Wheeler v. Pierce, Kelley & Co., 167 Pa. 416

Wheeler v. Pierce, Kelley & Co.

167 Pa. 416 | Pa. | 1895

Opinion by

Mr. Justice Gbeen,

We agree with the opinion of the learned court below which contains a full exposition and classification of the decisions applicable to this class of cases, and only add some matters in response to the contention of the appellants. The battery of boilers in question is completely within a structure which is an independent erection, standing on its own stone foundations, and built of brick, in size thirteen and two tenths feet by sixteen and nine tenths feet, and twenty feet high. While the exterior structure is an essential part of the boiler plant itself, *425forming the sides of the fire chambers, inclosing and sustaining the boilers in position, and sustaining also the steam drums at the top, over the boilers, yet it is a substantial and costly structure performing the function of a building as to the boilers, as well as constituting a part of the boiler plant. While its water and steam connections are made with the same pipes with which the water and steam pipes of the old boilers are connected, these connections are independent of the old plant and can be used without them.

It is true there is no building erected around and over the boiler plant to protect it from the weather. But upon that subject, in Short v. Miller, 120 Pa. 470, we said, Paxson, J., “ The act of assembly does not designate the character of the buildings to which a mechanic’s lien may attach. ... Nor are we embarrassed with the question whether buildings of any description are essential to an oil refinery. An engine and boiler for any kind of a manufactory, do not absolutely require a building to protect them. Both may stand in the open air, yet no one doubts that if an engine and boiler house are erected to protect them from the weather, a lien will attach for labor and materials used in their construction. Nor have we any doubt that the lien attached to the building in this case.”

In Short v. Ames & Keese, 121 Pa. 530, which was a claim of lien upon an oil refinery, Mr. Justice Clark, delivering the opinion, said, “ The act of June 16, 1836, as we said in that case, does not designate the character or kind of a building to which a mechanic’s lien will attach; if the structures are of a substantial and permanent character, and may in any reasonable sense be known as buildings, they may be incumbered by lien.”

The case of Parrish and Hazard’s Appeal, 83 Pa. 111, is so similar in its facts to the case at bar that we think it controls the present contention. The property was an old furnace plant which had been in use for a number of years, just as this, and its owners desiring to increase its power, contracted for a new engine, a new set of boilers, drumheads and fixtures, and for a boiler stack, all of which were constructed but by different contractors. We held that these improvements were substantial additions to the old buildings for permanent purposes, made at a heavy cost, and so connected with the origi*426nal structure as to be as available and direct as if they had been originally built, and that they were the subjects of mechanics’ liens under the act of June 16, 1836, and that they could also be sustained under the act of April 21, 1856. In considering the subject of the boilers Mr. Justice Woodwakd delivering the opinion said, “ The foundations of the boilers were seven walls, each sixty-seven feet long, from eighteen inches to two feet thick and from two to three and a half feet high. Brick walls were built on the stone -foundations to the height of six feet extending nearly to the tops of the boilers and inclosing them. . . . That such machinery as was furnished here was of a kind for which in the ordinary case of an erection, a lien could be supported, is well established. A lien was sustained for a copper boiler in a brew-house in Gray v. Holdship, 17 S. & R. 413; an engine by which a sawmill was propelled in Morgan v. Arthurs, 3 Watts, 140; and for burr mill-stones in Wademan v. Thorp, 5 Watts, 115. . . . The engine house and boiler house became parts of the furnace the moment they were completed. They were connected with it by blast pipes and flues, and the connection was as available, essential and direct, as if they had been built beside the furnace walls. In the language of the decisions they were ‘ additions of material parts ’ to the original structure. They served in their actual use all the purposes that actual additions would have served, and their extent and value were significant enough to give ample notice to purchasers and creditors of the change in the character of the propert}*-. The decision of the auditor and the decree of the court below in support of these liens under the provisions of the act of the 16th of June, 1836, were not only in accordance with the general principles deducible from the cases that have been collected but vindicated by the very rules which those cases have established.”

