Seeman v. Schultze , 100 Ga. 603 ( 1897 )

Simmons, Chief Justice.

It appears from the record, that Seeman owned a lot in-the City of Savannah at the corner of Lincoln and Henry-streets. He made a contract with one Steinacher, by which the latter was to build two houses upon this lot and to build certain fences and sheds and to- pave the sidewalk in front of the houses. The contract to build the fences and sheds and to pave the sidewalk was subsequent to the contract' for building the houses. Steinacher employed 'William Schultze to pave the sidewalk, and upon the completion of the contract of paving Schultze filed and had recorded his lien upon the lot; and his demand not being paid, he commenced a proceeding in a justice’s court to foreclose his lien. What was done with the case in the justice’s court does not appear upon the record. It does appear, however, that it was appealed to the superior court, and that in the trial in that court the plaintiff, under the charge of the judge, had a verdict establishing his lien. The defendant made a motion for a new trial upon several grounds; and the motion being overruled, he excepted.

The controlling question in the case is whether Schultze, ..a mechanic, under the law of this State, had a lien on the land of the defendant for laying down a sidewalk on a public street in front of and adjacent to the land. The defendant in the court below contended and requested the ■ 'court to charge the jury that a mechanic had no such lien. This charge the court refused to give, but on the contrary ■ charged, “that if you find from the evidence that Mr. See-man contracted with Steinaeher to erect houses upon the lot in question and also made an additional contract with ' Steinaeher to' put additions to said houses, build fences and 'lay pavements as part of the contract for the improvements ■of said real estate, and the plaintiff was employed by said ¡Steinaeher to lay the pavement about said real estate under said contract, upon completion of said subcontract he would 'be entitled to a lien under section 1919 of the Code, if the ¡same was perfected according to the statute.” The section referred to (now section 2801 of the Civil Code) declares, that “All mechanics of every sort, who have taken no personal security therefor, shall, for work done and material furnished in building, repairing or improving any real ■estate of their employers, . . each have a special lifen on such real estate,’’etc. Counsel on both sides in the argument here cited several cases to sustain their contentions upon this question. In our investigation of the authorities we 'have found a good many more. The cases cited by counsel .■and those we have found are all decided upon the peculiar •phraseology of the different statutes passed by the several States. In the case of Kenney v. Apgar, 93 N. Y. 539, the Court of Appeals of New York, following the case of Moran v. Chase, 52 N. Y. 346, held that a mechanic had a lien upon real estate for paving the sidewalk adjacent thereto, under the statute of Kew York which gives a lien upon land for work done and materials furnished in the construction of buildings and the appurtenances of buildings. In the cases above the court held that a sidewalk might be considered an appurtenance of a building, and that therefore a mechanic who laid one was entitled to his lien. The Supreme Court of Illinois, in construing the statute of that State which gives a lien for “erecting or-repairing any building or the appurtenances of any building on such land or lot,” decided that a mechanic could not have a lien under that statute for paving a sidewalk in front of the lot. Parmelee v. Hambleton, 19 Ill. 615. Other decisions might be cited to show the different rulings of the different courts under statutes of different States. See Boisot on Mechanics’ Liens, §110, where a number of the cases are cited.

Statutes giving liens in favor of mechanics and others are in derogation of common law, and, under the rulings of this court in various cases, must be construed strictly. Construing strictly the above recited section of the Code, we think that a mechanic who lays a sidewalk in front of ’ real estate of his employer is not entitled to a lien therefor on the real estate. The lien is given for building, repairing or improving any real estate, which we think means-that the building, repairs or improvements must be upon'the real estate itself in order to give a mechanic a lien.. The sidewalk of a public street is not upon the real estate ■ of the owner of the adjacent lot. Paving the sidewalk is an improvement to the public street and facilitates the-passage of pedestrians in front of the lot, but it cannot be - said in law that it improves the real estate. It is made as' much or more for the benefit of the public than it is for the • benefit of tbe owner of tbe lot. In our opinion it does not improve tbe lot any more than does the paving of tbe street in front thereof. If a mechanic is entitled to a lien for paving tbe sidewalk, it seems to us that be should also be entitled to a lien for paving tbe street. Paving is usually regulated largely by tbe municipal government. It either paves tbe sidewalk or requires tbe owner of tbe lot to do so. If tbe city authorities pave it, an assessment is levied .against tbe owner for tbe cost; if be paves it himself, be pays for it.

It does not appear in tbe record of this case whether tbe fee of the owner extended to tbe middle of tbe street and included tbe sidewalk, or whether tbe fee of tbe whole ¡street, including tbe sidewalk, is in -the city or State. Under our statute we think this would make no difference; for in neither case would paving tbe sidewalk be an improvement upon tbe real estate itself. In some States tbe courts have decided that if a bouse is built upon a street .and tbe cellar of tbe bouse extends under tbe sidewalk, a mechanic could have a lien for placing upon tbe sidewalk .an illuminating pavement. Perhaps this would be true under our statute; for tbe cellar would be part of tbe building erected upon tbe lot although it extended under tbe sidewalk, and tbe illuminating pavement would be an improvement thereon. There was nothing of the kind in this case. Tbe claim is simply for paving tbe sidewalk in tbe ordinary way. Tbe State of Iowa has a lien law expressed in almost tbe same words as those of our statute; and in tbe case of Coenen v. Staub, 74 Iowa, 32, 36 N. W. R. 877, it was held, under facts quite similar to those of tbe present case, that tbe improvement of a sidewalk was not upon tbe land sought to be charged and was for tbe public rather than private benefit, and that tbe statute gave no lien for paving a sidewalk.

•Judgment reversed.

All the Juslioes concurring.