McPheeters v. Merimac Bridge Co.

• Decision Date: 31 March 1859
• Citation: 28 Mo. 465
• Parties: MCPHEETERS, Plaintiff in Error, v. MERIMAC BRIDGE COMPANY et al., Defendants in Error.
• Court: Missouri Supreme Court

28 Mo. 465

MCPHEETERS, Plaintiff in Error,

v.MERIMAC BRIDGE COMPANY et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1859.

1. Public bridges are not subjected by the St. Louis mechanics' lien act of February 14, 1857 (Sess. Acts, 1857, p. 668), to liens for work done thereon or for materials furnished for their construction.

2. The bridge authorized to be built by the act of February 24, 1853, incorporating the Merimac Bridge Company (Sess. Acts, 1853, p. 195), was a public bridge.

Error to St. Louis Land Court.

This was an action to enforce a mechanic's lien against the bridge of the Merimac Bridge Company. The defendants are James P. Langford, Jas. N. Stevenson, Jacob G. Gremm and Henry Gremm, and the Merimac Bridge Company. The plaintiff alleged in his petition that while said defendants Langford and others were contractors performing certain work for the defendant, the Merimac Bridge Company, they became and were indebted to plaintiff in the sum of $728.48, for castings and materials sold, delivered and furnished, and for work and labor done and performed, etc. The plaintiff set forth the items furnished for the construction of the bridge of the Merimac Bridge Company. It also appeared that he had complied with the requirements of the lien law. To this petition the Merimac Bridge Company demurred. The court sustained the demurrer.

Drake and Wood, for plaintiff in error.

I. The mechanic's lien law, in express terms, confers a lien for materials furnished and used in the erection of bridges. (Sess. Acts, 1857, p. 668, § 5.) The Merimac Bridge Company is purely a private corporation. (See Sess. Acts, 1853, p. 195; Angell & Ames on Corp. 27, 29.) The case of Dunn v. North Missouri R. R. Co., 24 Mo. 494, is not analogous to this. The erection of this bridge was purely a private enterprise, and the fact that a county road leads to or from the bridge can make no change in its character. This bridge would be liable to execution on judgment against the corporation. (R. C. 1855. p. 377, § 8.)

Johnson, for Merimac Bridge Company.

I. The court did right in sustaining the demurrer. The Merimac bridge is a public bridge. It was not subject to a mechanic's lien. (Dunn v. North Missouri R. R. Co. 24 Mo. 498.)SCOTT, Judge, delivered the opinion of the court.

A public bridge is a common highway. A private bridge is similar in its nature to a private right of way and is subject to most of its incidents. (Woolrych on Ways, 195.) The character of a bridge depends more upon the use that is made of it than upon the means by which it was erected. If individuals, for the right to take toll, will make a public highway, the mode of remuneration authorized will not deprive it of the character stamped upon it by the purposes to which it is applied. The charter granted to the Merimac Bridge Company shows that the bridge authorized to be built was a public one, as it was intended to be connected with the highways of the county, was to be built at or near a ferry, and public roads were to be made leading from it. (Sess. Acts, 1853, p. 195.)

The right to erect a bridge and to exact toll from passengers crossing it is a franchise that can only be granted by the state. That right is personal and can not be transferred without express authority of law. In conferring the privilege, regard is had to the ability of the applicant to build and keep up the bridge, and as personal considerations may influence the grant, the franchise of common right is not transferable. There is nothing in the incorporating act which authorizes the company to transfer their bridge to any other body except the county of St. Louis, and such transfer would be inconsistent with the whole design of the law. It seems to be settled that a general assignment by a corporation...