338 N.E.2d 780 | Ohio Ct. App. | 1975
The plaintiff, John F. Bushelman Company, the appellant herein, a sub-contractor of the defendant William Troxell, one appellee herein, performed work incident to the demolition of structures located on the property of Malibu Enterprises.
When plaintiff went unpaid, it timely filed a mechanic's lien against Malibu, and brought this action for alternative relief in the form of (1) a money judgment against Troxell, (2) the foreclosure of its mechanic's lien against Malibu, and (3) a money judgment for unjust enrichment against Malibu. In response to Malibu's motion for summary judgment, the trial court found that there was no relief due the plaintiff on the unjust enrichment claim, and that no right to a mechanic's lien existed under R. C.
Here, the single1 assignment of error argued on appeal asserts that the granting of the summary judgment was contrary to law because Malibu's property was improved by the demolition of the buildings, thereby bringing plaintiff within both the mandate and intent of the Ohio mechanic's lien statute.
As to the first of these, it is clear that the purpose of the law, derived from its constitutional fundament, is to "secure to * * * laborers * * * their just dues by direct lien upon the property, upon which they have bestowed labor * * *." The statute, while qualifying and conditioning the lien right in considerable detail, seems supportive of this purpose in its recognition of the concept of protecting those whose labor works an "improvement, enhancement, or embellishment of real property." Initially, then, we must inquire whether demolition work, as such, may be said to so improve or enhance property, adding to its value by virtue of the labor bestowed upon it. If it cannot, then a principal purpose of the law is clearly not served by providing a right of lien to the demolitions laborer.
Whatever the answer to this inquiry might have been in the earlier years of this century when lien laws became general, recent economic experience in deteriorating urban areas indicates that in some circumstances, at least, demolition may indeed enhance the value of land. Here, for instance, the locus of the controversy is three parcels in Mt. Auburn, one of Cincinnati's older urban areas, possessed of a rich history but a problematical present, where it may well prove that cleared land available for new construction, which cannot be accomplished while deteriorated structures remain, is of greater value than the same land before demolition. *368 Were such shown to be the case (although the record will not permit us to draw this conclusion in the instant appeal), then it could be said that the purpose of the legislature to make the lien available to those whose labor improved and enhanced the land would fully apply for the protection of demolition contractors and laborers.
This proposition may be said to have some added force as a result of the absence of any direct prohibition in the statute as to demolitions mechanic's liens. Indeed, that under appropriate facts a demolitions contractor could attach a lien for his work is borne out by the "grading and filling" provisions of R. C.
It follows, so it seems to us, that the category of labor which plaintiff performed, in light of the realities of today's urban realty market, could well entitle him to a mechanic's lien within the intent and underlying purpose of the Ohio statute. Thus, we are led to conclude that the omission of demolitions per se from the work categories which are expressly entitled to the lien, and/or the failure to correct the omission by statutory amendment, could well be argued a legislative oversight.
As previously indicated, however, a second component issue remains to be resolved before disposing of this argument. It would appear that the broad question of whether a mechanic's lien can attach for demolitions work is one of first impression in Ohio, and certainly so within this district. While we are cited to various secondary and foreign *369 authority5 in support of the positions of both plaintiff and defendant, these authorities neither control nor particularly illuminate the problem except to reveal the difficulty other jurisdictions have experienced in resolving the question. Moreover, it can readily be appreciated that any action this court might take in indulging its individual philosophies, and in proposing relief, might well create more problems than it would solve.
The principle that legislative oversight, if such it be, ought to be corrected by legislation is well established. Our reading of the authorities, in conjunction with what seems to be the position of the Supreme Court of Ohio in strictly construing the statute against the putative lienor on the question of whether the lien attaches, suggests the exercise of judicial restraint. Accordingly, since we conclude that this court is not the proper forum in which to resolve the question, plaintiff's assignment of error is overruled. The judgment is affirmed.
Judgment affirmed.
SHANNON, P. J., and KEEFE, J., concur.