Titusville Iron Works v. Keystone Oil Co.

[To be reported.] (a) The Supreme Court reversed a decision refusing judgment upon a scire facias sur mechanics’ lien, for want of a sufficient affidavit of defence, with instructions to enter judgment for the plaintiff, unless other legal or equitable cause for refusing judgment be shown. 1. Upon the return of the record to the court below, the plaintiff was entitled to have his rule for judgment made absolute, unless by supplemental affidavit some legal or equitable reason for denying the motion then pending was brought to the attention of the court. 2. By such an order of the Supreme Court the status of'the case is fixed, and the court below has no power to go back to an earlier stage of the case and determine, on motion of defendant, that the claim filed was insufficient and strike it from the record, a question not raised by the affidavit of defence. 3. A mechanics’ lien' enumerating several structures, consisting of stills, tanks, boilers, agitators, drums, etc., stating their dimensions, material, and uses, and averring that together they constitute an oil refinery, upon a parcel of ground particularly described, is sufficient in form: Short v. Ames, 121 Pa. 530. 4. Such a lien filed against an oil refinery and in sufficient form, is good under the act of June 16, 1836, P. L, 695, although the several structures constituting the refinery consist of appliances put up in the open air, and not inclosed or covered by any roof or shed. 5. Whether the act of June 5, 1874, P. L. 300, repealing certain local lien laws so far as relating to certain counties, except as to claims for actual labor bymechanies and laboring men, contravenes the provisions of §§ 3, 6,'7 or 8, article III. of the constitution, not decided.

APPEAL BY PLAINTIFFS FBOM THE COUET OF COMMON PLEAS OF VENANGO COUNTY. No. 86 October Term 1889, Sup. Ct.; court below, No. 182 November Term 1889, C. P. On October 30, 1887, a scire facias sur mechanics’ lien was issued at the suit of R. H. Boughton and E. H. Ames, doing business as the Titusville Iron Works, against the Keystone Oil Company, owner or reputed owner and contractor. . The claim upon which the writ was issued was filed by the plaintiffs on September 30, 1887, “for labor and materials furnished by them for and about the erection and construction of the several buildings and structures constituting a certain oil refinery ” upon premises particularly described by courses and distances and adjoiners, and as containing 55.15 acres, “ and the ground covered thereby, and so much other ground immediately adjacent thereto and belonging to the said Keystone Oil Company, as may be necessary for the ordinary and useful purposes of the same, for the purpose of acquiring a lien,” etc. The buildings and structures of the various kinds were particularized in the following form: “Two steam stills, 700 barrels capacity, 22 feet in diameter by 9 feet high, with condensers, separator and bulls eyes. One thousand five hundred and ten pounds iron grate rests for steam stills. Seven iron tanks, 1,000 barrels capacity each, 30 feet diameter by 8 feet high, with tops. Two iron tanks, bleachers, 30 feet diameter by 8 feet high, 1,000 barrels capacity.....” On December 16, 1887, the defendant company, without having made any motion to strike off the lien, filed an affidavit of defence. A rule for judgment for want of a sufficient affidavit of defence was thereupon When by the plaintiffs, which rule the court after argument discharged. The plaintiffs having taken a writ of error to No. 105 October Term 1888, the Supreme Court, on November 5, 1888, entered an order directing “ that the record be remitted and that the court below proceed to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered: ” Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627. • On November 26, 1888, the remittitur from the Supreme Court was filed, with the record, in the court below, and the plaintiffs renewed their motion for judgment. On November 30th, the following objection was filed on behalf of the defendant company: And now November, 1888, R. G. Lamberton, receiver of the Keystone Oil Company, defendant, objects to the entry of judgment upon the motion now made by the plaintiffs, for the following reasons, apparent of record, to wit: That the statement filed by the plaintiffs herein is insufficient, in that the locality of the buildings and the size and number of the stories of the same, are not set forth; nor whether the buildings are of brick or wood; nor the form, size, height or manner of their construction; nor whether they adjoin each other or are disconnected ; nor whether erected as one tenement, or whether they may be separated in their use without injury. Wherefore the defendant prays that judgment herein be refused and that the lien herein be stricken off. The court after agreement entered a decree, denying the plaintiffs’ motion for judgment and granting the defendant’s motion to strike off the hen, Taylor, P. J., filing the following opinion: Motion for judgment upon the part of the plaintiffs and motion to strike off the lien upon the part of the defendant. These motions were argued together, and originated in the issue upon a scire facias sur mechanics’ lien. The affidavit of defence averring the want of notice, as expressly directed by the act approved June 17,1887, P. L. 413, and this court, declining to assume the responsibility of declaring the act cited unconstitutional, for this reason held the affidavit of defence sufficient. The Supreme Court in an opinion filed November 5, 1888, declared the act of June 17, 1887, unconstitutional, “ and ordered that the record be remitted and that the court below proceed to enter judgment against the defendant for such, sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered.” The only