NATIONAL FOUNDitY & PIP]; WORKS
(Circuit Oourt, E. D. Wisconsin. October 3,1899.) 1. MECHANICS' LIENS-PROPERTY SUB.TECT TO-WATER COMPAllIES. Rev. St. Wis. § 3314, ,par. 3, whieh provides that, in case any person shall pur-
chase machinery to be placed on premIses in which the purchaser has not an inter. est SUfficient for a lien, the person furnishing the machinery shall have a lien on it and a right to remove it, does not apply to the pipes of a water company, laid through the streets of a town, and connected with the pumping works of the com· pany. The plant of the company is an integer, and cannot be separated under a vendor's lien. The public policy of Wisconsin is independent of that of other states, and under it the property of qua3'! public corporations is subject to the general lien laws. In this respect a water company does not differ from a railroad company. Hill v. Co., 11 Wis. 215, followed.
The entire plant of a water company, includ ing piping laid in the street!! of a city and the interest of the company in the premises, are, by Rev. St. Wis. § 8314, par. 1, SUbject to the lien of the material man furnishing the piping.
4. SAME-PROPERTY OF QUASI PUBLIC CORPORATIONS-ENFORCEMENT OF LIEN-FRANCHISE AND PLANT.
Where the law gives the material man a specific lien upon a certain plant, and the plant and franchise, being that of a water company, cannot be separated by judicial sale because of their peculiar public use, a court of equity has power to decree the sale of both plant and franchise in satisfaction of the lien.
In Equity. Bill by the National Foundry & Pipe Works, Limited, to foreclose a lien upon the plant and premises of the Oconto Water Company. Decree directing a sale of the plant, premises, and franchises. Geo. H. Noyes and Wm. D. Van Dyke, for complainant. W.H. Webster, for defendant. JENKIKS, District Judge. The complainants sold and delivered to the defendant, for the stip'\.1lated price of $22,483.41, certain iron pipe, to be used, and which was used, in the construction of a waterworks plant. designed to supply the city of Oconto and its inhabitants with water. The pipe was laid under the surface of various streets in the city, and connected with hydrants located upon the streets, and also with the pumping works, the latter being in turn connected with a well. Tllis well and these pumping works are situated upon certain premises in the city of Oconto. No part of the material furnished by the complainant was laid IIp'1U the premises, with the possible exception that one length of pipe was placed within the limits of Chicago street, extended, abutting the premises in question, and formed part of the connection of the water mains in Chicago street proper with the pumping works. The legal title to the land whereon the pumping works are situated is vested in the muniCipality of Oconto, the defendant corporation entering into and holding possession under contract with the city .for its conveyance. The complainant duly filed a claim for'll lien upon the waterworks plant and ·the interest of the defendant company in the premises whereon the pumping works and well are situated, and to which the pipes are
connected.' This bill is filed to foreclose that lien, and for a sale of the plant defendant's interest in theJand. The defendant corporation was organized under the laws of the state of Wisconsin f\?r the sole purpose of constructhlg and operating a system of waterworks within the city of Oconto, and of supplying the city and its inhabitants water for protection against fires, and for domestic, manufacturing, and other purposes. Under the power granted by Rev. 8t. Wis. § 1780,it contracted with the municipal corporation for its requisite consent ,to the use of its streets for laying water pipes therein, and for supplying the city with water. This contract took the form of an ordinance adopted by the mayor and common council of the city, and its, terms 'Verl;),accepted by the defendant, The city therein contracted for the use of a designated number of hydrants, and of a proper supply"6(water for use in public)mildings and fountains anti for the extinguishment of fires,at a specified yearly rental to be raised by ann'ualta,;tt u:pon all the taxable property withintbe limits of the city. The maximnm rates to be charged the inhabitants for the use of water were and established by the ordinance, and the right was the municipality to the waterworks plant at the 'expiration of ten years, or any subsequent term of five years, upon a valuation to,pe' arbitration. The lien law of the state of Wisconsin, (Rev. 8t. Wis. § 3314,) so fl.\fl8;Sit if,at llll, to the case, in hand, is as follows: The ft,rllltparagraMP,ovides:'
."Every persoP- who ,. · · furnishes any materials · · ·. in or about the · · · construction · · '" of any building, · · · any machinery or constructed so as to be or become a part of the free· hold upon which it 'is to be situated, ... ... ... or in digging 01" constructing any well. ... ... ... shall have alien thereupon and upon the interest of the owner of such building.......... machinery, well. * '" ... inl}nd tothe:landnpon which the sallle is situated, used. or de. signed for use, inconnectfon w,ith such building, machinery, '" ... ... well. ... ... ... not exceeding one acre."
