A portable engine is not a building, and even if it is placed in a building is not necessarily a part of it or an appurtenance to it, within the meaning of a statute giving a lien "for erecting, altering, or repairing a house or other building or appurtenances." (G. L., c. 139, s. 11.) A sale cannot be declared as matter of law not to have been accompanied by a sufficient change of possession, if the vendee has, after the sale, examined the property and taken away small parts that were likely to be lost or stolen.
CARPENTER, J.
"Any person who by himself or others shall perform labor or furnish materials, to the amount of fifteen dollars or more, for erecting, altering, or repairing a house or other building or appurtenances, by virtue of a contract with the owner thereof, shall have a lien thereon, and on any right of the owner to the lot of land on which said house, building, or appurtenances stand." G. L., c. 139, s. 11. The burden rests upon the plaintiffs to prove the lien which they assert. The engine was not a building within the meaning of the statute, and it does not appear to have been a part or an appurtenance of a building when the repairs were made. It was portable. It might be placed in a building, and yet be neither a part nor an appurtenance of the building. It does not appear even that the "sawmill" in which the engine was at one time situated was a building. It might have been nothing but a saw operated by the engine in the open air, or under a temporary cover. State v. Livermore, 44 N.H. 386.
Upon the facts stated, it cannot be declared as matter of law that the sale to Fellows was not accompanied by a sufficient change of possession. Lewis v. Whittemore, 5 N.H. 364; Morse v. Powers, 17 N.H. 286; Stone v. Taft, 58 N.H. 445.
Judgment for Fellows.
All concurred.