{ "id": 8724412, "name": "John E. MAHAFFEY & ASSOCIATES, INC. v. Ralph BROPHY et al", "name_abbreviation": "John E. Mahaffey & Associates, Inc. v. Brophy", "decision_date": "1971-01-25", "docket_number": "5-5430", "first_page": "884", "last_page": "887", "citations": [ { "type": "official", "cite": "249 Ark. 884" }, { "type": "parallel", "cite": "462 S.W.2d 226" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "243 Ark. 399", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720812 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/243/0399-01" ] }, { "cite": "242 Ark. 850", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724181 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0850-01" ] }, { "cite": "245 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606879 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/245/0125-01" ] } ], "analysis": { "cardinality": 357, "char_count": 5686, "ocr_confidence": 0.828, "pagerank": { "raw": 9.229122738981154e-08, "percentile": 0.5104297586461605 }, "sha256": "f02df34d37a707d547daa69f825e4d03ca31487f3254ef155e01de4c4afa6336", "simhash": "1:45a5c56b8f08cfde", "word_count": 925 }, "last_updated": "2023-07-14T17:50:24.525274+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John E. MAHAFFEY & ASSOCIATES, INC. v. Ralph BROPHY et al" ], "opinions": [ { "text": "Frank Holt, Justice.\nThis appeal results from the chancellor\u2019s sustaining a demurrer to the appellant\u2019s complaint which seeks to impress a mechanics\u2019 lien upon appellees\u2019 property. The appellant is engaged in the general practice of civil engineering. By a contract with the appellees, the appellant performed certain engineering and survey services in connection with appel-lees\u2019 real estate as a mobile home park. The alleged improvement services performed by the appellant consisted of establishing the exact boundaries of the property; marking the boundaries with recognized surveying monuments; establishing the elevation of the land above sea level and placing permanent bench mark monuments upon the property; locating and marking the streets, water lines, sewer lines and fire hydrants; placing monuments upon the land for the development of structures to be built by the owners; excavating upon the property for the purpose of completing the engineering work; locating and marking existing utilities; preparing a complete plan and plat of appellees\u2019 lands; and otherwise discharging all the engineering work necessary for the development of the property.\nThe chancellor held, in sustaining a demurrer to these allegations, that appellant\u2019s engineering work is neither permanent nor in the nature of construction; that it does not constitute improvements to or upon ap-pellees\u2019 land; and that by Act 112 of 1969 [amendatory to Ark. Stat. Ann. \u00a7 51-601 (1947)] the legislature did not intend to broaden the lien law to include professional engineers performing these services for land development.\nOn appeal two points are asserted for reversal which appellant succinctly states in its contention: The crux of the issue is the construction of Act 112 of 1969 and that by its terms work of the professional engineer in land development is an improvement to or upon the land, bringing the engineer within Act 112 of 1969. We must, however, agree with the chancellor\u2019s interpretation of the Act and refusal of the asserted lien. Obviously, Act 112 of 1969 was enacted by the legislature in response to our decision in Lambert v. Newman, 245 Ark. 125, 431 S. W. 2d 480 (1968), where we held that a contractor was not entitled to a lien upon property for work performed in clearing brush and trees from land which. was thereafter sold for the construction of residences. In construing the then existing lien law, \u00a7 51-601, we observed that the legislature did not intend for it to include \u201cimprovement to land\u201d by the use of the language \u201cimprovement upon land.\u201d Promptly thereafter Act 112 of 1969 was enacted to extend the lien law for any \u201cimprovement to or upon land.\u201d\nIt is well established that a materialmen\u2019s lien statute is in derogation of the common law and, therefore, the statute must receive a strict construction. Dix v. Olds, 242 Ark. 850, 415 S. W. 2d 567 (1967). However, the procedure for perfecting a lien is liberally construed whenever it is determined that the property is subject to a lien. Lambert v. Newman, supra. Cases from other jurisdictions are cited by appellant. Because of dissimilarity in either the statutes or the facts of those cases, or both, we consider them generally of no aid in the case at bar.\nIt is significant that the legislature, in the preamble to this amendatory act, included this language:\n\u201cWhereas, recent court decisions have disclosed that certain contractors performing clearing, excavating, or ditching services in the process of constructing home sites were not heretofore granted the same lien as mechanics, materialmen, builders, and laborers; and\nWhereas, the contractors performing these vital and indispensable services should receive the same protection as others herein named; * #\nApplying the rule of strict construction, we must hold that the legislature did not intend by this Act to extend the lien law for the benefit of the appellant, even though it provided a lien for improvements \u201cto\u201d as well as \u201cupon\u201d the land.\nShould we agree with appellant that it is included in that part of the statute which provides for \u201cor other person\u201d to have lien rights, we nonetheless could not agree that the type of services and improvements performed by it are encompassed by the Act. In this respect the chancellor aptly stated:\n\u201c* * * permanence and construction, either, and usually both, are inherent in the nature of an \u2018improvement\u2019 whether it be to or upon land. The determination of elevations by engineering methods, locating of underground utility lines, even by digging, the staking of lot and building corners, and graphic portrayal of these things on a plat, are, by item or in gross, neither permanent nor in the nature of construction. They may all be, and doubtless are, preliminary to, and in aid of eventual construction. But they are not in themselves construction, which, in fact, may never occur. Neither are they permanent, for lot lines arid building locations may be changed. And the physical locating of utility lines, though it requires digging, is no improvement in itself.\nThe extent of the engineering services performed in the case at bar is basically planning and not construction within the meaning of this Act. As we said in Clark v. General Electric Co., 243 Ark. 399, 420 S. W. 2d 830 (1967), it was \"at most a preparatory operation.\u201d Any change to further broaden the terms of this statute addresses itself to the legislature.\nThe chancellor\u2019s ruling is in all respects affirmed.", "type": "majority", "author": "Frank Holt, Justice." } ], "attorneys": [ "Louis D. Jones and Joseph W. Segers, Jr., for appellant.", "Charles W. Atkinson, for appellees." ], "corrections": "", "head_matter": "John E. MAHAFFEY & ASSOCIATES, INC. v. Ralph BROPHY et al\n5-5430\n462 S. W. 2d 226\nOpinion delivered January 25, 1971\nLouis D. Jones and Joseph W. Segers, Jr., for appellant.\nCharles W. Atkinson, for appellees." }, "file_name": "0884-01", "first_page_order": 906, "last_page_order": 909 }