A hearing was granted in this case after decision by the District Court of Appeal, First Appellate District, Division Two, in order to give further consideration to several of the contentions of respondents. Upon such further consideration we are of the opinion that the contentions of the respondents are not sustainable and that the District Court of Appeal has properly disposed of the questions involved. For that reason, we adopt, as part of the opinion of this court, the following portions of the opinion prepared by Justice pro tem. Burroughs and concurred in by Presiding Justice Nourse and Justice Sturtevant:

In addition to what has already been said, in reference to respondents’ contention that a mechanic’s lien cannot properly be imposed on a structure independent of the land upon which it is constructed, the following comments are pertinent. We are of the opinion that under the constitutional and statutory provisions applicable to mechanics’ liens, as interpreted by the courts of this state in the cases above mentioned, it must be held that the mechanics’ liens involved herein are a lien on the building independent of the land. The theory of mechanics’ liens in this state is that the lien attaches primarily to the structure for which the materials have been furnished or labor bestowed, and the lien on the land is merely incidental to the lien on the structure. This distinction between land and superstructure, the lien attaching primarily to the latter, and to the former only as it is embraced in a common ownership with the building, has existed in California from an early date. (McGreary v. Osborne, 9 Cal. 119 ; 17 Cal. Jur., p. 29, sec. 15.) Any other interpretation would necessarily render unconstitutional those sections of the code purporting to relieve the owner from liability upon filing and posting a notice of non-responsibility. The Constitution provides (art. XX, sec. 15) that mechanics “shall have a lien upon the property upon which they have bestowed labor or furnished materials.” The word “property” as therein used obviously refers to the building or other structure for which the materials have been furnished or labor bestowed, and not simply in the case of a tenant, to his leasehold estate. If the legislature attempted to limit this lien by the nonresponsibility statute such statute would necessarily be unconstitutional as an unauthorized limitation of the right granted by the Constitution.

The contention that because the building is a more or less permanent structure, attached to the realty, it must be held as against the mechanics to be a part of the realty is not tenable. It is true that as between the landlord and tenant it was agreed that the building when erected should become part of the realty, but that agreement could not affect the lien given by the Constitution to the mechanics. It is our opinion, when a lease provides that the lessee may construct permanent structures on the leased premises, which structures at the termination of the lease shall become the property of the lessor, that it must be held by reason of the constitutional and statutory provisions above discussed that as far as mechanics are concerned the structure does not become a fixture until all mechanic lien claimants are paid. We think that this rule works substantial justice between the parties. In many jurisdictions mechanics’ liens have been held to attach, not only to the building but also the estate or property of the lessor for improvements made by the lessee, which improvements, by the terms of the lease are to belong or revert to the lessor, or are permanent in nature, becoming part of the realty and of benefit to the lessor. (Myers v. Joseph A. Strowbridge Estate Co., 82 Or. 29 [ 160 Pac. 135 ]; Oregon Lumber etc. Co. v. Nolan, 75 Or. 69 [ 143 Pac. 935 , 146 Pac. 474 ] ; Denniston etc. Co. v. Brown, 183 Iowa, 398 [ 167 N. W. 190 ]; Loeff v. Meyer, 284 Ill. 114 [ 119 N. E. 908 ]; Long-Bell Lumber Co. v. McCray Band Co., 89 Kan. 788 [ 132 Pac. 992 ]; 40 Cor. Jur., p. 106, secs. 97 and 98, and cases cited.) These cases are based on the theory that since the lease contemplates the construction of a building which will enhance the value of the fee to the benefit of the lessor, the lessee must be deemed the statutory agent of the lessor for the purpose of the construction. In view of the nonresponsibility statute in this state, we do not feel justified in going that far and holding that the lien attaches to the land as well as to the building. We are of the opinion that, at least where the building of the improvement is optional with the lessee, the posting and filing of the notice of nonresponsibility by the lessor relieved the land from the lien. But we are of the opinion that under our mechanics’ lien laws under which, as already pointed out, a lien may exist on a structure independently of the land upon which it is erected, it must be held that the lessor has consented that as against mechanics the building shall not become a fixture so as to cut off mechanics’ liens. It is true that to remove the building will interfere, temporarily, with the owners’ right of possession, but the owner must be deemed to have consented to this interference by entering into the lease knowing such a building would probably be constructed on the leased premises.

For the foregoing reasons it follows that the conclusions of law drawn from the findings that the appellants were entitled to a lien upon the building down to the surface of the ground were correct, and the judgment of August 16, 1928, was the proper judgment. The conclusions of law that the plaintiffs were not entitled to a lien on said building and the judgment of October 6, 1928, based on such conclusions are erroneous.

It is therefore ordered that as to these appellants the order of the trial court of September 27, 1928, and the judgment entered October 6, 1928, be and each one of them is hereby reversed. It is further ordered that this cause be and it is hereby remanded with directions to the trial court to enter its conclusions of law granting appellants a lien upon the Auditorium building down to the surface of the ground, and to enter its judgment in accordance with the findings of fact and the conclusions of law thus amended, granting the lien as aforesaid.

Rehearing denied.

Shenlc, J., Curtis, J., and Langdon, J., dissented.