Pere Marquette Railroad Company of Indiana v. Baertz

• Decision Date: 28 April 1905
• Docket Number: 5,240
• Citation: 74 N.E. 51,36 Ind.App. 408
• Parties: PERE MARQUETTE RAILROAD COMPANY OF INDIANA v. BAERTZ
• Court: Indiana Appellate Court

74 N.E. 51

36 Ind.App. 408

PERE MARQUETTE RAILROAD COMPANY OF INDIANA v. BAERTZ

No. 5,240

Court of Appeals of Indiana

April 28, 1905

Rehearing denied June 30, 1905. Transfer denied October 31 1905.

From Laporte Superior Court; Harry B. Tuthill, Judge.

Suit by Charles Baertz against the Pere Marquette Railroad Company of Indiana. From a decree for plaintiff, defendant appeals.

Affirmed.

W. T Krueger and James F. Gallaher, for appellant.

C. R. & J. B. Collins, for appellee.

OPINION

MYERS, J.

In the Laporte Superior Court this suit was begun by appellee against appellant and a number of others, to enforce payment of thirty-nine claims for work and labor performed by as many different people in the construction of certain abutments, walls, bridges and embankments and making excavations, etc., for a roadbed and tracks in the construction of a railroad through Laporte and Porter counties in this State, by the foreclosure of an alleged mechanic's lien held by appellee, covering appellant's roadbed and right of way, and appurtenances thereto belonging. The facts leading up to, and upon which appellee claims to be the owner of said claims, as also the proceedings under which he claims to be vested with such lien on appellant's property, appear in the finding of facts.

The cause was tried upon an amended complaint, consisting of two paragraphs; and, as the special findings contain the material facts necessary to present all the material questions of law here arising, we omit a synopsis of the facts as averred in the complaint and briefly state the facts as they appear in the special findings: (1) On the 24th day of April, 1903, the defendant was a corporation organized under the laws of the State of Indiana, and owned a right of way for a railroad extending from the village of New Buffalo, in the state of Michigan, in a southwesterly direction through the counties of Laporte and Porter, in the State of Indiana, to the village of Porter, in said Porter county, and was in the possession of the same, and was building and operating a railroad over the same.

(2) On April 24, 1903, defendant entered into a contract with the Marquette Construction Company to grade, build embankments, make excavations, build bridges, trestlework, works of masonry and other structures on said right of way, preparatory for defendant's railroad track. Pursuant to the terms of said contract, on the same day, said Marquette Construction Company sublet said work to McArthur Brothers Company. Subsequently, and pursuant to said contract between appellant and the Marquette Construction Company and between the Marquette Construction Company and McArthur Brothers Company, said McArthur Brothers Company contracted with the Tefft-Ross Engineering Company, a partnership composed of Henry B. Tefft and William C. Ross, for the construction of concrete work and masonry for bridges at certain points in Michigan township, Laporte county, Indiana.

(3) Said Tefft-Ross Engineering Company commenced and completed said work.

(4) In accordance with the terms of said contract the Tefft-Ross Engineering Company employed the several defendants, in the complaint mentioned as "laborers," who performed work and labor in the erection of said concrete work and excavations in said Michigan township, Laporte county, of the value of $ 348.92, which sum was due and payable on the 20th of September, 1903, and is still due and unpaid.

(5) After performing said work and labor said "laborers," for a good and valuable and sufficient consideration, assigned and sold to the plaintiff herein their several claims for said work and labor so done and performed. Plaintiff is the owner of the several claims and of the amount due said "laborers," as also all liens and other rights and privileges held by reason of such employment and work so performed, and to which they were entitled by reason of such work and labor; that on account of said assignments there is due plaintiff, as the assignee of said "laborers," $ 348.92 of principal and $ 4.36 of interest, making a total due of $ 353.28.

(6) Within sixty days of the doing of said work by said "laborers" the plaintiff filed in the office of the recorder of Laporte county, Indiana, his notice to said Pere Marquette Railroad Company of Indiana, and all others concerned, of his intention to hold a lien on the roadbed and right of way, together with all appurtenances thereto belonging, and of the right of way, franchises and roadbed of said Pere Marquette Railroad Company of Indiana situate in Laporte county, Indiana. Said notice stated that plaintiff claimed said lien by reason of his being such assignee as aforesaid. Said notice was so filed for record on the 17th of September, 1903, and was duly recorded, and plaintiff has been compelled to employ an attorney at a cost of $ 100.

