Page:North Dakota Reports (vol. 2).pdf/278

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252
NORTH DAKOTA REPORTS.

Co., 44 Iowa 71; Dubois v. Wilson, 21 Mo. 213; Insurance Co. v. Pringle, 2 Serg. & R. 138; Gordon v. Torrey, 15 N. J. Eq. 112; Meyer v. Construction Co., 100 U. S. 457; Davis v. Bilsland, 18 Wall. 659; Parrish & Hazzard’s Appeal, 83 Pa: St. 111; Insurance Co. v. Paulison, 28 N. J. Eq. 304. In some states, also, the mechanic’s lien attaches to the particular structure or improvement for which the labor or materials were furnished, in preference to a mortgage on the land executed prior to the commencement of such structure or improvement. See Brooks v. Railway Co., 101 U. S. 443, and cases there cited. But this is only true where such structure or improvement is of such a nature and so built that it can be sold separately, and severed, and removed without injury to the realty, as it existed prior to the building of such structure or improvement. Getchell v. Allen, 34 Iowa 559; Insurance Co. v. Slye, 45 Iowa 613. It has also been repeatedly held that, when a building was once finished, the lien for labor or material subsequently furnished for additions, enlargements, or alterations thereto did not attach from the commencement of the original building, but only from the commencement of such additions, enlargements, or alterations. See Phil. Mech. Liens, § 220, and cases cited. The cases where the subsequent labor or materials, for which a lien superior to the intervening mortgage is claimed, were furnished and used in the construction of the building before its completion, but for purposes not contemplated in the original plans, or when the mortgage was executed, are less numerous. Phillips on Mechanic’s Liens thus states the principle: “The criterion would seem to be that everything done before the building is finished, according to the original plan or design, whether agreeably to that plan or not, may be made the subject of a lien, which will relate back to the period when the building was commenced, to the exclusion of intervening incumbrances. * * * So long as any part of a building is incomplete the whole is so, and may be moulded into any shape to suit the wishes of the owner, without excluding the alterations so made from the benefit of the lien law.” § 220.

Norris’ Appeal, 30 Pa. St. 122, is an instructive case, and discusses many of the principles that ought to govern this case.