Parrish & Hazard's Appeal , 83 Pa. 111 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court, May 7th 1877.

When the contracts were made under which the claims of the mechanics’ lien creditors are asserted in this proceeding, the furnace of the Dunbar Iron Company had been completed and in operation for many years. No work in the way of erection or construction had been done subsequently to 1870, when a furnace stack of stone had been torn down, and one of iron put up in its place. In the spring of 1872, the company requiring more power than the engines they had in use afforded, determined to introduce new machinery. Contracts were accordingly made with Robinson, Rea & Co. for a vertical engine ; with Brenneman & Ward for six boilers and their connected materials and fixtures; and with James M. Riter for a boiler-stack. For the balances remaining unpaid for the work done under their contracts the liens of these creditors were filed.

On the 5th of June 1875, the real estate of the Dunbar Iron Company was sold by the sheriff of Fayette county, by virtue of a levari facias in a judgment on a mortgage executed to Charles Parrish and Fisher Hazard as trustees, to secure bonds to be issued by the company to the amount of $400,000. The mortgage was dated the 1st day of June 1872, was acknowledged on the 20th of that month, and was recorded and became a lien on the 17th of July 1872. The trustees purchased the property at the sheriff’s sale for $155,000. As bonds amounting to about $300,000 had been negotiated and were outstanding, the whole fund was claimed on distribution to be applicable to the mortgage-debt. The auditor to whom the claims of the parties were referred, appropriated the money to the extent of the balances due on the mechanics’ lien to their payment, and his report was confirmed by the Common Pleas. At the argument here, the right of the appellants to the amount thus appropriated was asserted on various grounds, and their views were pressed by their counsel with great vigor and great ability. The principal point urged was that the work done añd materials furnished by the appellees were not, by any fair construction of the statutes, subjects of mechanics’ liens.

It is very clear that the value of the furnace property was largely enhanced by the machinery and fixtures which the Dunbar Company obtained under their contracts with the lien creditors. The account . of Robinson, Rea & Co. amounted to $24,745.95 ; that of Brenneman & Ward to $9148.45 ;• and that of Riter to $473’6.80. It is very clear also that the structures supporting, enclosing and covering the machinery Avere put up substantially, for permanent purposes, and at heavy cost. The enclosing buildings were not erected for some months after the work of the appellees was completed, but they were necessary to the perfection of the general plan of the improvements and for the protection of the engine and boilers and their fixtures. The extent and importance of the structures may be shown by a condensation of the description of them in the audit- or’s report. The foundation of the new engine was solid masonry, ten feet square and six feet in depth. The house enclosing it, which Avas erected at the distance of about ninety-three feet from the furnace, was framed, weather-boarded, Avith windows in it, covered by a comb roof and thirty-five feet high. The boiler-house Avas built at about the same distance from the furnace as the engine-house. The two buildings Avere about forty-tAvo feet apart. The foundations of the boilers Avere seven Avails, each sixty-seven feet long, from eighteen inches to two feet thick, and from two to three and a half feet high. Brick walls were built on the stone foundations to the height of six feet, extending nearly to the tops of the boilers and enclosing them. Some three or four months after the boilers were set up, a frame building to cover and protect them Avas erected. It Avas supported by posts set on stones outside the boiler Avails', Avas strengthened by girders, plates and rafters, was weather-boarded from the eaves down to the brick wall, except in front of the boilers, and had a comb roof of boards. The iron boiler-stack, ninety feet high and ten and a half feet in diameter, Avas built on a stone foundation twenty feet square, deeply sunk in the ground, and raised ten feet above the surface. Extended and expensive as these improvements- were, it becomes an interesting as Avell as an important inquiry Avhether these creditors, Avhose contributions to the value of the Dunbar Company’s property have been so material, are within or Avithout the protection of laAvs which secure compensation to mechanics for their labor and property employed in the erection of buildings under all ordinary contracts.

Under the facts found by the auditor there is no room for doubt that all the improvements made were contemplated from the outset, and were all parts of one settled original design. Robinson, Rea & Co. began work on the engine at their shops in Pittsburgh on the 23d of April 1872, under a contract entered into previously. The order for the boilers, drum-heads and fixtures was received by Brenneman & Ward on the 5th of April, and they commenced their work on the 29th. Riter’s contract was entered into on the 10th of April, and the stack was begun sometime in the following June. "At the date of the record of the mortgage, therefore, all these parties were employed in the execution of their contracts.

