
    David S. Dutro v. Matthew Wilson, Jr.
    The word “ owner,” in section 1 of the mechanics’ lien law, is not limited in its meaning to an owner of the fee, but includes, also, an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee; if it is a less estate, the lion is upon such smaller estate.
    'The true rule of damages in an action on the case, brought by a reversioner on account of an injury done to the premises, is the amount of the injury-done to the estate in reversion.
    Error to the district court of Muskingum county.
    The case is sufficiently shown by the following extracts from the ■record:
    
      Declaration.
    
    “ The State of Ohio, Muskingum county, ss.
    “ Court of common pleas of Muskingum county, of the term of .March, a. d. 1852.
    “ Mathew Wilson, Jr., by his attorneys, complains of David Dutro, in a plea of trespass upon the case; for that, whereas, the Hope Hose Company, No. 1, before and at the time of the committing of the grievances hereinafter mentioned, had and enjoyed a certain lot or parcel of land, with the appurtenances, situate in the city of Zanesville, in the county aforesaid, as tenant thereof *to the said plaintiff, that is to say, as tenant thereof for one year, from the 1st day of September, 1851, with the privilege of continuing said tenancy for two years more, that is to say, for three years from the commencement thereof, to wit, at the county aforesaid. Yet the said defendants contriving, and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said plaintiff, in his said reversionary interest and estate, in and of the said lot or parcel of land, and the appurtenances thereto belonging, while the same were so in the possession of the said Hope Hose Companyj No. 1, as tenant thereof, as aforesaid, to the plaintiff, to wit, on the Dth day of March, A. d. 1852, at the county aforesaid, wrongfully ¡and entered upon said lot or parcel of land, and then and there removed therefrom a certain frame building, then situate-thereon, of great value, to wit, of the value of one thousand dollars, whereby the plaintiff hath been, and still is, greatly damaged in his said reversionary interest, to wit, at the county aforesaid.”
    There were two other counts in the declaration, but it is unnecessary to notice them.
    
      Pleas. — “ And now comes the said David Dutro, by Goddard & Eastman, his attorneys, and defends the wrong and injury, when, etc., and as to the first count of the plaintiff’s declaration, saith that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, the said defendant, because he says that the said Hope Hose Company, after the commencement of their said lease from the plaintiff, and before the expiration thereof, to wit, on the 1st day of October, 1851, at Zanesville, in the county aforesaid, undertook to erect a frame building upon the said land;, and in furtherance thereof, then and there contracted and agreed with one Erastus Bailey, that he, the said Erastus, should put a roof upon said building, and paint and glaze the same, for a reasonable compensation, to be paid him by said company; and the defendant avers that the said Hope Hose Company did then and *there proceed to erect said building upon said demised premises, and that said Bailey, in pursuance of said contract, did then and there proceed to put a roof on said building, and to paint and glaze'said building, and that he reasonably deserved to have therefor a large sum of' money, to wit, the sum of fifty dollars; and the defendant further avers, that the said Bailey afterward, and within the period of four months from the time of his performing-the said labor, in roofing, painting, and glazing the said building, to wit, on the 11th day of November, 1851, at said Zanesville, made an account in writing of the items of such labor, as follows, to wit :
    Zanesville Hose Company,
    
      To Erastus Bailey, Dr.
    
