This is an appeal from a decree overruling the demurrer of Henry Mazel, appellant, to the bill of complaint of J. W. Bain, doing business as Bain Construction Company, appellee. The bill sought to enforce a mechanic’s lien for clearing eighty acres of land.
The bill alleged that appellee cleared the land under a contract with the owners, Richard and Eva Trester, executed February 20, 1959, and a balance of $881.25 was still owed for the work; that on April 9, 1959, appellant Mazel recorded a mortgage on the lands executed by the Tresters on January 6, 1958; and that the lien claimed by appellee was superior to the lien of the mortgage. The Tresters were not served with summons.
The sole question, one of first impression here, to be decided is whether clearing land, which included “pushing stumps and scrub oaks, raking and leveling the said lands,” is an improvement on land under Tit. 33, § 37, Code 1940, which grants a lien to “every * * * person * * * who shall do or perform any work, or labor upon * * * any building or improvement on land, or for repairing, altering, or beautifying the same, * * under or by virtue of any contract with the owner.
In 1899, this court, in Bates v. Harte, 124 Ala. 427, 26 So. 898, 899, in holding that the drilling of a well was such an “improvement” as would support a lien, said:
“The statute recognizes that improvements meriting the protection of a lien may be made upon land otherwise than by buildings, but, as they may occur in unforeseen variety the scope of the term improvement is left for determination in particular cases as they may arise. * * * ”
Warvelle on Ejectment, § 557, defines improvement: “An improvement, generally speaking, is anything that enhances the value of the land.” The word is defined in Black’s Law Dictionary, Fourth Edition:
“A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to *642more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.”
The Supreme Court of Oklahoma, in construing its lien statute, 42 O.S.1951, § 141, which gives a lien to any person who performs labor “for the erection, alteration or .repair of any building, improvement or structure thereon,” held that “labor performed * * * with tractor and bulldozer and scraper in leveling and building up certain vacant lots to improve [same] for future construction of building thereon was a lienable item,” and “the general word ‘improvement’ cannot be reasonably construed to have been used with the limitation in its meaning to buildings and things ejusdem generis” (of the same kind, class or nature). Green v. Reese, Okl., 261 P.2d 596, 39 A.L.R.2d 861, and annotation 39 A.L.R.2d 866.
Some states, California, Florida, Hawaii, Iowa, Minnesota, Tennessee, Texas, Wisconsin and Washington, have defined the word improvement in their statute, and include excavating or grading in the definition.
In 1889, Justice McClellan, speaking for the court in Eufaula Water Co. v. Addyston Pipe & Steel Co., 89 Ala. 552, 8 So. 25, 26, said: “The whole theory of the statute is to give the material-man a preferred claim on a lot of land for the amount he has contributed in improving that particular land or the buildings situated thereon.”
Again, in Crawford v. Sterling, 155 Ala. 511, 46 So. 849, 850, McClellan, J., wrote:
“ * * * . The theory of our system (Civ.Code, 1896, c. 71, art. 1) is that the subject of the betterment afforded by the labor, material, or machinery furnished shall be charged with the payment therefor to the extent in interest and area defined by section 2723. In other words, for a demand for labor, materials, or machinery applied to the improvement of real estate, there are as many separate liens as there are separate lots of the area described in the statute, unless, perhaps, a building as a unit rests upon two or more lots. Hi ^ Hi "
This court said in Floyd v. Rambo, 250 Ala. 101, 33 So.2d 360, 362:
“The general policy of the statute is to secure to the materialman and laborer a just reward of his labor and material and is based upon the general equitable principle that one should not enjoy the benefits thereof without making just compensation therefor. * * ”
And in our late case of Wilkinson v. Rowe, 266 Ala. 675, 98 So.2d 435, 437, we quoted from Montandon & Co. v. Deas, 14 Ala. 33, as follows:
“ * * * This act should receive a liberal construction, as it is but an extension of the doctrine of lien, so much favored by the courts, as consonant with every principle of equity and justice as applied to personal property. Cross on Law of Lien, 24. The intention of the act was, to give to the mechanic who had expended his labor and furnished materials in improving the ground of another, a prior right of satisfaction by a lien upon the building, and the interest of the party contracting for its erection, in the land so improved. * * * ” (Emphasis supplied.)
It is argued that since a mechanic’s lien is of statutory origin and “is in derogation of the common law, it is to be strictly construed, all matters of substance of necessity to be complied with.” Tanner v. Foley Bldg. & Mfg. Co., 254 Ala. 476, 48 So.2d 785, 787. This strict construction is not applied to the theory of the statute but to the technical requirements of the statute to make the lien effective, such as, certainty as to the description, allegations that the claim has been properly filed in the office of the probate judge, and that the wording of *643the claim and the notices substantially follow the statute. There is no conflict in the case of Montandon & Co. v. Deas, 14 Ala. 33, and the principle enunciated in the Tanner case.
It is also argued that our statute does not give a lien for work on land in the absence of an improvement or building thereon. We think that construction of the statute is too strict and narrow. Under such an interpretation, a brick mason who built the foundation for a building, which was never built, would not have a lien. Yet in 1890, in Scott v. Goldinghorst, 123 Ind. 268, 24 N.E. 333, work done in excavating earth and constructing a brick foundation for a barn which was never completed was held to be lienable.
Again, construing the statute so strictly, the digging of a well would not be an improvement, but the adding of a well curb or a shelter over the well would be subject to the lien because it was added to the improvement (the well) which was already there. But that is not what this court held in Bates v. Harte, 124 Ala. 427, 26 So. 898, cited supra. There, the digging of a well was held to be an improvement.
The clearing, grading or excavation of land is a permanent- improvement upon land, and since this question has not been previously presented to this court, it seems practical, useful and sensible to hold that this type of permanent improvement upon land is lienable under the statute.
We would still adhere to the holding in Bates v. Harte, 124 Ala. 427, 26 So. 898, quoted in Wilkinson v. Rowe, 266 Ala. 675, 98 So.2d 435, that “the scope of term improvement is left for determination in particular cases as they may arise.” This question of first impression in this state having arisen, we hold that the work described comes within the scope of the term “improvement” in the statute.
It follows that the trial court correctly overruled appellant’s demurrer to the bill of complaint.
Affirmed.
LAWSON, SIMPSON and GOODWYN, JJ., concur. LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., dissent.