Shelby Contracting Co. v. Pizitz

• Decision Date: 12 February 1970
• Docket Number: 8 Div. 279
• Citation: 231 So.2d 743,285 Ala. 301
• Parties: SHELBY CONTRACTING CO., Inc., a Corp. v. Harold PIZITZ et al.
• Court: Alabama Supreme Court

Page 743

231 So.2d 743

285 Ala. 301

SHELBY CONTRACTING CO., Inc., a Corp. v. Harold PIZITZ et al.

8 Div. 279.

Supreme Court of Alabama.

Feb. 12, 1970.

Bell, Richardson, Cleary, McLain & Tucker and James H. Porter, Huntsville, for appellant.

Speir, Robertson & Jackson, Birmingham, for appellees.

COLEMAN, Justice.

Complainant, a corporation, filed its bill of complaint seeking to establish and enforce a mechanic's lien. The court sustained a demurrer to the bill as amended and complainant moved to dismiss the bill as provided by § 755, Title 7, Code 1940, as amended by Act No. 72, approved September 15, 1961; 1961 Acts, Vol. II, page 1947.

From the decree granting complainant's motion to dismiss, complainant appeals. The error complained of is the decree of the court sustaining the demurrer to the bill.

The question for decision is whether the allegations of the bill show that complainant is entitled to enforce a lien, on certain contiguous lots in a subdivision in the City of Huntsville, for labor and material used by complainant to construct improvements on a street of the subdivision on which the lots abut. Complainant states the question as follows:

'The question presented by this appeal, simply stated, is whether a materialman's lien attaches to property abutting a public right-of-way for substantial improvements made in the right-of-way under a single contract with the owner of the abutting property. Stated differently, is a contractor's lien right defeated because his labor and material, or a portion thereof, were furnished for improvement of a part of the property across which a public easement lies?'

At the time complainant entered into the contract, the plat of the subdivision had been approved by the engineer of the City of Huntsville, although the dedication of the streets on the plat was not accepted by the city until after complainant had completed its work.

Complainant claims a lien under § 37, Title 33, Code 1940, which recites in part as follows:

' § 37. Every mechanic, person, firm, or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor, or subcontractor, upon complying with the provisions of this article, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest therein of the owner or proprietor . . ..'

Both parties agree that there clearly exists a split of authority among the courts which have considered the question here presented. One court has observed:

'. . . The cases cited by counsel and those we have found are all decided upon the peculiar phraseology of the different statutes passed by the several states. . . .' Seeman v. Schultze, 100 Ga. 603, 604, 605, 28 S.E. 378.

The point on which the decision turns is whether or not an improvement, such as curbing, paving, or pipe, which is actually upon the street, is to be regarded as being upon the lot which abuts on the street.

Our statute (§ 37, Title 33) provides that the mechanic shall have a line '. . . on such building or improvements . . .' and 'on the land on which the same is situated.' Some courts have decided that the street is a part of the abutting lot and that the abutting lot is busject to a mechanic's lien for constructing an improvement on the street.

The Court of Civil Appeals to Texas enforced a lien on an abutting lot for construction of a sidewalk in front of the lot under a contract with the lot owners. The court said:

'But whatever the rule may be in other states, we are of the opinion that, as it is settled in this state that a deed to a lot fronting on a public street and calling for such street, or else describing the lot by reference to a plat which shows that the lot abuts upon the street and was laid out with reference thereto, carries with it a fee-simple title to the center of the street, in the absence of some restriction in the deed, it follows inevitably that an improvement, such as the one in controversy in the present suit, was an improvement upon the entire lot, including that part which fronts upon the street and upon which buildings are erected. . . .' Lewis v. Roach Manigan Paving Co., (Texas Civ.App.), 184 S.W. 680, 681.

The Supreme Court of Arkansas, in holding that a materialman, who has furnished material for building a sidewalk, has a lien on the sidewalk and abutting lot, has this to say:

'. . . Now, while the general public have an easement in sidewalks, and while the municipality controls them for the purpose of preserving this easement, yet the fee, under the law, is in the owner of the land abutting the public streets to the center of the street, and this ownership is absolute, subject only to the rights of the public to enjoy its easement over it, and to the public power of the municipality, as the agent of the public, to preserve this easement or highway. . . .' Leiper v. Minnig, 74 Ark. 510, 515, 86 S.W. 407.

