Adams v. Central City Granite Brick & Block Co.

Ostrander, J. (after stating the facts). The statute provides for a lien— “Upon such house, building, machinery, wharf, * * * and other structure, and its appurtenances, and also upon the entire interest of such owner, * * * in and to the lot or piece of land, not exceeding one-quarter section of land, or if in any incorporated city or village, not exceeding the lot or lots upon or around or in front of which such improvement is made. * * * ” Act No. 17, Pub. Acts 1903, amending 3 Comp. Laws, § 10710 The theory of the bill, as disclosed by the allegations therein, is that the building is an improvement to or on all of the land mentioned in the decree, and is advanced, not by statement of facts showing the relation between the factory and the land, but by the broad averment that it constitutes “a valuable and permanent improvement on the same.” The statute limits the area of the land to which the statutory mortgage attaches to the lot or piece [455] of land upon which the building or other structure is erected. And in no event can the quantity exceed 160 acres of land in the country, or the lot or lots upon which the improvement is made if in an incorporated city. The use of the words “lot or piece of land ” in one portion of the law, and the use of the words “lot or lots ” thereafter, with reference to property within a city, requires us to hold that the words, where last employed, mean the surveyed lots, in conformity with which the plat is made. And as without this second limitation it might be a question of fact whether the lien should attach to a larger or smaller piece of land, so with the limitation by acres, and by surveyed lots, it may be a question of fact whether the lien shall attach to all or a part only of the land within the maximum quantity fixed by the' law. It would not necessarily follow, because a structure had been erected upon some part of a farm of 160 acres, that the lien extended to 160 acres. And it does not necessarily follow, because a block in a city is divided into lots, that a lien may not attach to more of those lots than are covered, or partly covered, by the structure erected. A factory building, though built upon and covering only two platted lots in a city block, may be said to be built upon contiguous territory in the block necessary to the convenient enjoyment and use of the buildings. Assuming an entire block to have been selected as a proper site for, and devoted to the use of, a factory and its material and products, it would be a narrow construction of this statute which would, in all cases, limit the lien to the particular lots upon which a particular building stood. See, generally, 2 Jones on Liens (2d Ed.), chap. 84, and notes; Boisot on Mechanics’ Liens, chap. 8; 27 Cyc. p. 221 et seq. As to construction of the statute, see Smalley v. Terra-Cotta Co., 113 Mich. 141, 148. It is the general rule that the lien attaches to the extent of the statutory limit, and the lien claimant need aver and prove no more than that the quantity of land on which he claims a lien is within that limit. If for any [456] reason the owner seeks to have a smaller quantity of land held subject to the lien, it is for him to present the reason and the facts supporting it. But if the claimant, as in this case, seeks an apparent enlargement of the statute quantity of land, he should, by averment and proofs, advance reasons and facts in support of his demand. It is clear that a lien extending to the building and to lots 6, 7, 8, and 9, block 14, may be sustained. No reason appears for limiting the quantity of land to less than the area of these surveyed, contiguous lots, upon some portions of each of which the structure rests. Such a lien is supported by the facts and by the express language of the statute. No facts supporting a decree enlarging this area are set out in the bill. The decree recites that the court finds “that the premises upon which such building was constructed, and upon which it constituted an improvement, is described,” etc. The building is not, in fact, an improvement of all of the land containing the deposit of material supposed to be valuable for manufacturing purposes. It would be quite as much an improvement, except to the land on which it rests, if it were erected outside of the addition. No criticism being made of the bill, and no objections, based upon the lack of averments, to the introduction of testimony appearing, we have examined the testimony. We find no testimony supporting the conclusion that the building is “constructed” upon the land described in the decree. The learned, trial court correctly stated that the building was erected for the purpose of utilizing the deposit found upon some of the land. At the best, this would devote the deposit, separate from the land, to manufacturing purposes. There is no testimony tending to prove that the lots, as distinguished from the deposit of material, were ever treated as any part of the manufacturing plant. Indeed, the contrary appears. It was intended, so far as intention appears, to sell the lots after removing the deposit to a desired level. There is some testimony tending to prove that certain lots, the location [457] and descriptions of which we cannot ascertain, were convenient, and will be necessary, for storing manufactured products. We do not understand that any such lots are included in the decree. The testimony is too indefinite to warrant us in finding that any particular lots, other than those already described, were treated as a part of the lot or piece of ground upon which the building was constructed. Testimony was introduced tending to prove that the lienor Adams, before delivering lumber for the building, raised some question about how he would be paid, and a representative of the debtor corporation told him that the scheme would undoubtedly be a success; and, if it was not, there were 91 or 92 lots Owned by the company that ought to satisfy any demand there would be growing out of the erection of such a building. We are not called upon to determine whether, and, if at all, in what manner, the statutory limits of a mechanic’s lien may be extended by contract. We find nothing in the testimony which indicates any attempt of the parties to fix, by contract or otherwise, the quantity of land to which a lien should extend. We conclude that the statute and the facts require a modification of the decree, and that the lien extends to the building and to lots 6, 7, 8, and 9, block 14, only. The bill was filed by claimant Adams, and claimant Dayton is made a defendant. Claimant Dayton contracted with the owner to do the carpenter work and to also furnish certain materials. Performance called for expenditure of labor, and he employed men to do the necessary work. He furnished labor and materials besides those required by his original contract. In his answer he avers that he furnished services, labor, and material for building the structure in question, for which he has not received his pay; that he duly filed a statement claiming a lien upon the premises; has instituted no proceedings at law to recover the amount due him. These facts are proven. He asserts that each of the parties claiming a lien should share pro rata in the proceeds of any sale of [458] property ordered by the court, and that said lienors should be preferred to any and all other holders or liens and incumbrances upon the property. After the building was erected, and before this claimant had filed notice of his lien, the owners mortgaged the property in question, and other property, to the appellant. Dayton did not, at any time, render to the owner a statement under oath of the number and names of laborers in his employ and of every person furnishing materials. He was paid, from time to time, sums of money, the total of which nearly equals the original contract price. His contention here is ruled against him by Kerr-Murray Manfg. Co. v. Power Co., 124 Mich. 111, unless it can foe said that, because Dayton paid his men weekly, and had paid for all material furnished for the building, and because he had, before filing a lien, agreed with the owner upon the balance due him remaining unpaid, the case is to be distinguished from the one referred to, and is ruled by Walker v. Syms, 118 Mich. 183, and Bollin v. Hooper, 127 Mich. 287. Claimant is here asserting, not merely a demand against his debtor, but a lien upon real estate in which others besides the owner claim an interest as lienors. Wiltsie v. Harvey, 114 Mich. 131. The owner could not waive compliance with the statute so as to bind the mortgagee, appellant. Dittmer v. Bath, 117 Mich. 571. The case is not within the rule, or exception, of Walker v. Syms, or of Bollin v. Hooper. The decree in favor of claimant Dayton is reversed, and a decree will be entered in this court in accordance with this opinion, and the record and cause remanded to the circuit court for further proceedings. Appellant will recover costs of this appeal from complainant, and from his co-defendants. Montgomery, Hooker, Moore, and McAlvay, JJ., concurred.