Seidel v. Bloeser

77 Mo. App. 172 | Mo. Ct. App. | 1898

Bland, P. J.

J. E. and David P. Kaime, on May 11, 1897, were the lessees for and during the natural life of Rebecca Edom, of a three story stone front building, situated on Olive street, been Sixth and Seventh streets, in the city of St, Louis, and known as number 610 Olive street; on that day they made and executed a lease of the first floor and basement of said building to John Bloeser for a term of ten years, should Rebecca Edom live’ so long, reserving a stipulated annual' rental payable in monthly instalments; the lease was for the express purpose of keeping a retail liquor store by John Bloeser, lessee; after the execution of the lease, the plaintiff, at the instance and request of John Bloeser, furnished material and did work in the improvement of said basement and first floor, such as putting in doors, a vestibule, tile flooring, and wainscoting; Bloeser failed to pay for the work and material, and the plaintiff in due time filed a mechanics’ lien on the premises embraced in Bloeser’s lease; in due time he brought suit against Bloeser to recover the value of his labor and material furnished, and against the other defendants, to enforce his mechanics’ lien; defendant B. D. Kribben filed a disclaimer of any interest in the premises; the answer of all the other defendants was a general denial; a jury being waived the cause was tried before the court; plaintiff proved the correctness and reasonableness of his lien account; that the work was done at the request of Bloeser, and that he had taken all the requisite steps to perfect his lien. He then offered in evidence the lease to defendant Bloeser; to this defendant objected, on the ground that the lease was incompetent, in that it failed to show such title to the lot in Bloeser as is contemplated by the mechanics’ lien law; the court sustained the objection, on the ground that under the provisions of section 6708, Revised Statutes 1889, there can be no mechanics’ lien except in cases of a ground lease, and that there can be no lien on a part of, a house or on a lease of a separate floor of a house; to this ruling plaintiff saved an exception; the mechanics’ lien paper as filed was offered and excluded for the same reasons and on the same ground that the lease was excluded; to this ruling plaintiff also saved an exception; the court then gave a declaration of law, that under the pleadings and evidence the plaintiff was not entitled to a mechanics’ lien, to which plaintiff objected and excepted, thereupon the court gave judgment for plaintiff against Bloeser for $1,610.12, the full amount of plaintiff’s account with interest, but denied plaintiff a mechanics’ lien, as prayed in his petition. After an unavailing motion for a new trial, plaintiff appealed.

mem can not be imphe '

All concur.

The question presented for solution is whether or not a mechanic is entitled to a lien for material furnished or lhbor performed on the first floor and basement of the three story house, under a contract with the lessee of the first floor and basement, the other floors ór apartments of the house not being embraced in this lease and not in his possession or under his control; from this statement arises also this inquiry, does such a lease, or did the lease in this case, convey the ground upon which the building is situated? In Doyle v. Lord, 64 N. Y. App. 432, it was held, that where plaintiff leases the first floor of a building in the city of New York for a store, in the rear of which was a yard attached to and exclusively appropriated for the use of the building, to which all occupants had access through a hall running from the front to the rear of the building, and as the building was occupied when plaintiff leased, no tenant could dispense with it. the plaintiff had an easement in the yard. In Oliver v. Dickison, 100 Mass. 114, it is said, that any right of way or other easement necessary to the enjoyment of premises granted will pass as appurtenant thereto, although there is no express mention of easement, privilege or appurtenant. This is a well established rule applicable to all grants of real estate. 2 Wash. on Real Property, 667; 3 Kents Com. [6 Ed.] 421; U. S. v. Appelton, 1 Summers, 492; Streets v. Seldens Lessee, 2 Wall. 177; Witte v. Quinn, 38 Mo. App. 681. The lease to Bloeser does not mention any right of way or other easement on the lot on which the building is situated; in fact the lot is nowhere described in the lease; and a grant of easement can not be implied unless it should be necessary to the enjoyment of the thing granted; there is no evidence of any such necessity for the full enjoyment of the apartments leased to Bloeser. Construing the lease according to its terms and the situation of the apartments devised, it is quite clear that the intention of the parties was to do what the lease in terms state, that is to devise the basement and first floor of the building, and nothing more; this would give Bloeser no interest in the land beyond that directly connected with the leased apartments, and the letting was of apartments and not of land. McMahon v. Vickery, 4 Mo. App. 225; Bank v. Baston, 118 Mass. 125; Kerr v. Merchants’ Exchange, 3 Edw. Ch. 316; Harrington v. Watson, 11 Ore. 143; Winton v. Cornish, 5 Ohio, 477. We have not been cited to, nor have we been able to find any case wherein it is held that a mechanics’ lien can be maintained on a part of an entire building, as was attempted to be done in this case; on the contrary it was expressly held in Wright v. Cowie, 5 Wash. 341, under a statute similar to ours, that this can not be done, and in our own state in McMahon v. Vickery, supra, and in Deatherage v. Sheidley, 50 Mo. App. 490, it is incidentally decided that it can not be done. To my mind, giving section 6708, Revised Statutes, which is invoked in support of plaintiff’s lien, the most liberal and expanded construction, it furnishes no authority for a mechanics’ lien upon one apartment of a building, containing several apartments, held and occupied separately by different tenants, or separately by the owner and a tenant, or tenants. The ruling of the learned circuit judge in rejecting the lease and lien paper as evidence for the establishment of a mechanics’ lien are approved, and the judgment is affirmed.