(7) Said "laborers" have no titles or interest in said claims or in said liens.

(8) Plaintiff commenced this action on the 24th of September, 1903, and within one year of the filing of the notice of said lien.

(9) The defendant Pere Marquette Railroad Company of Indiana continues as aforesaid in the possession and ownership of said right of way and franchises of said railroad company.

(10) "The plaintiff has and holds a valid and subsisting lien on said right of way and franchises and appurtenances, described as aforesaid, for work and labor done and performed respectively by said laborers, as heretofore set out, for the amount of $ 348.92 and interest and attorney fees.

"(11) Said plaintiff is entitled to recover interest on his claim herein from the 20th day of September, 1903, and is entitled to have said lien foreclosed.

"(12) The work and labor described in these findings as having been performed, is the same work and labor described and alleged as having been performed in said notice of lien as aforesaid.

"(13) Said right of way of said defendant Pere Marquette Railroad Company of Indiana is a part of the right of way and station grounds of said company, and is used by said company in the prosecution of its business as a common carrier of freight and passengers, and is necessary to the proper and successful operation and conduct of its corporate business as such common carrier.

"(14) The lien aforesaid can not be foreclosed against the same, and the property sold for the payment of said claim without interfering with the rights and interest of the public therein. By reason of such facts the plaintiff, if he is entitled to recover, ought to be entitled to recover a personal judgment against said defendant railroad company for the sum so found due."

Upon the above finding of facts the court stated the following conclusions of law: "(1) The plaintiff has a valid and subsisting lien on the right of way and franchises of said defendant Pere Marquette Railroad Company of Indiana, situate within the limits of Laporte county, Indiana, situate within the limits of Laporte county, Indiana, and upon all works and structures, grading, embankments, excavations for tracks, bridges, trestlework and works of masonry that are upon such right of way, and such franchises within the limits of said Laporte county, Indiana, in the amount of $ 453.28. The plaintiff is entitled to have said lien enforced and foreclosed.

"(2) By reason of the fact that said right of way and franchises are a part of the right of way, franchises and station grounds of the defendant Pere Marquette Railroad Company of Indiana, a corporation and a common carrier of freight and passengers, and are so used and are necessary to the proper and successful operation of its railroad and the conduct of its corporate business, the lien aforesaid can not be foreclosed against the same, and the property sold for the payment of said judgment without interfering with the rights and interests of the public therein, and the plaintiff is therefore entitled to a personal judgment against the defendant Pere Marquette Railroad Company of Indiana for the sum of $ 453.28.

"(3) The defendants, except the Pere Marquette Railroad Company of Indiana, have no interest in this controversy."

Upon the conclusions of law thus stated, the court rendered a personal judgment against defendant Pere Marquette Railroad Company of Indiana for $ 453.28. Thereupon said defendant moved to modify said judgment so as to eliminate therefrom all that portion of the same as makes the judgment personal against it, which motion was overruled, and exception reserved. Said defendant then filed its motion for a new trial, assigning as reasons therefor: (1 and 2) That the decision of the court is contrary to law and not sustained by sufficient evidence; (3 and 4) each of the findings is contrary to law and not sustained by sufficient evidence. This motion was overruled and appeal prayed and granted.

It might be well here to state that by the averments of the complaint it appears that, at the time of filing the same, the railroad was not completed and not in operation in Laporte county; but this variation as to this allegation in the complaint and the finding of facts on that subject does not affect the first and ruling question here presented, not only by the demurrer to the complaint, but by the motion for a new trial as well. That question is: Did the assignors of appellee come within the class of persons entitled to liens as provided by § 7265 Burns 1901, Acts 1889, p. 257, § 6, or, in other words, do they come within the act approved March 6, 1883 (Acts 1883, p. 140), as subsequently amended (§ 7255 et seq. Burns 1901)?

In giving force to a statute, courts should look to the language used by the lawmaking power as expressive of its will; and where this language is plain and free from ambiguity, and the meaning...