E. Zabriskie v. Greater America Exposition Company

• Decision Date: 17 February 1903
• Docket Number: 12,625
• Citation: 93 N.W. 958,67 Neb. 581
• Parties: E. ZABRISKIE, APPELLEE, v. GREATER AMERICA EXPOSITION COMPANY ET AL. APPELLEES, IMPLEADED WITH CHICAGO HOUSE WRECKING COMPANY, APPELLANT
• Court: Nebraska Supreme Court

93 N.W. 958

67 Neb. 581

E. ZABRISKIE, APPELLEE, v. GREATER AMERICA EXPOSITION COMPANY ET AL. APPELLEES, IMPLEADED WITH CHICAGO HOUSE WRECKING COMPANY, APPELLANT

No. 12,625

Supreme Court of Nebraska

February 17, 1903

APPEAL from the district court for Douglas county. Action to foreclose a mechanic's lien for materials furnished and labor performed. Heard below before DICKINSON, J. Judgment for plaintiff. Affirmed.

AFFIRMED.

James M. Woolworth, William Douglas McHugh and Timothy J. Mahoney for appellant.

James W. Hamilton and Henry Maxwell, for appellee Zabriskie.

Richard S. Horton, for himself.

LOBINGIER C. HASTINGS and KIRKPATRICK, CC. concur.

OPINION

LOBINGIER, C.

This is a suit to foreclose a statutory lien for materials furnished and labor performed in repairing certain buildings of the Greater America Exposition at Omaha. The company which promoted and carried on this exposition acquired its interest in these buildings and the land whereon the same were situated through an instrument executed by a purchaser from the Trans-Mississippi and International Exposition, which had maintained a similar enterprise on the same site during the previous year. This instrument purported to pass "all the buildings, fences, trees, shrubs, plants, colonnades booths, water and sewer-pipes, electric plant, wires, appliances, appurtenances, * * * and also all right, title and interest, including leaseholds, of the said Trans-Mississippi and International Exposition to or in the said exposition grounds." But this grant was expressly made "subject to the contracts, agreements and obligations of the Trans-Mississippi and International Exposition with the various property holders in the city of Omaha to restore to their original condition the grounds, buildings and property taken possession of or occupied by the said Trans-Mississippi and International Exposition." The Greater America Exposition Company also entered into a lease for one year with the fee owner of the grounds on which the buildings were situated, by which it undertook: "That it will use said lands for exposition purposes only; that by and upon the expiration of the term herein limited, it will refill in a thoroughly good and substantial manner all excavations at any place and time made on said lands since the entry thereon of said Trans-Mississippi and International Exposition; that by and upon the expiration of the term herein limited it will remove from said lands all buildings and structures and all debris of every description whatsoever."

One of the buildings in which the materials sued for was used is thus described by a witness, and the description will apply generally to the buildings in controversy: "The power-plant building was constructed of heavy timbers as framework, and sheeted outside with corrugated iron, also roofed with corrugated iron; and the foundation of the building consisted of piling driven in the ground, and the foundation timbers fastened to the same. The floor was of wood construction--that is, the machinery part of it--with heavy joists or sleepers covered with heavy lumber; and the boiler-room was constructed, the flooring was of concrete or slag--some kind of stone. * * * The foundations for the engines and dynamos were built of brick and concrete. There were excavations made in the ground, to considerable depth, enough to make them perfectly suitable, and bolts, extending up from the foundations, imbedded in the concrete, and these bolts extending up over the frame of the engines and also the frame of the dynamos."

A decree was rendered below finding that plaintiff was entitled to a lien as prayed, and from this the exposition company and its vendee, the Chicago House Wrecking Company, appeal.