    
      October 17,1851.
    To roofing hose-house, 7 squares and 20 feet — $5 per square. $36 00
    To priming front of house and windows and doors............ 4 00
    To priming and glazing 45 lights of glass....................... 3 15
    $43 15-
    And on the day and last aforesaid, at said Zanesville, made-oath thereto; and on the same day filed the said account, with the oath aforesaid, in the recorder’s office of said county of Muskingum, when the same was, by said recorder, recorded in a separate book, provided by him for the recording of liens, in book A, page 86, on the same 11th November, to wit, at Zanesville aforesaid. And the defendant further in fact saith, that the said Erastus Bailey having such lien as aforesaid, afterward, and within the period of four months from the time of performing such labor, to wit, on the 5th day of January, 1852, at said Zanesville, commenced a suit before Frederick A. Seborn, Esq., a justice of the peace for said Zanesville, against said Hope Hose Company, and for the amount of the said account; and such proceedings were thereupon had that afterward, to wit, on the 13th day of January, 1852, at said Zanesville, by the consideration of the said Frederick A. Seborn, Esq., the said Bailey recovered judgment in the same action, and upon the same account, against said ^company, for forty-three dollars and fifteen cents damages, and eighty-nine cents, costs of suit. And the defendant further saith, that the said Bailey, afterward, to wit, on tho 13th day of January, 1852, caused an execution to be issued upon said judgment, directed to any constable of the said city of Zanesville, and commanding him of the goods and chattels of said Hope Hose Company he cause to be made the damages and costs aforesaid, and costs that might accrue; which writ afterward, to wit, on the 14th day of January, 1852, at said Zanesville, came into the hands of Benjamin Spangler, a constable for said Zanesville, who, in purstiance thereof, afterward, on said 14th January, at said Zanesville, levied the same upon the said Hope Hose [building], being the same frame biiilding mentioned in the first count of the plaintiff’s declaration, and the same on which the said Bailey had his said lien, and advertised the same for sale, and afterward, to wit, on the 26th day of said January, at said Zanesville, sold the same to this defendant for the sum of two hundred dollars, as by the return on said execution, with the said justice remaining, fully appears. And the defendant afterward, to wit, on the 6th day of March, 1852, entered upon said lot and removed the said building, doing no injury to the plaintiff, as he lawfully might; all which he is ready to verify. Wherefore he prays judgment, if the plaintiff ought to have or maintain his aforesaid action thereof against him, etc.
    “And as to the second and third counts of the plaintiff’s declaration, the defendant saith he is not guilty in manner and form as therein alleged, and of this he puts himself upon the country, etc.”
    
      Replication. — “And the said plaintiff, as to the said plea of the said defendant, firstly above pleaded, says, that by reason of anything therein pleaded by the said defendant, in that respect, he ought not to be barred from his aforesaid action thereof against him, because, he says, that at the time of the making and execution of *the said lease, in the first count of his said declaration mentioned, there was a building on the said lot or parcel of land, in said count mentioned; that by the terms of said lease, the said Hope Hose Company was to have said building to use as they might see proper, they agreeing to leave on said described tract of land a good, substantial frame building, when they delivered the same up to the said plaintiff, with all the improvements they might put thereon, to be delivered up with the said lot or parcel of ground to the said plaintiff; and the said plaintiff, in fact, says that the said Hope Hose Company did remove from said parcel of land the building aforesaid, then standing thereon, and erected in its stead the said frame building described in the said plea of the said defendant, by him firstly above pleaded as aforesaid; and this the said plaintiff is ready to verify. Whereof he prays judgment, etc.”
    
      Rejoinder. — And now comes the said David, by Goddard & Eastman, his attorneys, and saith that the plaintiff ought not, by reason of anything in said replication alleged, to have or maintain his aforesaid action thereof'against him, because he says that the said supposed lease in said replication referred to, was in the words and figures following, that is to say:
    “ This is to certify that I, Matthew Wilson, Jr., have rented unto the Hope Hose Company, No. 1, of Zanesville, Ohio, a certain lot of ground on Sixth street, on the rear of Beaumont & Hollingsworth’s store, for the term of one year from the first day of September, at fifty dollars per year, to be paid quarterly, the said Hope Hose Company to have the privilege of holding it for three years at the same price per year. The said hose -company is to have the building that is at this time on the premises to use as they may see proper, they agreeing to leave a building on the premises, a good substantial frame, when they deliver up *the said premises to M. Wilson, Jr., and all improvements that may be put on to be ■delivered up With the lot.
    (Signed,) “Matthew Wilson, Jr. .. „ ' „ xr xr n í D. H. Orndoree, “ On part of Hope Hose Oo. j Wm h Stei>hens.
    “ Zanesville, September 1,1851.
    “ And no other or different; and the plaintiff avers that the building described in said paper as then on the said premises was at the date thereof, to wit, on the said 1st September, 1851, at said Zanesville, of no value whatsoever. And this the defendant is ready to>. verify, wherefore he prays judgment, if the plaintiff ought to have or maintain his aforesaid action thereof against him, etc.”
    
