Nelson Bennett Co. v. Twin Falls Land & Water Co.

• Decision Date: 04 January 1908
• Citation: 93 P. 789,14 Idaho 5
• Parties: NELSON BENNETT COMPANY and ALEXANDER TOPONCE, Respondents, v. TWIN FALLS LAND & WATER COMPANY, Appellant
• Court: Idaho Supreme Court

93 P. 789

14 Idaho 5

NELSON BENNETT COMPANY and ALEXANDER TOPONCE, Respondents, v. TWIN FALLS LAND & WATER COMPANY, Appellant

Supreme Court of Idaho

January 4, 1908

MECHANIC'S LIEN LAW-RIGHT OF LIEN ON WORKS CONSTRUCTED UNDER CAREY ACT-BILL OF PARTICULARS-SUBMISSION OF CONTROVERSIES TO CHIEF ENGINEER AS UMPIRE-BINDING EFFECT OF SUBMISSION ON ALL PARTIES TO CONTRACT-ACTS OF ENGINEER FOR WHICH HIS DECISIONS MAY BE SET ASIDE-SUFFICIENCY OF FINDINGS-ATTORNEY'S FEES ON FORECLOSURE OF LIEN-TAXATION OF COSTS.

1. Under the act of Congress of June 11, 1896 (6 Fed. Stat Ann., p. 398, U.S. Comp. Stat. 1901, p. 1554), which is supplementary to the Carey act (6 Fed. Stat. Ann., pp. 396 to 398, U.S. Comp. Stat. 1901, pp. 1552-1554), and the act of the legislature of the state of Idaho of March 2, 1899 (Sess Laws, 1899, p. 282), accepting the provisions of the Carey act and providing for the reclamation, occupation and disposal of lands thereunder, a lien is granted in favor of the person, company or association contracting for the construction of canals and reclamation works for the irrigation of arid lands thereunder, and such lien extends to all lands in the segregation that can be irrigated by such system to the full extent of the price per acre for which such person, company or association contracts and agrees to sell water rights, and the contractor or subcontractor performing work under such person, company or association, is entitled to the benefit of the lien laws to secure the payment to him for such work to the full extent of the title interests, rights and claims of the company having the con- tract from the state and to the full extent of and commensurate with, the lien rights of such company.

2. ID.-The rights of the lien claimant who is a contractor or subcontractor under the person, company or association which has the contract from the state will extend to all the rights, interests, claim and title of such company in and to the works and irrigation system and lands thereunder, but the lien claimant cannot by foreclosure of his lien acquire any greater right than that possessed by such company or association.

3. Where a complaint states in ordinary and concise language the nature of the cause of action, and states the number of cubic yards of earth removed for which the plaintiff claims compensation and the classification to which the same belongs, and the specific contract or piece of work on which the same was performed, it is not open to demurrer on the ground of uncertainty or ambiguity in that particular, and it is not error for the trial court to deny a motion for a "bill of particulars" in such case requiring the plaintiff to state the particular amount claimed for every given number of feet in distance or at any given station upon the works.

4. Sec. 4209, Rev. Stat., provides the method for an adverse party securing an itemized statement of an account, and in addition to that provision of the statute, the court in an equity case has the inherent power to so regulate and control its proceedings as to require the party to furnish a bill of particulars in a proper case.

5. A stipulation in a contract requiring the submission of differences and controversies arising thereunder to the chief engineer of one of the contracting parties as umpire and leaving the measurements, estimates and classification of the work to him, and providing that his measurements and classifications shall not estop the party employing the engineer from disputing or questioning them, will not be enforced by the courts as a binding obligation against the other party thereto.

6. Where the issue tendered is that the chief engineer of the defendant company, selected as umpire to determine all questions of controversy, acted fraudulently and arbitrarily in making estimates, measurements and classifications, and without previously making any proper inspection on which to found an honest judgment, and with intent to injure and defraud the plaintiff and deprive it of its just compensation, and did arbitrarily and in violation of good faith make and cause to be made false and untrue estimates, measurements and classifications, such issue, if supported by the evidence, will authorize and justify a court in setting aside such final estimates, measurements and classifications and in hearing the evidence as to the true measurements and classifications that should have been made and determining the same as though no estimates, measurements or classifications had been made by an engineer and no submission had ever been made.

