Hill v. Twin Falls Salmon River Land & Water Co.

• Decision Date: 06 July 1912
• Citation: 125 P. 204,22 Idaho 274
• Court: Idaho Supreme Court
• Parties: D. L. HILL and O. A. SCHNITKER, Respondents, v. TWIN FALLS SALMON RIVER LAND & WATER COMPANY, a Corporation, Appellant

125 P. 204

22 Idaho 274

D. L. HILL and O. A. SCHNITKER, Respondents, v. TWIN FALLS SALMON RIVER LAND & WATER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

July 6, 1912

MECHANIC'S LIEN-RIGHT TO LIEN-AGENT OF OWNER.

(Syllabus by the court.)

1. Under the provisions of sec. 5110, Rev. Codes, every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of, any mining claim building, wharf, bridge, ditch, dike, flume, tunnel, fence machinery, railroad, wagon road, aqueduct to create hydraulic power, or any other structure, or who performs labor in any mine or mining claim, has a lien upon the same for the work or labor done or materials furnished.

2. Under the provisions of sec. 5110, every contractor subcontractor, architect, builder or any person having charge of any mining claim, or of the construction, alteration, or repair, either in whole or in part, of any other building or other improvement, shall be held to be the agent of the owner for the purpose of the mechanic's lien law.

3. Under the mechanic's lien law of the state it was the intent of the legislature to grant an absolute lien direct upon the property to the person who performs labor upon or furnishes materials to be used in the building, structure or other improvement, without reference to whether such person performing such labor or furnishing such material is an original contractor or a subcontractor or a laborer or a materialman.

4. Where T. F. S. R. L. & W. Co. is engaged in the constructing of a dam for the purpose of creating a reservoir for irrigation purposes, and such company employs H. to haul and transport cement from a railroad station to the place of use to be used in the construction of said dam by the company, and H. sublets a contract to H. & S. to do such hauling, H. is the agent of the land and water company, the owner and builder of the dam, under the provisions of sec. 5110, Rev. Codes, in relation to mechanics' liens.

5. Where H. & S. haul and transport cement from a railroad station to the place where T. F. S. R. L. & W. Co. are constructing a dam, and such cement is accepted and used by the company in the construction of said dam, and H. & S. are employed to haul and transport said cement by H., a contractor employed by the company, and upon the delivery of said cement the same is used in the construction of said dam and becomes a part of the improvement and enhances the value of the company's property, H. & S. are entitled, upon complying with the statute, to a lien upon said dam for labor and services rendered by them in hauling and transporting said cement.

APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. C. O. Stockslager, Judge.

Action to foreclose a mechanic's lien for labor. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondents.

S. H. Hays and P. B. Carter, for Appellant.

Under sec. 3446, Rev. Codes, the respondents engaged in the carriage of this material had a lien thereon dependent on possession. This lien was given them for their protection in the doing of the work in which they were engaged, but by no stretch of imagination are they entitled to another and further lien upon work with which they had no connection. (Webster v. Real Estate Imp. Co., 140 Mass. 526, 6 N.E. 71; Adams v. Burbank, 103 Cal. 646, 37 P. 640; Wilson v. Nugent, 125 Cal. 280, 57 P. 1008.)

A party desiring to enforce double payment and enforce a lien upon property of one who did not employ him must bring his case clearly within the terms of the statute. (Reese v. Bald Mountain Mining Co., 133 Cal. 285, 65 P. 578.)

Longley & Hazel, for Respondents.

The law does not permit the defendant in a case of this kind 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. (Avery v. Clark, 87 Cal. 619, 22 Am. St. 272, 25 P. 919; Creer v. Cache Valley Canal Co., 4 Idaho 282, 95 Am. St. 63, 38 P. 653; Steltz v. Armory Co., 15 Idaho 558, 99 P. 98, 20 L. R. A., N. S., 872.)

Liens have been granted heretofore for work and labor performed in constructing canals and irrigation works. (Creer v. Cache Valley Canal Co., supra; Bennett v. Twin Falls L. & W. Co., 14 Idaho 5, 93 P. 789.)

