Am. Tank & Equip. Co. v. T. E. Wiggins, Inc., Case Number: 22710

• Decision Date: 27 November 1934
• Docket Number: Case Number: 22710
• Citation: 42 P.2d 115,170 Okla. 504,1934 OK 661
• Parties: AMERICAN TANK & EQUIPMENT CO. v. T. E. WIGGINS, Inc., et al.
• Court: Oklahoma Supreme Court

1934 OK 661

42 P.2d 115

170 Okla. 504

AMERICAN TANK & EQUIPMENT CO. v. T. E. WIGGINS, Inc., et al.

Case Number: 22710

Supreme Court of Oklahoma

Decided: November 27, 1934

Syllabus

¶0 Railroads--Pipe Furnished Contractor and Used for Pumping Sand and Water from River to Right of Way Held not to Come Within Provisions of Railroad Lien Statute.

Metal pipe furnished to contractor in constructing embankment for railroad and used in pumping sand and water from river to right of way, held to constitute a part of the plant and equipment of the contractor and not to be materials used in the construction of the improvement, and that no lien for the purchase price of such pipe is given by section 7473, C. O. S. 1921 (11012, O. S. 1931).

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

Action by the American Tank & Equipment Company against T. E. Wiggins, Inc., the Chicago, Rock Island & Pacific Railway Company, and another. Judgment for defendant railway company, and the plaintiff appeals. Affirmed.

Miley, Hoffman, Williams, France & Johnson and M. W. Eddleman, for plaintiff in error.

W. R. Bleakmore, Robert E. Lee, John Barry, and W. L. Farmer, for defendant in error Chicago, Rock Island & Pacific Railway Company.

PER CURIAM.

¶1 The parties appear as in the trial court and the plaintiff in error, American Tank & Equipment Company, will be referred to as the plaintiff, the defendant T. E. Wiggins, Inc., will be referred to as the defendant contractor, and the defendant Chicago, Rock Island & Pacific Railway Company will be referred to as the railway company.

¶2 The plaintiff alleged in its petition that prior to July 15, 1929, the defendant contractor entered into a contract in writing with the railway company, to build, construct, equip, and complete a roadbed for the tracks of the railway company near the southwest edge of Oklahoma City, alleged that a bond was executed by the American Employers Insurance Company, in favor of the railway company, to guarantee the completion of the contract; that on the 15th day of July, 1929, the plaintiff furnished to the contractor certain materials, supplies, equipment, and pipe to go into the construction of said roadbed, and performed for the contractor certain labor in the manufacture of such pipe and equipment; alleged that plaintiff had not been paid for such material; that there was due thereon the sum of $ 4,562.50; that on October 16, 1929, plaintiff notified the contractor and the railway company of such claim, and that it had and claimed a lien on the roadbed, etc., of the railway company, and prayed for judgment against the contractor against the surety company and for a lien against the roadbed and equipment of the railway company. The surety company answered but before trial the plaintiff dismissed the case as to the surety company, and it is no longer a party to the action. The contractor answered and filed a cross-petition, and the railway company, after demurring to the petition, filed its answer generally denying the allegations of the petition, and further alleged that if the plaintiff furnished materials to the contractor, such materials did not go into the construction of the roadbed or works of the defendant railway company, and alleged that plaintiff had no lien and was entitled to no lien upon the property, roadbed, and equipment of the defendant railway company.

¶3 The case proceeded to trial before the court, a jury being waived, judgment for the amount sued for was rendered against the contractor, T. E. Wiggins, Inc., and such judgment was not appealed from and is final, and at the conclusion of the plaintiff's evidence the court sustained the demurrer to the evidence, interposed by the railway company, and entered judgment dismissing said action as to the railway company, to which order the plaintiff excepted, filed its motion for new trial, and upon same being overruled, has perfected its appeal herein; therefore, the only issue for determination herein is whether or not the trial court erred in sustaining the demurrer to plaintiff's evidence, interposed by the railway company, and thereby holding that the plaintiff had no lien upon the properties of the railway company for the materials it furnished the contractor.

¶4 The contract between the contractor and the railway company, if any there was, was not introduced in evidence, and there is no evidence in the record that such a contract was made, except the allegations of the petition that a contract was made whereby the contractor was to "build, construct, equip, furnish, and complete a roadbed for the tracks of said railway company." There is no evidence that the contractor constructed any cement work, culverts, or bridges, or that he did anything other than to place and construct along the line of the right of way, an earth or sand embankment upon which the tracks of the railway company were to be laid, and we can therefore assume that the contract with the railway company only required the contractor to construct an embankment of earth of a specified width and height, and cannot presume that such contract required that the earth be moved or conveyed in any particular manner or by any special mode of conveyance. The evidence shows that the contractor placed a barge in the Canadian river and installed upon the barge a pump with power equipment to operate the same and pumped sand and water from the river, conveying same through the pipe sold to the contractor by the plaintiff to the right of way of the railway company where the same was deposited, the water running off and the sand remaining and the process being continued until the embankment at a given point was completed. The evidence further shows that the contractor commenced the work in August and continued the work until sometime in October, 1929, at which time he was unable to continue with his contract and the work was taken over by his bonding company, who completed the contract in February of 1930. The evidence further shows that at the time the contract and work was abandoned by the contractor, approximately one-third of the work called for in the contract had been completed, and that the bonding company thereafter used the same equipment and the pipe in question in completing the contract. The pipe in question was ten-inch pipe, of various lengths and made of 14-gauge metal, the joints being welded together by plaintiff, and there was approximately one mile of such pipe furnished, and that various lengths of the pipe were used from time to time to convey the sand and water from the river, depending on the distance of the right of way from the river at the different points. The testimony of plaintiff's witnesses is conflicting as to the condition of the pipe after the contract had been completed by the bonding company; two or more witnesses testified that the pipe was so worn by the sand and water passing through it that it was worthless except for junk iron; one witness testified that a number of the joints could be used, and one witness testified that the pipe could be further used for a short pumping job. There was no evidence as to the market value of the pipe when the work had been completed, but the evidence does fairly show that the life and usefulness of the pipe was to a large extent consumed in the operation.

¶5 The applicable section of our statute upon the subject at issue, section 7473, C. O. S. 1921, section 11012, O. S. 1931, is as follows:

"Every mechanic, builder, artisan, workman, laborer or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fixtures or other thing toward the equipment, or to facilitate the operation of any railroad, shall have a lien therefor upon the roadbed, buildings, equipments, income, franchises, and all other appurtenances of said railroad, superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trustees, beneficiaries under trusts or owners."

¶6 The plaintiff contends that, under the provisions of this statute, the evidence showing that the pipe in question was, for all practical and useful purposes, wholly or practically wholly consumed in the operation of constructing the embankment, and the life and usefulness of the pipe having gone into the improvement,...