CHAPTER VIII.

PROPERTY AFFECTED BY MECHANICS' LIENS.

DIVISION I. LAND-AREA.

§ 161. Land under the Building.

162-163. Land around the Building.

164.

Different Tracts.

165. Urban and Rural Property.

166. Extension of Area by Agreement.

167-169. Including Several Tracts under One Lien.

170. Work on Separate Buildings.

171. What are Separate Buildings.

172. Separate Buildings on Same Lot.

173.

Separate Buildings on Different Lots.

174. Work Done under Different Contracts. 175-176. Buildings Belonging to Different Owners. 177. Effect of Destruction of Building.

178. Building Erected on Wrong Lot.

DIVISION II. BUILDINGS.

179. What is a Building?

180-182. Lien on Building Apart from the Land.

188-189. Inapplicability of Mechanic's Lien Laws to Railroads.

§ 161. A building without land to stand on is of little or no value, and therefore a mechanic's lien upon a building carries with it such a right to the land upon which the building is situated as is necessary to the full enjoyment of the use of the property. And this is true even where the statute merely creates a lien on the building, and says nothing about the land. A statute which gives laborers a lien on the products of their work and labor, and which provides that "in selling buildings under the provisions of this act a reasonable amount of land will be sold with them," has been held to give laborers by implication a lien upon land for buildings which they have erected on it under contract.

Land around the Building.

§ 162. The same reasoning requires the extension of the lien somewhat beyond the land actually covered by the building, since access to the building is also essential to its enjoyment. So it has been held that the lien attaches to so much of the adjoining ground

1 Roby v. University of Vermont, 36 Vt. 564; Holland v. McCarty, 24 Mo. App. 82. There is in some states an exception to this rule where the person who caused the building to be erected did not own the land. Sibley v. Casey, 6 Mo. 164; Willamette Falls Transp. & Milling Co. v. Riley, 1 Or. 183. See post, $ 181.

2 Browne v. Smith, 2 Browne (Pa.) 230, note; Holdship v. Abercrombie, 9 Watts (Pa.) 52. But it is held in Texas that a constitutional provision that "mechanics, artisans, and material men of every class shall have a lien upon the buildings and articles made or repaired by them," creates no lien on the land. Horan v. Frank, 51 Tex. 401; Loonie v. Frank, Id. 406.

3 Taylor v. Hathaway, 29 Ark. 597.

as is necessary for the use and enjoyment of the building, for the purpose for which it was designed. Where the statute declares that the land on which any building is constructed, "together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof," is subject to mechanics' liens, only such area as is necessary to the enjoyment of the building for the purpose in view in its construction is subject to liens created by the erection of such building. Thus a mechanic's lien for labor or materials used in the construction of one building on a large tract of land used for a common purpose and containing many buildings covers only the land appurtenant to the particular building for which the labor or materials were furnished. But where reduction works and a certain tract of land on which they stand have been leased together and sold together, the presumption is that the entire tract was reasonably convenient for the use of the works. And if the whole of the buildings and machinery constitute one plant, and the entire tract of land is reasonably necessary for its use, a lien for work done on one of the buildings covers the entire tract.8 A statute declaring subject to mechanics' liens on a building the land on which it is situated, together with so much of the land about it as may be required for the convenient use and occupation thereof, does not mean that sufficient land about the dwelling to support the owner while living there shall be subject to the lien."

4 Nelson v. Campbell, 28 Pa. St. 156; Bank of Charleston v. Curtiss, 18 Conn. 342. In the latter case the lien was allowed upon an acre of ground.

Tunis v. Park Ass'n, 33 Pac. 63, 447, 98 Cal. 285.

6 Girard Point Storage Co. v. Southwark Foundry Co., 105 Pa. St. 248; Holland v. McCarty, 24 Mo. App. 82; Tunis v. Park Ass'n, 33 Pac. 63, 98 Cal. 285; Okisko Co. v. Matthews, 3 Md. 168; Dalles Lumber & Manuf'g Co. v. Wasco Woolen Manuf'g Co., 3 Or. 527.

7 Gould v. Wise, 3 Pac. 30, 18 Nev. 253. To the same effect is Edwards v. Derrickson, 28 N. J. Law, 39.

8 Linden Steel Co. v. Rough Run Manuf'g Co., 27 Atl. 895, 158 Pa. St. 238; St. Louis Nat. Stock Yards v. O'Reilly, 85 Ill. 546; Edwards v. Derrickson, 28 N. J. Law, 39; Gould v. Wise, 3 Pac. 30, 18 Nev. 253.

