13 Pa. Super. 330 | Pa. Super. Ct. | 1900
Opinion by
This is a proceeding upon a mechanic’s lien, and the various specifications of error raise but one question. The learned court below instructed the jury that under the evidence, the building against which the lien was filed was of such a character that it would support the lien under the act of June 16, 1836, P. L. 695, without giving the notice required by the Act of May 18, 1887, P. L. 118, which instruction is assigned for error.
There was no attempt to embrace within the operation of this lien any part of an old building upon the theory that it had been so changed throughout as to make it a new building. The lien is filed against a structure which is absolutely new, and did not take the place of an old building which stood upon the sainé ground or upon any part of the sa?ne ground. The cases of Smyers v. Beam, 158 Pa. 57, Thompson’s Appeal, 3 Pa. Superior Ct. 643, and Warren v. Freeman, 187 Pa. 455, have no application in controversies of this character. The evidence
In 1893, William Fischer and George Berriman, the defendants, became the owners of a lot of ground in the city of Erie, fronting twenty-six feet on State street and extending westerly 160 feet to an alley. In the same year they erected a three-story brick building on said lot, covering the entire frontage of twenty-six feet on State street and extending westerly seventy feet. The first story was finished and rented as a storeroom; the upper stories were finished and used as flats. In 1895, Thirteenth street was opened and improved by the city authorities from State street westerly along the northern line of the lot in question, and passing on through to Peach street, leaving a frontage of said lot of ninety feet upon the south side of Thirteenth street from the rear of the old brick building back to the alley. Shortly after the improvement of Thirteenth street the defendant owners entered into contracts for and caused to be erected the building now in question. The new structure was built of brick, was three stories high and covered the entire lot from the alley to the rear wall of the old building which fronted on State street; the rear wall of the old building was used as a party wall between the two buildings, all the windows in said wall having been solidly built up with brick; but the new building was in no way dependent upon this wall for support. The outer walls of the new building were not interlocked with those of the old building, the device of construction adopted being a slip joint, so as to permit of the new building settling without disturbing the old. The two upper floors of the new building were designed and finished to be used as flats, entirely separate and distinct from the system of flats in the State street building, there being no door or other means of communication between the two buildings on either the second or third floor. The entrance to the new flats was by a stairway leading up from Thirteenth street. The entrance to the old flats was by a stairway leading up from State street. The first floor of the old building contained no windows or other openings on the Thirteenth street side; the first floor of the new building was divided into three rooms, independent of each other, which were intended and finished for storerooms;
It thus appears that so far as the external appearance went this structure consisted of a row of new stores fronting on Thirteenth street, each being independent of the other, and above was the system of flats with its stairway leading up from Thirteenth street. So far as the internal arrangements were concerned, the upper floors were absolutely independent of, separate and distinct from, the building fronting on State street. The fact that they had a party wall in common is of no consequence, as that is the rule, rather than the exception, in the business portion of cities, even where adjoining buildings are the property of different owners. On the' first floor the west storeroom, next the alley, and the middle one were independent of each other and absolutely distinct from the State street building. They could reach it, it is true, by going out of their front doors onto Thirteenth street and walking along Thirteenth to State street, and then passing into the State street building. In short, between these storerooms and the State street building there was no more connection than exists between the different warehouses in the same square in the business portion of any city. The only parts of the two buildings used in common were the storeroom in the State street building and the easterly storeroom in the new row. Can it be said that because the same tenant occupies parts of each of the buildings that therefore they are one building ? It is true that the wall between the rooms has been removed, but that could be restored at any time and the respective storerooms left in exactly the condition in which they were before.
When an addition to an old building is a mere appendage of the original structure and subordinate to it, the two being intended to be used for some common purpose, the act of 1887 applies and notice of the intention to file a lien must be given in accordance with its provisions: Best v. Baumgardner, 122 Pa. 17; Groezinger v. Ostheim, 135 Pa. 604. The new building must, however, be subservient to and dominated by the purposes to which the old continues to be devoted. If the main mass of the new structure is only capable of an independent use, the question of whether it is a new building or an addition to an old one must turn upon what was called in Norris’s Appeal, 30 Pa. 122, and Pennock v. Hoover, 5 Rawle, 291, 307, “ the design of its character.” If the building is designed as an independent building and is capable in its entirety of being used as such, without injury to the old property or the new,
In this case there was no change made in the old building. Its storeroom fronting on State street can be used as it was before. The only thing which was done was the removal of a short wall between it and the adjoining storeroom used in connection with the buildings to which they belong, without injury to either. The present use of them as connecting storerooms is to subserve the convenience of the tenant, who may remove at any time. The use by mercantile establishments of two storerooms in buildings, the property of different owners, and the removal of partition walls to subserve that use, is by no means uncommon in cities, but such use- of the storerooms in common does not make the buildings to which they belong one building. We are clearly of opinion that the learned court below was right in holding that the row of stores on Thirteenth street, with the system of flats above them, was not such an addition to the building at the corner of State street as to require notice to be given in accordance with the provisions of the act of 1887.
Judgment affirmed.