Bear Lake River Waterworks Irrigation Co v. Garland

• Citation: 41 L.Ed. 327,164 U.S. 1,17 S.Ct. 7
• Decision Date: 19 October 1896
• Docket Number: No. 48,48
• Parties: BEAR LAKE & RIVER WATERWORKS & IRRIGATION CO. et al. v. GARLAND et al
• Court: United States Supreme Court

164 U.S. 1

17 S.Ct. 7

41 L.Ed. 327

BEAR LAKE & RIVER WATERWORKS & IRRIGATION CO. et al.

v GARLAND et al.

No. 48.

October 19, 1896.

The appellants herein have appealed from a judgment of the supreme court of the territory of Utah, affirming a judgment of the district court of the first judicial district of the territory in favor of the respondents, William Garland and Corey Bros. & Co.

The action was brought be the plaintiff, William Garland, against the Bear Lake Company, the Jarvis-Conklin Mortgage Trust Company, as trustees, Corey Bros. & Co., and others, for the purpose of enforcing an alleged mechanic's lien in favor of the plaintiff, and against the Bear Lake Company, for work done by the plaintiff for that company in the construction of its canal from its initial point (the Bear River ca non) for a distance of 12 miles on both sides of the river. The complaint alleged that on the 16th of August, 1889, the plaintiff and the Bear Lake Company entered into a contract for the construction by plaintiff of the portion of the work above mentioned; and under that contract the plaintiff commenced work on the 31st of August, 1889, and continued it to and including December 10, 1890. Various payments on account of the work were made the plaintiff, and, after crediting the same, the plaintiff alleged there was still due him from the Bear Lake Company, at the time of filing his claim for a lien (December 23, 1890), the sum of $80,250.50, and interest thereon, as set forth in the complaint. The Jarvis-Conklin Mortgage Trust Company and Corey Bros. & Co. and the other defendants were made parties to the action as subsequent mortgagees or other incumbrancers. The answer of the mortgage trust company set up the fact that it was the mortgagee in a mortgage executed by the Bear Lake Company to it, as trustee, on the 1st day of October, 1889, to secure the payment of $2,000,000 of the bonds of the mortgagor company, and that such mortgage covered all the water rights, franchises, lines of canal, and other property upon the whole or any part of which the plaintiff claimed a lien, and that the mortgage also, by its terms, covered all after-acquired property of every kind. The mortgage was duly recorded in Box Elder county, Utah, November 14, 1889; in Bear Lake county, Idaho, December 24, 1889; in Weber county, Utah, February 6, 1890. The bonds secured by the mortgage were all delivered between October 1, 1889, and February 1, 1891, and in large part paid for; and the balance was to be paid for by drafts drawn upon the mortgage company by the treasurer of the Bear Lake Company as fast as the money was needed to pay for the construction of the works. At the time the plaintiff, Garland, entered into the contract already mentioned, and when he commenced work thereunder, the statutes of Utah provided a mechanic's lien, under the provisions of which a contractor, within 60 days after the completion of his contract, was to file for record with the county recorder a claim stating his demand, and giving a description of the property to be subjected to the lien. By section 3814 (section 1065), no lien provided for by the chapter upon liens was to bind any of the property longer than 90 days after the claim was filed, 'unless proceedings be commenced in a proper court within that time to enforce the same.' 2 Comp. Laws Utah 1888, p. 406, from section 3806 to and including section 3820. The answer further set up the fact that while the above act was in force, and on the 12th of March, 1890, the legislature of Utah passed an act in relation to mechanics' liens, and section 32 thereof replealed the former and above-mentioned lien act, but added the following proviso: 'Provided, that the repeal of said acts or parts of acts or any of them shall not affect any right or remedy, nor abate any suit or action or proceeding existing, instituted or pending under the laws hereby repealed.'

The answer then set forth that the plaintiff did not commence his action to enforce his lien within the 90 days given by the act in force when the work was commenced under the contract, and therefore the lien no longer existed at the time the action was commenced to enforce it.

