Pioneer Sand & Gravel Co. v. A. R. Turner Co., 24040.

• Decision Date: 21 December 1932
• Docket Number: 24040.
• Citation: 17 P.2d 9,170 Wash. 618
• Court: Washington Supreme Court
• Parties: PIONEER SAND & GRAVEL CO. v. A. R. TURNER CO. et al.

17 P.2d 9

170 Wash. 618

PIONEER SAND & GRAVEL CO. v. A. R. TURNER CO. et al.

No. 24040.

Supreme Court of Washington

December 21, 1932

Department 1.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Action by the Pioneer Sand & Gravel Company against the A. R. Turner Company and the Northern Pacific Railway Company. From the decree in favor of plaintiff, the Railway Company appeals.

Affirmed.

L. B da Ponte and Thos. H. Maguire, both of Seattle, for appellant.

Merrick & Kelly, of Seattle, Danial Backer and Bayley & Crosson, F Bartow Fite, Jr., and George Thomas Wallsteed, all of Seattle, for respondent.

PARKER J.

The plaintiff, sand and gravel company, commenced this action in the superior court for King county seeking foreclosure of its lien claim for material furnished to the defendant the A. R. Turner Company for the construction of a building constructed by that company upon land belonging to the defendant Northern Pacific Railway Company; the lien claim being asserted against the land of the railway company as well as against the building. Others, having furnished labor or material to the Turner Company for the construction of the building, became parties to the action, seeking foreclosure of their lien claims thereon against the building and the land. Trial in the superior court resulted in a decree awarding foreclosure against the land as well as against the building, in favor of the sand and gravel company and several other claimants, parties to the action. The railway company alone has appealed to this court from the decree in so far as it awards foreclosure of the lien claims against its land on which the building was constructed.

The facts with which we are here concerned are not in dispute and, we think, may be sufficiently summarized as follows: In January, 1931, the railway company, as lessor, and the Turner Company, as lessee, entered into a lease contract by which the railway company leased to the Turner Company a small tract of land in close proximity to the tracks of the railway company, in the city of Seattle. The agreed term of the lease is five years, being from January 1, 1931, to December 31 1935, and the agreed rental is $538.20 per year. Other provisions of the lease, so far as need be here noticed, are as follows:

'The lessee will pay Before the same become delinquent all taxes and assessments, general and special, assessed during the term against the premises or the improvements thereon. In case of non-payment of rental or taxes the same shall, until paid, constitute a lien upon any building or other property owned by the lessee located upon the premises, and the lien may be foreclosed according to law.

'The lessee will occupy and continue to use the premises during the term for the purpose of site for manufacture of paper roofing and shingles, and no other; and * * * will begin the construction immediately and complete as soon as practicable a substantial building for said purpose according to plans and specifications submitted to and approved by the Division Superintendent of the Railway Company in advance of construction, and in event of destruction thereof in whole or in part will within three months thereafter commence the work of repairing or rebuilding and complete the same within twelve months from said destruction. * * *

'If the Railway Company shall require the premises for railroad purposes at any time during the term, * * * it may terminate this lease upon written notice of not less than six months; but in case of such termination the Railway Company shall purchase from the lessee all his improvemments, and pay a sum equal to their actual value at the time such notice is given, which shall not exceed the cost at the time of new similar improvements, with proper allowance for actual depreciation. * * * But the value of such improvements so to be paid shall not exceed the sum of Six Thousand and no/100 ($6,000.00) dollars. * * *

'The lessee will deliver up the premises at the end of the term peaceably and quietly, and if he fails to remove therefrom any material, building or property Before the termination of this lease, either by lapse of time or by notice under this paragraph, the Railway Company may appropriate such property to its own use without compensation, or may remove the same at the cost of the lessee. * * *' Soon after the execution of the lease, the Turner Company commenced the construction of a building upon the land in pursuance of the provisions of the lease contract, above quoted. During the course of such construction, the claimants, whose liens were foreclosed by the decree, furnished labor and material for such construction. The building evidently was completed about the last of April, 1931, though the record does not make it clear just when the building was completed. The building foundation is concrete, set in a permanent manner in the ground and extending above the surface of the ground. Above the foundation, the building is of wood construction.

It is contended in behalf of the railway company, in substance, that its land cannot be lawfully subjected to the lien claims of these several claimants, as awarded by the superior court, because the building was not constructed with a view of becoming the property of the railway company, or with a view of becoming a part of the land as realty.

Our mechanics' lien statute, so far as need be here noticed, referring to sections of Remington's Revised Statutes, reads as follows:

'§ 1129. Every person performing labor upon or furnishing material to be used in the construction, alteration or repair of any * * * building, * * * has a lien upon the same for the labor performed or material furnished by each, respectively whether performed or furnished at the instance of the owner of the property subject to the lien or his agent; and every contractor, subcontractor, architect, builder or person having charge of the construction, alteration or repair of...