Young Elec. Sign Co. v. Erwin Elec. Co.

Decision Date10 December 1970
Docket NumberNo. 5982,5982
Citation477 P.2d 864,86 Nev. 822
PartiesYOUNG ELECTRIC SIGN COMPANY, Appellant, v. ERWIN ELECTRIC COMPANY, Respondent.
CourtNevada Supreme Court

Johnson & Sloan, Reno, Tanner & Gold, Salt Lake City, for appellant.

Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, for respondent.

OPINION

BATJER, Justice:

During the month of December 1965, North Swanson, d/b/a Reno Turf Club, not a party to this appeal, contracted to lease a large electrical sign from the appellant to be erected near the Reno Turf Club in Reno, Nevada. Later Swanson contracted with the respondent to provide services and materials to improve and make the sign operative. The respondent performed its contract and billed Swanson for the sum of $5,095.00, which was not paid. The respondent them filed a notice of claim of lien with the recorder of Washoe County, and thereafter commenced an action seeking recovery against Swanson for nonpayment, and against the appellant for foreclosure of the mechanic's lien that had been lodged against the sign.

The case was tried before the district court, without a jury, upon an evidentiary hearing, and the briefs submitted by the parties. Judgment was entered against Swanson for the sum of $5,095.00 plus interest, attorney's fees and costs, and the respondent was also granted a lien upon the electrical sign for those amounts. This appeal is taken from that part of the judgment which impressed a lien upon the appellant's sign.

It is contended by the appellant that the district court erred when it decided (1) that the electrical sign was lienable as 'any other structure' under the provisions of NRS 108.222(1); 1 (2) when it determined that it was unnecessary that there be an employment contract between the appellant who owned the sign and the respondent who furnished labor and material before a lien could attach; (3) when it decided that a lien under NRS 108.222 could attach to the sign without attaching to an interest in the real property; (4) when it decided that the appellant was required to file a statutory notice of nonresponsibility as is required by NRS 108.234 to preclude a lien on the sign and (5) when it decided that the respondent was not required to serve a statutory notice on the appellant as required by NRS 108.2394, in the event a lien would subsequently attach to the sign under NRS 108.222.

The primary and basic question submitted to the district court was whether the respondent acquired a valid lien against the sign affixed to the real property of Swanson, the appellant's lessee.

Here the contract between the appellant and Swanson provided that the sign would remain the personal property of the appellant and would not become 'a fixture or appurtenant to such realty.' 2 On the strength of this contractual provision the appellant claims that the sign was not subject to a mechanic's lien. The appellant misconceives the law. A contract expressing the intention of the parties only binds those parties and their privies when determining whether a particular object or chattel becomes a fixture to real property. As to all others, without notice, they were entitled to allow the physical appearance of the appurtenance to speak for itself.

It is undisputed that the sign was securely attached to the real property owned or leased by Swanson. Both parties rely on Barnes v. Montana Lumber & Hardware Co., 67 Mont. 481, 216 P. 335 (1923) for the definition of 'structure' used in statutes authorizing mechanic liens. There the court said: 'We are however, of the opinion that a 'structure,' to be lienable, must, at the same time the labor is performed upon it or the materials are used in connection with its creation, improvement, or repair, be attached to land. In other words, without partaking of that nature of fixtures which in certain instances makes them nonremovable portions of the real estate, the 'structure' must be affixed to the land or be of or appurtenant to it, before a valid lien can be secured thereon.' In Reno Electrical Works v. Ward, 51 Nev. 291, 274 P. 196 (1929), this court construed the words 'or other improvements' to include fixtures.

Here, however, the appellant contends that the district court compounded its error when it failed to apply the doctrine of ejusdem generis 3 in interpreting NRS 108.222. We affirm the findings of the district court that 'any other structure' included the electrical sign. See Orr Ditch & Water Co. of Reno Township v. Justice Court, 64 Nev. 138, 178 P.2d 558 (1947).

If the intention of a statute is clear, courts do not resort to the rule of ejusdem generis because the statute must control. Courts may not read something into the statute which is not there. Where a general term in a statute follows specific words of a like nature, it takes its meaning from those specific words and is presumed to embrace the kind of things designated by the specific words. The words 'any building, or other superstructure, railway, tramway, toll road, canal, water ditch, flume, aqueduct or reservoir, building, bridge and fence' listed in NRS 108.222 are unlike in meaning and specify different subjects. Many of them embrace all subjects of their class but indicate a different meaning from the preceding specific words.

In Helvering v. Stockholms Enskilda Bank (1934) 293 U.S. 84, 79 L.Ed. 211, 55 S.Ct. 50, the United States Supreme Court said: '(W)hile the rule (of ejusdem generis) is a well-established and useful one, it is, like other canons of statutory construction, only an aid to the ascertainment of the true meaning of the statute. It is neither final nor exclusive. To ascertain the meaning of the words of a statute, they may be submitted to the test of all appropriate canons of statutory construction, of which the rule of ejusdem generis is only one. If, upon a consideration of the context and the objects sought to be attained and of the act as a whole, it adequately appears that the general words were not used in the restricted sense suggested by the rule, we must give effect to the conclusion afforded by the wider view in order that the will of the Legislature shall not fail.'

The legislature foresaw that there could be constructed in this state, in the future, 'other structures' as different from a railway as a railway is different from a building or a water ditch. It enacted a statute not only for the present but one that would be enduring and effective in the future. The respondent was entitled to view the sign as a fixture and the trial court was correct when it found the sign to be 'any other structure' within the scope of NRS 108.222, and lienable.

In another tenacle of the appellant's argument it contends that in any event the sign was not lienable because it was a 'trade fixture.' Trade fixtures are not subject to a mechanic's lien. Reno Electrical Works, Inc. v. Ward, 51 Nev. 291, 292, 274 P. 196, 62 A.L.R. 247 (1929); Van Ness v. Pacard, 27 U.S. 137, 2 Pet. 137, 7 L.Ed. 374 (1829). The sign is not a trade fixture belonging to the appellant.

When a tenant places a fixture upon the real property of the landlord with the landlord's consent it takes on the nature of a trade fixture. In Willcox Boiler Co. v. Messier, 1 N.W.2d 130, 132 (Minn. 1941), that court stated: 'On the general law of fixtures an exception has been 'ingrafted * * * due to the growing necessities of trade, that certain articles ordinarily fixtures, attached by a tenant for trade purposes, may be removed during the tenancy. Such articles are known as 'trade fixtures.' Northwestern Lbr. & W. Co. v. Parker, 125 Minn. 107, 111, 145 N.W. 964, 965. The reason of this exception goes to the important consideration of intention. It is 'based upon the rule that the law implies an agreement that it (the fixture) shall remain personal property from the fact that the lessor contributes nothing thereto and should not be enriched at the expense of this tenant when it was placed upon the real estate of the landlord with his consent.' * * * Quoting from Cameron v. Oakland County G. & O. Co., 277 Mich. 442, 452, 269 N.W. 227, 107 A.L.R. 1142. So, where a tenant has placed trade fixtures on the realty with the right of removal, denial of lien is compelled by the tenant's right to remove. Because of that right, the thing never became part of the reality.' 4

The doctrine of trade fixtures is limited in its application...

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