This is an appeal from a decree overruling the demurrer of Henry Mazel, appellant, to the bill of complaint of J. W. Bain, doing business as Bain Construction Company, appellee. The bill sought to enforce a mechanic's lien for clearing eighty acres of land.
The bill alleged that appellee cleared the land under a contract with the owners, Richard and Eva Trester, executed February 20, 1959, and a balance of $881.25 was still owed for the work; that on April 9, 1959, appellant Mazel recorded a mortgage on the lands executed by the Tresters on January 6, 1958; and that the lien claimed by appellee was superior to the lien of the mortgage. The Tresters were not served with summons.
The sole question, one of first impression here, to be decided is whether clearing land, which included "pushing stumps and scrub oaks, raking and leveling the said lands," is an improvement on land under Tit. 33, § 37, Code 1940, which grants a lien to "every * * * person * * * who shall do or perform any work, or labor upon * * * any building or improvement on land, or for repairing, altering, or beautifying the same, * * *," under or by virtue of any contract with the owner.
In 1899, this court, in Bates v. Harte, 124 Ala. 427, 26 So. 898, 899, in holding that the drilling of a well was such an "improvement" as would support a lien, said:
Warvelle on Ejectment, § 557, defines improvement: "An improvement, generally speaking, is anything that enhances the value of the land." The word is defined in Black's Law Dictionary, Fourth Edition:
The Supreme Court of Oklahoma, in construing its lien statute, 42 O.S.1951, § 141, which gives a lien to any person who performs labor "for the erection, alteration or repair of any building, improvement or structure thereon," held that "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 was a lienable item," and "the general word `improvement' cannot be reasonably construed to have been used with the limitation
Some states, California, Florida, Hawaii, Iowa, Minnesota, Tennessee, Texas, Wisconsin and Washington, have defined the word improvement in their statute, and include excavating or grading in the definition.
In 1889, Justice McClellan, speaking for the court in Eufaula Water Co. v. Addyston Pipe & Steel Co., 89 Ala. 552, 8 So. 25, 26, said: "The whole theory of the statute is to give the material-man a preferred claim on a lot of land for the amount he has contributed in improving that particular land or the buildings situated thereon."
Again, in Crawford v. Sterling, 155 Ala. 511, 46 So. 849, 850, McClellan, J., wrote:
This court said in Floyd v. Rambo, 250 Ala. 101, 33 So.2d 360, 362:
And in our late case of Wilkinson v. Rowe, 266 Ala. 675, 98 So.2d 435, 437, we quoted from Montandon & Co. v. Deas, 14 Ala. 33, as follows:
It is argued that since a mechanic's lien is of statutory origin and "is in derogation of the common law, it is to be strictly construed, all matters of substance of necessity to be complied with." Tanner v. Foley Bldg. & Mfg. Co., 254 Ala. 476, 48 So.2d 785, 787. This strict construction is not applied to the theory of the statute but to the technical requirements of the statute to make the lien effective, such as, certainty as to the description, allegations that the claim has been properly filed in the office of the probate judge, and that the wording of the claim and the notices substantially follow the statute. There is no conflict in the case of Montandon & Co. v. Deas, 14 Ala. 33, and the principle enunciated in the Tanner case.
It is also argued that our statute does not give a lien for work on land in the absence of an improvement or building thereon. We think that construction of the statute is too strict and narrow. Under such an interpretation, a brick mason who built the foundation for a building, which was never built, would not have a lien. Yet in 1890, in Scott v. Goldinghorst, 123 Ind. 268, 24 N.E. 333, work done in excavating earth and constructing a brick foundation for a barn which was never completed was held to be lienable.
The clearing, grading or excavation of land is a permanent improvement upon land, and since this question has not been previously presented to this court, it seems practical, useful and sensible to hold that this type of permanent improvement upon land in lienable under the statute.
We would still adhere to the holding in Bates v. Harte, 124 Ala. 427, 26 So. 898, quoted in Wilkinson v. Rowe, 266 Ala. 675, 98 So.2d 435, that "the scope of term improvement is left for determination in particular cases as they may arise." This question of first impression in this state having arisen, we hold that the work described comes within the scope of the term "improvement" in the statute.
It follows that the trial court correctly overruled appellant's demurrer to the bill of complaint.
LAWSON, SIMPSON and GOODWYN, JJ., concur.
LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., dissent.