The third paragraph of the section provides:
"In case any person shall'otder or contract for the purchase of any mao chinery to be placed in or connected to or with any building or premises. and such person, not,haringan interest. in 8,uch building or pl'emisl's in or conD.ellted with whicl/slJch machinery is placed. sufficient for Illien, as provided for in this chapt!'r. to secure payment for .snch machinery. the person furnishing such machinery shall have and retain a lien upon such machiuery, and shall have the right to remove from such bUilding or premises such macniu6'l'Y. in case there shall be default in the payment Of such machinery when dne. leaving sllchbuilding or premises h1 as good condition as they were besuch machinery WIIS placed in or on same."
,'I,t is insisted ror the conlplainant that, nnder 'the first , paragraph of fl'le'section, it has a lien upon the waterworks plant, considered Rsan eritirety, or, fsiHog that, under the 'third paragraph, upon the pipe itself, as machinery. . . It is llontended for the defendant (1) that the lien laws refer only to
NATIONAL FOUNDRY & PIPE WORKS
OCONTO WATER CO.
such property as can be levied upon by execution; and that its ptoperty, being such only as is appurtenant and eBsential to the use and en· joyment of its franchises, cannot be taken on execution, and is therefore not comprehended within the statute; (2) that the plant of a water company is, from considerations of public policy, exempted from the operation of the lien statute; and (3) that the plant is an entirety, and the pi pe furnished is nbt "machinery," within the meaning of the third paragraph of the statute. 1. I am satisfied that the case does not fall within the third paragraph of the section. The plant must be treated as an entirety with respect to any sale under judicial process. The defendant is a quasi public corporation. The apparatus by which a whole city is supplied with water cannot be perri1itted to be dismantled and sold in fragments,upon the claims of those furnishing the divers parts of the complicated and extended machinery. Whether this pipe is or is not technically"machinery," within the meaning of this third paragraph of the statute, it was sold with, knowledge of the character of the defendant as a quam public corporation, and with the design and. intent that it should be permanently affixed to and incorporated with the plant as a part of an entire thing., The plant is the integer. The pipe, hydrants, pumping works,and well are integral parts. " Separationofthe parts would destroy the efficiency of the whole, working destruction to all interests concerned. The detached parts would prove of little value, the entire enterprise would be aborted, the interests of both creditor and debtor sacrificed, and the pUblic interest unnecessarily imperiled. It cannot be assumed that it was the legislative intent that this third paragraph should include such structures. - Indeed, this paragraph would seem to be applicable only when the purchaser of machinery has no interest in l the building or premises in or connected with which such machinery is placed, sufficient for a lien. The statute is a declaration that in such case the attaching of personalty to realty shall not be effective to defeat the lien. The purchased machinery remains personalty, as between vendor ahd purchaser. Here the defendant had an interest in the premises under contract for a conveyance. The structure here is of the class -of which canals, street railways, railroads, telegraph, telephone, electrie light, and gas plants are examples, and can only be dealt with as an -entirety. Gue v. Canal Co., 24 How. 257; BrnokB v. Railway Co., 101 U. S. 443,451; Meyer v. Hornby, 101 U. S. 728; Hammock v. TruBt Co., 105 U. S. 77; Improvement Co. v. Wood, 81 Wis. - , .51 N. W. Rep. 1004; Fond du Lac Water Co. v. City of Fond dw Lac, 82 Wis. -"-, 52 N. W. Rep. 439. 