Lakeview Canal Co. v. Hardesty M. Co.

• Citation: 31 Wyo. 182,224 P. 853
• Decision Date: 15 April 1924
• Docket Number: 1102
• Parties: LAKEVIEW CANAL CO. v. HARDESTY M. CO
• Court: United States State Supreme Court of Wyoming

224 P. 853

31 Wyo. 182

LAKEVIEW CANAL CO. v. HARDESTY M. CO

No. 1102

Supreme Court of Wyoming

April 15, 1924

ERROR to District Court, Park County; PERCY W. METZ, Judge.

Action by the Interstate Construction Company against the Lakeview Canal Company and others in which the R. Hardesty Mfg. Co. intervened. From a judgment for intervenor, the named defendant brings error.

Judgment affirmed.

Brome &amp Hyde for Plaintiff in error.

Carey Act Canal property is not subject to a mechanic's lien Peters v. Killebrew, 24 Wyo. 53; the rule of strict construction prevails in the enforcement of mechanic's lien, Wyman v. Quayle, 9 Wyo. 326; Davis v. Co., 14 Wyo. 524; Becker v. Hopper, 22 Wyo. 253; 4869 C. S. is no broader than 4859, which does not authorize liens upon public property, and by analogy; the Wyoming rule should apply to 4860 C. S., the land belonged to the United States Government; the water right belonged to the State; the authorities are almost unanimous that a mechanic's lien does not attach to public property, 18 R. C. L. 881; Bennett v. Co. (Ida.) 93 P. 790 is not in point on the facts, the Hardesty Company had no interest and could not litigate it's independent claim against the Lakeview Company; the lien judgment should be reversed.

E. J. Goppert and Hindry, Friedman & Brewster for Hardesty Company; Johnson & Johnson and J. H. Van Horn for Interstate Construction Company, defendants in error.

The mechanic's lien law being remedial should be liberally construed, Braeckel v. Shade, (Mo.) 118 S.W. 1196; especially since the amendment of 1911; the lien act applies to Carey Act property; but in this case Lakeview Canal Company owned the canals and water rights, Bennett v. Co. (Ida.) 93 P. 789; the Idaho act is similar to the Wyoming law, see also Badger Co. v. Malone, 8 Kan.App. 692, 54 P. 692; Farnham, Vol. 3 p. 1995; Garland v. Co., 9 Utah 35, 34 P. 368, 164 U.S. 1, 17 S.Ct. 7, 41 L. ed. 327; Jarrell v. Block, (Okla.) 92 P. 167; Idaho Co. v. Dill, 139 P. 715; Cont. Bank v. Croey Bros. Co., 208 F. 976; the Hardesty Co. had a right to file its counterclaim below; proceedings under the Code of Civil Procedure are liberally construed, 5532 C. S., see also 5593, 5600, 5601, 5660, 5876 C. S., Maher v. Farnandis, 49 Wash. 250, 126 P. 542; as to right of intervention, see Barney v. Baltimore, 73 U.S. 280; Western Union v. Co., 221 F. 545; after intervention permitted, intervenor is entitled to a determination of his claim pursuant to established principles of equity.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The R. Hardesty Mfg. Co., hereinafter referred to as the claimant, intervened in an action brought in the district court of Park County, Wyoming, wherein the Interstate Construction Company was plaintiff and the Lakeview Canal Company and others were defendants, the case being the same case decided on appeal in this court on this date. Said claimant in its petition of intervention alleges that it furnished certain material to be used and actually used in the enlargement and extension of the so-called Hammitt canal, situated in Park County, Wyoming; that said material was furnished to said Lakeview Canal Company, which was the construction company enlarging and extending said ditch. Claimant prays judgment against said construction company for the value of said material so furnished and used, and a lien against said ditch and the water rights and appurtenances thereunto belonging, pursuant to a lien notice theretofore duly filed in the office of the county clerk of Park County, Wyoming. The case was tried to the court and judgment was rendered in favor of the claimants for $ 12,544.82, and a lien established against the property of said construction company for the amount of $ 10,139.72. Said construction company brings this case here on error. No bill of exceptions is filed, and all we have before us in said case are the original pleadings and papers, together with a certified copy of the journal entries.