The answer of Corey Bros. & Co. was in the nature of a cross complaint, and set up the fact that they entered into a contract with the Bear Lake Company on the 1st of May, 1890, to construct certain portions of the canal of the company, and that between such date and the 5th of December, 1890, they did the work provided for in the contract, and on the 7th of January, 1891, they filed their claim for a lien for the balance of the money due them under the contract (which was about $11,000); and they asked for a decree enforcing their lien as a prior incumbrance to that of the mortgage upon the property of the Bear Lake Company.

The Bear Lake Company set up the same facts as a defense against the plaintiff's cause of action that were alleged by the Mortgage Trust Company; and it answered the claim of Corey Bros. & Co. by alleging that the mortgage to the mortgage trust company had been executed and duly recorded, and was in existence long before and at the time of the execution of the agreement which Corey Bros. & Co. made with the Bear Lake Company, and that, therefore, the lien of Corey Bros. & Co. was subsequent and subject to the lien of the mortgage upon the after-acquired property of the Bear Lake Company.

No question arises with reference to the other defendants.

The case came on for trial upon the issues thus found, and the court, after hearing the evidence, gave judgment in favor of plaintiff and of Corey Bros. & Co., establishing their liens, respectively, upon an equality, and making them prior and superior to the lien of the mortgage trust company by reason of its mortgage, and decreeing the sale of the property to satisfy such liens. 34 Pac. 368.

John F. Dillon, for appellants.

[Argument of Counsel from pages 5-10 intentionally omitted] S. B. Ladd and Arthur Brown, for appellees.

Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court.

The contest in this case lies between the plaintiff and the firm of Corey Bros. & Co., on the one hand, and the mortgage trust company, on the other. The former demand priority of lien for their respective claims over that of the mortgage held by the mortgage trust company upon the property of the Bear Lake Company.

It will be convenient to separately examine these claims.

1. As to the plaintiff's alleged lien. At the time when the plaintiff entered into his contract, and commenced work under it, the lien law of 1888 was in force, one of the sections of which (3810,-1061, Comp. Laws) the use of language which formally repealed was to be preferred to any other which might attach subsequently to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished. As the work of the plaintiff, under his contract, was commenced on the 31st of August, 1889, and continued up to December, 1890, while the mortgage to the mortgage trust company was not executed until October, 1889, it is conceded by the counsel for the latter company that if the plaintiff had complied in all respects with the pro- visions of the act of 1888, and had commenced his action to enforce his lien within 90 days from the time when he filed his claim for a lien (December 23, 1890), his action could have been maintained, and his lien would have had priority. Inasmuch, however, as he failed to commence his action within the time mentioned, it is insisted that the lien had then expired, by the express provisions of the act of 1888 (Comp. St. § 3814). The plaintiff makes answer to this objection by citing section 21 of the act of March 12, 1890, which reads as follows:

'Sec. 21. No lien claimed by virtue of this act shall hold the property longer than one year after filing the statement firstly described in section 10, unless an action be commenced within that time to enforce the same.'

This action was commenced within one year after filing the statement of the plaintiff's claim, and he therefore insists that it was commenced in time, and that his lien should have priority. In that contention he is met by the claim of the mortgage company that the section referred to does not affect the plaintiff's case, as the contract between him and the Bear Lake Company was entered into, and a large amount of the work was done under it, prior to March, 1890, and while the act of 1888 was in force, and that, by the express terms of the proviso in section 32 of the act of 1890, the repeal of the act of 1888 did not affect any right or remedy, nor abate any suit or proceeding existing, instituted, or pending, under the laws thereby repealed.

The terms of the act of 1890 are thus cited as a limitation of the plaintiff to the provisions of the act of 1888. If plaintiff be thus confined, he cannot maintain this action, as he did not commence it until some time after the expiration of the 90 days from the date of filing his claim.

Upon comparing the two acts of 1888 and 1890 together, it is seen that they both legislate upon the same subject, and in many cases the provisions of the two statutes are similar, and almost identical. Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new act. This is the same principle that is recognized and asserted in Steamship Co. v. Joliffe, 2 Wall. 459. In that case there was a repeal in terms of the former statute, and yet it was held that it was not the intention of the legislature to thereby impair...