Green v. Reese , 1953 Okla. LEXIS 528 ( 1953 )

PER CURIAM.

The controlling question here is whether labor performed with tractor and bulldozer and scraper in leveling and building up certain vacant lots to improve same for future construction of building thereon is a lienable item under 42 O.S.1951 § 141. The amount of the labor bill is not in question.

This is the first time this court has passed upon this identical question, but we observe the language of this court in Peaceable Creek Coal Co. v. Jackson, 26 Okl. 1, 108 P. 409, 411, where in discussing the statutory provision, it was said:

“Every conceivable improvement in the constructing of a building, structure or planting of trees, vines, plants, or hedges, building or alteration in fences or footwalk or sidewalk is provided for, and the general word ‘improvement’ cannot be reasonably construed to have been used with the limitation in its meaning to buildings and things ejusdem generis. Said section being considered in connection with its general scope of application, it is reasonably clear that the word, ‘improvement’ was used in its ordinary and general sense or acceptation, and includes any and every character of improvement upon realty. * * * ”

We consider that language as suggesting the rule that should apply in this case. According to the historical note as to origin, our statute, supra, was originally copied from the statute of Kansas.

In Southwestern Electrical Co. v. Hughes, 139 Kan. 89, 30 P.2d 114, 116, the Supreme Court of Kansas allowed such a lien, and in the body of the opinion said:

“ * * * Grading necessary under the plan of construction to bring the lot up may toe a feature of construction quite as essential as the building of steps to get up and down. If so, grading is a lienable item. Reid v. Berry, 178 Mass. 260, 59 N.E. 760. The district court properly allowed lien for grading. * * * ”

Likewise in Reid v. Berry, 178 Mass. 260, 59 N.E. 760, it was held that:

“On proceedings to enforce a mechanic’s lien for constructing a cellar, making sewer connections, and grading a lot, if it appear that the grading was a reasonable necessity to the proper construction and occupation of the house, it should be considered a part of its erection.”

And in the body of that opinion it was said:

“ * * * But we think that, if the grading was reasonably necessary to the proper construction and occupation of the house, it fairly could be considered as a part of its erection, and that the petitioner would have a lien for it. In Perry v. Potashinski, 169 Mass. 351, 47 N.E. 1022, it was assumed that there was a lien for grading. * ‡ *»

And no contrary authority is cited either to the language of this court in Peaceable Creek or to the Kansas and Massachusetts decisions cited.

There is no question here but that the work was done pursuant to proper contract with the owner, and timely claim of lien was properly made.

Upon the language of the statute, and upon the cited authorities we conclude that the labor performed by the plaintiff was a lienable item under the statute cited, and, therefore, the judgment of the trial court, in so far as it denied plaintiff a lien, is reversed, and the cause is remanded with directions to allow plaintiff a lien for such labor, and to take further proceedings consistent with this opinion.

JOHNSON, V. C. J., and WELCH, CORN, ARNOLD, WILLIAMS and BLACKBIRD, JJ., concur. HALLEY, C. J., and DAVISON and O’NEAL, JJ., dissent.