Green v. Chandler

Department No. 1, McKee, J.:

The Court below finds that the structure for which it is sought to foreclose a mechanic’s lien, was completed on the 5th day of October, 1874 ; and that the land described in the complaint, and sought to be charged with the lien, was required for the convenient use and occupation of the structure. Both findings are assigned as errors.

The first relates to a fact about which the record satisfactorily shows there was a conflict of testimony; and we have repeatedly held, where that is the case, that we cannot interfere with the finding of the Court below.

As to the second, the Mechanics’ Lien Law makes it the duty of the Court to determine, on rendering judgment, the quantity of land which may be required for the convenient use and occupation of any building, improvement, or structure, which may be built thereon by any one claiming a lien. (§ 1185, Code Civ. Proc.)

The structure in controversy was built upon a tract of land belonging to the defendant, which contains 8 6-100 acres. The finding of the Court is, “ that the whole of said parcel of land, with the appurtenances, are required for the convenient use and occupation of said mill, tank, pump, pipes, tower, and structure.”

This finding is not within any of the issues made by the complaint and answer; and there was no evidence whatever given on the trial, or at the time of rendering judgment, upon which the Court could determine that the whole or any particular part of the land was required, or necessary, for the use and occupation of the structure. The finding is, therefore, outside of any issue made in the case, and it is unsustained by the evidence. A finding outside of the issues does not warrant a judgment. (Devoe v. Devoe, 51 Cal. 543; Morenhaut v. Barron, 42 Cal. 605.)

It follows that the judgment and order denying a new trial must be reversed, and the cause remanded for a new trial. Judgment so ordered.

Morrison, C. J., and McKinstry, J., concurred.