Midland Ry. Co. v. Wilcox

• Decision Date: 16 January 1890
• Citation: 122 Ind. 84,23 N.E. 506
• Parties: Midland Ry. Co. v. Wilcox et al.
• Court: Indiana Supreme Court

122 Ind. 84

23 N.E. 506

Midland Ry. Co.

v.Wilcox et al.

Supreme Court of Indiana.

Jan. 16, 1890.

Appeal from circuit court, Madison county; M. S. Robinson, Judge pro tem.

Action by Arthur T. Wilcox and Holleran & Ingerman, to foreclose a lien on a railroad, against the Midland Railway Company. Judgment for plaintiffs, and defendant appeals. Act Ind. March 6, 1883, provides that all persons who by contract with any railroad corporation whose road is not in operation over the whole line thereof, or by contract with the lessee of such corporation, shall perform labor or furnish material for any such corporation, or the lessee thereof, in the way of grading, building, embankments, or making excavations for the track of any such railway corporation, or who shall build or repair bridges or trestle-work for any such railroad corporation, or the lessee thereof, shall have a lien upon such grading, embankment, or excavation, and upon such bridges or trestle-work, as they may have built or repaired, pursuant to any contract made with such corporation or the lessee thereof, upon so much of the track of such corporation as is covered by such bridges or trestle-work; and any subcontractor or laborer, if, at or before the time he furnishes materials or does labor, he shall notify such corporation or lessee thereof, or its agent, that he is furnishing the material or doing work for the contractor or subcontractor, may also have such lien. Act July 18, 1885, (Elliott's Supp. §§ 1699, 1704,) amending the foregoing act, provides that all persons who shall perform work or labor or furnish material, in or for the construction of any railroad, or any part thereof, may have a lien for their work, labor, or material on the right of way and franchises of such railroad corporation, within the limits of the county in which such work or labor may be performed or material may be furnished, and all the works and structures that may be on the right of way and franchises within the limits of such county: provided, that the provisions of this act shall not apply to work done or materials furnished for railroad corporations whose roads are completed and in operation.Henry Crawford, D. C. Chipman, and M. A. Chipman, for appellant. F. M. Trissal and Shirts & Shirts, for appellees.

Elliott, J.

