Lessard v. Town of Revere

• Citation: 50 N.E. 533,171 Mass. 294
• Parties: LESSARD et al. v. TOWN OF REVERE.
• Decision Date: 20 May 1898
• Court: United States State Supreme Judicial Court of Massachusetts

171 Mass. 294

50 N.E. 533

LESSARD et al. v. TOWN OF REVERE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1898

COUNSEL

Eaton & McKnight, for petitioners.

Dewing & Cutler, for respondent.

OPINION

HOLMES, J.

The only question raised by the report is whether the general words of Pub.St. c. 191, § 1, give a lien for labor upon a school house held by a town for public-school purposes. Such a lien seems to have been enforced in Morse v. School Dist., 3 Allen. 307; but it does not appear whether the exceptions were broad enough to present this question, and the question is not adverted to in the decision. In Kansas, under like circumstances, a lien was held to be created, although it was assumed that by reason of another statute no process could be issued to enforce it while the building remained the property of the school district. Wilson v. School Dist., 17 Kan. 104. See McKnight v. Parish of Grant, 30 La.Ann. 361. But the general current of decisions is against the lien when the property upon which it is asserted is held for public uses. Hovey v. Town of East Providence, 17 R.I. 80, 20 A. 205; Leonard v. City of Brooklyn, 71 N.Y. 498; Brinckerhoff v. Board, 2 Daly, 443; Id., 37 How.Prac. 499; Patterson v. Reform School, 92 Pa.St. 229; Abercrombie v. Ely, 60 Mo. 23; Fatout v. Board, 102 Ind. 223, 232, 1 N.E. 389; Board v. Neidenberger, 78 Ill. 58; Portland Lumbering & Mfg. Co. v. School Dist. No. 1, 13 Or. 283, 10 P. 350; Jordan v. Board, 39 Minn. 298, 39 N.W. 801; Mayrhofer v. Board, 89 Cal. 110, 26 P. 646; Knapp v. Swaney, 56 Mich. 345, 347, 23 N.W. 162; City of Platteville v. Bell, 66 Wis. 326, 334, 28 N.W. 404; Charnock v. District Tp., 51 Iowa, 70, 50 N.W. 286; Board v. Gillen, 59 Miss. 198; Lock Co. v. Scites, 38 W.Va. 691, 18 S.E. 895; 2 Jones, Liens, § 1375; Dill.Mun.Corp. (4th Ed.) § 577; Boisot, Mech. Liens, § 208; Phil.Mech. Liens (3d Ed.) § 179. The right to take such property on execution is denied on similar grounds. Meriwether v. Garrett, 102 U.S. 472, 501, 513, 525, 526; Foster v. Fowler, 60 Pa.St. 27, 32; Curry v. Savannah, 64 Ga. 290. See Worcester Co. v. Worcester, 116 Mass. 193; City of Somerville v. City of Waltham, 170 Mass. 160, 48 N.E. 1092; McDonald v. General Hospital, 120 Mass. 432. When we add to the almost unanimous course of decision elsewhere our own St.1892, c. 270, which gives a laborer an action against a town on conditions similar to those attached to liens,--a statute hardly explicable except on the assumption that it gives the only remedy available,--we feel bound to construe Pub.St. c. 191, § 1, as not intended to apply to buildings like the school house in this case.

Judgment on the finding.