Carlson-Lusk Hardware Co. v. Kammann

• Decision Date: 13 September 1924
• Citation: 229 P. 85,39 Idaho 654
• Parties: CARLSON-LUSK HARDWARE COMPANY, a Corporation, Appellant, v. HENRY KAMMANN et al., Respondents
• Court: Idaho Supreme Court

229 P. 85

39 Idaho 654

CARLSON-LUSK HARDWARE COMPANY, a Corporation, Appellant, v. HENRY KAMMANN et al., Respondents

Supreme Court of Idaho

September 13, 1924

LIEN LAWS-PRIORITY OF LIEN-PLEADING.

1. In the absence of express provision, a lien created by statute is subsequent to other liens which are prior in time.

2. Lien laws are in derogation of the common law, and persons invoking such remedies must clearly prove the facts necessary to constitute the lien.

3. A complaint to enforce a lien must affirmatively allege the facts upon which the validity of the lien depends.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to foreclose mortgage. Judgment for defendants. Modified and affirmed.

Judgment affirmed. Costs awarded to appellant.

Wm. M Morgan and J. B. Eldridge, for Appellant.

E. A Walters, R. P. Parry and A. B. Barclay, for Respondents.

Bissell & Bird and Richards & Haga, Amici Curiae.

Counsel cite no authorities on points decided.

BRINCK District Judge. McCarthy, C. J., and William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BRINCK, District Judge.

The plaintiff, who is the appellant, brought this action for the foreclosure of a mortgage upon land situated in Jerome county, including as a party defendant, the North Side Canal Company, Ltd., a corporation, hereinafter referred to as the canal company; the complaint alleging that the canal company claimed to have a lien upon said lands by virtue of C. S., secs. 3039, 3040 and 3041, and that its claim of lien was duly recorded in the office of the county recorder; and further alleging that whatever interest or lien said canal company had in or upon said premises was subsequent, inferior and subject to the lien of plaintiff's mortgage. The mortgage was filed on December 26, 1919; and the canal company's lien was claimed for the maintenance and operation assessments of the year 1920, its claim of lien being filed December 31, 1920, being thus subsequent in point of time to plaintiff's lien.

The canal company answered the complaint, admitting the general allegations of the complaint, but denying the legal conclusion that plaintiff's lien was superior to its own. By way of cross-complaint, the canal company alleged that it is a corporation engaged in operating, in whole, irrigation works constructed and used for the purpose of furnishing water to lands granted, segregated and set apart to the state of Idaho under the Carey Act (8 F. Stats. Ann., p. 698; U.S. Comp. Stats., sec. 4685), the allegations in this connection bringing said defendant within the general description of companies entitled to enforce a lien for maintenance and operation as they are defined in either C. S., sec. 3034, or C. S., sec. 3040; and alleged that the lands involved here are watered by its said irrigation system; further alleging that the sum of $ 60 with interest as provided by the statute is due it by virtue of its claim of lien filed as alleged in the complaint, which lien said defendant avers is prior to the lien of plaintiff's mortgage. The cross-complaint prays foreclosure of the said defendant's lien.

The trial court held the canal company's lien prior to plaintiff's mortgage and decreed foreclosure of both. The plaintiff appeals from that portion of the decree which adjudged the defendant's lien superior to the plaintiff's mortgage.

None of the other defendants or parties in interest appeal, and the question presented is, therefore, not whether the canal company is entitled to any lien, but only as to whether it is entitled to a lien superior to the lien of plaintiff's mortgage.

C. S., chap. 138, art. 1, which is chap. 120 of the 1913 Session Laws, as amended, by granting a lien therefor, provides a method of collecting maintenance and operation assessments of Carey Act operating companies, which apparently is the procedure followed by the canal company in this case; but sec. 3039 provides that art. 1 shall not apply to any corporation, company or association of persons, the control of which is not actually vested in those entitled to the use of the water from such irrigation works for the irrigation of lands to which the water from such irrigation works is appurtenant. With this proviso, this chapter provides that the lien of the operating company shall be a first and prior lien, except as to the lien of taxes, upon the land to which the water and water right is appurtenant or upon which it was used.

C. S chap. 137, based upon chap. 14 of the 1917 Session Laws, provides that a company or corporation, operating in whole or in part irrigation works for the furnishing of water to lands granted, segregated or set apart by the United States to the state of Idaho, under the Carey Act, where such operating company is under the control, direction or management of persons other than the actual stockholders thereof, or...