Tallapoosa Lumber Co. v. Copeland

• Decision Date: 14 May 1931
• Docket Number: 6 Div. 787.
• Parties: TALLAPOOSA LUMBER CO. v. COPELAND ET AL.
• Court: Alabama Supreme Court

134 So. 658

223 Ala. 41

TALLAPOOSA LUMBER CO. v. COPELAND ET AL.

6 Div. 787.

Supreme Court of Alabama

May 14, 1931

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to establish and enforce a materialman's lien by the Tallapoosa Lumber Company against Roy Copeland, the City Realty & Mortgage Company, Julius Jaffee, W. R. Ling, A. L Straiton, and M. A. Tyndall. From a decree denying the prayer for a lien, complainant appeals.

Reversed and remanded.

Harsh &amp Harsh, of Birmingham, for appellant.

Benners Burr, McKamy & Forman, of Birmingham, for appellee City Realty & Mortgage Co.

SAYRE J.

Complainant, Tallapoosa Lumber Company, seeks to have a lien declared and enforced for materials furnished for buildings on lots 3, 4, and 6 according to the survey of South Park in Jefferson county. The numbered lots, each fronting fifty feet on a street, were at the time of the contract for the materials in question the property of appellee Roy Copeland. Before the bill was filed, the several lots had passed into the ownership of different persons who are made parties defendant to the bill and have suffered decrees pro confesso. The cause proceeded to moneyed decree against appellee Copeland, but appellant's prayer for a lien was denied, and this last-named provision of the decree is brought here for review.

Complainant, Tallapoosa Lumber Company, furnished materials used in the construction of three houses, one each on lots 3, 4, and 6. Lot 5, lying between lots 4 and 6, was in a different ownership, and complainant claims no lien upon it. Lots 4 and 6 are not contiguous; intervening lot 5 is fifty feet wide. The building materials for which complainant claims a lien were furnished upon one general order to be used in three buildings simultaneously in process of construction on lots 3, 4, and 6, and complainant's claim of lien, filed in the office of the judge of probate, and his bill in this cause as well, claim a lien on the three buildings indiscriminately. The question presented for decision is whether complainant is entitled to a lien in manner and form as claimed.

Complainant claims a lien in general under section 8832 of the Code. The difficulty, if any, in the formulation of a proper decree, arises out of the fact that lots 4 and 6 are separated by intervening lot 5 and the provision of section 8839 of the Code, which, in relevant part, we quote:

"When the land on which the building or improvement is situated is in a city [the case here], town, or village, and the improvement consists of *** separate buildings upon contiguous or adjacent lots *** and erected under one general contract [the case here], the lien for the labor, materials, *** so furnished, shall attach to all such *** improvements, together with land upon which they are situated, and it shall not be necessary to file a separate lien for each lot, building or improvement, but the party claiming the lien may elect to file a separate lien for each lot, building or improvement."

The question presented for decision, to state it with greater particularity than heretofore, arises out of so much of the terms of the last-mentioned section of the Code as provides a lien when the improvement consists "of separate buildings upon contiguous or adjacent lots." The meaning of "contiguous" would appear to be plain enough; is not in dispute. The term, as used in the statute, obviously applies to lots or parcels of land which touch along a considerable part or the whole of one side. The difference between the parties arises in the main over the meaning of "adjacent" in the statute. Appellee would construe the last-named term as practically synonymous with the first. But we think the two terms are used to express different ideas, and that "adjacent" as used in the statute means lots or parcels of land which lie close to each other but not necessarily in actual contact. See Webster's New International Dictionary, where these definitions are found. It is not considered that anything was said in Grimsley v. First Avenue Coal & Lumber Co., 217 Ala. 159, 115 So. 90, in essential conflict with these definitions. The opinion here is that, appellant's material having been furnished under one contract for use in the construction of three...