Appeal of Dickey

Mr. Justice Sterrett

delivered the opinion of the court, January 3d, 1887»

Appellants are not in a position to question the correctness of the learned auditor’s findings of fact, or to claim the existence of facts which they allege the testimony would have warranted him in finding, for the reason that they have not excepted to his report on either of these grounds. It is not our province to examine the .testimony in search of facts, if any there be, which should have been found by him and incorporated in his report. The burden is therefore on them to show that, upon the facts set forth in the Auditor’s.report, there is manifest error in the decree. This they have failed to do.

After describing the premises against which the mechanics’ liens were filed, the improvements thereon, and the relation that each of these sustains to the others, as essential parts of the plant operated by “ The Sieman’s-Anderson Steel Company,” the Auditor finds that,-in July, 1881, the corporation “ in contemplation of a second train of rolls and increased capacity, and not having sufficient power, determined to put in four new boilers, which, with the four old ones, made a battery of eight boilers. This was done by changing the position of the old boilers from parallel with the “ Rod Mill,” and placing all the boilers at right angles thereto; the boiler-room and masonry being changed to conform tp this new arrangement of *76the boilers. The boilers were then used to generate steam to run the whole works.”

“ In September, 1881, ‘ Open-Hearth Furnace, No. 2,’and building covering it, a portion of roof of ‘ Open-Hearth Furnace, No. 1,’ and part of the roof of the ‘ Rod Mill,’ were destroyed by fire. The corporation commenced immediately to rebuild the parts destroyed by fire, and to make other alterations, repairs and additions, which are mentioned and described in the mechanics’ liens filed therefor.”

“After the fire the ‘New Hose-carriage House’ and a new ‘ Electric Engine House ’ were built, and a portion of building Mused for ‘Open-hearth Furnace, No. 2,’ was rebuilt.” The changes and alterations undertaken with the view of increasing the capacity and power of the mill, and the repairs rendered necessary by the' fire,' appear to have been both in progress after the fire. The items in claims filed, which were charged before the fire amounted, as found by the Auditor, to $7,110.26, and those charged after the fire to $13,581.43, making in all $20,691.69, the aggregate of mechanics’ liens filed. The dates of all the items in the respective claims are between July 1st, 1881, and January 10th, 1882.

It thus appears that prior to the fire extensive alterations and repairs were made for the purpose of> increasing the capacity of the mill, and after the fire “other alterations, repairs and additions mentioned and described in the mechanics’ liens filed therefor,” were made.

After stating what the “ Wire Mill,” “ Open-hearth Furnace ” and “ Universal Mill ” consisted of, etc., the Auditor, in view of what had been done in the way of alterations and repairs to several parts of the plant, came to the conclusion “that there was no such change in the general appearance of the buildings as they were before the fire, as would authorize a lien for a new construction or erection ” ; but he found that the alterations, additions and repairs, made to the building and motive power, were such as to render new machinery and alterations in old machinery necessary, and as a whole entitle most of the mechanics’ lien claimants to participate in the fund.

In that connection he also came to the conclusion “that it would 'be sticking in the bark to say that a battery of boilers, embedded in brick, stone and mortar, a furnace-chimney or stack forty-eight feet high, built on firm foundation and extending up through the roof, the engines, cranes, wire mills, furnaces, trains and other fixtures firmly attached, and all part of the realty, and all together constituting one plant, are no part of the building, the word ‘ building ’ meaning only the iron-clad frames and sheds which cover the plant.” In this we *77fully concur with the Auditor; and also think he was correct in holding that the alterations, additions and repairs which were made were such as entitled the parties who furnished materials and labor therefor to a lien.

In accordance with his previous conclusions, the Auditor proceeded to consider separately each of the mechanic’s claims. Only three of these are involved in this contention.

As to the claim of W. H. Riddle, he finds it is “ for cast-iron floor plates which were used for making floors in said plant,” amounting to $764.65 with interest from January 17th, 1882.

He further finds that the claim of A. Fulton’s Son & Co. is for “ pipes, gas fixtures, valves, brass steam and gas fittings, and other machinery and materials, and work done on the same, the greater part of which, $1,295.24, was for new machinery, rendered necessary by change in the plant; $5.50 for repairs, and $200.83 for alterations.

He also finds the claim of Robinson, Rea & Co. is a joint and several apportioned one for materials furnished to “Wire Mill’’from July 18th to December 28th, 1881, $1,556.20; to “ Open-hearth Furnace,” from August 13th to December 31st, 1881, $696.67; to “ Universal Mill,” from July 2d, 1881 to January 3d, 1882, $4,971.78. He further finds that these materials consisted of brass fittings, shafting, furnace plates, damper and frames for furnace stack, rollers, plates and other articles furnished respectively to the wire mill, and other parts of the plant, and for work and labor in putting them in their proper places.

While the learned Auditor is perhaps not as explicit as he might have been, we understand him to mean that the materials furnished and work done by each of the respective lien claimants above mentioned, were done and furnished in and' about the alterations, additions and repairs mentioned in previous part.of his report, and for which he concluded, as we think rightly, that the respective claimants were entitled to a lien.

There is no merit in the objection to the phraseology of Robinson, Rees & Co.’s lien. The words “erection and construction” do not vitiate the lien. They may well be treated as surplusage. Utile per inutile non vitiatur.

As already intimated all the essential conclusions of the learned Auditor appear to be correct, and hence there is no error in the decree. ■

Decree affirmed and appeal dismissed at the costs of appellants.