PENNSYLVANIA STEEL CO. v. J. E. POTTS SALT & LUMBER CO. et al., 63 F. 11

SEVERERS, District Judge, having made the foregoing statement of the case, delivered the opinion of the court. The statutes of Michigan have, from the time when it was a territory, afforded to those furnishing labor or materials in the construction of buildings on the lands of others a lien for the price and value thereof on the land itself. By successive enactments, the scope of provision for the creation and enforcement of such liens has been considerably extended.

At the time when the materials were furnished and the proceedings were taken in the present case to enforce a lien therefor, the act of 1885, found at page 293 of the Session Laws of that year, was in force; and the principal question to be determined is whether that act is broad enough to entitle the complainant to a lien in the circumstances shown by the record in the case.

Section 1, upon which the question turns, provides as follows: “Every person wbo shall, in pursuance of any contract, express or implied, •existing between bimself as contractor, and the owner, part owner, lessee, or person holding under any land contract or otherwise, any interest in real estate, build, alter, improve, repair, erect, beautify or ornament, or put iu, or wlio shall furnish any labor or materials in and for building, altering, improving, repairing, erecting, beautifying or ornamenting, or putting in, any house, building, machinery, ■wharf or structure * * * shall have a lien therefor upon such house, building, machinery, wharf or other structure and its appurtenances, and also upon the entire interest of such owner, part owner, lessee or person holding- under land contract or otherwise, in and to the lot or piece of land, not exceeding one-quarter

section of land, or if in any incorporated village, not exceeding the lot. or lots upon which said improvement is made to the extent of the right, title and interest of such owner,” etc. The industry of counsel for both parties, of which there is abundant evidence in their briefs, has not discovered any decision of the supreme court of the state especially adapted to aid us in the construction of this statute, and recourse has been had to decisions in the federal courts and in other state courts upon' statutes more or less similar to that of Michigan.

In the absence of any controlling decision in the state court, the case of Commissioners v. Tommey, 115 U. S. 122, 5 Sup. Ct. 626, 1186, may be regarded as a leading authority in the solution of the question involved. That case involved the construction of the statute of North Carolina, which enacted that “every building built, rebuilt, repaired or improved, together with the necessary lot on which said building may be situated, and every lot, farm or vessel, or any kind of property, real or personal, shall be subject to a lien,” etc.

The bill was filed for the purpose of foreclosing a mortgage upon a railroad, and some of the defendants claimed liens for labor and materials furnished in its construction. But it was held by the supreme court that the language of the act was not adequate to express an intention to give a lien upon a public improvement of that character. In the words of the act-then under consideration, there was no such limitation as that found in the Michigan statute in respect to the amount of the land made subject to the lien.

The conclusion there reached strongly negatives the construction which the complainant seeks to impose, upon the

section of the act in question. By the statute of Ohio, a lien was given for labor and materials upon “any house, mill, manufactory or other building, appurtenances, fixtures, bridge or-other structure and on the interest of the owner of the same, in the lot of land on which they stand, or may be removed to.” In the case of Rutherfoord v. Railroad Co., 35 Ohio St. 559, the supreme court of that state had occasion to construe their statute upon proceedings taken to enforce a lien for materials furnished for the construction or repair of a railroad.

It was held that the staiule could not be extended to include a railroad. It was admitted that a railroad was a “structure,” in a general sense, but that, giving effect to the implications to be drawn from the context, it could not be held to he such within the intention of the legislature; and it was said, among other things, that to call a strip of land for a right of way for a railroad from Cincinnati to Portsmouth a “lot of land” would be a misnomer.

The statute of Kentucky provides a lien for “erecting, altering or repairing a house, building or other structure * * * or for an improvement in any manner of real estate.” In Graham v. Railway Co., 14 Bush, 425, it was held that this language did not include a railroad. A like decision was made by the supreme court of Texas in Railroad Co. v.

Driscol, 52 Tex. 13, upon a statute providing “that any person or firm, lumber dealer”, artisan or mechanic who may labor or furnish material, machinery, fixtures and tools to erect any house, improvement, or to repair any building or any improvement whatever, shall have a lien thereon and shall also have a lien on the lot or lots of land necessarily connected therewith.” A similar opinion, upon a statute with like restrictions, was expressed in Railroad Co. v. Vanderpool, 11 Wis. 124, with reference to a railroad bridge.

Contrasted with the foregoing decisions are several which are cited by counsel for appellant upon statutes of a somewhat different character. In the case of Giant Powder Co. v. Oregon Pac. Ry.