In Laude Contracting Co. v. Land Development Co., (Mo.App.), 337 S.W.2d 578, the action was by a subcontractor to recover from the general contractor for labor and materials and to enforce a mechanic's lien against twelve contiguous residential lots in a subdivision. There were six residences on each side of the street. The subcontractor sought a line against the buildings and the appurtenances, improvements, and land. The subcontractor alleged that the defendant general contractor was the original contractor for the erection of said buildings, appurtenances, and improvements and that the same were erected under one general contract. The St. Louis Court of Appeals held that the petition sufficiently asserted a claim by the subcontractor for a lien against the twelve lots and their owners. In reaching this conclusion, the court quoted from an earlier case, McDermott v. Claas, 104 Mo. 14, 15 S.W. 995, where the court had said:

". . . Appellant owned the land to the center of the street on which his property abutted, subject to the easement in favor of the public. . . ." (337 S.W.2d at 583)

The Supreme Court of New, York, Erie County, in Application of Bradwood Realty Inc., 43 Misc.2d 374, 251 N.Y.S2d 315, quoted at length from the Ladue opinion, supra, and held that a contractor was entitled to a lien for labor and material furnished in a subdivision for paving, storm and sanitary sewers, water mains, street curbing, rock excavation, and a sewer system. Relying on cited cases and the New York statute which provided that the mechanics' lien law should be liberally construed, the court, without stating further reasons, found '. . . that the work done by Respondent constituted an improvement to the lots and appurtenances to them was beneficial to said lots so that the lots were subjected to a mechanic's line for such improvement.' (251 N.Y.S.2d at 318)

All the cases cited by complainant thus appear to rest on the proposition that improvements constructed on the street entitle the mechanic or materialman to a lien because the street is a part of the abutting lot.

Complainant argues that we should follow the holding of the above cited cases because our cases hold that the abutting lot owner owns the fee in the street to the median line thereof, that the dedication of a street grants only an easement in the street and the fee remains in the owner of the abutting lot, citing: Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A.,N.S., 607; Snead v. Tatum, 247 Ala. 442, 25 So.2d 162; Lybrand v. Town of Pell City, 260 Ala. 534, 71 So.2d 797; Town of Citronelle v. Gulf Oil Corp., 270 Ala. 378, 119 So.2d 180.

Respondents rely on the cases next discussed which hold that a mechanic or materialman is not entitled to a lien on a lot for improvements constructed on an abutting street.

In Coenen & Mentzer v. Staub, 74 Iowa 32, 36 N.W. 877, the plaintiff sought a lien against a lot in front of which he had constructed a sidewalk under a contract with the owner. The court said:

'. . . The statute under which the remedy is claimed (Code, § 2130) is as follows: 'Every mechanic or other person who shall do any labor upon or furnish any material, machinery, or fixtures for any building, erection, or other improvement upon land, including those engaged in the construction or repair of any work of internal improvement, by virtue of any contract with the owner, his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this chapter shall have, for his labor done, or materials, machinery, or fixtures furnished, a lien upon such building, erection, or improvement, and upon the land belonging to such owner On which the same is situated, to secure the payment of such labor done, or materials, machinery, or fixtures furnished.' Under this provision, the lien attaches to the building, erection, or improvement, and to the land Upon which it is situated. The sidewalk is not situated upon the lot sought to be charged, but in the street on which it fronts. It is not an improvement upon or of the lot, nor was it made for the benefit of the owner, but of the public, and was constructed by the owner, as we presume, in obedience to some requirement of the town government. Under provisions of the statute many street improvements in incorporated towns and cities may be made at the cost of the owners of the abutting property. Streets may be reduced or filled to grade and paved, and sewers and sidewalks may be constructed therein, and, when the work is done by the city, the cost may be taxed by special assessment upon the abutting property, or the property owners may be required to do the work in front of their respective properties. But however it may be...