Porter Lumber Co. v. Wade

• Decision Date: 08 May 1934
• Docket Number: No. 3882.,3882.
• Citation: 32 P.2d 819,38 N.M. 333
• Parties: PORTER LUMBER CO.v.WADE et al.
• Court: New Mexico Supreme Court

38 N.M. 333

32 P.2d 819

PORTER LUMBER CO.

v.WADE et al.

No. 3882.

Supreme Court of New Mexico.

May 8, 1934.

Appeal from District Court, Dona Ana County; Hay, Judge.

Action by the Porter Lumber Company against Hattie B. Wade and another. From a judgment denying plaintiff a materialman's lien, plaintiff appeals.

Affirmed.

Generally, statutes do not allow mechanic's lien against realty for material or labor entering into construction of trade fixtures or chattels, which tenant may remove at expiration of his term. Comp.St.1929, § 82-202.

R. R. Posey, of Las Cruces, for appellant.

Edward C. Wade, Jr., of El Paso, Tex., for appellees.

ZINN, Justice.

This is an appeal from a judgment denying plaintiff a materialman's lien claimed under the provisions of 1929 Comp. St., § 82-202. The parties will herein be designated as in the trial court.

The facts, in brief, are these: The defendants, as owners in fee of certain property in the town of Las Cruces, N. M., by a written lease rented the property to Bobbitt & Bissing who were to use the premises in connection with the operation of a bowling alley. Before the materials, which were used in the construction of two bowling alleys, were furnished by plaintiff to the lessees, plaintiff was aware of the terms of the lease and the purpose for which the property was to be used, and that the materials were to he used in the construction of the bowling alleys.

A provision in the lease provided that at the end of the term the lessees were to “*** repair any damage to the floors or walls of the buildings that the fixtures of the second parties may occasion and to return the building in as good condition as received by them. ***” Another clause in the lease provided that the defendants, as lessors, were to keep the roof in good repair to prevent damage resulting from leakage to “*** the improvements in the said building of the second parties.” Evidence was offered in addition to the lease from which the court found that it was clearly intended by all the parties that the “bowling alleys” were not to become permanently incorporated in the building as a part thereof or a permanent part of the realty, but were to retain their character as personalty and as the property of the lessees.

The materials were furnished at the request of Bobbitt & Bissing. After they neglected to pay for the materials, the plaintiff decided to look to the defendants. There was nothing distinctive or peculiar about the construction of the bowling alleys. The defendants make no claim to the materials. The bowling alleys can be removed, though it would cause some damage to the floor, which was contemplated when the lease was executed.

The case was tried to the court without the assistance of a jury, which resulted in a decision in favor of the defendants and against the plaintiff. The court made and caused to be entered findings of fact, which are supported by substantial evidence, and conclusions of law, and upon such findings and conclusions rendered the judgment from which the plaintiff appeals.

The decisive and basic question in this case is whether or not the bowling alleys, when installed upon the premises of the defendants, became so attached to the building or realty as to become a part thereof and lose their identity as personal property, thus permitting the plaintiff's lien for the material to attach to the building or realty.

[1] Although section 82-202 does not specifically mention “fixtures,” it does use the expression “or other improvement.” It is on the theory that the bowling alleys are “improvements” upon which the plaintiff necessarily rests its case. It is held, in many cases cited from other jurisdictions, that a mechanic's lien may be acquired for labor performed or material furnished in connection with the furnishing and installation of fixtures; that is, articles which were at one time personal property, but which are so attached to the realty as to become a part thereof. 40 C. J. 70. It is not now considered as absolutely necessary that an article be actually fastened to the freehold in order to make it a part thereof. The all important questions are the intention of the person who brings it upon the land, the use to which it is to be applied, and its fitness for that purpose. Dawson v. Scruggs-Vandervoort, Barney Realty Co., 84 Colo. 152, 268 P. 584.

[2] The mere fact that the bowling alleys were necessary to enable the lessees to carry on their business, is not sufficient to subject the defendants' property to the lien. The material and labor furnished related solely to the lessees' business. There is nothing in the evidence to show that it was the intention of the lessees or ...