Section 5 of the general lien law of 1889 was, in my judgment, clearly intended to include within its provisions the owners of leased lands improved by a lessee, with the limitation only that the lien therein provided should not extend to “repairs” by, or at the instance of, the lessee. There is nothing in the section that would warrant the court in excepting lessors from the class of owners therein referred to. The language is: “Every building or other improvement * * * erected, constructed, * * * or repaired upon any land with the knowledge of the owner of such land, or of any person claiming an interest therein otherwise than as bona fide prior mortgagee, incumbrancer, or lienor, shall be held to have been erected, constructed, * * * at the instance of such owner or person, only so far as to subject his interests to a lien therefor; * * * and such interest shall be subject to any lien given by the provisions of this act, unless such owner or person shall, within five days after he shall have obtained knowledge of the erection * * * aforesaid, give notice that his interest shall not be subject to any lien for the same, by serving a written or printed •notice to that effect personally upon all persons performing labor •or furnishing * * * material therefor, or shall, within five days .after he shall have obtained the knowledge aforesaid or knowledge of the intended erection, * 5 * give such notice as aforesaid by *6posting and'keeping posted a written or printed notice to the effect aforesaid, in a conspicuous place, upon said land, or upon the building or other improvement situate thereon. But no lien shall be allowed as against a lessor for repairs made by or at the instance of the lessee.”
The language “the owner or person having or claiming any interest therein” unmistakably includes a lessor of lands, and there can be no question of the validity of the legislation. West Coast Lumber Co. v. Newkirk, 80 Cal. 275, (22 Pac. Rep. 231;) Heath v. Solles, 73 Wis. 222, (40 N. W. Rep. 804;) 15 Amer. & Eng.. Enc. Law, p. 22.
The clause in the proviso exempting a lessor from liens for repairs at the instance of the lessee by a reasonable limitation excludes other improvements from the operation of that part of the proviso, and as to them the general rule expressed in the body of the section is left in full force. Suth. St. Const. § 223.
To the legislative mind there might appear very good reasons why, especially in the case of ground leases, a distinction should be made between the construction of new buildings and repairs upon old.
The ground upon which a lien upon the interest of the owner out of actual possession is sustained in such cases is his consent. Loonie v. Hogan, 9 N. Y. 435, (61 Amer. Dec. 700, notes;) Burkitt v. Harper, 79 N. Y. 273.
The evidence of his consent is the failure of the owner, after he acquires knowledge of the improvement, to give or post the notice required by the statute. This branch of the case is, however, fully covered by the opinion in the case of Wheaton v. Berg, 50 Minn. 525, (52 N. W. Rep. 928,) and need not be further considered here. Under the construction there given, the law is not unreasonable or difficult of practical application, and the lessor always has an opportunity to be heard in the lien suit. The lessor, though out of possession, may enter under the protection of the statute to give or post the original notice. Such an entry is not an unlawful invasion of the rights of the tenant or a trespass. No wrong or injury is inflicted on the tenant or his property. The landlord enters by necessity, and under the authority of the law to protect his interest in the reversion. In such cases no action lies. Brown v. Beatty, 34 Miss. 227, (69 Amer. Dec. 394.)
(Opinion published 56 N. W. Rep. 253.}In opposition to tbe enforcement of tbe lien against tbe estate of tbe lessor in tbis particular instance, it is urged tbat tbe improvement is for tbe benefit of tbe lessee only, because of tbe provisions -in tbe lease entitling him to remove tbe building at tbe expiration of tbe term.
Tbe building in tbis instance is a frame and brick building, with substantial foundations; and while, upon certain conditions, it-may be removed, yet, it is liable to remain as a permanent improvement of tbe property, under tbe privilege of renewal given in tbe lease; and, unless tbe stipulated conditions are complied with, sucb removal is prohibited by tbe terms of tbe lease, which requires, among other things, tbat tbe lessor shall have previously “paid all rents, taxes, assessments, and charges due on or to accrue up to tbe expiration of tbe term about to expire.” We have no doubt tbat tbe lessor might so far be subrogated to tbe rights and remedies of tbe lienholder tbat, upon tbe payment by him of any valid lien claim binding on him as owner, tbe same might be enforced as an equitable charge upon tbe improvements made by tbe lessee; but, apart from sucb considerations, it is enough tbat tbe statute is a valid exercise of legislative power, and tbe legal basis of tbe lien as against tbe owner is bis consent to an improvement presumably beneficial to tbe property.
He is directly interested in improvements which, in tbe case of ground leases sucb as tbis, are contemplated thereby; for, without them, tbe leased premises would be comparatively unproductive, and tbe rent could not be earned.
Tbe evidence justified tbe court in finding tbat the plaintiff bad seasonable knowledge of tbe improvement, and it was his duty to give tbe required statutory notice, or show a valid excuse, which be failed to do. It is also sufficiently clear tbat tbe material and labor for which tbe lien was allowed and adjudged was not for repairs, but for tbe erection and construction of a new building upon tbe premises.
Order affirmed.