Wilcox seeks by his complaint to foreclose a lien which he asserts he holds by the assignment of part of an estimate, certified to him by the appellant's engineer, against an unfinished railroad of which the appellant is the owner. Holleran & Ingerman filed a cross-complaint, asserting a lien, and claiming the right to enforce it as to the assignees of the persons with whom the construction contract was entered into by the railroad company. We do not deem it necessary to give a synopsis of the pleadings, for the reason that the special finding contains the material facts, and we can, without a repetition, determine all the material questions of law arising in the case upon the facts contained in the special finding. The facts, as they appear in the special finding, may be thus summarized: On the 4th day of June, 1885, the Cleveland, Indiana & St. Louis Railroad Company was the owner of a line of railroad extending from the city of Anderson to the city of Lebanon. That part of the road lying between Noblesville and Anderson was completed and in operation, but that part between Noblesville and Lebanon was not completed or in operation. On the day named the company entered into a contract with Parker & Co. for the construction of its unfinished railroad. Before any work was done under this construction contract the Midland Railway Company became the successor of the Cleveland, Indianapolis & St. Louis Company, and accepted the contract which the latter had made with Parker & Co. Under the direction of the Midland Company, and in accordance with the terms of the contract, the original contractors and their assignees performed labor and furnished materials to the Midland Company. Estimates were certified to by its engineer for the principal part of the sum owing the contractors for the labor done and materials furnished. The aggregate sum was evidenced by 11 estimates certified by the company's chief engineer. On the 15th day of July, 1885, Parker & Co. assigned $1,200 of the estimate for June, 1885, to the plaintiff Wilcox, as collateral security for a loan of that amount. On the 13th day of August, 1885, Parker assigned his interest in the construction contract to his partners, Prisco & Forella, and they subsequently assigned to Holleran, Ingerman & Haverstick, but the latter afterwards assigned his interest to his associates, Holleran & Ingerman. In the contract of assignment to Holleran, Ingerman & Haverstick it was stipulated that they should have all the rights and claims of every description of the assignors. On the 2d day of October, 1885, Holleran & Ingerman filed a notice of their intention to hold a lien on the railroad for work done and materials furnished under the construction contract, and stated therein the amount owing them, and stating, also, what was included in the estimates, and what had not been estimated. This notice describes the entire line of uncompleted road and appurtenances, and recites the assignment to Wilcox of $1,200 of the June estimate. On the 23d day of November a similar notice of an intention to hold a lien on the road and appurtenances was filed in the recorder's office of Hamilton county, and notice was also filed in Boone county, and it was recorded on the 28th day of that month. The labor and materials included in the estimates and mentioned in the notices was performed upon and were furnished for that part of the road between Noblesville and Lebanon, the part between Noblesville and Anderson having been completed and in operation at the date of the construction contract. The estimates prepared by the engineer do not divide the work so as to show what part of the materials were furnished for the separate parts of the road, nor do they show what part of the work was done in Hamilton county and what part in Boone; but in performing the work and furnishing the materials the contractors and the engineer treated the work as a continuous line, extending from Noblesville to Lebanon, and as not separated by any divisions. The value of the work done upon the road and materials furnished therefor in the county of Hamilton, as estimated by the engineer, is $8,160.06, and the value of the work done upon, and materials furnished for, the road in Boone county is $3,400. The contractors have been paid at different times sums amounting in the aggregate to $4,132.49. The payments were made generally, and without regard to the county in which the work was done. In addition to the payments referred to, Holleran & Ingerman were paid $1,760 on the 15th day of February, 1886, on general account. Actions were brought by divers subcontractors, on which judgments were rendered amounting in the aggregate to $1,088.17, principal; $141.70, attorneys' fees; and costs, $243.20,-making a total of $1,473.07. Holleran & Ingerman were not parties to any of these actions, but they testified as witnesses in them. All of the judgments except two, one in favor of Presser & Downing for $508.54, and one in favor of Reuben Giebler for $64.50, were paid by the company. The judgment in favor of Presser & Downing was for timber, and it was for $311.54 more than the value of timber furnished by them. The actions in which judgments were rendered were brought after the 5th day of November, 1886, and after the railway company had made default in payment. The assignors, Prisco & Forella, under the terms of their contract with their assignees, Holleran & Ingerman, are indebted to the latter in the sum of $4,358.56. The amount due Wilcox is $758.50. In so far as the conclusions of law are material to the controversy waged in this court, they are in substance these: (1) The plaintiff has a lien for $798.50 upon that part of defendant's road in Hamilton county and west of Noblesville. (2) The cross-complainants, Holleran & Ingerman, have a lien upon the road between Noblesville and Lebanon for $3,950.58.

The question which comes first in logical order is whether the lien asserted under the construction contract exists and is enforceable. In 1883 a statute was enacted giving a lien to all persons who do work upon a railroad not in operation, or who furnish materials for it, and in 1885 this statute was amended. Elliott's Supp. §§ 1699, 1704. There is therefore a statutory lien created by law, and the question is as to the extent and nature of the lien, and whether the plaintiff and the cross-complainants are within the law. The act of 1883 was in force when the construction contract was made, for it was not supplanted by the act of 1885, since that act, although it was passed some months before the contract was entered into, did not take effect until July 18, 1885; but we do not regard the latter act as in any respect impairing the lien created by the earlier statute. The later law, so far from impairing the lien, really enlarged it by making the provisions of the act of 1883 explicit and clear. The amendatory act did not profess to sweep away any rights existing under the former act, nor to create an entirely new and different lien. What it professes to do, and what it does accomplish, is to clear away obscurities in the former act, and in some degree change the mode of securing and enforcing the lien. Both the acts are to be considered in arriving at the legislative intent, and we have no doubt, after having considered both of them, that it is our duty to adjudge that the legislature intended by the first act to give a valid and effective lien, and that the last act simply carries that intention into effect by making explicit what was before implied, and by making clear what was before obscure. The true construction of the earlier act requires...