Dissenting Opinion.
Eobt, J.Section one of an act approved March 6, 1883 (Acts 1883, p. 140), as amended in 1889 and 1899 (Acts 1899, p. 569, §7255 Burns 1901) provides: “That contractors * * * and all persons performing labor or furnishing material or machinery for the erection, altering, repairing or removing any house * * * may have a lien * * * upon the house * * * or other building * * * or other structure * * * which they may have erected * * * or for which they may have furnished material or machinery of any description.” Section twelve of said act as amended in 1885 (Acts 1885, p. 236), and again in 1889 (Acts 1889, p. 259, §4, §7265 Burns 1901), provides: “All persons who shall perform work or labor in the way of grading, building embankments, making excavations for the track, building bridges, trestlework, works of masonry, fencing or any other structure, or who shall perform work of any kind in the construction or repair of any railroad, or part thereof, in this State; and all persons who shall furnish any material for any such bridge, trestlework, work of masonry, fence or other structure, or who shall furnish any material for use in the construction or repair of any rail*324road, or part thereof, in this State, * * * may have a lien,” etc. The section was originally in part as follows: “All persons, who by contract with any railroad corporation whose road is not in operation over the whole line thereof, or by contract with the lessee of such corporation, shall perform labor or furnish material for any such corporation, or the lessee thereof, in the way of grading, building embankments, or making excavations for the track of any such railroad corporation, or who shall build or repair bridges or trestlework for any such railroad corporation, or the lessee thereof, shall have a lien,” etc.
The amendment extended the right to acquire a lien to classes of persons not within the provision of the original act, and also extended it so far as the use made of the materials furnished is concerned, from those furnished “for” such corporation in the way of grading or building, etc., to material furnished: (1) “For” any bridge, trestle-work, work of masonry, fence or other structure; and (2) to materials furnished “for use in the construction” or repair of any railroad or part thereof. The distinction between materials furnished for a building and materials furnished for use in the construction of a building is perfectly plain, and the right to a lien for materials, given by the act of 1889 (§7265, supra), is not therefore restricted to the materials which enter into and become a permanent part of the structure,, no matter what construction in that behalf might have been given section twelve of the original act, or to §7255, supra, as it”now stands. Neither is it necessary or competent in this case to “draw the line” as to the character of materials for the value of which a lien may be acquired against a railroad. The legislature has drawn the line in clear and explicit terms, and the only question presented is whether the facts in the case bring it within the statute.
The question for decision, therefore, is whether a person who furnishes coal to be used as fuel to generate steam for *325the operation of a steam shovel, such shovel being employed by a contractor in excavating and removing earth necessary to the construction of a railroad, said coal being in fact so used, may obtain a lien for the value thereof, under the provisions of §7265, supra. It is not necessary to discuss the question whether the statute should be strictly construed against the claimant, or liberally in his favor. If the facts relied upon come within its plain provisions, then the right to a lien is established, irrespective of the question suggested.
Coal is material. Had a laborer with pick and shovel excavated earth in the course of the construction of appellant’s railroad there could be no doubt but that he would be entitled to a lien under the statute. Coal furnished and used for the creation of energy directed to the same end and accomplishing the same purpose comes equally within the reason of the law. It comes also within the very letter of the law, since it is as truly used in the construction of the railroad as the labor in the case supposed could have been. It follows, by the plain, explicit and unambiguous terms of the statute, that a right to a lien for material thus furnished and used is given. Any other conclusion would be in the face of the established and enlightened policy expressed in the act, and consistently pursued by the amendments from time to time made as above set out. The theory upon which the statute is evidently based is that the value of the property upon which the lien may be acquired has been enhanced in value by the work done or material furnished.
It is contended that the coal furnished by appellees and used and consumed as aforesaid, did not enter into and become a part of the appellant’s railroad. If it is meant that there can be no lien for material unless such material remains in its original form or is visible to the naked eye after it is used, then a very sufficient answer is that the statute does not thus limit the right, but, on the contrary, confers it generally by broad and comprehensive terms. Erom *326the very nature of things it must frequently be the fact that material used in construction assumes new forms and becomes indistinguishable among the mass of other material with which it is blended, or in the blending of which it is consumed. It must also frequently occur that substantial portions of such material are destroyed and cast aside, never, in fact, being bodily annexed to the structure. But it can no more be said that the coal used to generate a force to excavate a cellar or railway cut, the force generated being directly applied to that purpose, does not enter into, and become a part of the structure, than it could be truthfully said that the labor of an artisan does not enter into and become a part of the edifice formed by his skilful hand.
Neither will it do to say that the contractor might have a lien for the value of labor performed by him, including therein the cost of coal used in operating the shovel. That he might have a lien under certain conditions for both the labor and the material used in constructing the railroad is no doubt true, but the conversion of coal into labor by a failure to make a bill of particulars definite and specific is a very doubtful bit of alchemy. No question, however, is involved in this case as to the right of the contractor. The lien is claimed by one who furnished material used by the contractor in the construction of a railroad. His right to such lien is equal and exactly parallel to that of a laborer employed by the contractor who claims a lien for labor done.
In Ferguson v. Despo (1891), 8 Ind. App. 523, it was held that those furnishing board, groceries, tobacco and money to the employes of subcontractors could not acquire a lien therefor under the act of 1889, since such articles did not enter into the construction of the work. The analogy between the facts therein involved and those under consideration is of the most superficial possible sort. If the manufacturer of the steam shovel, or one who had at *327sometime furnished material used in its construction or repair,, was seeking to acquire a lien therefor on the railroad, the case cited would be entitled to consideration in connection with the question presented, but it is not in point here.
Neither is it necessary to discuss and review decisions rendered by courts of other states upon other facts different from those involved.
This court in Haskell v. Gallagher (1898), 20 Ind. App. 224, 67 Am. St. 250, decided the exact question here presented. Unless that case is overruled it is decisive of this one. In a proceeding to foreclose a mechanic’s lien a cross-complaint was filed, in which it was averred that the contractor purchased from the cross-complainant natural gas which he used as fuel with which to furnish steam to run the engine used in the drilling of an oil-well, the value thereof being $125. It was contended by the learned attorneys for the appellant in that case, as shown by their brief filed therein, that the engine could not labor without fuel, that the human mechanic could not labor without food, and that under Ferguson v. Despo, supra, no lien could be acquired. It was further contended that the rule of liberal construction applies to the enforcement of the right and not to its acquirement, and numerous authorities were cited in support of such propositions, a number of which are relied upon in the case at bar. It was also argued that an oil-well was not a structure within the-meaning of §7255 Bums 1894, Acts 1889, p. 259, §4. Affirmance of the judgment of necessity involved a denial of both propositions, and the judgment was affirmed, without dissent, after due and full consideration.
The language of §7255, supra, is not so comprehensive as that contained in §7265, supra, upon which the right to a lien in the case at bar depends.
In Giant Powder Co. v. Oregon, etc., R. Co. (1890), 42 Fed. 470, 8 L. R. A. 700, a lien was claimed for the *328value of powder used in grading portions of the railroad. The reasoning of the court is directly applicable to the facts now under consideration. Hercules Powder Co. v. Knoxville, etc., R. Co. (1904), 113 Tenn. 382, 83 S. W. 354, 67 L. R. A. 487.
I therefore dissent.