Chamberlain v. City of Lewiston

Decision Date21 December 1912
Citation23 Idaho 154,129 P. 1069
PartiesJOHN CHAMBERLAIN et al., Respondents, v. THE CITY OF LEWISTON, a Municipal Corporation, Appellant, and J. O. MAXON, C. HENRY PAYNE, J. D. C. THIESSEN, J. W. MAXON, and DEAN D. STAIR, Respondents
CourtIdaho Supreme Court


(Syllabus by the court.)

1. The act of March 13, 1909 (1909 Sess. Laws, 165), does not repeal sec. 5111 of the Rev. Codes, but affords an additional and cumulative remedy, and specially provides protection for the state, city or other municipal corporation entering into such contract, and should be construed in harmony with the provisions of sec. 5111, Rev. Codes.

2. A description of the property as "the pumping plant and waterworks system of the city of Lewiston, said waterworks system being located on the south bank of the Clearwater river about one and one-half miles above the point where the Clearwater river flows into the Snake river," is a sufficient description upon which to predicate a lien against the city's waterworks system, and is sufficient for identification thereof.

3. The fact that the labor performed and material furnished for the construction, alteration and repair of any building structure or other works was carried away by floods and high water without any fault of the man who performed the labor and furnished the material, does not deprive the laboring man or materialman from preferring his liens under the statute and such lien attaching to the real estate on which the work was done or improvement made.

4. Under the laws of this state, the test for a mechanic's lien is: Was the labor performed or material furnished in the construction, alteration or repair of the building, structure or other works? And the right to a lien is not dependent upon the actual enhanced value of the property on which the labor was performed or for which the material was furnished.

5. The purpose of the statute is to compensate the man who performs labor under or furnishes material to be used in the construction, alteration or repair of a building or structure, irrespective of the value which such labor or material may add to the real estate.

6. Where labor was performed and material furnished in the construction of an intake pipe and the placing of a steel cage around the pipe as an extension and addition to a waterworks system, a lien filed for labor performed and material furnished in connection with such work will attach to the waterworks system, notwithstanding the fact that the intake pipe on which the work was done was never completed or actually attached to the system.

7. Where a city entered into a contract to have an intake pipe added to the pipe of its waterworks system, extending the main out into the bed of the river, and the contractors found it necessary to build a coffer-dam in the stream in order to carry on the work or to employ some other means which would accomplish the same end, held, that laboring men and materialmen would be entitled to a lien for labor performed upon such coffer-dam and materials furnished in the construction thereof as a necessary incident to the performance of the contract, although such dam and material included therein would not be a part of the completed work and would not be of any use to the city when finally completed.

8. In preferring a lien for labor and material under the mechanic's lien laws of this state, a lien will be allowed for material furnished and actually used and consumed in the construction of the building or other structure irrespective of the fact that such use and consumption may not be in the main building or structure itself, but in such work as was necessarily incident to the carrying on of the principal work and discharging the contract.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.

Action for foreclosure of mechanic's lien. Judgment for plaintiffs and defendant appealed. Affirmed.

Judgment of the district court affirmed, with costs in favor of the respondents. Petition for rehearing denied.

Fred E Butler for Appellant.

The description in the Chamberlain cases, both in the notices of liens as well as in the complaint, findings and decree, is so indefinite, that the property cannot be located on the ground, and therefore all of the liens in the Chamberlain case should fail. (Boisot on Mech. Liens, secs. 431, 433; Bloom on Mech. Liens, sec. 399, and cases cited; Rockel on Mech. Liens, sec. 103, and cases cited; 27 Cyc. 157, 158, and note 88; Runey v. Rea, 7 Ore. 130; Kellogg v Littell & Smythe Mfg. Co., 1 Wash. 407, 25 P. 461.)

There is nothing in the evidence or in the findings which shows that any of the four tracts described in the complaint is the tract that lies out in the river, which latter tract is the only tract that is lienable, if any of the claims in these cases are lienable at all. (Wharton v. Douglas, 92 Pa. 66.)

Under the provisions of the mechanic's lien law, it is the duty of the trial court to ascertain the amount of land necessary for the convenient use of the property to be sold, and it is error not to do so. (Robertson v. Moore, 10 Idaho 115, 77 P. 218; Williams v. Porter, 51 Mo. 441; Ranson v. Sheehan, 78 Mo. 668; Mayes v. Murphy, 93 Mo.App. 37.)

Where an independent piece of work is to be done, it does not become a part of the system until fully constructed. (Creer v. Cache Valley Canal Co., 4 Idaho 280, 38 P. 653, 95 Am. St. 63; Hill v. La Crosse etc. R. R. Co., 11 Wis. 214; Phil. Mech. Liens, sec. 182.)

