Updike v. Skillman

The Chief Justice. An “ addition erected to a former building,77 to constitute a building within the meaning of the mechanics7 lien law, (Nix. Dig. 487, § 5,) must be a lateral addition. It must occupy ground without the limits of the building to which it constitutes an addition ; so that the lien shall be upon the building formed by the addition, aud the land upon which it stands. An alteration in a former building, by adding to its [133] height, or to its depth, or to the extent of its interior accommodations, is an alteration merely, and not an addition, within the contemplation of the act. The facts being clearly ascertained, whether the change in the building constituted an addition or an alteration, was a mere question as to the true intent and meaning of the statute. It was a question of law, upon which the court should have instructed the jury, and not have submitted it to their determination. But the finding by the jury being in accordance with the law, the error of the court constitutes no ground for a new trial. The Circuit Court should be advised accordingly. "Veedenburgh, J. The question submitted is, whether putting a new story on an old building, is an addition within the 5th section of the mechanics’ lien law. Nix. Dig. 487. This provides that any addition erected to a former building, or any fixed machinery, or gearing, or other fixtures for manufacturing purposes, shall be considered a building, but no building shall be subject to the provisions of this act for repairs done thereto or alterations made therein. The act, section 1st, gives the lien only upon buildings erected, and is in this 5th section defining what shall be deemed such buildings. Among other things, it says an addition erected to a former building shall be a building within the meaning of the act. This is the appropriate and accustomed phrase when speaking of an additional building erected alongside of, and not one under or on top of a former building. If one should say he had erected an addition to bis house, he would not be understood as saying that ho bad put a cellar under it, or a story-on top of it. The question is plainly one of law, and the court should have instructed the jury that the claim under the facts proved constituted no valid líen. The verdict having been, [134] however, for the defendant, the rule to show cause-should be discharged. Elmer, J. concurred. Cited in State v. Parker, Receiver, 5 Vr. 354.