Eufaula Water Co. v. Addyston Pipe & Steel Co.

• Decision Date: 26 May 1890
• Citation: 89 Ala. 552,8 So. 25
• Court: Alabama Supreme Court
• Parties: EUFAULA WATER CO. v. ADDYSTON PIPE & STEEL CO.

8 So. 25

89 Ala. 552

EUFAULA WATER CO. v. ADDYSTON PIPE & STEEL CO.

Supreme Court of Alabama

May 26, 1890

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

Jones & Falkner, for appellant.

G L. Comer, for appellee.

MCCLELLAN J.

This action was brought by the appellee against the appellant to recover on an account for piping furnished, to be used in the construction of water-works in the city of Eufaula, and to have a lien, as for materials supplied, declared and enforced against a certain one-acre lot belonging to the defendant situated just beyond the corporate limits of said city. This lot was the Situs of defendant's pumping station, and on it were erected and placed buildings and machinery essential to forcing water into defendant's stand-pipe or reservoir, a half mile distant, whence it was supplied through a system of pipes, to the city and its inhabitants. The piping supplied by the plaintiff was used in making the conduit between the pumping station and the reservoir, a distance of about 3,000 feet, and extended from a point 25 feet within the lot in question, and outside of the buildings thereon, to the reservoir, being for its whole length, except said 25 feet, on land which did not belong to defendant, but in which the water company had an easement for this purpose only. Judgment for the amount in suit went for the plaintiff, and to this no objection was made or exception reserved. The case is presented here solely on exceptions to the court's general charge in favor of plaintiff, and its refusal to give the general charge for the defendant, as to whether a lien existed on the one acre in question and the buildings thereon for the satisfaction of the money judgment; and against the correctness of this action of the court several considerations are urged upon our attention.

We do not doubt that the laying of pipe on the lot of land for the purpose shown by this record is an "improvement" within the meaning of Code, § 3018; nor that the value of pipe furnished for such a purpose might ordinarily be charged on the land under the law which provides a lien for mechanics and material-men. Derrickson v. Edwards, 29 N. J. Law, 468; Helm v. Chapman, 66 Cal. 291, 5 P. 352; Beatty v. Parker, 141 Mass. 523, 6 N.E. 754. The proposition that the lien attaches only where the materials have been furnished for the purpose to which they are devoted, and that it does not arise where they have been supplied on the general credit of the purchaser, and without reference to any contract, express or implied, for their use in a particular building, or for the improvement of certain land, cannot be denied. The use to be made of the materials, the structure into which they are to enter, or the land which they are to improve, must be in the contemplation of the parties when they are furnished, else it cannot be said to have been furnished "for any building or improvement on land *** under or by virtue of a contract with the owner thereof," etc., nor the claim therefor enforced as a lien against property to which they have been applied in the unrestrained discretion of the purchaser. Code Ala. § 3018; Choteau v. Thompson, 2 Ohio St. 114; Coates v. Shorey, 8 Iowa, 416; Fuller v. Nickerson, 69 Me. 228; Rogers v. Currier, 13 Gray, 129; Tyler v. Currier, Id. 134; Hills v. Elliott, 16 Serg. & R. 56; Weaver v. Sells, 10 Kan. 609; Tyler v. Jewett, 82 Ala. 93, 100, 2 South. Rep. 905. But it is equally well settled that there need be no stipulation for a lien, nor need the contract of supply be made with a view to charging the property. If the contract of the parties is no more than a sale of the materials for a particular building or improvement on land, or to be used in the construction of certain works, and there is nothing negativing the reservation of a lien, or the idea that the material-man, if need be, will look to the property for payment, the law raises the implication that the contract of furnishing was made on the security afforded by the property into which the materials enter, and will declare and enforce the claim against the property itself. Shilling v. Templeton, 66 Ind. 585; Jones v. Swan, 21 Iowa, 181; Smith v. Coe, 29 N.Y. 666; Phil. Mech. Liens, § 118. In the case at bar there was no agreement for a lien, but it very clearly appears that the materials were furnished for the construction of water-works at and for the city of Eufaula under a contract. We find nothing in the record to indicate a waiver of the lien, or in negation of plaintiff's right to resort to that mode of enforcing the payment of its account. Our opinion, therefore, is that, under the facts of this case, this objection to the judgment below is untenable.

A much more serious objection is predicated upon the fact that while something like 3,000 feet of piping was furnished under this contract, all of which was used in defendant's works, and for the value of all of which judgment was rendered, yet only 25 feet of it was laid on the lot of land sought to be condemned, and even this pipe did not extend into the buildings located thereon, and also condemned, but was connected therewith by material not supplied by plaintiff. The whole theory of the statute is to give the material-man a preferred claim on a lot of land for the amount he has contributed in improving that particular land or the buildings situated thereon. Can the lien on a particular lot in a town or a certain "one acre" in the country be made to cover and secure a claim for materials which have not been used on that lot or acre at all, but which have been used on other lands on which no lien is asserted, merely because all of such material is used in a system of works covering a large area, and to the efficiency of the system each part is essential? The terms of the statute, in our opinion, answer this inquiry in the negative. Section 3018 of the Code provides that "every *** person who shall *** furnish any material *** for any building or improvement on land *** shall have a lien therefor on such building or improvement and on the land on which the same is situated to the extent *** in area of the entire lot or parcel of land if in any city, town, or village, or, if not in any city, town, or village, of one acre." Sections 3019 and 3020 provide for the removal, in certain contingencies, of the building or improvement from the lot or acre to which, or to the buildings or improvements on which, the lien attaches by the purchaser at the sale made in satisfaction of the lien. Section 3025 confines the right of selection of the land to be charged with the lien to the lot or acre which includes "the site of such building or improvement." Section 3021 provides a method by which a lessor, where the materials have been furnished at the instance of a lessee, shall have the right to prevent the removal of the building or improvement from the premises, i.e., from the lot or acre upon the interest of the lessee in which the lien attaches. It is thus made to appear that the building or improvement must be situated upon the lot or acre (section 3018) in such sort that a purchaser of the debtor's interest in that lot or acre would have the right to remove the same therefrom, (section 3019,) or, in case the premises were under lease, to become the tenant thereof, and remove the improvement or building from the lot at the end of the term, (section 3020,) unless its removal is prevented by payment therefor being made by the lessor, (section 3021;) and, finally, that where the tract carved from exceeds one acre, and is not in a city, etc., the selection must include the site of the building or improvement, (section 3025.) Conceding that the pipe supplied by the plaintiff and laid under ground from the line of the lot...