2. It is contended that'the property of a corporation, quasi public, is, from considerations of public' policy, exempted from the operation of the lien laws of the state. We must seek for sueh public policy, if it exist, in the legislation of the state whose law is under consideratio::, and in the course of decisiortby the ultirha.te judicial authority of that state. It is of no Iiloment to iIiqniretouchil1g the public policy orother states. If in aIltagonism to Wisconsin upon any given subject of public policy,
tJ;tat<of:,tbe atate 'of Wisconsin would be the only criterion. of .judgment premeoourt,has declared its conyiction th,at lien Jaws here. should,hdt. be interpreted, as applicable, to ,the, property essential to the operatiotl,ofl,drallchise by a quasi public corporation, ('CQunty Com/rlv. Tommey;: H,6 U. S.122,128,5Sup. Ct. Rep. 626,1186,) but yields to the decisi'Ons of.the courts of aistate in the constructiol1of its: ,statutes, and asaertlt,sllch lien when. ,sanctipned by the ruling of the courts 0(0. state, (Brooks v. Railway Co., 101 U. S. 443, 452.) Louking, then, to the legislation: of the state (jf Wisconsin, we discover a general policy to grant a lien for the construction of every article used, and for all labor bestowed'l in the, erection of structures upon land, and for·all labor and material employed in the construction, production, alteration, or repair of perRonal property. The architect who prepares the plan for the house, the sUl'veyor who measures the ground, the materialman and the laborer, are alikEl;protected, and,aswell. the cook who provides the food for. the logger·. · &v. St. Wis. c. 143. The state has been liberal in the exemption. from· execution of the personal· property of the' head ofa family, but dec1l\res to .be :subject to payment oithe purchase price of the exempt prQperty, iandof domestic labor performed for the family. established!}>olicy of the state is:thatno on:eshall obtain .property: or labor withC)ut compensation; .and, with respect to structures upon: land, i and manY' aftides of personal property, payment is seby specific lien. . , Is public policy of the state of Wisconsin exempting the property of this from the,operation of the general lien law of the state becc,Luse of character, and because its business is in,timlltely,COlll;l.ectEld .with a locality? Wilkinson v. Hoffm,an, 21N.W.);tep..8J6,.it was laws do OVfnlil(tby municipal held for to machinElrycoustitutiJ,lga part.o;fthe waterworks, owned, by the municipa.lity, The cqU,t decJared the caSe to rest upon the principle which ext;lmpts,courthoueeB, jaHa,uIJpother public buildings owned by the PllPlic, from The with the rtllings of mQstof !the statesl aIlq,finds its support in .considerations of public inconvlmiencefJowing frW.l1 eVtma temporary suspension of the uSjlal mellnsfor. tlwexeroise pi governmlilntal authQrity. Such public policy creditor the particular remedy oOhe statute by reason ,of the, resulting tp. the publjo f;rom its "It is better,tosuf:I'lilra :!D1s,chief wqi.l* ds,pec)lliar to one than. an. inconvenience which may prejudice many." The creditor is, howev,er, assured of a of hisdebt.in.the enforce'8:ple exerciseQTf.ipepowe/:Qf until hif,i be. disql1m'ged. :)filwau/ctlf; Oth!'lrwlllejhe,!aw of ex:.. Vl'Qul4; )PI'! '...'. . as J:especUithe. of Wisconsin, topropl!:f,ty hlillci: it?r,publi(H1se. 'and owned bNJhestatc, or by 9f. iu,. of In Railr()ad .
.; 1., '" ' , )
& I'IPEWORKS 'V. OCONTO WATER CO.