As has been stated, the mortgage became a lien on the 17th of July 1872. When the first work was done on the ground did not precisely appear before the auditor, but the masonry for- the foundation of the boiler-stack was begun on the 16th of July. There was evidence that at least a week earlier excavations for the foundation had been commenced. The location for the boiler-stack and boilers had been fixed as early as the 6th of July, for the written contract with E. Gr. Lincoln for the masonry ivas made that day. It was decided in Pennock v. Hoover, 5 Rawle 291, under the Act of the 17th of March 1806, that the commencement of a building was the first work done on the ground for the foundation, as part of the work suitable and necessary for. its construction. By this rule, the erection of these structures was begun at least as early as the 16th of July 1872, one day before the mortgage ivas recorded. It is true that excavations for the engine were delayed until September,-but that work was merely a continuation of the work begun in July, and was part of the entire scheme of improvements that had been planned and matured in April. The notice given by breaking the ground for the boiler-stack was notice of all that ivas intended to be done in carrying into effect the details of a single enterprise definitely projected and arranged. All the structures were upon the furnace property ; all were to serve the purposes of the furnace ; all the c.ontracts had been made ; and the machinery had been in the course of construction nearly three months when the first masonry was laid. Inquiry by the trustees or by bondholders would have led to the disclosure of the whole scope of the improvements the company had in contemplation. And the duty of such inquiry was created by the work visibly done for the commencement of the buildings. If the claimants had a right to liens at all for machinery furnished for such detached and subsidiary use as theirs was applied to, they were entitled to them from the 16th of July 1872 ; they had precedence of the trust-mortgage not then recorded; and the claim for the engine was recoverable equally AYith the claims for the boilers and the boiler-stack.

That such machinery as was furnished here was of a kind for which, in the ordinary case of .an erection, a lien could be supported, is well established. A lien was sustained for a copper boiler in a brew-house in Gray v. Holdship, 17 S. & R. 413; an engine by which a saw-mill was propelled in Morgan v. Arthurs, 3 Watts 140; and for burr mill-stones in Wademan v. Thorp, 5 Watts 115. The fact that the work was done mainly in Pittsburgh shops, does not affect the rights of the claimants. It was said by Agnew, J., in Singerly v. Doerr, 12 P. F. Smith 9, that “steam and machinery have revolutionized the manner of building houses. Much of the work formerly done by hand at or near the building is now done at the mill.” It was held that if work is done for and on the credit of the building, it makes no difference where it is done.

. But it was strongly urged on the argument that these liens were filed against machinery and fixtures only ; that the buildings were mere appurtenances to the furnace, in which admittedly no change was made ; and that under both the letter and the spirit of the Acts of Assembly the liens cannot be maintained. In expressing the opinion that these were such structures as would support the claims, • the auditor said that, detached and separated from the' furnace, they would be comparatively valueless; but he added that “ the liens must attach incidentally in such cases to so much of the land and other structures as is necessary for the use and enjoyment of the same for the purposes for which these buildings were intended.” This statement of the law is in accordance with rules settled by this court where structures have been added ato or rebuilt. Do those rules apply to detached buildings such as these ? In Nelson v. Campbell, 4 Casey 156, the facts as stated in the opinion of the judge who decided it were, that “ Nelson had a tavern-house on one corner of his lot, and a stable on the corner diagonally opposite ; and he enlarged the house by adding new buildings on the other two corners, which enclose two sides of the original house, and are united together.' Now if this lien is to be enforced against the ground occupied by the new buildings and the yard belonging to them, the defendant’s lot is cut into three pieces, and his house and stable are totally separate, and both left without a yard. Besides this, the new buildings include his dining-room and kitchen, and both pairs of stairs of his house.” The points ruled were, that it is not necessary that a new building erected should be distinct from and independent of older buildings in order to sustain a lien for work done and materials furnished towards its erection and construction ; that the lien in such cases attaches oo the whole building and so much of the ground of the owner adjoining as is necessary for the use and enjoyment of the building for the purposes for which it was designed; and that the amount of land claimed need not be designated, as the parties are not bound, nor the extent of the land that will pass by a sale affected, by that set forth in the lien filed, and the parties may have that designated by commissioners appointed by the court before sale. .Nelson v. Campbell has been repeatedly quoted as authority in later cases, and the remark of Agnew, J., in Diller v. Burger, 18 P. F. Smith 432, that it was a “very peculiar case,” and that “it can scarcely become a precedent,” did not express, and was not intended to imply disapprobation of the conclusions it reached. In Lightfoot v. Krug, 11 Casey 348, a kitchen one story high attached to a main building of two stories, was declared to be an erection to authorize a mechanics’ lien. In Pretz & Gausler’s Appeal, 11 Casey 349, a three-story- brick hotel had been erected in 1853. A three-story brick kitchen, adjoining to and communicating in each story with the main building, was erected in 1857. A mechanics’ lien against the kitchen AYas sustained. The same rule was applied in Harman v. Cummings, 7 Wright 322, where a wing of seventeen feet front had been added to a dwelling of tAventy-five feet front. The exceptional case of Landis’s Appeal, 10 Barr 379, AYould probably have been differently decided as to the neAY back building that had been erected there, if Judge Coulter’s opinion could have been written in the light of the later cases. That a substantial addition of material parts, or re-building on another and larger scale, although parts of the old are preserved and incorporated in the new, is a rule recognised by Sharswood, J., in Hershey v. Shenk, 8 P. F. Smith 382, as having been settled by Driesbach v. Keller, 2 Barr 77 ; Nelson v. Campbell, supra, and the authorities that have followed them.