7. ID.-A finding by the trial court on the foregoing issue "that the chief engineer wrongfully, arbitrarily and without having made proper observations, and without sufficient knowledge upon which to found a just judgment, in respect to the kind, quality and classification of materials, and in violation of good faith and duty, did make, cause to be made and permit untrue and grossly erroneous estimates and classifications of the kind, character and amount of materials removed and placed, and work done," is sufficient to support a judgment in favor of the plaintiff for the true measurements and amount of work done and the proper and just classifications as found from the evidence in the case.

8. Where the chief engineer of a defendant company who has been selected as umpire for the purpose of making a final determination of controversies and differences in reference to the work, material, measurements and classifications, retains in his service an assistant engineer who is manifestly prejudiced and biased against the contractor, and where, after such chief engineer has been advised of the animus, bias and prejudice of his assistant against the contractor, he causes such assistant engineer to make the measurements, estimates and classifications of the work done by such contractor, and it manifestly appears that such estimates and classifications have been unfair and unjust and discriminating against the contractor, the court, when appealed to, will set the same aside and ascertain from the evidence submitted the true amount of work done or material furnished and the proper measurements and classifications thereof, and order judgment accordingly.

9. Evidence in this case examined, and, held, sufficient to support findings and judgment entered and rendered thereon, except as to total number of cubic yards of earth moved, and judgment modified as to excess.

10. That portion of the lien laws of this state (Sec. 12, Lien Laws, 1899), which provides that upon the foreclosure of a mechanic's lien the court may allow reasonable attorney's fees in favor of the plaintiff, is constitutional and valid. Thompson v. Wise Boy Min. & Milling Co., 9 Idaho 363, 74 P. 958, followed and approved. Held, further, that under the facts and circumstances of this case, and in view of the amount involved and the questions raised, an allowance of $10,000 as attorney's fees is not excessive.

11. Order made on motion to tax costs, examined and sustained. Anderson v. Ferguson-Bach Sheep Company, 12 Idaho 418, 86 P. 41, followed and approved.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for the County of Cassia. Hon. Lyttleton Price, Judge.

Action by plaintiffs to foreclose a mechanic's lien. Judgment for the plaintiffs, and defendant moved for a new trial and appealed from the judgment and order. Modified and affirmed.

Judgment affirmed in part. Case remanded, with directions.

Henderson, Pierce, Critchlow & Barrette, and S. H. Hays, for Appellant.

Plaintiff should have been compelled to make more specific its complaint, or furnish a bill of particulars. We attacked the complaint herein by two methods--first by demurrer, pointing out with all possible clearness the defects thereof; second, by a demand for a bill of particulars supplying the manifest defects of the complaint. Under the decisions of this court it seems that the defect complained of should be pointed out by demurrer. (Naylor v. Vermont Loan & Trust Company (1898), 6 Idaho 251, 55 P. 298; King v. Oregon S. L. Ry. Co., 6 Idaho 306, 55 P. 665, 59 L. R. A. 209.) Plaintiff should have been required to furnish a bill of particulars. The court undoubtedly has the power to require such a paper, either by way of a bill of particulars or amendment to the complaint, even though not specially provided for in the code, if it finds that such a procedure is necessary to the protection of the rights of the parties. (United States v. Clawson, 4 Utah 34, 5 P. 689, affirmed in 114 U.S. 477, 5 S.Ct. 949, 29 L.Ed. 179; State v. Morgan, 23 Utah 228, 64 P. 356; State v. Reed, 3 Idaho 554, 32 P. 202; Commonwealth v. Snelling, 15 Pick. 330; Tilton v. Beecher, 59 N.Y. 176, 17 Am. St. Rep. 337; Morrisett v. Wood, 128 Ala. 505, 30 South, 631; 3 Ency. of Pl. & Pr. 523.) In this case and upon the showing made the exercise of legal discretion practically demanded that such an order be made. (Clarke v. Ohio River R. Co., 39 W.Va. 732, 20 S.E. 699.) It may be urged that we should have applied for a copy of the account upon which plaintiff sues. Our view is that this is not such a case as is contemplated by the provisions of the statute empowering us to demand an account. (Sec. 4209, Rev. Stat.) This is not a suit upon an account, as the term is ordinarily used. It is upon a contract for work, labor and materials. We did, under this same section, make a request that the court order a further account, to which no response was made.

Since it has been shown beyond question by the proofs that this is a state enterprise, constructed by the defendant as a contracting agent for the benefit of the state, neither the water rights nor the ditch, built as it is upon public property of the...