Rosser v. Cole, 870330

Decision Date21 April 1989
Docket NumberNo. 870330,870330
Citation379 S.E.2d 323,237 Va. 572
PartiesDois I. ROSSER, Jr., et al. v. Robert A. COLE. Record
CourtVirginia Supreme Court

David S. Hudson, for appellants.

George H. Guy, Jr., West Point, for appellee.

Present: All the Justices.

RUSSELL, Justice.

This appeal requires us to determine the validity of a mechanic's lien claimed by a builder of roads, purporting to affect land subdivided into lots.

Dois I. Rosser, Jr., recorded a plat dated September 12, 1985, subdividing into 77 lots Lee's Neck Farm, a tract of approximately 450 acres in Gloucester County. The lots were served by a network of subdivision streets. In a contract dated October 7, 1985, with a March 1986 addendum, Robert A. Cole, trading as "Robert Cole Excavating," agreed with Rosser's agent to "perform all the labor necessary for the completion of approximately 16,400 feet of general road clearing and grading to a width of 30 feet clearing and 20 foot wide grading from ditch to ditch" at Lee's Neck Farm for the total price of $59,720. The contract specified that materials "such as road pipe, gravel, base materials, stone, straw or grass seed" were not included, but that the "cost includes labor for installing culvert as needed on roads."

On August 28, 1986, Cole filed a memorandum of mechanic's lien in the clerk's office of the court below. Employing the form suggested by Code § 43-5, the lien claimant named Rosser as owner of the realty and asserted that $14,909 was due. The memorandum also recited, "Type of materials or services furnished: Road clearing and grading." The memorandum also showed, "Type of structure on which work done: Timber, raw land and open fields." The property description purported to cover the entire 450-acre tract, but excepted nine numbered lots by reference to the plat. Cole did not contend that he had done any work on any part of the 77 lots.

In November 1986, Dois and Shirley Rosser, as owners of the realty, filed the present proceeding by petition under Code § 43-17.1, attacking the validity of the perfected lien. That statute provides:

"Any party, having an interest in real property against which a lien has been filed, may, upon a showing of good cause, petition the court of equity having jurisdiction wherein the building, structure, other property, or railroad is located to hold a hearing to determine the validity of any perfected lien on the property. After reasonable notice to the lien claimant and any party to whom the benefit of the lien would inure and who has given notice as provided in § 43-18 of the Code of Virginia, the court shall hold a hearing and determine the validity of the lien. If the court finds that the lien is invalid, it shall forthwith order that the memorandum or notice of lien be removed from record."

After a hearing, the trial court dismissed the petition, ruling the mechanic's lien to be valid. We awarded the owners this appeal from the January 1987 dismissal order.

On appeal, the owners contend that the contractor's lien is invalid because it fails to apportion the amount claimed among the individual lots as required by Code § 43-3(b). As pertinent here, § 43-3 provides:

"(a) All persons performing labor or furnishing materials of the value of fifty dollars or more, for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold ... shall have a lien, if perfected as hereinafter provided, upon such building or structure, and so much land therewith as shall be necessary for the convenient use and enjoyment thereof ... for the work done and materials furnished.

....

(b) Any person providing labor or materials for the installation of streets, sanitary sewers or water lines for the purpose of providing access or service to the individual lots in a development ... shall have a lien on each individual lot in the development for that fractional part of the total cost of such labor or materials as is obtained by using 'one' as the numerator and the number of lots as the denominator ... provided, however, no such lien shall be valid as to any lot ... unless the person providing such labor or materials shall, prior to the sale of such lot ... file with the clerk of the circuit court of the jurisdiction in which such land lies a document setting forth a full disclosure of the nature of the lien to be claimed, the amount claimed against each lot ... and a description of the development ... and shall, thereafter, comply with all other applicable provisions of this chapter.

Nothing contained herein shall be construed to prevent the filing of a mechanic's lien under the provisions of paragraph (a) hereof."

Code § 43-2 provides:

"For the purpose of this chapter, a well, excavation, sidewalk, driveway, pavement, parking lot, retaining wall, curb and/or gutter, breakwater (either salt or fresh water), water system, drainage structure, filtering system (including septic or waste disposal systems) or swimming pool shall be deemed a structure permanently annexed to the freehold, and all shrubbery, earth, sod, sand, gravel, brick, stone, tile, pipe or other materials, together with the reasonable rental or use value of equipment and any surveying, grading, clearing or earth moving required for the improvement of the grounds upon which such building or structure is situated shall be deemed to be materials furnished for the improvement of such building or structure and permanently annexed to the freehold."

The owners argue that the specific provisions of § 43-3(b) control, because the contractor's work was performed "for the installation of streets ... providing access ... to the individual lots in a development," according to the statutory language. The owners contend that subsection (b) provides that the claimant "shall have a lien on each individual lot," but not a blanket lien for the total value of his services upon the entire property owned by the "developer." The owners then point out that the contractor failed to apportion his claim among the lots as subsection (b) requires.

The contractor argues that subsection (a), not subsection (b), of § 43-3 applies under these circumstances to permit the filing of a memorandum for a blanket lien. He says that he performed labor for the construction of a "structure permanently annexed to the freehold," as that term is defined in § 43-2. He relies on the portion of the definition which states that "excavation" shall be deemed a "structure permanently annexed to the freehold." He also relies on the portion which states that "any ... grading, clearing or earth moving required for the improvement of the grounds upon which such ... structure is situated shall be deemed to be materials ... permanently annexed to the freehold."

We agree with the owner that subsection (b) is inapplicable because of the contractor's failure to apportion his claim among the lots. We further agree with the contractor that his lien rights are entirely dependent upon the operation of subsection (a), but we reach a different conclusion.

A mechanic's lien is purely a creature of statute; it must have its foundation in a contract, with which it must correspond. Sergeant et ux. v. Denby et al., 87 Va. 206, 208, 12 S.E. 402, 402 (1890). Being in derogation of the common law, the statutes relating to the existence and perfection of a mechanic's lien are strictly construed. Clement v. Adams Bros.-Paynes Co., 113 Va. 547, 552, 75 S.E. 294, 296 (1912).

The historic provision of law which creates the right to a mechanic's lien has been with us since 1842. In its present form, it provides, in pertinent part: "All persons performing labor ... for the construction, removal, repair or improvement of any building or structure permanently annexed to the freehold ... shall have a lien, if perfected as hereinafter provided, upon such building or structure, and so much land therewith as shall be necessary for the convenient use and enjoyment thereof...." Code § 43-3(a) (emphasis added).

Because the claimant did no work on any part of the lots, his lien rights would not extend to them under the provisions of Code § 43-3(a) unless his rights are extended by other provisions of law. Historically, one who constructed a barn or other out-building on a farm could perfect a lien upon the structure he had built, and so much land as the enforcing court of equity might apportion to it for "the convenient use and enjoyment thereof," but would not have a lien on the farmhouse, other buildings upon which he had done no work, or upon the residue of the farm itself. In the case of a dwelling erected on an urban lot, lien rights on the dwelling would routinely extend to the entire lot,...

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