In states where the mechanic's lien statute is worded similarly to that of our statute, it seems to be almost uniformly held that the destruction of the structure destroys the lien. (Goodman v. Baerlocher, 88 Wis. 287, 60 N.W. 415, 43 Am. St. 893; Presbyterian Church v. Stettler, 26 Pa. 246; Wigton's Appeal, 28 Pa. 161; Humboldt Lumber Co. v. Crisp, 146 Cal. 686, 81 P. 30, 106 Am. St. 75; 2 Am. & Eng. Ann. Cas. 811; Watson v. Alta Investment Co., 12 Cal.App. 560, 108 P. 48.)

Materials that are used but not incorporated in the work, such as tools, lumber for scaffolding, lubricating oil for machinery, a temporary bridge to be used while another is being constructed, machinery used in construction, are not within the statute. (Boisot on Mech. Liens, sec. 123; Rockel, Mech. Liens, sec. 18; Basshor v. Baltimore etc. R. R. Co., 65 Md. 99, 3 A. 285; Oppenheimer v. Morrell, 118 Pa. 189, 12 A. 307; Standard Oil Co. v. Lane, 75 Wis. 636, 44 N.W. 644, 7 L. R. A. 191; Stimson Mill Co. v. Los Angeles Traction Co., 141 Cal. 30, 74 P. 357; Goodman v. Baerlocher, 88 Wis. 287, 60 N.W. 415, 43 Am. St. 893.)

Where materials have been furnished for a structure that was never erected, or where the structure or building was destroyed prior to the use of the materials, no lien should be allowed. No lien should be allowed when the materials are not actually used. (Lee v. King, 99 Ala. 246, 13 So. 506; Silvester v. Coe Quartz Mine Co., 80 Cal. 510, 22 P. 217; Bewick v. Muir, 83 Cal. 368, 23 P. 389; California-Portland Cement Co. v. Wentworth Hotel Co., 16 Cal.App. 692, 118 P. 103, 113; Chapin v. Persse & Brooks Paper Works, 30 Conn. 461, 79 Am. Dec. 263; Hunter v. Blanchard, 18 Ill. 318; Roose v. Billingsly etc. Commission Co., 74 Iowa 51, 36 N.W. 885; Hill v. Powers, 45 Kan. 560, 26 P. 13; Simmons v. Carrier, 60 Mo. 582; Fitzpatrick v. Thomas, 61 Mo. 515; Schulenberg v. Prairie Home Inst., 65 Mo. 295; Weir v. Barnes, 38 Neb. 875, 57 N.W. 750; Antlers Park Reg. Min. Co. v. Cunningham, 29 Colo. 284, 68 P. 226; Hinckley etc. Iron Co. v. James, 51 Vt. 240.)

There can be no recovery in these cases by reason of the total failure of the contractors to perform their contract; nothing has been earned by the contractors; there is nothing owing to them from the city of Lewiston, and therefore no property of the city of Lewiston is lienable. (Valley Lumber Co. v. Nickerson, 13 Idaho 682, 93 P. 24; Fitch v. Howitt, 32 Ore. 396, 52 P. 192.)

The basis for the interposition of a lien is the mere equity in favor of him who, by his labor or materials, has benefited the owner. (Jones v. Great Southern Hotel Co., 86 F. 370, 30 C. C. A. 108.)

Counsel have been unable to cite a precedent where there was no benefit appropriated. (30 Am. & Eng. Ency. of Law, 1249.)

The distinctions set forth in the briefs of respondents between the New York and Pennsylvania rules are not applicable to a case where no building, structure or machinery has been begun, to say nothing of completed. (Doll v. Young, 149 Ky. 347, 149 S.W. 854; Wigton's Appeal, 28 Pa. 161; Presbyterian Church v. Stettler, 26 Pa. 246.)

Material for molds to aid in concrete construction, which is afterward taken away, is not lienable. (Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N.E. 971.)

G. Orr McMinimy, Jas. E. Babb and McNamee & Harn, for Respondents.

Where a new remedy or mode of proceeding is authorized without an express repeal of a former one relating to the same matter, it is to be regarded as merely cumulative, creating a concurrent remedy, and not as abrogating the former mode of procedure. (Raudebaugh v. Shelley, 6 Ohio St. 307; Ban v. Columbia Southern R. Co., 117 F. 21, 54 C. C. A. 407; Winters v. George, 21 Ore. 251, 257, 27 P. 1041.)

If there appears enough in the description to enable a party familiar with the locality to identify the premises intended to be described, with reasonable certainty, it will be sufficient to sustain a mechanic's lien. (Beckstead v. Griffith, 11 Idaho 738, 83 P. 764; Robertson v Moore, 10 Idaho 115, ...

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