11 Wis. 215, (decided in 1860,) cit 'was,beld that the ,lien law of the
state was applicable to. railroads. The same doctrine of public policy here asserted was there invoked to·defeat the lien, and was thus denied by the court, (page 223:) "It is said thwpublic are interested in preserving railroads in an operative condition, and that if are allowed to attacb to their buildmgs, or .creditors allowed to levy upon and sell their or other personal property necessary to the operation of the road, thl'y will be rendered incapable of subserving the pUblic int¢rest;' and several cases are referred to in which it has been held that judgment creditors could not levy on and sell the cal'S or any other personal property of the company necessary for the operation of the road, upon the ground that the I'ailroad must be considered as an entire thing, and pUblic policy reql1iredthat these articles should not be sl'vered from it. But, wpatever merit there may be in this doctrine; we are clearly of the opinion that it cannot ha"e the extent here claimed for it; and, on the contrary, it cannot be applied at aU, except so far as the propl'rty has become entirely the property of the. company, divested of all specific liens. When that' has been done, if there is any' reason for saying that a general creditor must take all or nothing, that is one thing: but it is an entirely different thing to say, when the company, by the very act 'of acquiring a particularportion of. property, either by contract or by the force of law, creates a specific lien in favor.o! the vendor or manufacturer, or would create it unless hindered by pUblic policy, that such lien shall not attach for that reason." And, further on, declares: "And there can be reasons of public policy that should prevent the. enforcement of such specific lien, by means of which the company had acquired the very property .Itself. And we can see no distinction, upon prin·ciple, between allowing sUllh a lien to be creatl'd by the mortgage of the com· pany;'and allowing it to be dOM by the foroeof the statute. A building built for a railroad company is as clearly within the letter and spirit of the statute as any other building. The object was to furnish a protection to lhose who expended their labor and materials in .improving the property of others. ·ls there..anything in Pllbljc. policy that requires or should permit ra.ilroacls to build, at the of this object? If there is, we fail to perceive it. and shan recognize ilo such policy tm the legislature enacts it inlo a posi. tive law." In PurteU v. BoU CK, 74·Wis. 132,42. N. W. Rep. 265, (decided in 1889,) the lien laws held to comprehend a railroad bridge, altho,ugh it was ,part and parcel ofthe railway, and essential to its operation: i The court observes, at page 135,74 Wis., and page 266,42 N. W.Rep.: "}3ut there is no public policy prevailing inthis state against enforcing a laborer's lien upon any bridge or other structure of a railroad company, for work performed thereon, no matter whether such structure is or is.not part and parcel of the railway; or to whatextpnt the enforcement of a lien thereon may interfere with or impede the operation of the railway, or the exercise by the company of its corporate francbises. On the contrary, the public policy of this state is to enfofcesuch a lien, and the cC?m pany operat..s its way and its franchises subject totbe obligation to pay the claim of t.helienor as established by the jUdgment. All this waS settled by this court in Hill v. ·RaU'f:oad 00., 11 Wis. 214, and the rules tbet'e established were not ab1'ogated · or8h8kenby the judgmpntin v. Hoffman, 61 Wis. 637,21 N. W. Rep. 816, and have not been disturbed by any other adjudication of this court."
Itthueappears that for more than a quarter of a. century the publio policy ofthe state has been to apply the lien laws to the property of quaBipubllc corporations, and that no consideration of publicconvenience has been permitted to defeat the security accordedtoilll who labor or:t'u'tnieb: materials for another's use in the cases comprehended within the'statqte. But it is said there is a line of distinguishment between as and those with 9f mUDlclpal cOllcern, that the latter class coipeswlthm the prine:iplfldeclared in Wilki7J,8on y. This claiIllis based upon two:'grounds-Jii"8t, beCause the former has;an estate inland, and not a 8econd,that in the one case the corporation is orits properti for ana exclusively devoted to the '4iid the pub}ichealth, while in other .die public and ,b,ushwss incidents. lcon<wive the first ground The ,deJ¢ndant here is in p0lflession of the premises Qpon which the pumping worksa'nd well ,ate sUooted, under contract fora' conveyance. That is an interest suffiarocker v·· Wis., 662. 1 In that regard the as any quasi publlC c6rporabon ownlllg property, ",hlch under some form ofJudicial procedure may be subjected to the payment of debts. It is, moreover, to be noticed that the statute provides that the lien granted "shall 'alab at;tatilt'&t<tMa:1ien upon the real property Of any person on whOse premiMs improvements aremade,such owner having knowledge thereof thereto." ap.p1?umping having 'been premises witlj"the and, the municipality;<it would seem that ,the interest of the, city of Oconto in the IBttdm.§.ght be' also chargeable with the lien. Heath v. Bolles, 73 Wis. 217;'4QN'. W. Rep. 804.. The'lien here,therefore, if it ,exist at all, as well the the equitable title, proper proceedings, b,l;Jng had to so charge' tlle property,and if the land, remaining the' property of the municipality ,but not held for public use, is subject ,to of. th:e statute,(see ..parlington v. Mayor, etc., 31 N. Y. 164;) questiQpR)otpresented by therebOrdhere.' '" With, r#lilpectto the second ground urged, I am not able to perceive the that is said toexi8t. It was urged upontne court, in an is of ipromoter dges notdeal the actual pubhc; that wIthout It, In the language of counsel, flourished, vast armies w,eree,quippedand moved, the arts ,reached,; their highest perfection" and the conditions ,Qfexistence were as toletabWr:ne}atively, then as now." This, view of the puhlic character ':of is altogether too narrow. " True it is tbat'the world has 'railway. "So, also, has, it done without aqueducts. " of events, llnd und,er the, conditiOns of lifeitn· posed tJIe mere colly.eniences oithe past havE
27 N. W. Rep. 826.
NATIONAL FOUNDRY & PIPE WORKS V. OCONTO WATER CO.