It is contended by appellants that the exposition buildings "were merely trade-fixtures"; that as personal property they were not subject to a mechanic's lien, but that they must have entered into and become a part of the realty. We are cited to cases from certain jurisdictions holding that there can be no such lien on a building distinct from the land. Kellogg v. Littell & Smythe Mfg. Co. 1 Wash. 407; Belding v. Cushing, 1 Gray 576. Cf. Coddington v. Dry Dock Co. 31 N.J.L. 477. These cases appear to be greatly in the minority. "The general rule undoubtedly is that a lien may exist upon the building alone under certain circumstances." 20 Am. & Eng. Ency. of Law [2d ed.], 284, where the authorities are set out in extenso. The Massachusetts case above cited was decided under a statute no longer in force. The present doctrine in that jurisdiction is thus stated: "In our opinion this makes it clear that Gen. Sts. c. 150, and Pub. Sts. c. 191, were intended by the legislature to give a lien upon buildings the owner of which had no estate or interest in the land upon which the building was erected, as well as upon any interest which the owner of a building might have in land on which it might be erected, and that the lien might extend to a building erected upon land although the building was personal property." Forbes v. Mosquito Fleet Yacht Club, 175 Mass. 432, 436, 56 N.E. 615.

In our neighboring state of Iowa the statute provides, like our own, ^[*] a lien "upon such building * * * and upon the land." Code (1897), sec. 3089. This has been construed to subject a building to a lien, though the owner of it was a trespasser on the land whereon it was located. Lane v. Snow, 66 Iowa 544, 24 N.W. 35. Cf. Smith v. St. Paul Fire & Marine Ins. Co. 106 Iowa 225, 76 N.W. 676. In Mahon v. Surerus, 9 N.D. 57, 81 N.W. 64, the court, in construing a statute which gives a lien "upon such building * * * and upon the land," ^[**] adjudged a lien on a house on a government homestead, and said (p. 60): "The lienholder might in any case have the building sold separately and removed. This was a valuable right. It often happened, in the early settlement of Dakota territory, that expensive buildings were erected, and subsequent events, such as the locating of railroads or changing of business centres, rendered them practically worthless where they were, but they would have value if they could be removed. Our construction of these statutes leads to the conclusion that plaintiffs had a lien upon the house that in no manner affected the land. It will be noticed that the right to remove the building is not dependent upon the manner in which the building is attached to the land. It may stand upon blocks, or it may rest upon the most substantial stone or brick foundation."

In Dustin v. Crosby, 75 Me. 75, the court, in speaking of a lien such as our statute affords, observes (p. 76): "It is a lien upon the realty if the debtor owns realty, and upon the building as personalty if the debtor owns the building only."

The Alabama statute has been thus construed: "The declaration is clearly made in the statute, that the lien shall be good upon these structures, 'and' upon the land on which they are situated, to the extent of one acre. Code, §§ 3440, 3444. It is a several, and not a joint lien; and both the letter and spirit of the law contemplate that the improvements erected may, in proper cases, be subjected to sale and removal from the premises by the purchaser." Bedsole v. Peters, 79 Ala. 133, 136, 137. Cf. Buchanan v. Smith, 43 Miss. 90; Ombony v. Jones, 19 N.Y. 234.

The proposition that a building is not subject to a mechanic's lien unless it enters into and forms a part of the realty, has not been adopted by this court. It is now well settled that a lien attaches to a leasehold interest and to buildings erected by the tenant. Moore v. Vaughn, 42 Neb. 696, 60 N.W. 914; Waterman v. Stout, 38 Neb. 396, 56 N.W. 987; Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207, 55 N.W. 643. Now, a leasehold interest is but a chattel, however long its term. "It is only personal estate if it be for a thousand years." 2 Kent's Commentaries, *342. The doctrine contended for would, if carried to its logical conclusion, preclude the attaching of a mechanic's lien, unless the owner of the building were also the owner of the fee.

Stress is laid upon the fact that by the terms of its lease the Greater America Exposition Company is required to remove these buildings at the end of the term. This fact does not appear to have prevented the attaching of a lien in the cases already referred to. In Lane v. Snow, 66 Iowa 544 24 N.W. 35, the owner of the building was, as has been said, a trespasser. Under the conceded facts of that case he had no right to erect the building on that land at all, and his duty to remove was immediate, and not, as here, fixed at a considerable time in the future. A lien was, nevertheless, allowed. In Pickens v. Plattsmouth Land &...