Co., 42 Fed. 470, the court had under consideration the statute of Oregon, which gave a lien for “furnishing material to be used in the construction, alteration or repair, either in whole or in part, of any building, wharf, bridge, ditch, flume, tunnel, fence, machinery or aqueduct, or any other structure or superstructure.” The bill was filed to enforce a supposed lien on the defendant’s railroad for explosives furnished in aid of its construction. Upon the construction which the court put upon the language of the act, the lien was sustained.

That case is much relied upon by counsel as supporting his contention for a lien in this. But the drift of the discussion by Judge Deady tends rather to defeat than to support the complainant here.

Referring to the statute, he says: “If the language of the act was ‘building or other structure’ only, then it might not be construed as including a railroad; but the words ‘a ditch or any other structure’ cannot be' held to exclude a railroad.” He quotes and applies the maxim of construction “noscitur a sociis,” and from such application it appeared plainly that the words “or any other structure,” following immediately such words as “ditch, flume, tunnel, aqueduct,” were intended to include structures of a similar character.

It was by the application of the same maxim that the supreme court of Ohio, in the case before referred to, held that the word “structure,” interpreted by reference to the more restricted words in their statute, did not include railroads. Indeed, it would seem that the application of this rule of construction has been quite generally decisive of the

interpretation to be given to the general words in these statutes. The supreme court of Oregon, in Forbes v. Electric Co., 19 Or. 61, 23 Pac. 670, held that under their act (already quoted) a lien could be maintained for the labor involved in the erection of poles and stringing the wires for an electric light plant. The court was of opinion that, in view of the phraseology of the act, the poles and wires were part of a structure. This is in harmony with the decision of Judge Deady in 42 Fed. 470. The case of Helm v. Chapman, 66 Cal. 291, 5 Pac. 352, is also cited.

That was a proceeding to foreclose a lien upon a mining claim for work in quarrying rock and woi*king in slopes and leads in the operation and improvement of the mine. The court held that the mine was a “structure,” within the meaning of the California statute, which gave a lien “for performing labor or furnishing materials to be used in the construction, alteration or repair of any building, wharf, bridge, ditch, flume, aqueduct, tunnel, fence, machinery, railroad, wagon road or ocher structure.” There it: will be observed that the words in context with the term “other structure* were very widely inclusive.

In Central Trust Co. v. Sheffield & B. Coal, Iron & Ry. Co., 42 Fed. 106, it was held by the United States circuit court in Alabama that the words of the statute there, giving a lien “for any building or improvement on land,” were wide enough to include a coal mine, and that coal cars furnished for use therein were materials for ihe improvement. The case of Neilson v. Railway Co., 44 Iowa, 71, does not furnish much aid, as railroads were expressly subjected to liens by the laws of Iowa. Tin; Iowa statute was also under examination in the case of Brooks v. Railway Co., 101 U. S. 443, referred to in 115 U.

S., at page 129, and 5 Sup. Ct. 626, 1186, where it is said, quoting the express terms of the act: “The legislative will was there expressed so clearly as to give no room for

interpretation.” The other cases cited by counsel for complainant are: Ex parte Schmidt, 62 Ala. 252; Dewitt v. Smith, 63 Mo. 263; Taggard t. Buckmore. 42 Me. 77; Buchanan v. Smith, 43 Miss. 90; Weathersby v. Sinclair, Id. 189; Putnam v. Ross, 46 Mo. 337; Bullock v. Horn, 44 Ohio St. 420, 7 N. E. 737. We have examined them all, but find none of them more in point than those already considered. In most of the statutes of the several states, the subject of the lien is localized within restricted limits; in others, it is of an extended character; and in some, railroads arc expressly mentioned.

We are not disposed to question the proposition that such statutes, though they are in contravention of the common law, should be fairly and liberally construed; but we cannot extend them beyond the bounds of the purpose of the legislature, as gathered from the words employed. Upon general principles of construction, we do not think that the words “other structure,” following, as they do, in the Michigan statute, such limited and localizing words as “house, building, machinery, wharf,” can reasonably be held to include a railroad.

This conclusion appears to us to be strongly fortified by the restriction of the lien in the latter part of the

section to “the lot or piece of land not exceeding one quarter

section of land, or if in a village not exceeding the lot or lots” on which the improvement is made. Giving all these considerations their just weight, it: seems clear to ns that the complainant has no lien, and therefore that his suit must fail. It is suggested by counsel for complainant that the statute gives an independent lien upon the “structure,” and a further one upon the land upon which it is built.

We do not find it necessary to decide this point, or whether, if it is well taken, the statement of lien which was filed would support the claim of a lien upon the material composing the structure; for we are of the opinion that the structure for which the complainant furnished the material is not such a one as the statute contemplates, and it is only for material furnished for such a purpose that a lien is afforded. The result of these views is in accordance with the conclusion of the court below, and its decree is therefore affirmed.