$ 95 lien; 26 and, if the foundation is constructed in good faith as part of a building to be erected, the fact that the owner afterwards changes his mind, and does not complete the building, does not destroy the lien for work done on the foundation.27 But, under a statute giving a lien for work and materials furnished for any "building," there can ordinarily be no lien for digging a cellar and building a cellar wall, where no building is erected thereon.28

Painting, Glazing, and Papering.

§ 94. A statute giving a lien for work done in erecting a house includes the work of painters, 20 glaziers,30 and paper hangers.31

Furnaces.

§ 95. Whether a furnace and cistern with pipes to carry the water to the house are furnished for erecting, altering, or repairing the house, so as to entitle the mechanic who puts up the furnace to a lien therefor, is a mixed question of law and fact.32 It is the general rule, however, that furnaces, ranges, and heaters, with their necessary attachments, put as permanent fixtures into a dwelling house in the course of its construction for purposes of sale or rent, which fixtures are regarded by builders generally as essential parts of that class of houses, entitle the material man to a lien therefor.33 Thus, heavy furnaces for heating a building, smoke flues, and hot-air ducts passing into register boxes cut for them in each story, and firmly fastened, have been held to be a connected whole,

26 McCristal v. Cochran, 23 Atl. 444, 147 Pa. St. 225.

27 Thompson v. Porter, 14 Pa. Co. Ct. R. 232; Scott v. Goldinghorst, 123 Ind. 268, 24 N. E. 333.

28 Florin v. McIntire, 14 Pa. Co. Ct. R. 127.

29 Martine v. Nelson, 51 Ill. 422; France v. Woolston, 4 Houst. (Del.) 557; Grewar v. Alloway, 3 Tenn. Ch. 584.

30 France v. Woolston, 4 Houst. (Del.) 557.

31 Freeman v. Gilpin, 1 Phila. (Pa.) 23; La Grill v. Mallard, 27 Pac. 294, 90 Cal. 373.

32 Kent v. Brown, 59 N. H. 236.

33 Schaper v. Bibb, 17 Atl. 935, 71 Md. 145; U. S. Nat. Bank v. Bonacum, 51 N. W. 233, 33 Neb. 820; Thielman v. Carr, 75 Ill. 385; Schwartz v. Allen (Super. Buff.) 7 N. Y. Supp. 5; Reilly v. Hudson, 62 Mo. 383.

34

and a part of the realty, for which a mechanic's lien would lie.3* And in another case it was held that a portable hot-air furnace, placed in a cellar for the purpose of heating the house, and held in place merely by its own weight, and a smokestack leading from such furnace to the chimney, were fixtures, for whose erection a mechanic's lien would lie on the entire house.35 A mechanic who repairs. and alters a battery of boilers embedded in brick, stone, and mortar, a furnace, chimney, or stack built on firm foundation, and extending up through the roof, engines, cranes, wire mills, furnaces, trains, and other fixtures firmly attached to, and all part of the realty of, certain steel works, and all together constituting one plant,-is entitled to a lien on the property therefor, since such fixtures are part of the building. 36 And for the same reason a lien lies on an hotel for heating, laundry, and cooking apparatus furnished during the construction of the building.37 A claim of lien for supplying a house with a permanent range or furnace is not impaired by the fact that the house was several years old when the range was put in,38 nor by the fact that the contract under which the furnace is furnished provides that it shall be removed if it does not fulfill the requirements of the contract.39

Stoves and Ranges.

§ 96. But a stove and funnel cannot constitute material for the repair of a building, in the sense contemplated by the mechanic's lien statute.* 40 Therefore a portable heater, put in a house to replace an

34 Goodin v. Elleardsville Hall Ass'n, 5 Mo. App. 289. The furnaces in this case weighed over a ton, and were cemented to brick foundations, so that they could not be removed without taking them to pieces.

35 Stockwell v. Campbell, 39 Conn. 362. A contrary decision has been rendered by an intermediate court in Missouri, where it was held that a furnace not fastened down, but set upon a stand of brickwork, and which could be carried out without disturbing the ceiling, walls, or floor of the house, even though a fixture as between vendor and vendee, is not a fixture, within the meaning of the mechanic's lien law. Baldwin v. Merrick, 1 Mo. App. 281. 36 Appeal of Dickey, 7 Atl. 577, 115 Pa. St. 73.

87 Dimmick v. Cook & Co., 8 Atl. 627, 115 Pa. St. 573. In this case a lien was allowed even for a large stock or soup kettle furnished in connection with the other articles.

38 Reilly v. Hudson, 62 Mo. 383.

39 Cooke v. McNeil, 49 Mo. App. 81.

40 Lambard v. Pike, 33 Mo. 141.

41

§ 97 old one, is not the subject of a mechanic's lien.4 And a small portable laundry stove for heating flat irons, in no sense any part of the building, and not used, or intended to be used, in the construction or erection of the building, but which was as much adapted for use in one laundry as in any other, is not the proper subject of a charge for lien, even though it was furnished under a contract which included materials used in the construction of a building other than that in which the stove was placed. So, too, portable cooking ranges, with zine to place them on, and pipes for connection with the boiler and chimney, furnished during the construction of a house, are not such parts of the building as entitle the seller to a mechanic's lien therefor.**

42

43

Work Outside of Construction.