question raised, or argued, in the court below, or in the Supreme Court, was the constitutionality of the act of 1887 before cited. Upon the filing of the remittitur in this court, the plaintiffs moved for judgment, whereupon the defendant objected for the reason that the statement was insufficient. At the same time the motion to strike off the lien for those reasons, apparent of record was made. The claim recites that it was filed for the purpose of acquiring a lien against the several buildings and structures constituting an oil refinery, “ hereinafter more particularly described,” etc. It first gives the names of the parties; second, the amount claimed to be due “for labor and material furnished in the construction and erection of an oil refinery, and upon the credit of the several structures comprising said oil refinery, hereinafter more fully described; ” third, “the several structures composing said oil refinery are located upon a certain piece or parcel of land situated in Cornplanter township, Venango county, Pa.” Then follows a particular description of the land by metes and boundaries “ containing 55.15 acres and the structures are more particularly described as follows : ” . — The court here quoted the specifications and descriptions of the several structures enumerated in the claim and proceeded : I have been thus particular in giving the verbatim description of the different structures, in order that it might be the better determined whether any would or could by any strained construction be termed a building. In this statement these several structures are called by their proper names, to wit, iron tanks, steam stills, etc. They are nowhere called buildings or designated as such. In support of their theory, counsel refer to McClintock v. Rush, 63 Pa. 203; Kennedy v. House, 41 Pa. 39, and Short v. Miller, 120 Pa. 470. Although directly in point, neither of those cases support the plaintiffs’ theory. In the first named the description was “ against the following described building .....being a two-story frame house on Harrison street, 13th ward, Pittsburgh,” etc. In Kennedy v. House, the description was “ All that certain two story brick house or building with a furnished basement,” etc. In Short v. Miller, Justice Paxson says, inter alia: “We learn from the fragmentary statements at hand that the lien was filed for lumber furnished for and about the erection and construction of the buildings mentioned and described in the claim. The buildings appear to have been eleven in number and are sufficiently described and the size and character thereof given.” They consisted of a boiler house, filter house, barrel house, several tank houses, pump houses, tool house, etc. An engine and boiler for any kind of a manufactory do not absolutely require a building to protect them. Both may stand iii 'the open air, yet no one doubts that if an engine and boiler house are erected to protect them from the weather a lien will attach, etc. A careful examination of all authorities bearing upon this question will reveal no conflict. In all a building must be present upon which a lien can attach. This is such an essential.characteristic, that if the building be destroyed by fire, or otherwise, the lien is discharged: Presbyterian Church' v. Stettler, 26 Pa. 246; Wigton’s App., 28 Pa. 161. Applying that principle, what structure described in the present claim, would, by its destruction discharge the lien? The first section of the act of June 16, 1836, P. L. 695, defines the subject of a mechanics’ lien as follows: “ Every building erected within the several counties of this commonwealth,” etc. The twelfth section of the same act provides, “that the locality of the building and the size and number of the stories of the same, or such other matters of description as shall be sufficient to identify the same.” What is a building in the ordinary acceptation of the people? Webster says, “A fabric or edifice constructed for use or convenience, as a house, a church, a shop,” etc. In legal phrase the best definition I can find is in Rapalje and Lawrence’s Law Dictionary, as follows : “ Building. A house or edifice composed of wood, stone, brick, iron or other materials. It may be fastened to the soil by sunken foundations, or set upon piles or blocks, but it must be intended to remain and to be used as a habitation or shelter on the place where it is erected.” That an oil refinery may be the subject of a lien, provided there is a building or buildings upon which the lien would attach may be conceded; but that the act of 1836 was not broad enough' in its terms to include an oil refinery without buildings, in the opinion of the legislature, is evidenced by the passage of the act of February 27, 1868, P. L. 212. But, were I in doubt, the ease of Short v. Ames, 121 Pa. 530, determines the question against the plaintiffs. * * * * * * * * It is further claimed by the plaintiffs that if the court should be of the opinion that no lien has attached under the act of 1836, the lien is a valid one under the provisions of the supplement to that act approved February 27,1868, [P. L. 212.] This act was repealed or intended to be repealed by the act of June 5,1874, P. L. 300, and I cannot hold this lien valid under the act of 1868 without declaring the act of 1874 unconstitutional. Unless clearly satisfied of the unconstitutionality of an act of the legislature the court below should leave such questions to the Supreme Court. I am not so clearly satisfied. And now, to wit:’ March 4, 1889, the motion upon the part of the plaintiffs for judgment is denied, and the motion on the part of the defendant to strike off the lien is granted. Thereupon the plaintiffs took this appeal, specifying inter alia that the court erred: 1. In not entering judgment for the plaintiffs. 2. In striking the plaintiffs’ claim from the record.