Jim Walter Homes Inc v. Oather Bowling

John A. Fogleman, Justice. Only one question is involved on this appeal. That is whether the placing of a wall box containing electrical equipment on a pole located upon unplatted and unimproved property constitutes commencement of a building within the meaning of Ark. Stat. Ann. § 51-607 (Repl. 1971). The trial court found that the electrical materials purchased on February 5, 1973 were for the purpose of establishing a power unit on a pole adjacent to the site of a home to be constructed on the premises and, since the installation of the pole and a power unit occurred prior to the recording of a mortgage, the installation constituted the commencement of the building as a matter of law. We disagree and reverse the judgment. We have previously considered the meaning of the words “commencement of [the] buildings or improvements” in Ark. Stat. Ann. § 51-607, the section of the statute relating to establishment of priorities of mechanics’ and materialmen’s liens. In order to constitute “commencement” sufficient to establish lien priority the work done must be such as to make it obvious that improvements on the property are being commenced or are underway. It means some visible or manifest action on the premises to be improved making it apparent that the building is going up or other improvement covered by the statute is to be made. Clark v. General Electric Company, 243 Ark. 399, 420 S.W. 2d 830. Mark’s Sheet Metal Inc. v. Republic Mortgage Co., 242 Ark. 475, 414 S.W. 2d 106. Removing the foundations of old buildings on the premises, commencment of leveling operations and the establishment of cut and fill elevations are not sufficient evidence of commencement. Clark v. General Electric Company, supra. An inspection and measurement of the premises and the placing of a wooden peg to determine the location of a proposed house on the premises are not sufficient. Marks Sheet Metal, Inc. v. Republic mortgage Company, supra. The question of priorities in these cases is rendered more difficult because of the strong equities favoring both parties. These equities are conflicting and competing. In considering them, it is imperative that we remember that basically the evidence of titles to, and liens upon, real estate is required to be a matter of record. The mechanics’ and materialmen’s lien statute provides a notable and appropriate exception. But in order that the exception prevail, it is essential that the mechanic or materialman bring himself within the terms of the statute. We have not yet gone so far as to hold that, in order to establish priority, there must be actual excavation for a basement or foundation or that the labor or materials involved must be such as could afterward become a component part of the structure, as many jurisdictions have. Clark v. General Electric Company, supra. But it has been held that the driving of stakes to indicate the line of foundations and the digging or scraping away dirt to bring one corner down to the proper level would not constitute commencement of a building. Kelly & Martin v. Rosenstock & Stein, 45 Md. 389 (1876). It had been previously held in the same jurisdiction that driving pegs in the ground, and laying it off for buildings could not be regarded as a commencement of the building within either the letter or spirit of the law. Brooks v. Lester, 36 Md. 65 (1872). Staking out the foundation line was held insufficient in Conrad & Ewinger v. Sturn, 50 Iowa 470 (1879). The placing of lumber on the premises and the building of a fence enclosing the premises were not sufficient to justify the court in giving priority to the furnisher of the materials over a recorded mortgage. Middletown Savings Bank v. Fellowes, 42 Conn. 36 (1875). It is clear that work simply preparatory to future building operations does not constitute the “commencement of [a] building”. The installation of the power pole and wall box was only a preparatory step and did not constitute the commencement of a building, under our statute, which would give priority to the materialman over a subsequently recorded construction money mortgage. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion. Byrd and Holt, JJ., dissent. Jones, J., not participating.