In my judgment, the majority has lost sight of the common law, which is the rule of decision in this state, and has legislated into the statute something which the legislature might have written in, but utterly failed so to do.
At common law, unless a contrary intention is clearly manifest, a building or other structure, as erected stick by stick and stone by stone, becomes a part of the real estate upon which it is situate. In those instances only where a contrary intent is clearly manifest, does the building remain personal property, a separate entity and removable. *Page 667
The legislature might have provided by apt language that no building should become a part of the real estate until the expiration of the lien period, and not then if liens were filed, but it utterly failed to do so, or to use any language indicating an intent to do so. A statute purporting to change the common law must clearly express its intended purpose so to do under a strict construction. Here, in Rem. Rev. Stat., § 1146, quoted by the majority, is no single word or sentence purporting to change the common law rule. On the contrary, when read in connection with the common law rule, its meaning is plain and unambiguous, and wholly in harmony with that rule. To one having the common law rule in mind, the statute clearly means, and can mean, nothing else than that, in those cases where, under the common law, a building does not become a part of the realty, the court may order its sale and removal.
This is the theory permeating the decision in the case ofColby Dickinson v. Baker, 145 Wash. 584, 261 P. 101, and, as I read our other cases cited by the majority, no one of them denies that theory or asserts anything contrary to it. But each of those cases is an attempt to recognize the common law rule applicable to a structure intentionally kept separate from the real estate. I cannot take the time nor space to discuss these cases in detail as I would like, but certainly none says that the common law rule has been abrogated by § 1146 of the statute. Jones on Liens, as quoted by the majority, clearly applies to those statutes which abrogate the common law rule, and by no stretch of the imagination can our statute be so denominated.
The rule the majority now lays down will, I fear, lead to much injustice. The owner of real estate, without even notice that material has been furnished *Page 668 or any structure erected, or without knowledge that his tenant has made repairs, will find a lien upon a structure which belongs to him, which, in practical effect, will be just as serious and burdensome as though the lien were upon the real estate itself.
I therefore dissent.