It was argued on the part of the appellants, hoAvever, that the cases quoted applied only to instances in which the principal building had been added to or rebuilt. As mere appurtenances to the furnace, these structures AYere said to bear the same relation to it that ordinary out-houses bear to an ordinary dwelling, and under that relation to be not subject to mechanics’ liens. If the premises AYere true, the conclusion Avas perhaps Avell draAvn. In the decisions on this point there has been some uncertainty and confusion. In Werth v. Werth, 2 Rawle 152, a claim Avas filed against a barn for work done on it alone, and this court held that the lien was to be confined to the building and the land covered by it, with the necessary means of enjoying it in the usual way. In Burt v. Kurtz, 5 Rawle 246, a claim was filed against a dwelling-house, rope-house, rope-Avalk and stable, and Avas allowed. In Hoatz v. Patterson, 5 W. & S. 537, a lien AYas claimed for erecting a furnace, casting-house, stables and houses necessarily appurtenant thereto, and no objection on that ground was made. In Lauman’s Appeal, 8 Barr 473, the claim was against a two-storied dwelling, Sayíss barn, wagon-shed, wood-house, Avash-house, smoke-house and ice-house on a farm. The right to the lien was not contested. The only question was whether it was a case for apportionment. It was held that it was not, as the buildings were to be “ considered as a whole, incapable of separation without injury.” On the other hand, in Barclay’s Appeal, 1 Harris 496, where a claim was filed for work in the erection of a building “ and appurtenances,” the court held the claim bad, and said: “ An appurtenance may be a yard, an alley, a cistern, a conduit-pipe, an ice-house, a smoke-house, a privy, a stable or other out-house, distinct from the principal building mentioned in the Avritten claim, and consequently not Avithin the purvieAV of the lien laAvs.” But whatever may be the rule of larv as to ordinary out-houses, it is believed to be inapplicable to the buildings against Avhich these liens AArere filed. The engine-house and boiler-house became parts of the furnace the moment they were completed. They were connected with it by blast pipes and flues, and'the connection Avas as available, essential and direct as if they had been built beside the furnace walls. In the language of the decisions, they were “additions of material parts” to the original structure. They served in their actual use all the purposes that actual additions would have served, and their extent and value were significant enough to give ample notice to purchasers and creditors of the change in the character of the property. The decision of the auditor and the decree of the court beloAV in support of these liens under the provisions of the Act of the 16th of June 1836, Avere not only in accordance with the general principles dedueible from the cases that have been collected, but vindicated by the very rules which those cases have established.

