48 Kan. 182 | Kan. | 1892
The opinion of the court was delivered by
The Badger Lumber Company brought this action to recover $227.50, the value of 70 cedar poles sold by the lumber company to the Marion Water Supply, Electric Light and Power Company, which were used to support electric light wires and lamps, and were connected with the plant and property of the defendant; and the plaintiff asked to have the defendant’s property and its appurtenances charged with a lien for the same. The cause was submitted to the court without a jury, upon the following agreed facts:
“It is agreed that the defendant has erected a system of
*183 water-works and electric light plant and machinery necessary to operate the same on the real estate described in plaintiff’s petition, and has put in the proper machinery for furnishing electric light for the city of Marion, and has a franchise from the city to use the streets of the city for the erecting of poles and stretching electric light wires thereon through the city, and that the defendant erected its poles and stretched its electric wires on the same over different portions of the city; that the. plaintiff furnished poles for stretching the wires for the electric light, and that the defendant used the same in the streets of Marion, and stretched its electric wires upon the same, and hung its lamps thereon, and operated and used the same for the purpose of furnishing electric light for different portions of the city; that none of the material furnished by the plaintiff was actually placed upon the grounds mentioned in plaintiff’s petition, but that the poles so furnished were all used in the streets of the city of Marion, and were connected with the electric light machinery and water-works on defendant’s premises by electric light wires used by the defendant for the transmission of electricity from its premises through the city; that the machinery of the electric light and water-works is all located on the same premises, in the same building, and run by the same engine, but the dynamo for generating electricity, and its machinery, is so constructed and arranged that it can be used separate and apart from the water-works machinery, and that either the water-works or the electric light plant can be operated separately and independently from each other; and have a franchise from the city to lay mains and pipes in the streets of the city, and are operating said system of water-works, and furnishing the inhabitants of said city with water by means of said system of water-works.”
The court awarded plaintiff a personal judgment against the defendant for the amount claimed, but refused to enforce a lien' upon the real estate and appurtenances of the defendant, for the reason —
“That no part of the material for which plaintiff claims a lien was on the real estate of the defendant, or attached thereto-in any manner except by the wires stretched from the poles of the defendant’s electric light machinery situated on said real estate.”
The sole question presented here is, do the poles and wires
“Any mechanic or other person who shall, under contract with the owner of any tract or piece of land, . ... perform labor or furnish material for erecting, altering or repairing any building, or the appurtenance of any building, or any erection or improvement, or shall furnish or perform labor in the putting up of any fixture in or attachment to any such building or improvement, ... or shall build a stone fence, or shall perform labor or furnish material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien upon the whole piece or tract of land, the building and appurtenances, in the manner herein provided,” etc.
As will be seen, the statute gives a lien for material furnished for a building or its appurtenances, and the same is chargeable upon the land, building, and appurtenances. If the poles and wires can be regarded as an appurtenance of the power house, the plaintiff acquired a lien, and is entitled to enforce it against the property of the defendant. What, then, is an appurtenance? Bouvier’s definition is:
“Things belonging tp another thing as principal, and which pass as incident to the principal thing. . . . Thus, if a house and lot be conveyed, everything passés which is necessary to the full enjoyment thereof, and which is in use as incident or appurtenant thereto.”
“The grant of a thing will include whatever the grantor had power to convey which is reasonably necessary to the enjoyment of the thing granted. Thus, the grant of a house with appurtenances passes a conduit by which water is conducted to it.” (3 Washb. Real Prop., 3 ed., 719; Farmer v. Water Co., 56 Cal. 11; Meek v. Breekenridge, 29 Ohio St. 642; 1 Am. & Eng. Encyc. of Law, 641.)
Here, the principal thing was the power house; and the poles and wires attached thereto were an incident to the power house and machinery. They were necessary to the enjoyment of the principal thing, and indispensable in the
The defendant in error principally relies upon Parmelee v. Hambleton, 19 Ill. 615, to defeat the lien and sustain the judgment that was rendered. íhe court there held that a person who performed labor upon a vault under a sidewalk adjacent to a building was not entitled to a lien. The vault is there held to be an appurtenance to the building, but as the appurtenance was in the street and not upon the lot on which the building stood, the lien was denied. The case is not an authority here, and is based upon an Illinois statute which provided, that both the building and appurtenance shall be upon the lot sought to be subjected to the lien. Our statute does not require that the appurtenance shall be upon the land, but authorizes a lien where the structure or improvement is appurtenant to the land or building. "While the lien rests upon a statute, and the remedy must be confined within the terms of the statute, yet such provisions are to receive a liberal construction, in the interest of justice; and we think the term “appurtenances,” as used in the statute, fairly includes the poles and wire attached to the premises of the defendant, and that the plaintiff is entitled to the lien which it claimed.