47 F. 136 | U.S. Circuit Court for the District of Western Pennsylvania | 1891
The petitioner’s claim purports to be against a building which it describes thus: “The said building is built of stone, and constitutes a series of coke-ovens, for coking coal.” These ovens, it would seem, are of the ordinary size and form. Now, we know, from common observation, that coke-ovens are about six feet in height, and are arched over at the top, a hole being left in the crown for the exit of gases, and for the introduction of coal, with a door in front for the discharge of the coke, which during the burning process is walled up. Is, then, a coke-oven a “building,” within the meaning of the mechanic’s lien act of 1836? The word as there used cannot be held to include every species of erection on land. Truesdell v. Gay, 13 Gray, 311. “Taken in its broadest sense,” says the court in that case, “it can mean only an erection intended for use and occupation as a habitation, or for some purpose of trade, manufacture, ornament, or use, constituting a fabric or edifice, such as a house, a store, a church, a shed.” That a coke-oven is not intended as a habitation or for .shelter is certain. Neither is it capable of occupation and use for the purpose of trade, etc., in the
But, if the contrary conclusion were admissible, still another obstacle confronts the petitioner. The mortgage of the Cameron Iron & Coal Company to the Central Trust Company was recorded August 8, 1888, whereas the contract between the Cameron Iron- & Coal Company and the petitioner, under which the latter built the coke-ovens, was not signed or made until November 1,1888. The petitioner, however, claims the benefit of that clause of the mechanic’s lien act which provides that “the lien for work and materials aforesaid shall he preferred to every other lien or incumbrance which attached upon such building and ground, or either of them, subsequently to the commencement of such building.” But we are of opinion that the evidence fails to show that the building of the coke-ovens commenced before the recording of the mortgage. The written contract of November 1,1888, on its face is against that view, for it provides for the whole work of construction, and the first clause of the specification roads: “The ground on which the ovens, wharves, and railroad tracks are to be placed must be cleared from ail stumps, logs, and other material that will give an insecure foundation for the work, and ditched so ns to drain fhe bottom thoroughly.” Nor does the parol testimony sustain the allegation that the commencement of building was before the recording of the mortgage.
The evidence which comes from the witnesses shows this state of facts: In September, 1887, the Cameron Iron & Coal Company cleared off the land intended and selected i'or the coke-ovens; stumps were then taken out; the brush cleared off; and in November of that year a ditch was
Reed, J. I concur.in the foregoing opinion.