become necessities of the present. We must deal witb the present. The world will not be relegated to primitive conditions. Its motto is that of the state of Wisconsin, "Forward." The past has no charm to stay the advance of civilization. The railway is a public necessity. The railway corporation is charged with the undoubted duty of government, to provide and maintain highway8. It is one of the governmental agenciee of the state. It is clothed with the power to exercise the right of eminent domain. This delegation of an attribute of sovereignty can be sustained only upon the ground that such corporation is essentially pub'lic in its character. Upon like grounds is upheld the, authority of the legislature to regulate the rate of tolis and tariffs which may be demanded for the carriage of passengers and the transportation of freight. County Com'TS v.Tdmmey, 115 U. S. 122,128,5 Sup. Ct. Rep. 626, 1186. The railroad; is intimately connected with public needs and public necessities., Its relation to society cannot be better stated th\lD in the ll!-nguage of Mr. Justice PAINE in Whiting v. Railway Co., 25 Wis. 167,219, receiviEg thesauction of Mr. Chief Justice RYAN in Attorney General v. Railway Co., 35 Wis. 425, 581:
"Railroads are the great pUblic highways of the world, along which its gigantic currents of trade and travel continually pour,-:-higbways compi\red with which the most magnificent highways of antiquity dwindle into insignificance. T;hey are the most marvelous invention of modern times. They have done more, to develop the wealth and resources, to stimulate the industry, the labor, and promote the general comfort and prosperity of the country, than any other, and perhaps than aI) other, mere physical causes combined. There is probably not a man, woman. or cbild' whose interest or comfort has not been in some degree subserved by them. They bring to our doors the productions of the earth. They enable us to anticipate and protract the seasons. They enable the inhabitants of each clime to enjo)" the pleasures and luxuries of all. They scatter the productions of the press and of literature' broadcast through the country with amazing rapidity. There is scarcely a want,wish, or aspiration of the human heart which they do not in some measure help to gratify. They promote the pleasures of social life and of friendship. They bring the skilled physician swiftlyfrom a distance to attend the sick and the wounded, and enable the absent friend to be ent at the bedside of the dying. They have more than realized the fabulolls which pictured the genii as transport. c9nception of the eastern ing inhabited palaces through the air. They take a train of inhabited palaces from the Atlantic coast, and with marvelous swiftness deposit it on the shores that are washed by the Pacific seas. In war they transport the armies and suppli,(ls of the government.. with the greatest ce!rrity, and carry forward, the wings of the wind, relief and comfort to those who are as it were stretched bleeding and wounded on the field of battle."
If added strength C()uld be given to this v,ivid Characterization, I would venture the suggestion tha.t in a broader sense, and oo.a higher plane. the railway is intimately connected with the public welfare. It is a. potential factor in our nationallHe. It has, as I been a meansof moldingihto;indissolublenational union the and. .the peoples of this land, more effective than written compact or the devices of smtesmanship.It bas bound thelltates ina network of interlacing l;>a,.nds of iron and steel that would prove most diffi¢ult to b.esevered. It brings v.52F.no.1-4 .
