after the building has been totally blown down." But in other states the rule is that, although the entire materials, buildings, and improvements, on account of which the lien accrued, be removed, rendered worthless, or destroyed by accident, the lien still continues against the remains of the building,76 and against the land." And

71 Fullerton v. Leonard, 52 N. W. 325, 3 S. D. 118.

72 Presbyterian Church v. Stettler, 26 Pa. St. 246; Wigton's Appeal, 28 Pa. St. 161; Baird v. Otto, 2 Pa. Dist. R. 484, 12 Pa. Co. Ct. R. 510.

73 Goodman v. Baerlocher, 60 N. W. 415, 88 Wis. 287.

74 In Holzhour v. Meer, 59 Mo. 434, it was said that "a lien may be taken against buildings and improvements without the land, but it cannot be taken against the land alone unless these necessary attachments are upon it." This was a case where a lien was claimed on land for work done in tearing down a building formerly standing on the land. In the later case of Schulenburg v. Railroad Co., 67 Mo. 442, the court seemed to incline to the opinion that after a building had been destroyed by fire, no lien could be enforced on the land but the point was expressly "left for future adjudication." It has recently been held in that state that where none of the old materials have been used in its reconstruction, neither the land nor the new building can be subjected to claims for work done or materials furnished for the building destroyed. Shine's Ex'x v. Heimburger, 1 Mo. App. Rep'r, 111.

75 Schukraft v. Ruck, 6 Daly (N. Y.) 1.

76 McLaughlin v. Green, 48 Miss. 175; Paddock v. Stout, 13 N. E. 182, 121 III. 571; Gaty v. Casey. 15 Ill. 189.

77 Steigleman v. McBride, 17 Ill. 300; Ellett v. Tyler, 41 Ill. 449; Schwartz v. Saunders, 46 Ill. 18; Clark v. Parker, 12 N. W. 553, 58 Iowa, 509; Smith v.

even in Pennsylvania it is held that where a claim for materials is filed against a manufacturing establishment consisting of a group of buildings, the fact that the particular building in which the materials were used was destroyed before the claim was filed does not defeat the lien."

Building Erected on Wrong Lot.

§ 178. The doctrine that the lien only attaches to land as incident to the building applies when there is a mistake in regard to the land. Thus in one case it appeared that the plaintiffs furnished to two of defendants materials for a dwelling house to be constructed on lot 5, then owned by defendants, and on which another defendant, supposing the house was being built as contemplated, took a mortgage. By mistake the house was erected on lot 6, the property of a stranger. It was held that, as against the mortgagee, plaintiffs were not entitled to a lien upon lot 5.79 And where materials are furnished to be used in erecting a building on lot 3, but by mistake the building is erected on lot 4, and is afterwards removed to lot 2, the material man is not entitled to a lien on lot 2.5" In a Colorado case the building was by mistake built on a lot to which the party ordering it had no title, but after the building was begun he bought the lot, and gave a purchase-money mortgage, and it was held that a lien for work done on the building after the mortgage was given was subject to the mortgage.81

Newbaur (Ind. Sup.) 42 N. E. 40; Bratton v. Ralph (Ind. App.) 42 N. E. 644; Freeman v. Carson, 8 N. W. 764, 27 Minn. 516. But where the building is destroyed by fire, and the land is sold under a prior mortgage, the lien is gone, Condict v. Flower, 106 Ill. 105.

* Linden Steel Co. v. Rough Run Manuf'g Co., 27 Atl. 895, 158 Pa. St. 238, 33 Wkly Notes Cas. 244.

79 Smith v. Barnes, 36 N. W. 346, 38 Minn. 240.

so Lingren v. Nilsen, 52 N. W. 915, 50 Minn. 448.

81 Tritch v. Norton, 15 Pac. 680, 10 Colo. 337.

MECH. LIENS-12

(177)

84

DIVISION II. BUILDINGS.

What is a Building?

§ 179. Since the mechanic's lien laws had their origin in a desire to promote the construction of buildings, it follows that buildings are peculiarly the object of mechanics' liens. In this connection the courts have frequently been called upon to decide the question, what is a building? 82 It has been held that churches 3 and railroad depots are buildings on which mechanics' liens would lie. And so are a boiler house, filter house, barrel house, tank house, pump house, tool house, etc., the whole forming a plant known as an "oil refinery," though not absolutely essential to the business, and of an extremely simple character, yet permanent, and suited to their purpose. A structure intended to be used as a kitchen in connection with an adjoining building has also been held to be a building. A floating dock or wharf boat is a building if it floats in the rivers of Indiana 87 or Arkansas,8 88 but not if it floats in the tide waters of New Jersey.89 It seems to be agreed that bridges are not buildings. Neither is a portable steam engine, nor a limekiln, nor structures on piers and bulkheads," nor swings and seats placed on fair grounds, nor an irrigating ditch.95 But it is held in Oregon

85

90

94

82 See ante, § 99.

91

86

92

83 Presbyterian Church v. Allison, 10 Pa. St. 413; Jones v. Trustees, 30 La. Ann. 711.

84 Botsford v. Railroad Co., 41 Conn. 454; Hill v. Railroad Co., 11 Wis. 214. 85 Short v. Miller, 14 Atl. 374, 120 Pa. St. 470.

86 Pretz's Appeal, 35 Pa. St. 349.

87 Olmsted v. McNall, 7 Blackf. (Ind.) 387.

88 Galbreath v. Davidson, 25 Ark. 490. The statute construed in this case gave a lien on "any building, edifice, or tenement."

89 Coddington v. Beebe, 31 N. J. Law, 477. The statute construed in this case gave a lien on "every building hereafter erected or built."

