Ottumwa Iron Works v. Muir

• Decision Date: 04 November 1907
• Citation: 105 S.W. 29,126 Mo.App. 582
• Parties: OTTUMWA IRON WORKS, Appellant, v. ROBERT MUIR et al., Respondents
• Court: Kansas Court of Appeals

105 S.W. 29

126 Mo.App. 582

OTTUMWA IRON WORKS, Appellant, v. ROBERT MUIR et al., Respondents

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Judgment affirmed.

Higbee & Mills for appellant.

(1) The court erred in directing a verdict for defendant Harle. His interest in the leasehold was clearly liable to plaintiff's lien under section 4206 Revised Statutes as amended in 1901, p. 206. Dougherty v. Churchill, 114 Mo.App. 578; Brick Company v. Brick & Quarry Co., 151 Mo. 516; Richardson v. Koch, 81 Mo. 264; Foundry & Machine Company v. Cole, 130 Mo. 1; Stone Company v. Gray, 114 Mo. 497, enforcing lien for stone for sidewalk and reversing same case, 43 Mo.App 671, which Judge Gill was of opinion conflicted with Pullis v. Hoffman, 28 Mo.App. 666. (2) A coal mine is an "improvement," "not merely a hole in the ground," "and taken as a thing, if not a building it is unquestionably an improvement, and an improvement on land." Lien enforced for coal cars, as coming within the meaning of "material." Central Trust Co. v. Coal Co.; Carwheel Co., intervenor, 42 F. 106, 9 L. R. A. (U.S.C C.) 67; McDermott v. Claas, 104 Mo. 24 (lien for sidewalk and fence upheld). For a windmill, because it is an improvement. Phelps v. Windmill Co., 32 Neb. 19. A well is an improvement and lienable. Hoppes v. Baie, 105 Iowa 648; Bates v. Harte, 124 Ala. 427. Electric light wires strung on poles in streets. Supply Co. v. Light Co., 75 Mo.App. 622; 20 Am. and Eng. Ency. Law (2 Ed.), 303, par. 3. (3) Section 4206, R. S. 1899, gives a lien upon the material furnished as against the lessee. Stone Works v. Brown, 50 Mo.App. 411; Stone Co. v. Gray, 114 Mo. 497.

Campbell & Ellison for respondent, W. A. Harle.

(1) The right to a lien and the procedure for the enforcement of the lien, are purely statutory and unless there is a substantial compliance with the statute as to the manner of enforcing the lien, the lien will be denied. (2) The terms used in the mechanics' lien, statute "Fixtures, engines or improvements, etc," refers to and includes only such improvements and buildings as became when attached to the lands, a part of the land itself, for the obvious reason that the lien is upon lands, and not upon personal property. Graves v. Pierce, 53 Mo. 423; Richardson v. Koch, 81 Mo. 269. (3) Appellant seeks to enforce a lien against the machinery and two acres of land which is specifically described in the petition. The two acres so described was arbitrarily set off by the county surveyor under the directions of the appellant. There is no warrant or authority of law for such arbitrary designation.

OPINION

JOHNSON, J.

--Action to enforce a mechanics' lien for a part of the purchase price of hoisting machinery erected on mining property by the lessees thereof. Plaintiff, the manufacturer of the machinery, sold it to the lessees with knowledge of the fact that they intended to employ it in the operation of the mine.

Facts appearing in the record material to our present inquiry thus may be stated: On May 17, 1905, the owner in fee of certain mining property situated in Adair county executed and delivered a lease to E. H. Scriven and Robert Caswell by which he conveyed to the said lessees the coal beneath the surface of the land described and the right to mine it for a period of fifteen years. Among the provisions of the lease are the following: "Second parties (the lessees) shall have the use of two acres of surface on said land around where the shaft is now sunk, for the purpose of handling coal and loading the same into wagons, and may put up any buildings on said two acres and sink any shaft or shafts that may be necessary for the handling of the coal. . . . Second parties are to have the privilege of removing any buildings, machinery or tools that they may purchase and use on said premises at the termination of this lease."

The lease was duly acknowledged and filed for record three days after its execution. On the day it was filed, the lessees conveyed by deed an undivided two-thirds interest in the leasehold to Andrew Steele, O. E. Pierson, Margaret Muir and Robert Muir. On August 4, Scriven conveyed his one-sixth interest to his colessees. On the 26th day of August, the lessees conveyed an undivided one-sixth interest to H. W. Riggin. On November 8th, Pierson, Caswell and Steele conveyed to W. A. Harle an undivided one-half interest, and on November 10th, Robert and Margaret Muir conveyed to said Harle an undivided one-third interest, all of which were promptly recorded, so that by these various conveyances, an undivided five-sixths of the leasehold became vested in Harle and the remaining one-sixth in Riggin.

On or about September 12, 1905, and before Harle acquired an interest in the leasehold, the owners thereof, Steele, Pierson, Caswell, Riggin and Robert and Margaret Muir, purchased of plaintiff (a corporation engaged in business at Ottumwa, Iowa) a hoisting engine and boiler, together with connections and appurtenances, and agreed to pay therefor the sum of seven hundred dollars. The machinery was received in due time by the lessees at Kirksville and hauled out to the mine where it was erected and placed in operation. Half of the purchase price was paid but the lessees failed to pay the remainder. The president of plaintiff company testified that shortly before the lien was filed, he visited the mine and saw the boiler and engine in position at the shaft. He states that "the boiler was on a brick foundation, set up and connected on the foundation for hoisting the coal. It was at the shaft and appeared to have been there in that position for sometime. There is a shed over the engine and boiler and Mr. Harle was using the engine and boiler in operating the coal plant at that time." The manner of the attachment of the boiler and engine to the foundation, if any, is not disclosed.

The claim for lien was duly filed and it is stated therein that "a lien is claimed upon said leased premises and upon said improvements so sold and delivered and so erected upon said leased premises for the said balance of $ 350 and interest so due and unpaid on said account. Said Robert Muir, Margaret Muir, Andrew Steele, O. E. Pierson, Robert Caswell and H. W. Riggin were the owners as assignees of said leasehold in said lands leased to them as aforesaid, and at the time they were so erected as improvements on said leased premises as aforesaid and they were then holding said premises under a lease executed by the owner of the fee of said premises expiring about May 20, 1920."

It will be observed that Harle, who, at the time of the filing of the lien paper, was the owner of an undivided five-sixths interest in the leasehold, is not mentioned as one of the owners thereof, but in the petition subsequently filed, he was made a party defendant and his interest in the leasehold is attempted to be held subject to the lien therein asserted. Other facts appear in the record, but those stated control the disposition of the case. At the conclusion of the evidence, the jury, under a peremptory instruction, returned a verdict for defendant Harle, and it is from the judgment entered in his favor that the present appeal is prosecuted. As no claim is made that error was committed in the judgment as to the other parties defendant, it is not necessary to state the conclusion of that branch of the case.

One of the grounds urged by defendant Harle in support of the judgment in his favor thus is stated in his brief. "Under the statutes of this state a lien can be enforced only against lands, and inasmuch as the persons who purchased the machinery and put the same upon the lands were lessees only...