86 P. 990 | Cal. Ct. App. | 1906
Action to foreclose a mechanic's lien. Judgment for plaintiffs. Appeal by defendant Casner from the judgment and an order denying a new trial.
Appellant Casner was the owner of a warehouse in San Bernardino. He leased floor space therein to one Woodward, then engaged in the ice business, and Woodward employed plaintiffs to construct an ice-room ten by sixteen by eight feet in dimensions in said space so leased, with the knowledge *756 and consent of Casner. Plaintiffs furnished materials and did the work in the construction of such ice-room, and regularly filed their notice of lien. No notice was posted by the owner to the effect that he would not be responsible for the work done or materials furnished in the construction of such ice-room.
The court finds that said ice-room was built in said warehouse as a part thereof, and was securely attached to said warehouse so that the same could not be removed without injury thereto, nor without injury to such warehouse, and that said ice-room is a part of said warehouse.
It is claimed by appellant that such ice-room is but a trade fixture and as such was the personal property of the lessee, and no lien could be acquired against the real property of the appellant by reason of its construction. "Whether the materials furnished by the appellant were so affixed to the building as to become a part thereof was a question of fact to be determined by the court upon the evidence before it." (Bianchi v. Hughes,
There was no error in receiving testimony as to cutting a door through the wall of the building into the ice-house, notwithstanding the work and labor connected therewith was omitted from the claim of lien. This was competent as tending to show the character of the ice-room in relation to its permanency, and the apparent intent of the owner of the property in relation to its future use. The character of the improvement controls when the rights of a lien claimant are involved, and where an improvement is constructed in such manner as to affix it to the real property, and the laborer has no information that it will be regarded otherwise than as suggested by the manner of construction, he may well assume that he is making an improvement upon real property, and that a right of lien may attach, and this right will not be defeated by any secret agreement between the owner and *757 lessee that the improvement may thereafter be demolished by the lessee at the expiration of the lease or at any other time. That the ice-room became a part of the warehouse building removes any question as to the right to maintain a lien upon an ice-room as distinguished from other structures covered by the mechanic's lien law.
We find no error in the record, and the judgment and order are affirmed.
Gray, P. J., and Smith, J., concurred.