required by the statute, disclaim any such relation, the mechanic or material man may take steps to secure himself. If, however, the owner remains silent, it is to be presumed that the indebtedness was properly located, so that such owner will afterward be estopped to deny the authority of the supposed agent.

We have examined with some care the case of Heald v. Hodder, 32 Pac. Rep. (Wash.) 728, wherein the decision of the court in Warren v. Quade is examined and reaffirmed; and, with great respect for that court, the reasons assigned seem to us wholly insufficient to maintain the rule. The court admits "that there are some cases which hold that if the lien notice contains the allegations specially required by the statute to be set out therein, it is prima facie valid." The learned judge, however, proceeds to say that "such decisions do not so well harmonize with our views as those which hold that there must be sufficient facts set out in the lien notice to prima facie show that a lien can be enforced." If the court, by the use of this language, means to hold that setting out in his notice everything that the statute requires does not constitute even a prima facie claim in favor of the mechanic or material man, we think the decision stands alone, and unsupported by any authority, for, aside from the fact that the statute makes "every contractor, subcontractor, architect, builder or other person having charge of the construction the agent of

*

the owner for the purposes of this act" (Comp. Laws, sec. 1520), such contractual relations, without the aid of the statute, would invest the contractor or builder with the authority to bind the property of the owner. It is not pretended that mere possession of the premises would authorize a mere tenant to create the lien. The tenant may be in possession for no other purpose than to take care of the premises. Baxter v. Hutchings, 49 Ill. 116; Proctor v. Tows, 115 Ill. 138, 3 N. E. Rep.

569. But even in cases of this character, where the tenant has no authority to, improve, if the owner have knowledge of the fact, and allow the tenant to create the lien, he is estopped. Higgins v. Ferguson, 14 Ill. 269; Donaldson v. Holmes, 23 Ill. 85. But a contractor having charge of the erection or repair of a building or structure is the agent of the owner for all the purposes incident to such work, and, among others, that of procuring material and employing labor, and incident to this is the authority to create the lien. Parker v. Bell, 7 Gray, 431; Neeley v. Searight, 15 N. E. Rep. (Ind. Sup.) 598; Weeks v. Walcott, 15 Gray, 54; Clark v. Kingsley, 8 Allen, 543; Phil. Mech. Liens, 52-65. "If he [the owner] has authorized the employment of the laborer, the lien attaches by operation of law, unless he takes the necessary measures to prevent it." Clark v. Kingsley, 8 Allen, 545. The fact appearing that the materials were furnished, or the work done, with the knowledge of the owner, the law creates the agency. Pomeroy v. Timber Co., 49 N. W. Rep. (Neb.) 1131. In short, so closely interwoven are the relations existing between the contractor and the owner that it has been held that a notice to the owner that the material man held a lien by virtue of a contract made with him (the owner) is satisfied by proof that the materials were furnished under a contract with the contractor. Newhouse v. Morgan, 26 N. E. Rep. (Ind. Sup.) 158, citing Neeley v. Searight, 113 Ind. 316, 15 N. E. Rep. 598. In the case of Lumber Co. v. Gottschalk, 22 Pac. Rep. 862, the supreme court of California, construing a statute identical with. ours, say: "There is nothing in this section, or any other, that requires the material man to state in his claim of lien what relation the person to whom he furnished the material bore to the owner,-whether contractor or agent. Nor does the burden of determining whether any contract made, or attempted to be made,

between the owner and contractor was valid or not, rest on him, when he comes to file his lien. He must state the facts required by the statute." In view of the almost unbroken chain of authorities, and in view of the plain provision of our statute that makes the contractor or person in charge of the improvement the agent of the owner for the purposes of the lien, and of the further fact that a mere stranger can create the lien, if the owner have knowledge of the work, and fails within three days to disavow his responsibility, it is difficult to appreciate the reasoning by which it is sought to interpolate the additional requirement (confessedly not within the letter of the statute) that the mechanic or material man shall, in addition to what the law requires, advise the owner whether the party in charge of the building or structure is his (the owner's) agent, or a mere stranger. The name being given, as required by the statute, who but the owner is. in a position to know whether or not he has given such person authority to bind him? It is proper to observe, in this connection, that one of the demurrants, Miles, was himself the party in charge of the work, and the party with whom the contract was made, and who also had some personal interest in the improvements; and yet he says that the claimants have no right of action against him, because, forsooth, he is not advised by complainants' notice whether or not he was authorized to purchase the materials or contract for the work.

