Opinion
05-21-1895
HUGHES v. LAMBERTVILLE ELECTRIC LIGHT, HEAT & POWER CO.
James Buchanan, for receiver. D. Stuart Robinson, for Mary S. Jacobs. Chas. A. Skillman, for Zeigler's Adm'r. H. A. Pluck, for the Southern Electrical Company.
(Syllabus by the Court)
Bill by Elias C. Hughes against the Lambertville Electric Light, Heat & Power Company for a receiver. On applications by one Zeigler and one Morrison for prior payment of their respective claims out of the assets of the company.
James Buchanan, for receiver.
D. Stuart Robinson, for Mary S. Jacobs.
Chas. A. Skillman, for Zeigler's Adm'r.
H. A. Pluck, for the Southern Electrical Company.
BIRD, V. C. The defendant is an insolvent corporation. It was organized for the purpose of constructing an electric light and power plant. It constructed a building suit able for the purpose, and placed therein all of the machinery and appliances necessary for completely transmitting light and power throughout the city of Lambertville. It erected poles at suitable distances on the sides of several streets. It strung wires from the building, after securely attaching them to the necessary apparatus upon said poles, and from said wires and poles the Southern Electric Company strung wires to and into a large number of houses, for the purpose of transmitting light into said houses. After the work was completed in accordance with the intention, it was put in operation, and light was thereby communicated to the dwellings, stores, and other business places. Soon after the practicability of the undertaking was demonstrated, the company was obliged to confess its insolvency, and in winding up its affaire the receiver has been presented with a claim in the name of the Southern Electric Company. This claim, with all its other assets, was assigned by the latter company, in 1893, for the benefit of its creditors. While its assets were still in the hands of the assignee, and in process of administration, one Zeigler, a resident of New Jersey and creditor of the Southern Electric Company, issued an attachment against it, and levied upon the credit of said company in the hands of the defendant, the Lambertville Light & Power Company. As this attachment was issued and levied in January of 1894, in March following the assignee sold and assigned the claim of the Southern Electric Company to one Morrison, who now claims to be entitled to such dividends as the Southern Electric Company would be entitled to if it had made no assignment, and consequently disputes the claim of Zeigler under his attachment. That the claim of Zeigler must be satisfied out of any credit to which the Southern Electric Company would be otherwise entitled is so clear that discussion is unnecessary. See Moore v. Bonnell, 31 N. J. Law, 98. But Morrison insists that he is entitled to the benefit of the mechanic's lien law, and therefore entitled to be preferred as to the proceeds of the sale of the plant. This claim to a lien arises from the fact that the Southern Electric Company supplied the wires and insulators and did the work or labor of connecting the said wires with the poles and wires erected upon and along the streets with the dwelling houses, stores, and other places of business, and that because of such connection they became part of the plant. This claim to the benefit of the lien law should be supported. The fifth section of the mechanic's lien law (Revision, p. 609) provides that "any fixed machinery or gearing or other fixtures for manufacturing purposes, shall be considered a building for the purpose of this act." The phrase, "or other fixtures for manufacturing purposes," is as comprehensive as the language will admit of. Certainly whatever appliances may be used for the accomplishment of a givenpurpose, through the use of fixtures, in a manufacturing establishment, may fairly be considered a "building," within this act. Whatever is so attached to the freehold as to be denominated a "fixture," and is essential to the successful operation of the plant, will pass with the freehold. Without the connection to the dwellings, stores, and other public places by means of the wires, as above stated, the plant could not be operated according to the design. Such connection is absolutely essential. These wires connect with the main wires, which were strung upon the poles along the streets, which last-named wires were all connected with the building or plant in which the electricity is generated. It is very well settled that where a thing is annexed to the freehold by the owner with the intention of making it a part thereof, and it is essential to the enjoyment of the freehold, it will be regarded as a fixture. Blancke v. Rogers, 26 N. J. Eq. 566; Potts v. Ordnance Co., 17 N. J. Eq. 306; Crane v. Brigham, 11 N. J. Eq. 29; McMillan v. Paper Co., 29 N. J. Eq. 610; Watson v. Manufacturing Co., 30 N. J. Eq. 484. In Van Keuren v. Railroad Co., 38 N. J. Law, 165, it was held that a railroad track, consisting of ties to which were fixed the iron rails, constructed for the purposes above indicated, was a fixture, and passed with the title to the land. In Philbrick v. Ewing, 97 Mass. 133, it was held that a water pipe attached to a main pipe in the street, and running across the land of a third person into a dwelling house upon the side of the street, for the purpose of carrying water into such dwelling, was a fixture, and passed with a conveyance of the lot. In Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 48 Kan. 182, 29 Pac. 476, it was held that poles placed in the street, upon which wires were strung, which wires were connected with an electric light and power plant, were within the Kansas statute, which secured a lien upon buildings and the appurtenances to laborers and material men. In Beatty v. Parker, 141 Mass. 523, 6 N. E. 754, it was held that "a pipe connecting a house with a sewer built in the street, necessary to the use of the house, and included in the contract for building it, is a part of the house, and it is immaterial whether it is inside or outside of the walls of the house, under or above ground, whether extended one foot or thirty feet, or whether the fee of the land in the street was or was not in the owner of the lot on which the house was built." A petition to enforce a mechanic's lien for the land in placing said pipe was sustained. In Steger v. Refrigerating Co. (Tenn.) 14 S. W. 1087, it was decided that "a mechanic's lien for material furnished in laying pipes for a refrigerating company, which supplies vapor for 'cold storage' to customers at a distance, through pipes in the ground, extends to the whole plant as an entirety, and may be enforced against the ground upon which the manufactory is located, although the pipes are laid on the land of strangers." The fact that these poles which support the wires along the streets stand upon land, the title to which may be in others, and that the wires which connect the main wires with the several dwellings, stores, and other public places pass into and are fixed to the dwellings and stores and public buildings of persons who were strangers to the company, except as they gave their consent to such erection and the making of such connections, does not alter the rights of lien claimants. The effort is not made to enforce the lien against the land upon which the poles are erected, nor against the dwellings, stores, or other places into which the connected wires are extended, but only against the plant itself and land whereon it stands. It is this which the lien law makes liable for materials and labor, and not the thing which becomes a fixture. For I apprehend that whether things furnished for a structure, whether a dwelling or manufactory, whether such thing be brick, lumber, or machinery, a lien will lie, whether the thing be actually placed in the building or not The two cases last above cited show that it makes no difference in whom the owner of the fee may be, upon whose land or in whose dwelling the poles may be set, or the wires extended.