Creer v. Cache Val. Canal Co.

• Decision Date: 17 December 1894
• Citation: 38 P. 653,4 Idaho 280
• Parties: CREER v. CACHE VALLEY CANAL COMPANY
• Court: Idaho Supreme Court

38 P. 653

4 Idaho 280

CREER v. CACHE VALLEY CANAL COMPANY

Supreme Court of Idaho

December 17, 1894

LABORER'S LIEN-IS ENTITLED TO LIEN FOR LABOR PERFORMED ON CANAL.-A party constructing a branch or section of a main canal, or performing labor thereon in its construction under a contract with the owner, is entitled to a lien upon such branch or section for any balance due him for such labor.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Judgment affirmed, with costs awarded to respondents.

R. H Whipple, for Appellant.

"The court erred in holding that a detached portion or part of a structure can be sold under execution to enforce a mechanic's lien; or that part only of a structure is subject to coercive sale." To sustain the contention would leave the reservoirs, the remainder of the canals (ten miles), the franchise and water rights not covered by plaintiffs' lien, if not absolutely, nearly valueless besides, when sold, the purchaser has bought something that can be of no use to him. I claim that such proceeding is not only against public policy, but is not law. (Jones on Liens secs. 1619, 1620; Dano v. M. & O. R. R. Co., 27 Ark. 546; Knap v. St. Louis etc. Ry. Co., 74 Mo. 374; Cox v. West P. Ry. Co., 44 Cal. 18; Graham v. Mt. Sterling Coal Road Co., 77 Ky. (14 Bush) 425, 29 Am. Rep. 412; Shunberg v. Memphis etc. Ry. Co., 67 Mo. 442; Granston v. Union Trust Co., 75 Mo. 29; Equitable Life Ins. Co. v. Slye, 45 Iowa 615; Williams v. Mountain Gold Min. Co., 102 Cal. 134, 34 P. 702, 36 P. 388; Midland Ry. Co. v. Wilcox, 122 Ind. 84, 23 N.E. 506; 7 Am. & Eng. R. R. Cas. 394; Farmers' Loan & Trust Co. v. Candler, 87 Ga. 241, 13 S.E. 560; Nelson v. Eastern Iowa Ry. Co., 44 Iowa 71.)

Stewart & Dietrich, for Respondents.

Neither the mechanic's lien law of Idaho nor any lien law is "strictly construed" in the sense in which counsel uses the phrase. (See Idaho Rev. Stats., sec. 4.) This section is mandatory. (Blackfoot Stock Co. v. Delamue, 3 Iowa 291, 29 P. 97; Malter v. Falcon Min. Co., 18 Nev. 209, 2 P. 50; Greeley etc. R. Co. v. Harris, 12 Colo. 316, 20 P. 766.) "A substantial compliance is all that is required." (Hagman v. Williams, 88 Cal. 146, 25 P. 1112; Tredinnick v. Mining Co., 72 Cal. 78, 13 P. 153; Malone v. Gravel Co., 76 Cal. 578, 18 P. 774; Jewell v. McKay, 82 Cal. 144, 23 P. 139; Dugan Cut Stone Co. v. Gray, 114 Mo. 497, 21 S.W. 854, 35 Am. St. Rep. 767, and note; White Lake Lumber Co. v. Russell, 22 Neb. 126, 3 Am. St. Rep. 262, 34 N.W. 104.) The water and irrigation company will not be heard to say that the lien did not attach to the ditch which the parties who constructed it brought into existence. The law will not permit the company to say, "We have the property that your labor created and gave us, but we will not compensate you for it, or concede your lien to secure its payment." (Garland v. Irrigation Co., 9 Utah, 350, 34 P. 368; Lyon v. McGuffey, 4 Pa. St. 126, 45 Am. Dec. 676; Stoner v. Neff, 50 Pa. St. 261; Rev. Stats., secs. 5125, 5128; McGreary v. Osborne, 9 Cal. 121.)

Suit by William O. Creer and others against the Cache Valley Canal Company and others for a balance claimed to be due for work and labor done by them in the construction of two canals for the defendant, the Cache Valley Canal Company, and for a first lien upon said canal to secure said claim. Decree in the court below gave plaintiffs judgment for the amount claimed, and first lien upon the canal to secure the sum, and defendants appeal. Affirmed.

The stipulation of facts agreed upon in this case shows: That the Cache Valley Canal Company, on or about the first day of May, 1892, constructed a main canal running from Soda Springs, along the Oregon Short Line Railroad, to the northeast quarter of section 1, in township 9 south, of range 40 east, P. M., and about four and one-half miles of the south branch of said canal--in all, about fourteen miles. On the eighteenth day of June, 1892, the Cache Valley Canal Company executed a mortgage to James Thompson for the sum of $ 25,000 upon all the canals thus constructed, and upon those to be thereafter constructed. That the money so obtained by said mortgage was used in the construction of said canals, including that part on which the plaintiffs now claim a lien. On the eleventh day of July, 1892, the plaintiffs made a contract with the Cache Valley Canal Company, by the terms of which the said plaintiffs were to construct what is called the "north branch" of the said canal, for which they were to receive a certain stipulated price. They also agreed to construct what was termed the "south branch and laterals" of said company's canal for a certain other stipulated sum. That the said plaintiffs fully performed their contract as before set forth, and completed said work on the twenty-seventh day of October, 1892. It is also stipulated that, if the plaintiffs are entitled to recover at all, the amount claimed in the complaint, and interest as claimed, is the amount that should be allowed; that the lands whereon the said canal was constructed were then public lands of the United States, with the exception of three-quarter sections; that at all times mentioned in the complaint, as fast as the said canals were constructed by the plaintiffs, as alleged in the complaint, the defendant, the Cache Valley Canal Company, was the owner thereof; that in November, 1892, the said Cache Valley Canal Company sold and transferred all said canals right of way, as far as said company had acquired it, to the Cache Valley Land and Canal Company; that in April, 1893, the said last-named company acquired the right of way over all the public lands where its canal was constructed; that the plaintiffs herein were original contractors under the contract sued on; that notice of lien was by the plaintiffs filed in the office of the recorder of Bingham county, where said canal is situated, at 11 o'clock A. M., November 25, 1892.

MORGAN, J. Huston, C. J., and Sullivan, J., concur.

OPINION

MORGAN, J.

(After Stating the Facts.)--This appeal exhibits a most extraordinary state of facts. It is stipulated that the defendants owe the plaintiffs the sum demanded in their complaint, with interest thereon. It further appears from the record that quite a large part of the property upon which this lien is claimed, and upon which the said James Thompson claims to have a mortgage, which he wishes the court to declare to be a prior lien to that of the plaintiffs, had no existence whatever when this said mortgage was given. That the plaintiffs constructed the whole of the north and south branches of said canal after this mortgage was given, except about four and one-half miles, which they had constructed before. The plaintiffs actually created this property which made the mortgage of the said Thompson, who is the appellant in this case, good; that is, the north and south branches of the canal were not built--had no existence--when the mortgage was given. That they were built by said plaintiffs, for which construction they have not been paid, except in part. And this suit is brought to secure the balance of the...