Peninsular Stove Co. v. Young , 247 Mich. 580 ( 1929 )

Plaintiff here seeks by cross-bill to enforce a lien upon an apartment building erected by defendants Young and Taan for the price of 49 gas ranges which were installed therein. These ranges were delivered on the premises by the plaintiff, and were installed by employees of the defendants by placing them against the walls in the several apartments and connecting them with a gas fixture which had been placed therein. Plaintiff appeals from the decree entered dismissing its cross-bill.

3 Comp. Laws 1915, § 14796 (mechanics' lien law), provides that —

"Every person who shall, in pursuance of any contract, * * * furnish any * * * materials in or for building, altering, improving, repairing, erecting, ornamenting or putting in any house, building * * * or structure, * * * shall have a lien therefor."

The test to be applied is whether these gas ranges were fixtures and became annexed to the real estate when installed. What are fixtures and become part of the realty was considered at length in Morris v. Alexander, 208 Mich. 387. This court there approved of the three general tests which may be applied as stated in 11 Rawle C. L. p. 1059. These are, "first, annexation to the realty, either actual or constructive; second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and third, intention to make the article a permanent accession to the freehold." In applying these tests, consideration must be given to the nature of the structure and the use to which it was to be put when completed. The building was erected for use as an apartment house, a family to occupy each apartment. As is usual in such buildings, the several apartments become homes for the occupants, with the usual conveniences for housekeeping installed therein. Among these are the appliances for heating, lighting, and cooking. Their use for this purpose necessitated the installation of stoves or ranges, and desirable tenants could not likely be secured without them. Gas ranges were decided on as the practical way of supplying this need, and a uniform design was adopted for each apartment. While there is direct proof that one of the owners stated that it was his intent that these ranges "were to become part of the building," we also think such intent, in view of the use to be made of the several apartments, might well be inferred. In our opinion, these ranges became fixtures, annexed to the realty, and the plaintiff was entitled to a lien thereon for the price thereof.

The conclusion reached finds support in Lyle v. Rosenberg,192 Ill. App. 378; Porch v. Agnew Co., 70 N.J. Eq. 328 (61 A. 721); Union Stove Works v. Klingman, 20 App. Div. (N.Y.) 449 (46 N.Y. Supp. 721), aff. without opinion in 164 N.Y. 589 (58 N.E. 1093); Turner v. Wentworth, 119 Mass. 459; Hanson v. Vose,144 Minn. 264 (175 N.W. 113, 7 A.L.R. 1573); and in our recent case of Vander Horst v. Apartments Corp., 239 Mich. 593.

The failure to serve process on the owners was clearly waived by their voluntary appearance and answer to the cross-bill, and need not be further considered.

The decree entered is reversed and set aside, and one may be entered here granting the Peninsular Stove Company the relief prayed for in its crossbill, with costs of both courts.

NORTH, C.J., and FEAD, FELLOWS, WIEST, CLARK, McDONALD, and POTTER, JJ., concurred.