itiiiO CGDstant and familiar intoocommunicatiQllthe peoples .of different natioiialities, .foreign toeach':other: and 4>118, that have sought homes here, fusing them withusintolsThomogeneous people, with .like interlike aims, and like destiniks. It has harmonized' the discordant 'interests of states widely separated, snd made them itaterdependent. The personal welfare of each"citiren has thus been Illade to ooincide with the maintenance of the Unioll,ItDd;so the: active and.powerful agency .of self-interest fortifies love' of to perpetuate nationality. ',QoUI1se'l has drawn a lurid pietuteof the effects of a water famine in gl'Mt'centersliketheoities of:wll'dQD, Paris, and New York, and therefremWO'tl'ld' deduce the conclusion'that water-supplying corporations are more intimately connected with the public wel'fare than, raHway companies, and :should 'therefore with the nexemptii)nof' municipal <lorporations. ,The picture is possibly not overnot, ,however; the cessation of railwayifil.cilitiesj cutting 'off the 'food of those cities,',be'equally distressing? The late siege of the city ,of Paris ,furnish'es fitting answer. Its investment, it is true, was aocompanied with less distress than was anciently the result of siege, but :because,llJ1d onlyi because, :tht,railway rendered possible theaccumulati.onofvast supplies supply Hab1e,to the act of God or 1>Y vast popnAAttions;'p.f ,4ependent railway for food supply as llpon,aqueducts,rQr water ,supply. supply,as .the water supplY',:muBtbe daily andcontinuous.Th& temporary inter'Tuptiort6f railway'truffieresults in,want and distress. Its permanent . for oOhsequence faminel sta rVl;l tion, and death. I cun perlsnot asapplic.f\ole to the one as 'to I ,searc.hthe legislatjp;nap,dcourse ofdeci$ion of the state of Wisconsin in, vain fo.r a a corporatiol1 organized for private gain, although,dealingwith:subjects essentially public, is not to besub'ject;ed to the"lien laws of Its property, privileges, and itan,chisesarEl liable to taxation, although :solely to the supply of ..pubHc 00. v· City oj Fond:r!,u Lac" BUpra. By from the ent()rced collection 'of ',hbnestdebts? The policy of tbestnte acoords with .tbehighest equity. I eoncurwiththe'suprelhe.court of Ohio in Coe v. Railr.ood Co., 10 Ohio St. 372, that "thEl'true policy of thastute requires that' just demands should "he met, and that the 9f whOtfl,they'exist should be applied for that purpose," and with JUdge PAnt1\: in lIill v. Railroad ;00., '8UJffia, ,the great' pUblic rinterest· in railroad andwRterworks, "sound public policy does not require them to be built , .'amy faster tbancitn, be dO'll'e consistElntly with justice and the preservation :of privaterignts."·'Failing legislative ;exemption of any qwt8i public not :dilip6sed' t.o'simction adoetrine ;that 'leads to in'eqfiality lil1dinjustice. ". ,I' ,. "8',1 It; isfnrtherurged that tbe stattite does notappl#, :for the reason ,·tblitdno vartofthe matetial furnished by the complainant was laid upon
NATIONAL FOUNDRY & PIPE WORKS". OCONTO WATER CO.
the land of which the defendant is in possession under its contract of purchase,and upon which the pumping works and well are situated. This piping was ll,ttached to the pumping works, and laid throughout the streets. The, plau.t is an entirety. The pumping works are so constructed as, in the language of the statute, "to have become part of the freehold upon which they are situated." The piping is merely an extension and continuation of the apparatus for the production and distribution of the water supply; is a part of it, and not separable from it without destroying the efficiency of the whole. In my judgment, it is so joined to the other parts that it must be deemed a part of the apparatus situated upon the premises of the defendant. The entire plant, with the interest oCthe defendant in the land, would pass under judicial sale upon foreclosure of the lien. '1'he lien granted by the statute is upon the machinery ,the plant, and upon the interest of the owner in the land. We need not now inquire how far the lien might be affected if that interest in the land sh()Uld be overborne by superior title. Possibly a remedy might be found in the statute of betterments. Rev. St. Wis. § 3096. It suffices here that foreclosure of the lien would pass title to the plant and to the interest of the owner in the land. The principle announced has authoritative support. In Omit. v. Gaslight Co., 12 Allen, 75, and in Gaslight 00. v. State, 6 Cold. 311, it was held that gas pipes laid in the streets of a city constituted part of the apparatus. In Manufacturing 00. v. Gleason,36 Conn. 86, a blowpipe, conveying air from a blower to a forge, was held part of the blower. In Derrick80n v. EdwardB, 29 N. J. Law, 469, a Hume 