Wilkinson v. Rowe
Decision Date | 22 August 1957 |
Docket Number | 1 Div. 704 |
Citation | 98 So.2d 435,266 Ala. 675 |
Parties | George C. WILKINSON et al. v. F. W. ROWE, d/b/a Rowe Surveying Company. |
Court | Alabama Supreme Court |
Edmund R. Cannon, Jr., Hand, Arendall & Bedsole, Mobile, for appellants.
Rae M. Crowe, Gaillard & Gaillard, Mobile, for appellee.
Appellee filed his bill in equity against appellants to enforce an alleged mechanic's lien claimed by appellee against certain lands owned by appellants. Demurrer to the bill of complaint as amended was overruled, and respondents appeal to this court to review the ruling on demurrer.
Appellee states the question in the case as follows:
'Essentially the question raised by appellants' demurrer is whether services rendered by a surveyor in preparing land for subdivision and for sale, constitutes an improvement to property within the meaning and connotation of Section 37, Title 33 of the Alabama Code of 1940; or stated differently, is a surveyor entitled to a mechanics lien for the rendition of surveying services, such as the preparation of maps and plats, surveying and marking proposed streets and boundary lines, etc., under the provisions of the above cited Alabama Statute?'
The bill of complaint describes the services for which appellee claims a lien as follows:
'(a) Complainant claims of said defendants the sum of One Thousand Seven Hundred Sixty-Six Dollars and 30/100 ($1,766.30), with interest thereon, from to-wit, June 6, 1956, for the following surveying services rendered by the undersigned, viz.
'Planning & plotting and submission of preliminary layout of Tuskeegee Terrace to Mobile City Planning Commission, including revisions $308.75
'Boundary survey and topographic map of Tuskeegee Terrace $1,291.25
'For running in center line of Road No. 1 as per plot plan of Tuskeegee Terrace $166.30
'Total $1,766.30
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Appellants and appellee both agree that the precise question in this case has not been heretofore answered in Alabama.
The right to a mechanic's lien as claimed here did not exist at common law. Appellee's right, if any, to such a lien must be conferred on him by statute.
'* * * A builder's or mechanic's lien is purely statutory. * * *' Copeland v. Kehoe & Ramsey, 67 Ala. 594, 597; First Colored Cumberland Presbyterian Church v. W. D. Wood Lumber Co., 205 Ala. 442, 88 So. 433.
Section 37, Title 33, Code 1940, provides that every person '* * * 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, * * * shall have a lien therefor on such building or improvements and on the land on which the same is situated, * * *' etc. (Emphasis supplied.)
By its language, the statute gives the lien first on the building or improvement, then on the land. Unless the improvement on which the lien can be fastened exists, the lien never attaches to the land. The statute gives a lien for work on an improvement on land, but does not give a lien for work on land in the absence of an improvement or building thereon.
This court has construed the word 'improvement,' as used in the statute, to embrace more than the word 'building,' and, in holding 'that a well designed and made for a permanent supply of water' constitutes an improvement under our mechanic's lien statute, this court said:
Bates v. Harte, 124 Ala. 427, 430, 26 So. 898, 899.
The question here before us is: Does the thing on or for which the surveyor furnished labor, as averred in the bill, constitute an improvement within the meaning of § 37 of Title 33?
In considering mechanic's liens, Somerville, J., writing for this court, had the following to say:
'The general rule on this subject seems to be well settled. 'In order to establish a mechanic's lien, it is usually necessary that the materials furnished or labor performed should have gone into something which has attached to and become a part of the realty, and has added substantially to the value thereof.' 27 Cyc. 31, A. 1; Rockel on Mech. Liens, § 14. * * *
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'This court has held that the lien given by our statutes on a 'building or improvement on land' attaches specifically to the materials or fixtures furnished, provided they remain capable of practical identification, and are not so merged in the freehold as to be incapable of severance. Rothe v. Bellingrath, 71 Ala. 55. In a later case, it was declared that (Italics ours.) Turner v. Robbins, 78 Ala. 592, 595.
'It may be that the statement last quoted was a dictum not necessary to the decision of that case; but it is weighty nevertheless, and accords with the general consensus of judicial oninion.' Forbes v. Alabama Machinery & Supply Co., 176 Ala. 423, 427, 428, 429, 58 So. 398, 399.
Can it be said from the averments of the bill in this case that anything has attached to and become a part of the realty, as a result of the surveyor's work?
We recognize that in construing a similar lien statute, this court has said:
* * *'(Emphasis supplied.) Montandon & Co. v. Deas, 14 Ala. 33, 43.
In Montandon & Co. v. Deas, supra, however, it appears that the improvement was a 'brick house,' which is unquestionably an improvement of the character for which the lien was provided.
In Floyd v. Rambo, 250 Ala. 101, 106, 33 So.2d 360, 364, the court said:
In the last cited case, however, the lien was sought for labor done and material furnished in installing a heating system in a dwelling house. The heating system was a visible, tangible thing.
Appellee argues that he is entitled to a lien in this case by analogy to our holding that an architect is entitled to a lien for his services in preparing plans for a building. This court has held that an architect who prepares the drawings, plans, and specifications for a building, and superintends the erection thereof, is entitled to a lien under our statutes. Hughes v. Torgerson, 96 Ala. 346, 11 So. 209, 16 L.R.A. 600. Beyond that holding, so far as we are advised, this court has not extended the coverage of the mechanic's lien statute with respect to architects.
While it does not appear to have been controlling, the opinion in Hughes v. Torgerson, supra, noted that, 'By the judgment a lien was declared only on the building, and not on the lot.' For a collection of authorities dealing with the right of architects to a lien, see 60 A.L.R. 1252.
The rationale for allowing a lien for preparing plans which are actually used appears to be that when the plans are used they become a part of the building and the labor expended in preparing the plans is performed on the building in the same sense as the labor of the carpenter or brickmason.
"The theory of these cases and others cited by the plaintiff is that the labor of superintendence works the plans into the construction so that they actually become part of the building." Gaastra, Gladding & Johnson v. Bishop's Lodge Co., 35 N.M. 396, 403, 299 P. 347, 350.
We have not been cited to nor have we found any case in this jurisdiction where a lien has been granted when there was no tangible improvement constructed on the land on which the lien was claimed.
In the instant case, from the averments of the bill, we do not understand that anything tangible or visible has been added to the land as a result of appellee's services, except perhaps stakes or...
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