Phelps & Bigelow Windmill Co. v. Baker

• Decision Date: 08 July 1892
• Court: Kansas Supreme Court
• Parties: THE PHELPS & BIGELOW WINDMILL COMPANY v. M. H. BAKER et al

30 P. 472

49 Kan. 434

THE PHELPS & BIGELOW WINDMILL COMPANY v. M. H. BAKER et al

Supreme Court of Kansas

July 8, 1892

Error from Elk District Court.

ACTION by the Company against Baker and three others, to enforce a mechanic's lien. On a judgment for defendants, at the October term, 1889, the plaintiff company brings error.

Judgment reversed.

L Scott, for plaintiff in error:

There are but two questions in controversy in this action: First does § 630 of the code (Comp. Laws of 1885, P 4447) include within its provisions furnishing material, machinery and performance of the necessary labor in the erection of such an improvement on lands, and create a lien? Second, does the omission of the notary public, in not attaching to or after his official signature the date of the expiration of his commission, invalidate the affidavit to the lien, and thereby make the same void?

The supreme court of Nebraska decided the first question in controversy, under a statute almost identical with said § 630, in a recent case, Phelps & Bigelow Windmill Co. v. Shay, 48 N.W. 961, in which the court held that the furnishing material, machinery and performance of the necessary labor in making such an improvement was within the statutory provision, and the same was also a lien on the lands. See, also, Meriden v. English, 22 P. 453; Lumber Co. v. Water Co., 29 P. 476; 48 Kan. 182, 187. The statute uses the language, "perform labor or furnish material for erecting, altering or repairing any building or the appurtenances of any building or any erection or improvement." Now, it is within the knowledge of every person that the water supply to railroads, manufactories and a vast number of industries is done by means of windmills. Even cities and towns derive their water supplies from that source, and will it be said that a windmill that supplies water for such purposes is not an improvement? Clearly not. The farmer or stock raiser who desires to convey water through and into different portions of his farm is enabled to do so by aid of the windmill, and thereby increase the value of his lands in many ways, besides the convenience which it affords him; so that the improvement greatly increases the value and use of his lands, and is a great saving in time and labor to him. It is just as useful to him in his business as it is to the railroads and other industries in their business, and there is no good reason why such an erection and improvement is not within the letter and spirit of the statute.

As to the second proposition, that the notary failed to attach after his official signature the date of the expiration of his commission, see City of Kingman v. Berry, 40 Kan. 628: "The important consideration is, whether the complaint was actually sworn to before a proper officer. The mere fact that an officer fails to couple his official title with his name in signing a jurat, or to attach a jurat at all to the affidavit, at the time the oath is administered, will not invalidate it. The officer may attach jurat or his official signature thereto at a later time, when the affidavit would be held sufficient."

Douthitt & Ayres, for defendant in error A. T. Bush:

The failure of the notary to add to his official signature the date of the expiration of his commission destroys the lien. The party interested is required to file a verified statement in order to create a lien, and we know that the statement 'has been verified only by the certificate of the officer taking such verification. If, then, the certificate is defective, we think that filing a statement with such defective certificate would create no lien until the same was amended so as to conform to law. This is purely a statutory proceeding, and those who would create and enforce mechanics' liens must proceed according to the statute. Perry v. Conroy, 22 Kan. 716.

We apprehend that the question of whether the party who furnishes material and erects a windmill may have a lien upon the land on which the same is erected, by virtue of the mechanic's lien laws, depends wholly upon the manner in which such mill is erected. The law, according to the general authorities, seems to be that such a lien can be had for the construction or erection of only those things which, after being so constructed or made, become a part of the realty; and if a windmill is so attached to a house or building as to become a part of same or a part of the realty, it may be that a mechanic's lien would attach to the property for the erection of same. But we think it would be quite different as to windmills and other useful appliances that might be erected out in the fields, separate and apart from all buildings, which are probably intended to be removed at times from place to place, are not permanently connected with the realty, and in fact are no more a part of the realty than the wagons and machinery used in operating the farm. 15 Am. & Eng. Encyc. of Law, p. 6; 2 Jones, Liens, §§ 1336, 1341. See, also, Comm'rs of Brown Co. v. Roberts, 22 Kan. 762; 45 Mo. 100; 52 id. 452; 56 id. 28; 59 id. 452; 63 id. 585.

STRANG, C. All the Justices concurring.

OPINION

STRANG, C.:

Action on two promissory notes, and to foreclose a lien on real estate. October 17, 1889, the case was tried by the court, a jury being waived, which made the following findings of fact and conclusions of law:

"1. On the 14th day of March, 1887, and prior thereto, the defendant M. H. Baker was the legal and equitable owner of the following-described lands in Elk county, Kansas, to wit The northwest quarter of the southwest quarter of section 17, and the north half of the northeast quarter of section 18, and the southeast quarter of section 7, and the southwest quarter of section 8, all being in township 29 south, of range 12 east; that on said 14th day of March, 1887, the defendant M. H. Baker contracted with the plaintiff to put in and upon said above-described lands certain improvements, a windmill and attachments therefor, and do certain labor in and about putting in said windmill on said lands, and furnishing the material and machinery therefor; that in pursuance of said contract and agreement the plaintiff, the Phelps & Bigelow Windmill Company, a corporation, furnished the material, machinery, and fixtures, and performed the labor in and erected a windmill on the lands above described, and fully completed the same on the 18th day of April, 1887. The defendant M. H. Baker executed and delivered to the plaintiff, as part consideration for such improvement made by the plaintiff as aforesaid, the two promissory notes described in plaintiff's petition, and the said notes are due and unpaid.

"2. Thereafter, on the 1st of June, 1887, the defendant Baker and wife conveyed the lands aforesaid to the defendant A. T. Bush, which deed was duly recorded in the office of the register of deeds in Elk county, Kansas, on the 29th day of June, 1887.

"3. On the 5th day of July, 1887, the plaintiff filed its lien in the office of the clerk of the district court of Elk county Kansas, a true copy of which is attached to the plaintiff's petition; and that said lien was filed within three months from the furnishing of said material, machinery and...