The only question involved in this case is as to whether or not said claimant is entitled to a lien against said ditch, water rights and appurtenances. It is the view of counsel for the plaintiff in error that the ditch and the water and the entire works belong to the state of Wyoming, against which no one is entitled to any lien; that the lands to be irrigated belonged principally to the United States and that said construction company, therefore, has no interest whatever in and to said works and property. This claim is based on the fact that the lands irrigated under the canal system of said construction company are lands taken up under the so-called "Carey Act."

Congress, by the act of August 18, 1894, commonly designated as the "Carey Act," and by subsequent amendatory acts (Comp. St. 1901, pp. 1554 to 1556), provided for reclamation, by irrigation, of desert lands situated in various states and territories. Under the provisions of the act, the state may make an application to the Secretary of the Interior to segregate certain desert lands from the body of the public domain for the purpose specified. A map and plans showing the mode of the contemplated irrigation must be submitted, and if approved, the lands may be temporarily reserved, and as fast as the State furnishes satisfactory proof that any of said lands are irrigated, reclaimed and occupied by actual settlers, in the manner provided in said act, patents are issued to the state or its assigns for the lands so reclaimed and settled. The construction of reservoirs or ditches, or both, necessary to supply the water needed for such lands, is generally expensive. It is unlikely that a number of men, contemplating to settle on the lands, would get together, or would have the means, to construct the necessary irrigation works, and unless the state itself would undertake to do so, which has not heretofore been true it must be done through men with capital, who, in practice, have organized a corporation, to act as a construction company, for that purpose. The only method by which such corporation can insure the return of the money so expended is by the sale of an interest in the ditch and water rights to the various settlers upon the lands aforesaid. But such settlers are generally poor and to enable them to purchase any such interest at all, payments must be permitted to be made by installments. Congress, realizing this situation, provided that the State, to which such lands are granted, may create a lien on the land reclaimed for the necessary expenses of reclamation and reasonable interest thereon. The legislature of this state accepted the benefits of said acts of Congress. Sec. 769, Wyo. C. S. 1920. By Section 775 it is provided that a company that desires to construct irrigation works to reclaim lands under the Carey Act must, in writing, request the Board of Land Commissioners to select the land to be reclaimed; must propose to construct the irrigation works necessary for such reclamation, and state the source of the water supply, the location and dimensions of the proposed works and the price and terms at which perpetual water rights will be sold to settlers on the lands to be reclaimed. Under other sections of the statute, an application for a permit for a water right in connection with said reclamation must be filed with the state engineer; the proposal above mentioned is investigated and if approved, an application is directed to be made to the government of the United States for patents for such lands. Upon the withdrawal of the land by the department of the interior, said board of land commissioners may enter into a contract with said applicants submitting the proposal aforesaid, which contract must, among other things, specify the location, dimensions, character and estimate of the cost of the proposed irrigation work, and the price and the terms for which perpetual rights therein will be sold to the settlers upon said lands. Any person desiring to file upon and occupy any of said lands so withdrawn must make an application therefor to the State, paying the sum of fifty cents per acre, but no more, before receiving a patent. And the person making final proof must show that he has a perpetual right in and to the water rights of the construction company hereinbefore mentioned. Under section 795 of the Wyo. C. S. 1920 it is provided that the company furnishing water for any tract of land shall have a first and prior lien on said water right and land upon which said water is used for all deferred payments for said water right. Under Section 4860 it is provided, generally, that any person who shall perform any work or labor upon or furnish any material for the construction of any ditch, canal or reservoir shall have a lien for his work or labor done or material furnished, upon said ditch, canal or reservoir, the right of way for such ditch, canal or reservoir, and water permits and ditch rights used in connection therewith, as well as upon the lands for the reclamation of which said ditch, canal or reservoir is constructed. It is apparent that under the provisions of the last section of our statutes quoted, the claimant above mentioned is entitled to a lien unless, as claimed, the construction company has no interest to which a lien can attach.

The laws of the State of Idaho are substantially the same as those in this state, in...