90 Burt v. Washington, 3 Cal. 246; Board of Com'rs of Pike Co. v. Norrington, 82 Ind. 190; La Crosse & M. R. Co. v. Vanderpool, 11 Wis. 119.

91 Thompson Manuf'g Co. v. Smith (N. H.) 29 Atl. 405.

92 Cowdrick v. Morris, 9 Pa. Co. Ct. R. 312.

93 Collins v. Drew, 50 How. Prac. (N. Y.) 477.

94 Lothian v. Wood, 55 Cal. 159.

95 Ellison v. Water Co., 12 Cal. 542.

that poles set in the ground, and wires suspended thereby, in the usual way for the transmission of electricity for purposes of light and power, constitute a structure within the meaning of a statute allowing a lien upon any structure for work performed upon it.96

Lien on Building Apart from the Land.

§ 180. In some states there can be no mechanic's lien on a building unless there is also a lien on the land on which it stands."7 Thus in Massachusetts it is held that a statute giving a lien "upon the building and the lot of land upon which it stands" does not give a lien on a building standing on the land of a third person, since the statute has no reference to chattels.o 98 In Washington a lien on the building alone is denied because the statute contains no provision by which such a lien could be enforced, as by removal or otherwise; " and in Michigan the same conclusion is reached because the statute only gives a lien for work done under contract with the owner of some legal title to the land.100 In Pennsylvania it is held that buildings and fixtures erected by a lessee for years for the purposes of trade are not the subject of a mechanic's lien in favor of creditors of the lessee, for the reason that trade fixtures are mere chattels,— not even a part of the leasehold estate.101

99

§ 181. But in most of the states mechanics' liens are allowed on equitable principles against buildings apart from the land where the right to a lien on the land itself fails for some cause not the fault of the lien claimant.102 Where the statute gives a lien on the build

96 Forbes v. Electric Co., 23 Pac. 670, 19 Or. 61.

97 Belding v. Cushing, 1 Gray (Mass.) 576; Fetter v. Wilson, 12 B. Mon. (Ky.) 90; Kellogg v. Manufacturing Co., 25 Pac. 461, 1 Wash. St. 407; Wagar v. Briscoe, 38 Mich. 587; Dutro v. Wilson, 4 Ohio St. 101.

98 Belding v. Cushing, 1 Gray (Mass.) 576. The opposite construction prevails in Louisiana. McKnight v. Grant Parish, 30 La. Ann. 361.

99 Kellogg v. Manufacturing Co., 25 Pac. 461, 1 Wash. St. 407.

100 Wagar v. Briscoe, 38 Mich. 587.

101 Church v. Griffith, 9 Pa. St. 117.

102 McGreary v. Osborne, 9 Cal. 119; Gaskill v. Davis, 66 Ga. 665; Lane v. Snow, 24 N. W. 35, 66 Iowa, 544; Oliver v. Davis, 46 N. W. 1000, 81 Iowa, 287; Estabrook v. Riley, 46 N. W. 1072, 81 Iowa, 479; McKnight v. Grant Parish, 30 La. Ann. 361; Schwartz v. Saiter, 4 South. 77, 40 La. Ann. 264;

ing, and also on the land if the land belongs to the person who caused the building to be erected, there is a lien on the building alone where the contract is made with one who owned the building, but not the land.10: So, too, where the statute gives mechanics a lien on improvements made by them "without regard to the title" to the land.10. In New York, a statute giving a mechanic's lien for work done under contract with the "owner" was held to mean the owner of the building, and not of the land. Accordingly, for work done on a building erected by a tenant at will, which the tenant had a right to remove, a lien was allowed on the building apart from the land.105 In Louisiana, a statute giving a lien "upon the building and upon the lot of ground" was held to give a lien on the building alone when the land on which it stood was exempt because it was public property.106 And in Mississippi, under a statute giving a lien on land and buildings, and declaring that the lien on the land should take effect, as to purchasers and incumbrancers without notice, from the time of recording the contract or beginning suit, it has been held that, although a mechanic's lien upon land, for a building which he has erected thereon, fails because of the sale and conveyance of such land to an innocent purchaser for valuable consideration, without notice, or because the party contracting for the erection of the building had no authority to bind the land for the cost thereof, such mechanic still retains and may enforce his lien against the building Hannah & Lay Mercantile Co. v. Mosser (Mich.) 62 N. W. 1120; Buchanan v. Smith, 43 Miss. 90; Weathersby v. Sinclair, Id. 189; Sibley v. Casey, 6 Mo. 164; Samuels v. Shelton, 48 Mo. 444; Kansas City Hotel Co. v. Sauer, 65 Mo. 288; Ombony v. Jones, 19 N. Y. 234, affirming 21 Barb. 520; Willamette Falls Transp. & Milling Co. v. Riley, 1 Or. 183; Pinkerton v. Le Beau, 54 N. W. 97, 3 S. D. 440; Bishop v. Honey, 34 Tex. 245; Crooker v. Grant, 24 S. W. 689, 5 Tex. Civ. App. 182.

103 McGreary v. Osborne, 9 Cal. 119; Sibley v. Casey, 6 Mo. 164; Samuels v. Shelton, 48 Mo. 444; Willamette Falls Transp. & Milling Co. v. Riley, 1 Or. 183.

104 Gaskill v. Davis, 63 Ga. 645, 66 Ga. 665; Lane v. Snow, 24 N. W. 35, 66 Iowa, 544.

105 Ombony v. Jones, 19 N. Y. 234, affirming 21 Barb. (N. Y.) 520.

106 McKnight v. Grant Parish, 30 La. Ann. 361; Schwartz v. Saiter, 4 South. 77, 40 La. Ann. 264. This statute is almost literally the same as the statute construed in an opposite way in Massachusetts. Belding v. Cushing, 1 Gray

(Mass.) 576.