Page:North Dakota Reports (vol. 2).pdf/274

 Fred B. Lathrop, for respondent:

The material which enters into the construction of a building prior to its completion, pursuant to a contract with the owner, is a part of the building, and the material-man has a lien dating from the commencement of the building. This is the sole test to determine priority. Nelson v. Iowa, etc., 44 Iowa 75; Davis v. Alvord, 94 U. S. 545; Insurance Co. v. Sly, 45 Iowa 615; Davis v. Belsland, 85 U. S. 659; Brooks v. Burlington, 101 U. S. 443; Hydraulic Co. v. Bormen, 19 Mo. App. 665; Douglas v. St. Louis, etc., 56 Mo. 400; Page v. Betts, 17 Mo. App. 381; Insurance Co. v. Pringle, 2S. & R. 188; Reading v. Hopson, 90 Pa. St. 497; Dubois v. Wilson, 21 Mo. 214 The mortgagee takes his mortgage with notice of this. The fact of the improvement gives notice to the world. Loan Association v. Rowland, 26 N. J. Eq. 392, and cases cited. The commencement of the building is the first labor done on the ground—the excavation for the foundation. Conrad v. Star, 50 Iowa 48L. Boilers imbedded in brick and stone and a steam heating apparatus are a part of the building when furnished daring its construction. Dimmick v. Cook, 8 At. Rep. 627; Watts v. Geuning, 3 N. Y. Sup. 869; Boynton v. Reid, 3 N. Y. Sup. 224; Schwar v. Allen, 7 N. Y. Sup. 5; Schaper v. Bibb, 17 At. Rep. 935; Goss v. Hilbrig, 19 Pac. Rep, 277; Short v. Miller, 14 At. Rep. 374; Donahue v. Cromartie, 21 Cal. 86.

The opinion of the court was delivered by

Bartholomew, J. This is a contest for priority between plaintiff, the Haxtun Steam Heater Company, a mechanic's lien holder, and the defendant, the Dakota Investment Company, a mortgagee. There was a decree below for the plaintiff, and the investment company appeals. Section 5478 of our Compiled Laws reads as follows: “The liens for labor done or things furnished shall have priority in the order of the filing of the accounts thereof, as aforesaid, and shall be preferred to all other liens and incumbrances which may be attached to or upon said building, erection, or other improvement, and to the land on which the same is situated, or either of them, made subsequent to the commencement of said build-