This is a suit to enforce a lien. Defendant bargained for land upon which to erect a dam and a mill. He contrived to have the foundation for the mill serve as a section of the dam. Before the foundation was entirely completed defendant failed, and no mill was built. Plaintiff furnished labor and materials for the foundation and now asks a lien for the same on the foundation and land upon which it stands.
*21It is objected by the owner of the land that the lien does not attach, because, as he contends, no superstructure had been built, the statute giving a lien only upon a building and the land upon which it stands; and that the existence of a building, a superstructure, is necessary before any lien can attach; it then attaching both to the building and the land, that is to the whole property.
We think the point untenable. The reason for the statute applies just as strongly to a building partially completed as to one wholly so. Otherwise very many contractors and laborers might be wronged out of their wages by designing or improvident builders and owners. The fallacy of the defendant’s argument consists in his assumption that the foundation walls of a structure are not a part of the structure itself. It is too fine a distinction to attempt to draw a line, in the meaning of the statute, between substructure and superstructure. It is all superstructure. The foundation walls of a building, though lowered into the earth, are just as much a part of the building as its upper story or roof is, and even a more essential part. Is the mason to lose his lien and the carpenter to secure his on the same unfinished building ? Or shall both mason and carpenter lose their lien when without fault on their part the building has not been completed? Such has not heretofore been the interpretation of the statute.
We have no doubt that the owner of the land must be consid- ■ ered as assenting to the purchasing of materials and the hiring of labor for the purpose of erecting the contemplated mill, inasmuch as the contract of sale of the land between him and the principal defendant (Waldron), who hired the plaintiff’s services, made it a condition of the sale that Waldron should erect just such a mill as he was undertaking to construct when by reason of his failure the work of construction became suspended.
The above views are, we think, a full answer to the criticism that one section of the dam at the same time is made to serve, pro tanto, as one of the walls of the mill.
It is urged that the attachment on the writ is void because it is an attachment against the land as real estate instead of against the
*22materials on the land- as personal property. But the owner’s consent that the mill might be erected on his land is a consent that a lien for materials and services procured for erecting the same may be established on his land. He is estopped from denying defendant's ownership. His consent is equivalent to defendant’s ownership. The lien, as said by Emery, J., in Shaw v. Young, 87 Maine, 275, “ attaches to the res, the fee.” That being so, the res, or fee, or land must be attached as real estate in order to execute the lien. And to this effect áre other decisions. Dustin v. Crosby, 75 Maine, 75; Skillin v. Moore, 79 Maine, 554.
But it is contended that the earlier cases' are overturned by an alteration of -the statutes in 1891. Chapter 21, Laws of 1891, merely adds a new subject of lien to such rights of lien as already existed, and that is for labor and materials in moving á building as well as in erecting.it. The alteration discloses nothing more.
Great stress is put on the clause in the statute that a claimant shall have a lien “ on any interest that' such owner has in the same,” as repugnant to the idea of'an attachment of realty; the clause with its context reading as follows: “ Whoever performs labor in erecting a house or building, by virtue of a contract with or by consent of the owner, has a lien thereon, and on the land on which it stands; and on any interest that such owner of the land has in the same.” The words “the same” refer to the house or building and not to the land, to meet' a case where the owner of the land also owns some interest in the building, a clause that appears a little blind for the reason that it is difficult to see any utility in it.'
Judgment against defendant, and property attached.