Dugan Cut-Stone Co. v. Gray , 43 Mo. App. 671 ( 1891 )

Ellison, J.

The question presented by this appeal is whether a materialman has a mechanics’ lien against the lot and the building thereon for material furnished for a sidewalk laid in the street adjoining the building, the building having a basement with an area way excavated under the sidewalk to the outer line thereof.

Our opinion is that he cannot. The statute gives a lien upon the ‘‘building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated to the extent” of the lot upon which the same ar§ situated. A sidewalk is no part of a building. Although it adjoins or is connected with the building, it is no more a part of the building than is the land which adjoins the lot upon which the building is situated a part of the lot. If a lien can be had for a sidewalk laid in the street, it can be maintained quite as well against a lot without a building as where there is one; for it will be observed the statute gives the lien against a lot as well as the building. So it could be maintained against the lot and building, if the building stood back separated from the sidewalk.

But in this case we are met with the ingenious argument that the sidewalk constructed of the stone furnished by plaintiff is the roof of the area way or cellar under the sidewalk, and is, therefore, a part of the building or improvement upon the lot. It is true the sidewalk serves that purpose, but it does so in a mere incidental way. The sidewalk was not laid for a cellar roof for the owner, but was laid for a public walk for the city. It was not laid for the particular use and convenience of the owner of the property, but for the use and convenience of the public. The latter use was the primary object and its being constructed had no reference to the cellar. It would be laid though no excavation had been under it.

But, more than this, the owner of the lot and building has no absolute right to build a sidewalk. It is a permission given him by the statute, state or municipal. The municipality may prescribe of what width and material it shall be, and unless restrained by statute may construct the walk through its own agencies justas it would pave, the street. If the city should do this, would it be held, that the walk was a part of the building though it did touch the building, and did operate as a cover for the area way %

Again, it is a principle of law, that a lien will not exist against property which cannot be taken in execution. Abercrombie v. Ely, 60 Mo. 23; Phillip’s Mechanics’ Liens. Counsel answered this suggestion at the argument by saying that the lot and building could be sold, and that the sidewalk would go as an appurtenance. Laying aside the fact that our statute is silent as to appurtenances, this difficulty presents itself: Suppose there had been a mortgage on the lot, as contemplated by section 6707, Revised Statutes, 1889, before the building and sidewalk in question had been constructed, who would get the sidewalk, the purchaser at foreclosure of the mortgage, or foreclosure of the lien ? Or suppose the building had been erected by one not the owner of the lot. In such case the lien would be enforced against the building, the purchaser having reasonable time to remove it. . R. S. 1889, sec. 6708. Could such purchaser remove the sidewalk also %

We are, however, cited to authorities which on first reading give some color to plaintiff’s claim. In the case of Pullis v. Hoffman, 28 Mo. App. 666, a lien was sustained for ‘1 illuminating tiling ’ ’ which extended over the vestibule in the door, out four feet into the sidewalk. The tiling was “very thick transparent glass, which is placed over areas under sidewalks, for the purpose of lighting such areas A and in that case operating as a window for the cellar. The italics are ours. Those words show a recognition of the leading facts in that case, that the glass tiling was placed in the sidewalk for the purpose of lighting the area way. The tiling was not properly the sidewalk itself. It was placed in the sidewalk by license from the city. And, while the tiling may have practically operated as a part of the sidewalk, such was notits primary purpose. No more than are cellar doors or ■stairways which are sometimes placed in sidewalks, by license of the city, for the purpose of going into the cellar.

The case of Kenny v. Apgar, 93 N. Y. 539, does sustain a lien for material used in' constructing a sidewalk, but the decision is upon the New York statute which embraces the lot and “appurtenances.” The court says that “it may fairly be held that a sidewalk in front of a building is an appurtenance thereto within the meaning of the law.” The case of Beatty v. Parker, 141 Mass. 523, does not show what the Massachusetts lien law is, but it is not material so far as the case applies to this. The lot-owner employed a builder to erect a house upon the lot, in which were to be conveniences for the use of the city water, which there were to be •connected with the street sewer. These water conveniences in the house were to be connected with the sewer by a drain pipe to be laid in the cellar, thence through the cellar wall, thence through the yard to the street, and into the street to the sewer. The drain in the cellar was twenty-five feet, in the yard, ten feet, and from the line of the street to the sewer, twenty-seven feet. A lien was sustained for the whole of the drain pipe. The difference between that case and this is apparent. Without noting other material differences, it is enough to say that the pipe was a part of the building ; it was the property of the owner of the building; it was only for the convenience of the building. It served no public purpose. . In that case the public sewer served the building or its owner in an analogous way to the sidewalk in this case ; but I take it that the Massachusetts court would not have sustained a lien for the sewer, even though it had been along the line of the lot and the street, and had been constructed under an ordinance by abutting property-holders. The case of Henry v. Plitt, 84 Mo. 241, was for “walks on the premises.” This case could well be sustained by the letter of the statute itself, which includes ‘ ‘ improvements” on the lot. The case does not apply as the facts are unlike.

It is claimed that a part óf the stone in- the account herein was laid partly on the lot, and that though that for the sidewalk may not be lienable that on the lot is. But the whole material is inseparably blended in the account filed, and cannot be distinguished. In such case the lien is waived or lost. Edgar v. Saulsbury, 17 Mo. 271; Schulenberg Lumber Co. v. Strimple, 33 Mo. App. 154. The case of Allen v. Mining Co., 73 Mo. 688, is not applicable here.

The judgment is affirmed.

All concur.

Judge Gill being however of the opinion that we are in conflict with the case of Pullis v. Hoffman, 28 Mo. App. 666, decided by the St. Louis Court of Appeals, the cause is certified to the supreme court.