STAKELY, Justice (dissenting).
The suit was filed by J. W. Bain, doing business as Bain Construction Company, against Richard Trester, Eva Marie Trester and Henry Mazel, to enforce a mechanic's lien for clearing eighty acres of land. The two Tresters were not served. The relevant part of the bill of complaint is as follows:
The question for decision is whether the allegations of the bill show that complainant performed services which entitle him to the lien claimed.
We think we can safely say that if the complainant has the right to a mechanic's lien for the services which he alleges that he performed in clearing the land described in the bill of complaint, it must be under § 37, Title 33, Code of 1940. We set out the pertinent part of § 37, Title 33, Code of 1940, as follows:
Without question the foregoing statute gives a lien for work on an improvement on land but we do not think that the statute gives a lien for work on land in the absence of an improvement or building thereon. The statute gives a lien "on such building or improvements and on the land on which the same is situated." [Emphasis added.] If the graded land is the improvement, then there is a lien on the graded land on the land. In other words, there is a lien on land on land. We do not believe the statute warrants such a construction.
In this case it is well to remember that the right to a mechanic's lien is purely statutory. Wilkinson et al. v. Rowe, 266 Ala. 675, 98 So.2d 435. There is no right to an equitable lien for work and labor done. Lindsey v. Rogers, 260 Ala. 231, 69 So.2d 445; Emanuel v. Underwood Coal & Supply Co., 244 Ala. 436, 14 So.2d 151.
In Tanner v. Foley Bldg. & Mfg. Co., 254 Ala. 476, 48 So.2d 785, this court said: "and since such a statutory lien is in derogation of the common law, it is to be strictly construed, all matters of substance of necessity to be complied with.", and cases cited. Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So.2d 492, and cases cited.
It is clear that the clearing, grading or leveling, which the complainant did on the land, was not done in connection with the construction of any building or other improvement on the land. Does the clearing, grading and leveling of land constitute an improvement within the meaning of § 37, Title 33, Code of 1940 and entitle one who does such work to a mechanic's lien under the provisions of the statute? In the recent case of Wilkinson v. Rowe, supra, this court had occasion to consider whether the services rendered by a surveyor in surveying in part a subdivision was an improvement within the meaning of the statute now under consideration. In the case here referred to this court held that such services were not an improvement and that the party who rendered them was not entitled to a mechanic's lien. This court said:
In other words before there can be a lien, there must be an improvement and the lien does not attach in the absence of an improvement or building.
In Wilkinson v. Rowe, supra, reference is made to the fact that some states have what is referred to as graders' statutes which give a lien on realty to one who clears, grades, fills or otherwise improves real property or any street or road in front of or adjoining the same. See Daugherty v. Gunther, 88 Wn. 378, 153 P. 336. In Wilkinson v. Rowe, supra, this court further said:
Section 37, Title 33, Code of 1940, does not entitle J. W. Bain, doing business as Bain Construction Company to a mechanic's lien for clearing land for the reason that there are no improvements on the land to which such a lien can attach.
As fortifying our view that the word "improvement" in § 37 does not include leveling or grading of the land, we refer to § 38, Title 33, Code of 1940, which provides the method by which priority between a mechanic's lien and a mortgage on the property may be determined. The mechanic's lien provided for in § 37 as to the land, buildings or improvements thereon "shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement; * * *". But "as to liens, mortgages or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject to the prior lien, mortgage or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced by a sale of such buildings or improvement under the provisions of this article and the purchaser may, within a reasonable time thereafter, remove the same."
Assuming that the mortgage on the land was made prior to the work and labor for which the mechanic's lien was given, then the lien may be enforced by a sale of such buildings or improvement. There is no provision in the statute in this event for the sale of the land. Accordingly, if the improvement is the grading or leveling of the land, how can such grading and leveling be sold under section 38 without a sale of the land itself? We think this indicates that the Alabama statutes were not intended to give a lien for merely leveling or grading the land.
We quite understand that an equity court where there was a mortgage on the land in a
It should be added that the demurrer raises no question of priority as between the lien claimed and the mortgage to Henry Mazel.
Of course, the legislature has the power to extend the right to a lien to cover clearing or grading land but the courts do not have the power to establish such a lien by judicial decree.
Since the views expressed by me are not in accordance with the majority opinion of the court, I respectfully dissent.
LIVINGSTON, C. J., and COLEMAN, J., concur.