100 feet in length, for the conveyance of water from a pond to a wheel within a mill, was declared to be "as necessary and as fixed contrivance for making paper at that establishment as the water wheel and the breast shaft and the grinding engines are," and covered by a lien upon the mill. In Kenney v. Apgar, 93 N. Y.539, a lien upon a building and land was sustained for the expense of a sidewalk in the street adjoining the premises, although the' owner's title extended only to the sidewalk; the sidewalk being declared an appurtenant to the land, within the meaning of the act. In BeaUy v. Parker, 141 Mass. 523, 6 N. E. Rep. 754, a lien was asserted upon a house for a drain pipe connecting the house with a sewer in an adjoining street. The court remarked that it made no difference whether. the. owner of the house had any interest in the land through which the pipe was laid, except the mere right to lay the pipe therein. The drain pipe was necessary to the use of the house. and a part of it; hence the lien would lie. In Re Des Moines Water 00., 48 Iowa, 324, the land, .building, and water mains of the company were held to be real estate; and that the mains, although not laid upon the lot, were appurtenant to the main strueture, and would pass as an incident to the principaIthing. See, also; Capital Oity Ga8light 00. v. Oharter Oak In8. 00., 51 I()wa, 31, 50 N.W., Rep. 579. In Steger v. Refrigerator 00.. 89 Tenn. 453, 14S. W. :Rep. 1087, the defendant erected machinery cold on its. land, :to manufacture and,fuiI'llish vapor f<;>rcold
vapor was :n was held that the pipes, beiritVelSsentialto,the ente11>:tise,with thedicellse of easement would pass under a sale of the property as under which an entirety. A lien was allowed upon the lot and plant for material and labor furnished in respect of the pipes. ' In Badger' LU'IYI,berOJ. v. Mn?'ion Water Supply, etc., 00., 29 Pac. Rep. 476; on rehearing, 30 Pac. Rep. 117 ,-the supreme coui·t of Kansas adjudged a!mechanic's lien upon an electric power plant, and the premises upon which the plant was situated, for poles placed in the public streets, and upon which were stretched the wires connected with the electric light machinery. In Brooks v. Rauway Co., 101 U. 8.443, a lien for materials and labor upon one sectiollofarailway was extended over the entire road. This is an instructive case; :Thecompany was organized to build a railroad from Burlington, Iowa, to some point on the ,Missouri. river. From Burlington tdViele the company used the track ,of another company; from Viele to,Bloomfield the company built and paid forits own track; from Bloomfield to: Moulton the'coinpanyusedtme track of another company';and \from Moulton; Iowa, to Unionville; Mo. ,it built its own road., The i1iaterials and labor for whiah a lien was ,claimed were" nishedand, lobe upon'1:his latter piece of road. It was urged in resistance of the daim that the road was built in sections, and that there, was such aseparatiQn iri'space and time that they could not be considered as 'one improvement. The lien was, however, declared upon the road, right' of way, stations, etc., oithe companY', from Viele junction to the south sta:tElline of Iowa; the ;courtasserting, that "the intersection of fourteen nliles of another roan between Bloomfield and, Moulton does not destroy the identity of th-e improvement,'nor convert' it into two " railroads." , The supreme court Wisconsin, in considering the statute in question, has' adopted a like liberalconstruction of the law, with a view, to securing the benefit ofa lien to thosElwhose rights were sought to be protected. The statute accords a lien to one who t'urnisheslabor or materials in or about the construction of the bliJi11\:iing or machinery, "constructed so as to become part of the freehold .upon which it is to ,be situated." Notwithstandillg this language, that court, in Sp?'Uhen v. Stout, 52 Wis. 517, 524,'9 N. W.Rep. 277, allowed a lien for a draft tube, procured and designed to be attached or permanently annexed to the mill, but which, in fact, had not been attached, The effect of this decision is that, if the principal structure be a part of 'the freehold, there exists a lien thereon for parto furI1ished with the intent to be affixed, but not in fact attached. With greater reason should a lien be allowed upon the principal structure for piping attached'andcohstitl1ting an essential and indispensable part of rthe ofEu!a'l.daWater'Co. v. Addyston Piper!c Steel Co., 89 Ala. 552,8 South. Rep. 25, stands, opposed to the cases cited, andtoth'e,noldi'ng'here. It'is otilY'necessaryto observe, with respect to that case, ihat,:.as I think, it gives bilt narrow interpretation to the statute, and evidences adherence to the strictest letter of the