Fisher v. Pioneer Const. Co.

• Citation: 163 P. 851,62 Colo. 538
• Decision Date: 05 March 1917
• Docket Number: 8788.
• Parties: FISHER et al. v. PIONEER CONST. CO. et al.
• Court: Supreme Court of Colorado

163 P. 851

62 Colo. 538

FISHER et al. v. PIONEER CONST. CO. et al.

No. 8788.

Supreme Court of Colorado

March 5, 1917

Error to District Court, La Plata County; W. N. Searcy, Judge.

Action by Francis J. Fisher and another against the Pioneer Construction Company and others. From the judgment plaintiffs bring error. Affirmed.

John P. Brockway, of Denver, for plaintiffs in error.

Mollette & Clements, of Durango, and Sherwin & Hungerford, of Colorado

HILL J.

The plaintiffs in error secured a personal judgment against the defendant in error the Pioneer Construction Company for error the Pioneer Construction Company for $1,579.88, being the balance due for the construction of a diversion weir and headgate upon the Florida Canal at or near the source of its supply from the Florida river. They were denied the right of a mechanic's lien. The contract for this work was between the plaintiff in error McDonald and the defendant in error the Pioneer Construction Company. Fisher is an assignee of McDonald.

The alleged errors pertain to the court's refusal to allow plaintiffs in error a mechanic's lien and in denying to them a new trial. The evidence is not before us, for which reason we must assume that it justifies the court's finding of facts. Sheer v. Zollverein M. & L Co., 48 Colo. 350, 109 P. 862; Clipper M. Co. v. Eli M. & L Co., 29 Colo. 377, 68 P. 286, 64 L.R.A. 209, 93 Am.St.Rep. 89; Price v. Kit Carson Co., 22 Colo.App. 315, 124 P. 353.

The admitted facts in the pleadings and others included in the court's finding disclose that the defendant in error the Florida Canal Company was the owner of the Florida Canal as originally constructed with a capacity of 40 feet, for which it possessed a priority of right; that the Florida Canal Enlargement Company was the owner of an enlargement to this canal, together with a priority used in connection therewith; that, prior to the irrigation season of 1911, these companies owned and used, as a part of said system, a good and sufficient headgate and diversion weir of sufficient capacity, through which they carried their respective waters; that in March, 1910, the defendant in error the Florida Mesa irrigation district was organized under our irrigation district law; that in July, following, it entered into a contract with the Pioneer Construction Company for the construction for it of an irrigation system, to include title to rights of way, etc., for the use of the district; that this system was to consist of a reservoir and a second or additional enlargement to the Florida Canal, to include a headgate and diversion weir sufficient in size to divert and carry, not only the waters to be secured by said district upon account of this second enlargement, but also the waters used and owned by the then owners of the canal; that in December, following, the Pioneer Construction Company entered into a contract with McDonald for the construction of the enlarged weir and headgate; that thereafter the old headgate and weir of the two canal companies were removed, and in their place McDonald constructed the new ones, and thereafter duly filed his mechanic's lien upon the entire property to secure the balance due him.

The plaintiffs in error alleged that the Pioneer Construction Company's contract was with the defendants in error the Florida Canal Company and the Florida Canal Enlargement Company. This allegation was denied. The court found that the Pioneer Construction Company's contract was with the irrigation district; that the canal companies had nothing to do with it; that it was not made for their benefit; that the construction provided for therein was not a part of their property nor an addition thereto, but, to the contrary, that the canal of the Florida Canal Company and the enlargement owned by the Florida Canal Enlargement Company and the second enlargement constructed for the irrigation district were separate entities; that the work to be performed by the district in making the headgate and weir necessary to accommodate such second enlargement did not constitute the erection of a structure upon, nor the making of an improvement to, the original ditch, or to its first enlargement, for which reason the right of mechanic's lien did not attach to the original canal or its first enlargement. Commenting upon this subject, the learned trial judge said:

'As to the relation of the canal company and the canal enlargement company to this headgate and weir, it seems to me that the situation in this case must be held to be just the same as it would be in any other case of the enlargement of a ditch by a new and independent claimant. An irrigation ditch, with its right of way, constitutes a peculiar form and species of property. It may be easily subject to an improvement which will give right of lien upon it; but, at the same time, it is a separate and distinct piece of property. If the owner of the original ditch simply enlarges the same, then he must be improving his own property; but if some other person, acting under the statute, sees fit to add an enlargement for his own use and benefit, he cannot truly be said to be improving in any way the original ditch. He is merely combining a new structure of his own with an already existing structure of the original owner. The enlargement is a new and distinct and independent structure. It is not built upon nor made as an improvement of the original structure. Whether the new ditch be an extension of the old ditch, or whether it be an enlargement of the old ditch, it nevertheless constitutes a newly created piece of property in distinct ownership, and in no legal sense built upon the first one. It seems to me to be immaterial whether the original owner resists from the beginning and compels a condemnation suit, or whether he acquiesces in the enlargement, or whether he remains silent during its construction. I can see no sound reason under the law for holding that he must resist the enlargement, which the law allows, in order to prevent liens from attaching to his own ditch when another one is constructed through it. And if the enlargement, whether by acquiescence or condemnation, is on the same basis, then I am satisfied that the mechanic's lien law never was intended to apply, and does not apply, so as to give a lien upon the first ditch, because some other person concludes to construct his ditch through it and combine the flow of water. As heretofore stated, in my judgment this case is based upon the contract rights, and not upon the statute of nonnotice; but, even if the action were based upon the statute, it seems to me it could not apply to the situation.'

We agree with the above comments and are of opinion that under such circumstances no lien could attach to the original canal by virtue of there being added thereto by some one else additional space as a separate entity thus acquired and to be thus used. Nichols v. McIntosh, 19 Colo. 22, 34 P. 278; Farmers' High Line C. & R. Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L.R.A. 767; Rominger v. Squires, 9 Colo. 327, 12 P. 213. The same rule applies to the enlargement of the headgate and weir in the first instance, which are but a part of the entire system, even though new ones have to be constructed in order to supply the needs created by the enlarged use. Sand Creek L. I. Co. v. Davis, 17 Colo. 326, 29 P. 742; Patterson v. Brown, etc., Ditch Co., 3 Colo.App. 511, 34 P. 769.

The court found that upon August 18, 1910, the irrigation district delivered to the Pioneer Construction Company the sum of $350,000 par value of its bonds as payment in full for the right of way for this second enlargement, for some other property, and for the completion of the canal, headgate, weirs, etc., called for by their contract of July 2, 1910; that this included payment for the work thereafter performed by McDonald under his contract of December 1st, following; that the conveyances to the district were executed and delivered and that the title to all the property became vested in the district on August 18, 1910; that for these reasons, at the time McDonald entered into his contract with the Pioneer Construction Company for his work, the construction company was an original contractor with the district for the work which McDonald was thereafter to perform; that at that time the contractor had been paid in full for all of this work; that the district's interest therein was not subject to a mechanic's lien upon account of its being a public corporation. The question which then presents itself is whether the property of an irrigation district to be used exclusively for the purposes for which the district was created is exempt from mechanic's liens, the same as property thus used by other public corporations. We think it is.

Under our statutes an...