      JDemurrer to Rejoinder. — “And now comes'the said plaintiff, by his attorneys, and says that the rejoinder of the said defendant to the replication of said plaintiff, and the matters and things therein contained, and set forth, are not sufficient in law, to bar the said plaintiff from having and maintaining his aforesaid action thereof against .him, the said defendant, and that he, the said plaintiff, is not bound ■by law to answer the same. And this he is ready to verify; wherefore he prays judgment and his damages aforesaid.”
    There was judgment for the plaintiff below upon the demurrer, and upon the assessment of damages, a bill of exceptions was taken to the rulings of the court, of which a copy is now here given:
    “Be it remembered that upon the inquiry of damages which was made by the court, neither party requiring a jury, the plaintiff proved the value of the building removed by the defendant to be the sum of §229.32. The defendant then offered to prove that the said building, for the removal of which this suit was brought, was sold upon an execution as set forth in the defendant’s plea, and also •offered to prove the other facts set *forth in said plea as to said Bailey’s account, and his lien on said building for the same, and .also offered to prove that the money arising from such sale was applied first to the payment of said Bailey’s judgment, and the resi■due to the payment of accounts of other mechanics who had performed labor on said building, and who had taken the steps required by the statute, to assert and continue such liens, and claimed that the judgment for the plaintiff should be for nominal damages only. This evidence the court refused to receive, and decided that the true rule of the plaintiff’s damages was the value of the building, to which decisions of the court the defendant, by his counsel, excepts, and prays the court to sign and seal this, his bill of exceptions, and that the same be made a part of the record, which is accordingly done.”
    
      Goddard & Eastman, for plaintiff in error.
    
      Jewett & O’Neal, for defendant.
    
      Goddard & Eastman, for plaintiff in error:
    I. The builders had a lien upon the property in question, and no interest in the house was acquired by the owner of the lot, whether owner of the term'for years or owner of the reversion, until they were paid.
    II. The Hope Hose Company were, in the sense of the statute, the owners of the lot. The statute does not say owners in fee, nor owners of a term of ninety-nine years, but simply owners. Choteau v. Thompson & Campbell, 2 Ohio St. 114. This sale, it is true, was not a sale of the leasehold interest of the company. It was a sale of a building which stood on it. The hose company do not complain that a part of their interest has been sold, and not the whole, nor can the reversioner,
    III. But the first section of the lien law gives a lien upon the building, independent of the lot upon which it stands. A true paraphrase would run thus : 11 Any person who shall perform labor on any building, by virtue of a contract with the *owner of the building, shall have a lien upon the building, and also upon the lot on which the building stands, to the extent of the interest which the owner has in the lot.” Suppose the mechanics had agreed with these lessees to build for them, the builders to retain a lien on the building for their unpaid bills, to be enforced by sale and removal of the building during the term of the lease, could the lessee have prevented the enforcement of such a lien ? The statute (enacted before this lease was made) takes the place of such a contract.
    IY. The tenth section of the act has no application. There was no equitable title requiring that section to be observed. The title of the hose company, under the lease in question — good under our statutes for three years — was the legal title.
    Y. The case of Thornton v. Williams, 14 Pick. 49, has no application. In that case, Smith had an equity only, and no right of possession, though probably he had actual possession. Ho was not the proprietor of the land, and none but such proprietor could, under the Massachusetts law, subject the building to lien. Our statute-gives the lien upon the building and the land.
    YI. Wilson had no lien on the improvements which should be-made on the lot. The lessees were bound to deliver up the improvements when the lease should expire. ,. This gave him no lien; but, if it did, such lien could not attach till the improvements were discharged from the mechanic’s lien.
    YII. But, in any view, what damages ought Wilson to have, if he recover at all? This suit is brought a very few months after-the commencement of the lease. Non constat, but that at the expiration of the lease the lessees would have a substantial frame house, and deliver it up to the lessor. At most, he could only recover for the technical injury to the land, and in such case the-damages would be nominal only.
    
      Jewett & O'Neal, for defendant in error:
    I. The condition of this property was not such as to authorize-^the mechanics’ lien. The lien given by the first section of the law is upon the building, “ and upon the lot of land upon which-the same shall stand,; ” but to enable the mechanic to take advantage of this provision of the law, -the labor performed and the materials furnished must be “ by virtue of a contract or agreement with the owner thereof.”
    