The only difference between the structure in that case and in this, is the fact that a frame boiler house was erected over and around it so as to protect it from the weather, but the decision was not based upon that circumstance, nor could it be, considering the reasons assigned for the ruling.

The contention now made for the appellants, that since the passage of the act of 1887, this kind of construction must be regarded as an addition, alteration or repair, and therefore as *427being subject to that act which requires notice to be given of an intention to file a lien, is not well taken. As was held in Parrish and Hazard’s Appeal, the lien could be sustained under the act of 1856 which gave a lien for machinery, and that act did not require any notice. As between the acts of 1856 and 1887, we think it quite clear that the structure in this case must be regarded as provided for by the act of 1856, in contrast with the act of 1887, for the reason that the act of 1856 is directly applicable to machinery as such, whereas the act of 1887 provides that the act of 1836 and its supplements shall be held and taken thereafter to apply to work done and materials furnished, for or about the repairs, alteration or additions to any house or building. We think this must be held to apply to such work or materials as are done or furnished for repairs, alterations, or additions, which were not reached by the acts of 1836 and 1856. If the remedy under those acts obtained, it was without the restraining or qualifying conditions imposed by the act of 1887, and in any given case if the structures were subject to lien under the former acts as original erections, but because of their character, could be embraced by the act of 1887, the remedy would be diminished rather than expanded by the application of that act. This act is an enlarging and enabling one, intended to embrace cases not within the purview of the previous legislation, but if it is extended to cases which were within such purview, the remedy available under the preexisting legislation would be no longer available in its entirety, and as to all such cases the act of 1887 would become a restraining instead of an enlarging act. We think such a result would be inconsistent with the manifest purpose of the act.

It is true that in the case of Thomas v. Hinkle, 126 Pa. 478, the opinion seems to warrant the contention of the appellants in this regard. But a careful consideration of that decision shows that it is not applicable here. The case arose under the provisions of the act of August 1, 1868, P. L. 1168, which was an act giving a right of lien, in the city of Philadelphia only, in all cases of repairs, alterations and additions, but annexed certain conditions and qualifications as attending the exercise of the right, one of which was a prohibition of lien in the case of a conveyance of the property before the filing of the lien. We held ‘that the act of 1868 was the law in Philadelphia in all *428cases of repairs, alterations and additions, and as this was a clear case of addition under the act, the right of lien was only enforceable in conformity with the act. The reasoning upon which the decision was based was that, “ if there are two acts, of which one is special and particular, and clearly includes the matter in controversy, whilst the other is general, and would if standing alone, include it also, and if, reading the general provision side by side with the particular one, the inclusion of that matter in the former would produce a conflict between it and the special provision, it must be taken that the latter was designed as an exception to the general provision.” The act of 1868 was special and local and conferred a lien within the limits of the city of Philadelphia, which had no existence in any other part of the commonwealth. Within that city it was the law in all cases of repairs, alterations and additions, but outside of the city it was not the law in any such case. Hence the doctrine invoked as a principle of construction was directly applicable. But in the present case there is no such situation. The law of 1887 is just as general as the law of 1836, or the law of 1856. It and they extend to all parts of the commonwealth. As between them there is no conflict. The act of 1836 extended to all cases of buildings but was held not to include cases which were merely eases of repairs, alterations or additions. The law of 1856 embraced all cases of certain designated kinds of machinery. The law of 1887 simply enlarged the ■ subjects of lien generally by extending them to repairs, alterations and additions, without taking away from the laws of 1836 and 1856 the right of lien in the cases which they embraced. Either of the former laws would embrace the present structure and therefore there was a complete remedy under those acts. The right of lien in this case does not depend in any degree upon the act of 1887, it is complete without it and is therefore not subject to its conditions or qualifications. We are of opinion that the learned court below was correct in the conclusions reached.

Judgment affirmed.