Stevens v. Burnham

87 N.W. 546, 62 Neb. 672, 1901 Neb. LEXIS 276

• Court: Nebraska Supreme Court
• Decided: October 16, 1901
• Docket: No. 10,206
• Status: Published

Opinion

Sullivan, J.

There has been in this court no attempt to defend the judgment appealed from, and it seems to us to be indefensible. The action was brought to foreclose a mechanic’s lien upon a quarter section of land in Ouster county. The asserted right to a lien is based upon a sale of lumber which was used in the construction of a barn. The lumber was bought and the bam built by Horace A. Burnham in 1893 while he was living upon and farming the land. The appellants, S. H. Burnham and S.' W. Burnham, contend that they are the legal and equitable owners of the farm and deny that they gave any authority for the purchase of the lumber or the erection of the barn. The evidence fully sustained this contention and the trial court, therefore, refused to give the plaintiffs a lien on the land. It did, however, give them a lien on the barn on the theory, we suppose, that it was a removable fixture. There are two reasons why the decree can not stand. In the first place there is not a particle of evidence tending to prove that the barn was not permanently' annexed to the soil, or that it was intended to be a mere agricultural fixture. But even if it were a removable structure, the right to remove it did not survive the tenancy of Horace A. Burnham. The right to sever and remove perished when the tenancy expired. Such is the import of our decisions. Friedlander v. Ryder, 30 Nebr., 783; Free v. Stuart, 39 Nebr., 220; Fuller v. Brownell, 48 Nebr., 145.

The judgment is reversed and the action dismissed.

Reversed and dismissed.