A teamster in transporting materials used in a building or other structure can claim to have performed the labor thereupon under the statute. (McClain v. Hutton, 131 Cal. 132, 61 P. 273, 63 P. 182; Hill v. Newman, 38 Pa. 151, 80 Am. Dec. 473; Kehoe v. Hansen, 8 S.D. 198, 59 Am. St. 759, 65 N.W. 1075; Robertson v. Moore, 10 Idaho 115, 77 P. 219.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an action brought for the purpose of foreclosing a mechanic's lien upon the dam, works of irrigation and lands necessarily used in connection therewith, and known as the Salmon River Dam, situated in Twin Falls county, Idaho. While the respondents are joined as plaintiffs in said action, the action is individual and the parties are joined under the provision of sec. 5121, Rev. Codes, which provides: "Any number of persons claiming liens against the same property may join in the same action. . . ." In considering the case the plaintiffs will be recognized as separate in their respective rights.

The material facts in the case are stipulated, although there is some oral evidence, but there is no substantial conflict upon any fact which is controlling in determining the rights of the respective parties to the action. The only question to be determined upon this appeal is, whether under the facts of the case as shown by the record, the respondents are entitled to a lien upon the property against which the lien is sought to be foreclosed.

The cause was tried to the court and findings of fact made and judgment rendered sustaining respondents' claims of lien and ordering foreclosure thereof. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling the motion for a new trial.

The facts as shown by the evidence and found by the trial court are as follows: The defendant, the Twin Falls Salmon River Land & Water Company, is the owner of the Salmon River Dam and the land upon which the same is situated, together with certain abutting land necessary for its use. A contract was made between the Twin Falls Salmon River Land & Water Company and one J. T. Hughes by which the company employed said Hughes to haul cement for use in said dam from the railroad station at Rogerson to a point close to the dam, a distance of about seven miles, with the intention of using said cement in the construction of a dam, and such cement was thereafter so used in the construction of said dam and on the property of the defendant company. Hughes employed the plaintiffs to haul a portion of said cement, agreeing to pay therefor the price of $ 2.25 per ton, which has not been paid by either the defendant or Hughes. The cement hauled and delivered by the plaintiffs was delivered at a place for storage designated by the defendant, and a large part at the mixer of the defendant and afterward put to use in the dam. In hauling the cement the plaintiffs used their own teams and loaded and unloaded the same and performed all the work and labor incident to the transportation of said cement from the town of Rogerson to the works of the defendant, and the defendant knew that the plaintiffs were engaged in hauling the cement and used the same and have received the benefit of the work and labor performed by the plaintiffs.

Upon these facts the court concluded as a matter of law that J. T. Hughes, in employing the plaintiffs, was acting as the agent of the defendant company under the mechanic's lien laws of the state, and that the respondents were entitled to a lien upon the dam and adjacent property, particularly describing the same, where the improvements were made.

It is the contention of the appellant on this appeal that under the facts as found by the trial court the respondents are not entitled to a lien upon the dam and property of the defendant; that Hughes, the employer of the respondents, was engaged as a carrier to haul freight from Rogerson to the dam a distance of seven miles, and in doing so did nothing with the building of the dam and was in no way performing labor upon it, and that he did not furnish any material for its construction, and that the employment of the respondents had no relation whatever except that of carrier. The appellant also contends that whatever right the respondents had in the way of a lien was that conferred by the provisions of sec. 3446 of the Rev. Codes, as follows: "Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, by labor, or skill, employed for the protection, improvement, safekeeping or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due him from the owner, for such service. . . ." And that the right and privilege to a lien for the labor performed by the respondents depend entirely upon the provisions of this section of the Revised Codes, and that the respondents show no rights accruing to them under the provisions of sec. 5110 of the Rev. Codes.

It is apparent, however, that the respondents entirely surrendered and waived their rights to a lien, if such rights existed under the provisions of sec. 3446 of the Rev. Codes, by reason of the fact that when the cement was delivered to the appellant and the possession was surrendered to the appellant, the right to a lien ceased, as the right of lien conferred by ...