Knapp v. St. Louis

• Decision Date: 12 November 1878
• Citation: 6 Mo.App. 205
• Parties: JOHN H. KNAPP ET AL., Appellants, v. ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Respondent.
• Court: Missouri Court of Appeals

6 Mo.App. 205

JOHN H. KNAPP ET AL., Appellants,

v.ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 12, 1878.

1. Under the act of March 21, 1873, a lien for labor or material cannot fixed upon a part only of the road-bed of a public railway.

2. Materials furnished for temporary structures only, and never incorporated in the permanent work, are not proper subjects, under the statute, for a lien upon the completed road-bed.

APPEAL from St. Louis Circuit Court.

Affirmed.

G. M. STEWART and H. E. MILLS, for appellants: The lien was properly filed upon that portion of the road covered by the contract of the original contractor.-- Canal Co. v. Gordon, 6 Wall. 561. The materials were proper subjects for the lien.-- Harlan v. Rand, 27 Pa. St. 511; Morrison v. Hancock, 40 Mo. 561; Weber v. Weatherby, 34 Md. 656; McCarty v. McCarty, 49 Ill. 53; Greenway v. Turner, 4 Md. 296; Allen v. Sales, 56 Mo. 28; Colliers v. Gest, 47 Mo. 495; Tucker v. Gest, 46 Mo. 339.

WELLS BLODGETT, for respondent: A lien could not be enforced against a portion of the railroad.-- Cox v. Railroad Co., 44 Cal. 18; Dunn v. Railroad Co., 24 Mo. 493; Sess. Acts 1874, p. 59. No lien can be had for materials used in temporary structures, and not incorporated into the permanent structure.-- Koenig v. Mueller, 39 Mo. 168; Haeussler v. Glass Co., 52 Mo. 452; Graves v. Pierce, 53 Mo. 423; Holzhour v. Meer, 59 Mo. 434; Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 516.

LEWIS, P. J., delivered the opinion of the court.

This is a proceeding to establish a lien on the road-bed of defendant's branch railroad from Ferguson Station to Rock Springs in St. Louis County, on account of lumber furnished to the contractor for building the branch. It appeared from the contract shown in evidence that the contractor's undertaking was limited to the performance of earthwork, grubbing, clearing, excavating, and hauling. The testimony tended to show that the lumber was used in temporary constructions for the contractor's convenience in doing the earthwork, and never became part of the completed structure. Some of it was used in trestle-work upon which cars were run in filling up embankments, and this trestle-work was, in some instances, allowed to remain imbedded in the finished work. It does not appear, however, that this was necessary to the embankment as a structure, or that it had any object other than a saving of the labor of removal. It was admitted by the pleadings that the defendant's railroad extended from St. Louis to Kansas City, and from Moberly to the Iowa State line; that the branch under consideration was from Ferguson Station to the Union Depot in St. Louis, and that the lien was sought to cover two of the three sections composing the branch. The Circuit Court sustained a demurrer to the evidence, and the plaintiffs took a nonsuit with leave, etc.

Two questions are presented in this appeal: 1. Under the act of the General Assembly approved March 21, 1873, can a lien for labor or material be fixed upon a part only of the road-bed of a public railway? 2. Are materials furnished for temporary structures only, and never incorporated in the permanent work, proper subjects, under the statute, for a lien upon the completed road-bed? Both questions are comparatively new to Missouri jurisprudence.

As to the first, a good deal may be said against the apparent inutility of attaching a lien to several hundred miles of railway on account of labor or material furnished for a single bridge or culvert. It may seem altogether reasonable that if the laborer or material-man is satisfied with the security offered in that part of the structure to which he has contributed, the law should not compel him to ask for more. Something may also be said in favor of the general proposition that the lien should attach to the specific object only which the labor or materials have created or improved. But all such considerations must fail if not in harmony with the manifest intention of the Legislature, or if clearly contrary to public policy.

The act of March 21, 1873, provides that all persons who shall do any work or labor in constructing or improving the road-bed, rolling-stock, station-houses, depots, bridges or culverts of any railroad company incorporated under the laws of this State, or owning or operating a railroad within this State, and all persons who shall furnish ties, fuel, bridges or materials to such railroad company, shall have, for the work done and labor performed, and for the materials furnished, a lien upon the railroad-bed, station-houses, depots, bridges, rolling-stock, real estate, and improvements of such railroad, etc. Here is no division of the objects to which the lien is to attach. The road-bed is mentioned as a unit and as a whole. A literal construction admits of no application to a fractional part. It is as if a lien were given upon a house, excluding the idea of a lien upon one of its wings only. If, however, we are to leave the domain of literal interpretation and find a meaning which differs from it in any degree, it must be because from the general policy and purposes of this act it is apparent the Legislature intended such a departure. As to this particular...