Springfield Foundry and Machine Company v. Cole
| Decision Date | 02 July 1895 |
| Citation | 31 S.W. 922,130 Mo. 1 |
| Parties | Springfield Foundry and Machine Company, Appellant, v. Cole et al |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. W. M. Robinson, Judge.
Affirmed.
Jas. R Vaughan and Norman Gibbs for appellant.
(1) If a person owns the building, it is wholly immaterial whether he has any other interest in the premises or not in order to have a mechanic's lien sustained against it. Kline v Perry, 51 Mo.App. 422; Seaman v. Paddock, 51 Mo.App. 468. (2) A tenancy from month to month may be subject to a mechanic's lien. Deatherage v. Sheidley, 50 Mo.App. 495; Ombony v. Jones, 19 N.Y. 234. (3) A mere right of possession is sufficient to sustain the lien. 2 Jones on Liens, secs. 1274, 1275. (4) The Colorado supreme court have held that an occupancy of public land possessed the legal character of realty, and would support a lien. Rossville Alt. M. Co. v. Co., 15 Col. 29. (5) The machinery constituted fixtures and was subject to the lien. See Richards v. Crowe, 40 Mo. 91; Green v Alloway, 3 Tenn. Chan. 584; Hally v. Alloway, 10 Lea. 523; Ewell on Fixtures, p. 33; Donnewald v. Co., 44 Mo.App. 350; Dimmick v. Cook, 115 Pa. St. 573; Cook v. McNeal, 49 Mo.App. 84; Meistrell v. Reach, 56 Mo.App. 243; Meritt v. Judd, 14 Cal. 60; Roseville v. Co., 15 Col. 29. (6) Grist mills smutters and bolting cloths in a mill, although removable without injury, are regarded as fixtures. Stillman v. Flennikan, 33 Mo.App. 120; Crow v. Holdship, 17 S. & R. 413; Heideker v. Milling Co., 16 Mo.App. 330. (7) Mere physical annexation, if it ever was a test as to fixture, is no longer so regarded. Cook v. McNeal, 49 Mo.App. 84; Vail v. Weaver, 132 Pa. St. 363; Sosman v. Conlon, 57 Mo.App. 25. (8) A familiar illustration of this is given thus: The carpet which is nailed to the floor does not become a fixture, while the key which you carry in your pocket is such. In this state it has been held that the materials for a brick sidewalk laid in the street adjacent to the building, and constructed under an entire contract for the construction of both the building and sidewalk, was lienable. Also that there was a lien for the illuminating tile placed over the areas, although such tiling extended into the street. Company v. Crow, 114 Mo. 499; McDermot v. Claas, 104 Mo. 14; Pullis v. Hoffmann, 28 Mo.App. 666.
French & Whitney for respondents.
(1) Our statutes can not be construed as giving a lien upon engines, boilers, machinery, etc., unless they are a part of the building and adhering to the land. Collins v. Mott, 45 Mo. 100; Richardson v. Koch, 81 Mo. 264. (2) The machinery did not constitute fixtures. To make them fixtures, they must be attached to, and form part of, the realty. Rogers v. Crow, 40 Mo. 91; Collins v. Mott, 45 Mo. 101; Housler v. Glass Co., 52 Mo. 452; Graves v. Pearce, 53 Mo. 423. (3) This machinery was put in with a view to its removal. This was the intention of the parties. It is the intention that governs in determining what constitutes fixtures. Vail v. Weaver, 132 Pa. St. 363; Damewold v. Real Estate Co., 44 Mo.App. 352; Ewell on Fixtures, 22; Menawald v. Shepard, 25 Kan. 112. (4) While a lien is given for the work, material, engines, etc., it is not given on the work, material, boiler, etc. But "upon such building, or erection, or improvement." The building is the subject of the lien, and on it only as an incident of the freehold. Ransom v. Sheehan, 78 Mo. 668.
This was an action commenced by the plaintiff to enforce a mechanic's lien for $ 3,983.62 against Eugene M. Cole, as contractor, and the Davie Mining and Development Company as the owner of the land and a certain building and the machinery therein. The case is in this court on a certificate of judgment only and the abstract does not contain the mechanic's lien or any portion of the record proper. It falls far short of the requirement of the statute, but as no point is made upon the averments in the petition or the correctness of the items or the good faith of the account sued on we will possibly find enough to discover the theory of the trial court by connecting the statement with the certificate of judgment.
In November, 1892, Eugene M. Cole entered into a contract with the Davie Mining and Development Company of Aurora, a company which was then operating a mine on lands belonging to the Kentucky Mining Company, by which said Cole agreed to furnish said Davie Mining Company a steam clearing plant for the crushing, handling and cleaning of lead and zinc ore, the same to be erected on the property of said Davie Mining Company in Aurora, Missouri, for which said mining company agreed to pay him $ 6,000, said payment to be made from the net profits of the property; and the amount of the earnings of said company, after all liabilities were paid, were to be deposited in the Bank of Aurora, subject to Cole's order, and, until paid for, the said machinery plant was to remain Cole's property.
For the purpose of erecting said mining plant, Cole bought of the plaintiff certain machinery and borrowed of the Aurora State Bank $ 1,350 and completed the plant. He gave the bank a chattel mortgage for the $ 1,350 on the machinery. It seems that the Aurora Hardware Company attached a portion of the machinery covered by the chattel mortgage and thereupon the bank replevied the machinery and advertised it for sale, but prior to the sale this suit to enforce a mechanic's lien was commenced and a temporary injunction granted restraining the sale.
The petition proceeded on the theory that the machinery had become a part of the freehold. The answer of Cole and the Davie Mining Company is a general denial. The bank set up its mortgage, alleged that it loaned the money with the understanding the machinery was all paid for and that the money was loaned to Cole and used by him in erecting the machinery; averred the plant was on leased property and the lessee had the right to remove it at any time when no rent was due. It further averred that the property was personal property and no mechanic's lien could attach thereto and said machinery had never become a part of said building. The reply was a general denial of the answer.
The Kentucky Mining Company owned the land upon which the house and machinery were standing. Neither Cole, who purchased the machinery of plaintiff, nor the Davie Mining and Development Company had any estate in said land, nor even a leasehold. The Davie Mining Company and Cole were there simply by the consent of the owner mining for zinc and lead subject to the printed statement of the terms, conditions and requirements imposed by the owner. R. S. 1889, sec. 7034.
Among other rules provided and published by the owner was one requiring every person desiring to mine said land to register his name in the office of the superintendent of the owner. Another rule forbade subleasing, or renting any mining lot, and notifying all parties that no transfer of lease, lots, or mining claims or rights would be recognized by the company, unless the parties acquiring such lots, leases, claims, or rights had received permission from the owner to mine such lot or claim. The deed from S. C. Johnson, R. L. McElhany and others conveyed no title or interest in the land, as they had none. The Davie Mining and Development Company simply had a miner's license. Chynowitch v. Granby Mining, etc., Co., 74 Mo. 173; Boone v. Stover, 66 Mo. 430.
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