* Cowan v. Griffith, 41 Pac. 42, 108 Cal. 224. In this case a lien was claimed for work on a farm house, and it was held that the lien did not extend over the entire farm of 40 acres.

$163. A lien for adding a wing to an old building extends to all the land used with the old building,10 and a lien upon a building fronting on a back street, and being part of a large hotel fronting on another street, is entitled to payment out of a fund obtained by a sale of the entire premises on mortgage foreclosure. Upon fore

closure of a mechanic's lien it is the province of the jury to ascertain, and determine by their verdict, what part of the ground is necessary for the convenient use of the building for the purposes for which it was intended, and to which the lien of the mechanic is to extend.12 The provision of the mechanic's lien act of New Jersey forbidding that a curtilage of more than half an acre shall be in any case assigned to a building, has been held to apply only where there has been no description of the curtilage by the owner, and where the means of designation by map do not exist.13 Under statutes which give a lien not only on the buildings, but also on "so much land therewith as shall be necessary for the convenient use and enjoyment of the premises," it will be presumed that a town lot is necessary to such enjoyment of the building erected on it.11 And where the statute gives a lien on the building and on the land on which it is erected, the lien includes all of any distinct tract of land on which the building stands, if necessary to secure the lien debt.1 15 The same thing is true where the statute gives a lien on the lot or tract on which the building is erected.18 In states where the lien accrues at the making of the contract a mechanic's lien extends to the whole of a lot as it was when the contract was made, including buildings thereon; and a conveyance of a portion of the premises after the contract is made does not affect the lien.1

10 Harman v. Cummings, 43 Pa. St. 322.

11 Field v. Oberteuffer, 2 Phila. (Pa.) 271.

12 Keppel v. Jackson, 3 Watts & S. (Pa.) 320; James v. Van Horn, 39 N. J. Law. 353.

13 Gerard v. Birch, 28 N. J. Eq. 317.

14 Pairo v. Bethell, 75 Va. 825.

15 Vandyne's Ex'rs v. Vanness, 5 N. J. Eq. 490.

16 Montandon v. Deas, 14 Ala. 44.

17 Collins v. Patch, 31 N. E. 295, 156 Mass. 317.

(164)

Different Tracts Used with One Building.

§ 164. As a general rule, more land than the tract on which the building stands cannot be sold to enforce a mechanic's lien.18 But a mechanic's lien upon a "building or structure, and upon the interest of the owner thereof in the lot of land upon which the same is situated," has been held to include several adjoining lots inclosed by a common fence, and used and controlled by the owner of the building for one common and avowed purpose. It is necessary, however, in such case, to show that all the lots were used as one.20 And where material is furnished for a building erected on two lots, and is used on both, the lien attaches to both lots.21

$165.

19

Urban and Rural Property.

As to the area which may be subject to a mechanic's lien a distinction is sometimes drawn between urban and rural property. Thus under a statute giving mechanic's lien on "any lot in any incorporated city or town" for grading, filling in, or otherwise. improving the same, "or the street in front of or adjoining the same," the word "lot" must be confined to property so situated as to have impressed on it the character of "urban," as distinguished from “rural,” use, and a complaint to enforce a lien is not sufficient which describes the property improved as a "tract of 10 acres in an incorporated city." 22 A larger amount of land may be included within the lien in the country than in the city, but no definite rule as to the amount that may be included seems to have been generally adopted. It has been held that where two adjoining tracts of land, comprising respectively 22 and 88 acres, belonged to the same own

18 Van Lone v. Whittemore, 19 Ill. App. 447.

19 Ex parte Davis, 9 S. C. 204. To the same effect are Marston v. Kenyon, 44 Conn. 349; Choteau v. Thompson, 2 Ohio St. 114. Contra, Miller v. Hoffman, 26 Mo. App. 199. This rule applies where there is only one building. 29 Seiler v. Schaefer, 40 Ill. App. 74; Meinholz v. Grodt, 4 Mo. App. 568. 21 Lamont v. Le Fevre, 55 N. W. 687, 96 Mich. 175. 22 Pilz v. Killingsworth, 26 Pac. 305, 20 Or. 432.