§ 97. Work or labor not actually incorporated into the structure erected may be included in the lien claim, if necessary to the work of erection, and within the scope of the contract.*5 Therefore a lien for remodeling a building may include the charges for tearing away part of the building in order to prepare it for the required changes, although ordinarily there is no lien for tearing down a building.46 And work done with derricks in hoisting materials upon a building is a proper subject of mechanic's lien.^7 A subcontractor has been held entitled to a lien for work rendered necessary by the contractor's failure to distribute the cut stone for a building in convenient order and places about the building, for labor in removing the cut stone furnished for the second story in order to reach that required for the first, and in transferring such stone from the front upon one street to that upon another, where it belonged; such labor being necessary in the erection of the structure, and not properly

41 Elston v. Jury, 3 Lack. Jur. 107.

42 Women's Homœopathic Ass'n v. Harrison (Pa. Sup.) 13 Atl. 501.

43 Harrison v. Ass'n, 19 Atl. 804, 134 Pa. St. 558, 26 Wkly. Notes Cas. 84. 44 Boston Furnace Co. v. Dimock, 33 N. E. 647, 158 Mass. 552; Williams v.

Bower, 11 Pa. Co. Ct. R. 151, 1 Pa. Dist. R. 88.

45 Andrews v. Railroad Co., 16 Mo. App. 299.

46 Bruns v. Braun, 35 Mo. App. 337.

47 Tizzard v. Hughes, 3 Phila. (Pa.) 261.

extra work wholly outside of the principal contract.48 In a recent case in Rhode Island it appeared that a contract for building a house provided that no claim should be made for extra work which was not indorsed on the contract. The specifications accompanying the contract provided for drains in the cellar, and for blasting rock. It was held that the contractor was entitled to a lien for blasting for such drains, such work being provided for in the contract, and necessary to the completion of the house, though the price to be paid for such blasting was not set forth in the contract.49 Under a statute giving a lien to "any person who shall hereafter perform any labor in or about the sinking, drilling, or completing of any oil well," a person exploding torpedoes to increase the flow of oil is entitled to a lien. 50 And, under a statute that declares that "all machinery or tools used in working or developing a mine are to be deemed affixed to the mine," blacksmithing and repairs done on such machinery and tools may be made a lien on the entire property. But a statute giving a lien for all materials furnished for or used in and about the construction of bridges does not give a lien for machinery used in making artificial stone to be used in the construction of the bridge. 52

51

Work Done Away from the Premises.

§ 98. The fact that the work for which a lien is claimed was not done on the premises does not affect the rights of the claimant,53 for a lien may be maintained for labor performed away from the premises on which the lien is claimed, in preparing materials intended for use and actually used in the construction of a building on the premises. As was said by the supreme court of Pennsylvania: "If the work be done for and on the credit of the building, the place where it is done can make no difference. Steam and machinery have revolutionized the manner of building houses. Much of the work

54

48 Tabor v. Armstrong, 12 Pac. 157, 9 Colo. 285. 49 Lee v. Brayton, 26 Atl. 256, 18 R. I. 232.

50 Gallagher v. Karns, 27 Hun, 375.

51 Malone v. Gravel Co., 18 Pac. 772, 76 Cal. 578.

52 Basshor v. Railroad Co., 3 Atl. 285, 65 Md. 99.

53 Parrish's Appeal, 83 Pa. St. 111; Sweet v. James, 2 R. I. 270.

5 Wilson v. Sleeper, 131 Mass. 177; Dewing v. Society, 13 Gray, 414; Howes v. Wire-Works Co., 48 N. W. 448, 46 Minn. 44.

$ 100 formerly done by hand at or near the building is now done at the mill." 55 But no mechanic's lien can be enforced against the owner of buildings for labor performed in their erection if it is only shown that the work consisted in sawing and planing lumber in the petitioner's mill at the request of one who was erecting said buildings, and that the lumber was actually used upon them, it not appearing that there was any prior agreement that the lumber should be appropriated to said buildings. 56

57

What is a Building.

§ 99. Many statutes give a lien only for work done on "buildings." The question, what is a building? has therefore arisen in a number of cases. A coke oven is not a building within the purview of these statutes. Neither is a limekiln," 58 nor a floating dock,59 nor a retaining wall built around three sides of an iron furnace to protect it from sliding earth." A further discussion of this subject will be found elsewhere.61

Fixtures.

§ 100. A lien lies on realty for fixtures that are so attached as to become part of the freehold. Thus, mirror frames annexed to a house at the time it is built, and fitted into gaps left for that purpose in the walls, are fixtures, for which a lien may lie."2 And so are tanks and a sheet-iron floor put into a building as a permanent improvement, and adapted to the transaction of the business carried on therein.63 But chandeliers and other gas fixtures, as distinguished from gas fittings, cannot be the subject of a mechanic's lien, since they would not pass by a sale of the freehold.**

55 Singerly v. Doerr, 62 Pa. St. 9.

56 Bennett v. Shackford, 11 Allen (Mass.) 444.

A lien lies for

* Central Trust Co. v. Cameron Iron & Coal Co., 47 Fed. 136.

58 Cowdrick v. Morris, 9 Pa. Co. Ct. R. 312.

59 Coddington v. Beebe, 31 N. J. Law, 477.

* Truesdell v. Gay, 13 Gray, 311.

1 See post, § 179.

62 Ward v. Kilpatrick, 85 N. Y. 417.

O'Brien v. Hanson, 9 Mo. App. 545.

64 Jarechi v. Society, 79 Pa. St. 403; Marshall v. Kaighn, 2 Wkly. Notes Cas.

426.