Apart even from the statute under Avhich those rules have been settled, they are still capable of such an application as to sustain these claims. The Act of the 21st of April 1856 extended the provisions of the Act of 1836 and its supplements as fully as the same were applicable to buildings, to every steam-engine, coal-breaker or parts thereof, pump-gearing, hoisting-gearing, and fixtures and machinery in or about mills of any kind, iron or coal Avorks, coal mines and iron mines. In Summerville v. Wann, 1 Wright 182, it Avas held that the neAV act did not introduce any neAV principle into the lien laAv; that it specified the objects for which, and not on Avhich, a lion might be had; and that it did not authorize liens for Avork and materials done and furnished in the alteration and repair of an old building, but only extended the provisions of the Act of 1836 to certain things or accessions for which claims might be filed. The particular point ruled was, that a lien could not be supported against a mill, which Avas itself left unaltered, for neAV machinery put in to replace old machinery taken out. Of the propriety of the ruling there can be no doubt. The obvious reasons for it were clearly stated by the present Chief Justice, in Miller v. Hershey, 9 P. F. Smith 64. After referring to Driesbach v. Keller, 2 Barr 79; Landis’s Appeal, 10 Barr 379; Armstrong v. Ware, 8 Harris 520, and Norris’s Appeal, 6 Casey 127, he said: “ The idea which runs through all the eases is newness of structure in the main mass of the building — that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new building some of the old pai’ts may have entered. This newness of construction must be in the exterior, in the main plan of the building, and not in its interior arrangements. This was decided in Summerville v. Wann. There appears to be a good reason for this not only in the fact that the external walls constitute the strongest mark of its identity, but also in the notice that the external change furnishes to purchasers and lien-creditors.” No such reason as this can possibly require the ^application of the rule of Summerville v. Wann to the new structures of the Dunbar Iron Company. There was “newness of construction” throughout. They were large, massive, and of course visible. No purchaser and no creditor could possibly be deceived. It was said by Mr. Justice Strong, that the Act of 1856, as a supplement to the Act of 1836, should be construed in reference to it. There is equal necessity that the general tendency of the cases that have illustrated the elder act should be kept in sight in the construction of the supplement. Even regarding the buildings as ordinary outhouses, the same process of reasoning that supported the lien against the additions to Nelson’s tavern in Nelson v. Campbell, the liens against the kitchens in Lightfoot v. Krug, and in Pretz & Glausler’s Appeal, and the lien against the new wing in Harman v. Cummings, requires that the liens against the engine-house and boiler-house of the Dunbar Company should be supported. The new structures were accessions to the existing property largely increasing its productiveness as well as its intrinsic value. The rights of the claimants were clearly defined, and were capable of enforcement in forms and on principles established by this court. The claims were filed for the machinery against the machinery and the buildings by which it was enclosed. They should be allowed by a construction of the law that is within its very letter, that is believed to be within the very view of the legislature in enacting it, and is in direct accordance with rules by which the provisions of the Act of 1836 have been construed and applied.

To the authorities principally relied on by the appellants brief reference on]y is required. In Norris’s Appeal, 6 Casey 122, the plan of a building was changed and enlarged during its erection. It was held that liens for work done after the change was made related to the date of the alteration on the ground. Miller v. Hershey, supra, decided that repairs and alterations which did not fairly change its exterior into a new structure, did not confer a lien. In Diller v. Burger, 18 P. F. Smith 432, after a brewery had been erected, an addition to it was built. Liens for machinery for the brewery were filed more than six months after its completion, but less tban six months from the completion of the addition. The court below submitted to the jury the question whether both buildings were originally intended to be one, directing a verdict for the plaintiff if they found it had been so intended, and for the defendant if they found otherwise. The judgment was affirmed. In Thoma & Blandy’s Estate, 26 P. F. Smith 30, after a furnace had been completed and put in blast, it was blown out on account of defects in its plan and construction. Money was raised on mortgage, and the existing mechanics’ liens, except one, were paid. Other work was done in changing the construction and building new kilns. The building was held to have been finished at the date of the mortgage, and liens for work after that daté were postponed. It is not apparent how anything contained in these .authorities ought to control the decision of this controversy.

The claim of Brenneman & Ward was especially objected to at the argument on the ground that it was not filed in time. The last work in pursuance of the contract was alleged to have been done on the 11th of October 1872,.and as the lien was entered on the 25th of April 1873, it was insisted that an interval of more than six months had gone by. A charge was added, however, in the bill of particulars on the 29th of October 1872, of $49 for fourteen days’ work in “ altering a mud-drum.” The auditor made no report on this subject, but Levi Brenneman, in his testimony, said: “ The item charged October 29th occurred in this way — we had a drawing to make the drums by, and the draughtsman had made a mistake in the draft; they were too long at one end; we took the heads out and cut them off, and then fixed the heads in again. This being the company’s mistake, they allowed us for the work.” It would seem that the item was for work within the contract, and the objection that the lien was not filed in time was without foundation.

Decree affirmed at costs of appellants, and appeal dismissed.