    By the terms of the lease the house removed was to be replaced by another one, and all other improvements put upon the lot were to remain there for the benefit of Wilson. They became his property in law and in fact. He became the owner, and he would have been entitled to his remedy against the lessees, if they, during the existence of their lease, had attempted to remove that or any other building erected on the lot. Having- removed the building that was upon it at the time they took possession, their power to remove was exhausted. All other buildings erected, thereafter, attached to the freehold, and by operation of law, as well as by the provisions of the lease, vested in Wilson the lessor and the owner-of the lot.
    II. Whether or not a mechanic can assert a lien upon a building, not a fixture, is a question which does not necessarily arise in this case. It is not claimed that the building in controversy in this case was not a fixture; nor is it denied that the ownership of the lot was in Wilson. But if we understand the claim of the-plaintiff in error, it is, that the first section of the law under discussion, is susceptible of a division ; that the lien may attach to the building, the fixture, the appurtenance to the land, without attaching to the land itself; and that if the owner of the building is a ■different person from the owner of the land, then the building may bo sold and removed' from the land. No foundation for any such ■ claim can be found in the statute. The very provision which authorizes this lien, and the only provision, is in the first section of ■the act; and by its terms whenever the lien attaches to the building, it must attach to the land upon which the building is erected. Mil. The section referred to is the only section of the law ■that gives to the mechanic a lien for the labor and materials furnished. The law does not embrace all mechanics, nor extend to .all kinds of labor. The engine and car builders can not secure liens for the labor and materials by them furnished, in carrying ■on their business; and the same remark is equally true in regard to almost every other class of mechanics, except those whose business is indicated by the law in the character of the structures named in the first section of it.
    There was reason for authorizing a lien upon a water-craft, ■which on the day of its completion might be floated beyond the jurisdiction of our courts and into another state. But the legislature saw no necessity for embarrassing the ordinary business of the country, with these special liens, upon structures of a movable character, and in which our mechanical interests are more deeply involved, perhaps, than in any other species of property.
    A tenement, not a fixture, is no more permanent than a carriage. It may change owners daily. It may be moved from place to place ■to suit the convenience of its last owner. If it be subject to this lien, then two years, for instance, after its construction, the owner of it at that time, the man who has paid for it and purchased it without notice, because he has no means of obtaining any, for it has no name and no locality, may be called on to pay the mechanic the full amount of what it originally cost.
    IY. The Massachusetts statute in relation to mechanics’ liens is similar to our own, and in support of our views we refer to the •case of Thaxter v. Williams et al., 14 Pick. 49.
    Y. Upon the general question of our right to recover and the •rule of damages; we refer to 4 Kent’s Com. 855; 11 Mass. 518; 8 Pick. 235 ; 19 Ib. 156 ; 16 Ib. 464.
   Thurman, C. J.

By the terms of the lease all the improvements-that the -lessee should put on the premises, were to be delivered up-with the lot to the lessor, at the expiration of the Please. The building in question was erected by the lessee, and was a fixture. The interests of the parties then were, a leasehold estate in the hose company, and a reversion in fee in Wilson, the lessor. The lien of the mechanic who erected the building for the company, was upon the leasehold estate, and no more. This point was-decided in Choteau v. Thompson, 2 Ohio St. 123, where it is said: “ The word ‘ owner,’ in the first section of the act, is not limited in its meaning to an owner of the fee, but includes also an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee, if it is of a less estate, the lien is upon such smaller estate.”

It follows that Dutro acquired by his purchase no greater estate than that of which the hose company was seized, and as they had no right to remove the building, he acquired no such right. The-demurrer was therefore properly sustained.

For the same reason the testimony offered by Dutro, on the inquiry of damages, was properly ruled out, and the rule of damages-claimed by him properly rejected.

The language of the bill of exceptions is not very clear in respect to the rule of damages adopted by the court, but we infer that by the expression, " the value of the building,” is meant its value to the lessor; that is, the value of his reversionary interest in it. In other words, a not very happy phraseology is employed to express ■ the true rule of damages, which was the amount of injury done to the reversionary estate in the lot by the removal of the building. We are strengthened in this inference by the fact that the only exception taken to the assessment is, that no deduction was made of' the amounts for which the mechanics had held liens.

Judgment affirmed.  