It is contended by the solicitor for the appellees that, in addition to the foregoing, there is another objection to the validity of the proceeding on the part of the Mountain Electric Company and Smith & Prieston, which is this: The bill shows that realty: to what defendant Miles contracted with complaindemurrer. ant company for a dynamo and fixtures, and with complainants Smith & Prieston to put the same in place, and that defendant Perfecto Armijo

IMPROVEMENTS:

lien attaches:

became the owner of the dynamo, and that the other defendants, excepting Miles, were the owners of the real estate; that it does not, therefore, appear that the dynamo became a part of the realty, but the contrary. The statute does not require, as a condition upon which the lien on the reality is made to depend, that the improvements should become a part thereof. The lien attaches to the "structure," and to the land upon which it is "constructed." Section 1520 provides that "every person furnishing materials to be used

*

*

in the construction *** of any mining claim or other structure has a lien on the same," and section 1522 declares that "the land upon which * any structure is constructed * * is also subjected to the lien." The cases of Schettler v. Vendome, etc., Bath Co., 27 Pac. Rep. 76, and Kellogg v. Manufacturing Co., 25 Pac. Rep. 461, fail to support the defendants' contention that the structure must become a part of the realty, or a fixture, before the lien can attach to the land. In the latter case, it was held that the description of the land sought to be charged with the lien was fatally vague and uncertain, and that under the statute of that state (Washington) no lien could be maintained upon the building, as such, apart from any interest in the land upon which it is situated. The lien could not be enforced against the building, because it could not be separated from the realty, of which it was a part; and no lien could be enforced against the land, because it was not sufficiently described. In the Vendome case, it was shown that the work (repairing, moving, and refitting various steam and soil pipes connected with a bathing establishment) did not go toward the improvement of the building, in any way, but "were all independent of the building," and that under the statutes of that state no lien could be created on personal property; that, therefore, no lien of any character was created. The objection in

Mr.

the case at bar proceeds upon the assumption that the dynamo was a mere "trade fixture," and did not become a part of the realty, and that, therefore, its erection on the lot in question did not create a lien on said lot. What constitutes a fixture has given rise to much discussion. Mr. Ewell, in his work on Fixtures, gives us three tests: (1) Real or constructive annexation of the article in question to the realty; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make it permanent. Ewell, Fixt., p. 21. Accordingly, it has been held that a furnace is a fixture. Bank v. Bonacum, 51 N. W. Rep. (Neb.) 233. Whatever, as between vendor and vendee, passes by deed of the premises, without special enumeration, is a fixture. Watts-Campbell Co. v. Yuengling, 25 N. E. Rep. (N. Y. App.) 1060. Ewell lays it down as the clear tendency of modern authority to give preeminence to the question of intention. Ewell, Fixt., p. 22, and authorities cited. Tested by this rule, it is difficult to determine, on demurrer, whether the dynamo was or not to be regarded as a fixture. The bill states that the structure (electrical apparatus) was put into the building under a contract with Miles, who had some interest in the building; that the alleged and reputed owner of the said electrical dynamo and apparatus is defendant Perfecto Armijo; "and your petitioners further represent that, if said Perfecto Armijo has any interest in said plant, it is subject to, and was acquired after, the lien hereinafter claimed attached." It is further charged that the improvement consisted of putting in place and equipping the dynamo, by connecting it with the other apparatus by means of wire attached to wall and ceiling; that said work constituted a part of a valuable improvement on the premises, etc. These statements in the bill bring the claimant clearly within the rule enti