Pittsburg Testing Lab., Ltd. v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 20 June 1901
• Citation: 110 Wis. 633,86 N.W. 592
• Court: Wisconsin Supreme Court
• Parties: PITTSBURG TESTING LABORATORY, LIMITED, v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

110 Wis. 633

86 N.W. 592

PITTSBURG TESTING LABORATORY, LIMITED,

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by the Pittsburg Testing Laboratory, Limited, against the Milwaukee Electric Railway & Light Company, impleaded with others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.Hoyt & Olwell, for appellant.

Miller, Noyes, Miller & Wahl, for respondents.

CASSODAY, C. J.

This is an appeal from an order sustaining a demurrer to the complaint to enforce a subcontractor's lien upon the premises described. The complaint, after alleging that during the times therein mentioned the plaintiff was a corporation located at Pittsburg, Pa., and that the defendant the Milwaukee Electric Railway & Light Company was a corporation located at Milwaukee, and organized to engage and engaged in the business of operating in the city of Milwaukee a system of street railways and an electric light and power plant, and that the defendants Warren and John Roberts were co-partners engaged in the business of civil engineers and contractors, alleges, in effect, that the electric company sells electric light and power produced at such plant, and has a contract with the city of Milwaukee for lighting certain streets therein, which contract was entered into December 15, 1895, and by its terms expires December 15, 1900; that the electric company is now engaged in carrying out and completing such contract by means of its plant and appliances “other than the new power house hereinafter mentioned”; that the electric company had, long prior to entering upon the construction of such new power house, constructed power houses in various parts of the city and placed therein proper engines, boilers, and machinery, and has ever since operated and used, and is now operating and using, the same for the purpose of producing electricity; that the last-named power houses and appliances therein contained are amply sufficient for the purpose of supplying with electricity and operating the system of street railways and electric light and power plants of the electric company as they have been heretofore and now are constructed and carried on, and sufficient to enable it to carry out and fulfill its contract with the city until the expiration thereof; that the electric company is contemplating extensions and additions to its system of street railways and to its lighting and power plants; that to operate such systems and plants when so increased and extended as contemplated a new power house is necessary; that for the purpose of constructing such new power house the electric company, in 1898, caused plans and specifications to be prepared and made therefor by an architect of the city; that prior to February 6, 1899, Warren Roberts & Co. were employed by and entered into a contract with the electric company to perform work and labor and to furnish materials according to plans and specifications in and about the erection and construction of a brick building to be used as such new power house owned by the electric company, and situated on the land hereinafter specifically described; that in and by such contract it was provided that all the structural material used and employed in the construction of such building should be tested and inspected by this plaintiff at the expense of Warren Roberts & Co.; that prior to February 6, 1899, the plaintiff was employed as subcontractor by Warren Roberts & Co., under their contract with the electric company, to test and inspect such structural material; that as such subcontractor, under such employment, the plaintiff performed work and labor for Warren Roberts & Co. between February 6, 1899, and August 19, 1899,--that is to say, inspected and tested the structural material used and employed by Warren Roberts & Co. in the construction of such building under and pursuant to the provisions of the plans and specifications aforesaid; that the exhibits attached contain a true and correct statement of the work, tests, and inspections thus performed by the plaintiff, showing the amount of work done and the prices therefor; that such prices were the prices agreed upon between the plaintiff and Warren Roberts & Co. for the doing of such work; that all of such work and labor was done and performed upon structural material which was sold and furnished to be used, and which was actually used, by Warren Roberts & Co., in the construction and erection of such new power house; that such new power house stands and is situated upon two lots therein described; that the electric company, at the time of making such contract with Warren Roberts & Co., was, and ever since has been, and now is, the owner of the land and of the new power-house building situated thereon; that the same does not exceed one acre in extent, and is within the limits of the city; that the last date of the performance of such labor of this plaintiff was August 19, 1899; that September 20, 1899, this plaintiff gave to the electric company the notice of its claim for a lien and statement thereof, of which true copies are heretoattached; that October 13, 1899, this plaintiff gave to the electric company the notice and statement of the work, tests, and inspections, of which true copies are hereto attached; that November 29, 1899, this plaintiff duly filed, as required by law, its claim for lien for the amount due and owing to it from Warren Roberts & Co. in the office of the clerk of the circuit court of Milwaukee county, a copy of which claim for lien is hereto attached; that such claims and all the allegations thereof are true, and are hereby made a part of this complaint; that one year has not elapsed between the doing of such work and labor and the commencement of this action; that there is now due and owing to the plaintiff from Warren Roberts & Co., by reason of such claim, $777.29, and interest thereon from August 19, 1899. Wherefore, the plaintiff demands judgment that the amount of its lien be ascertained and adjudged and enforced against such premises, with costs.

The question presented is whether the facts stated are sufficient to entitle the plaintiff to a subcontractor's lien upon the premises described, under the statutes of this state, for the work and labor performed. Sections 1775, 1775a, 3314, 3315, Rev. St. 1898. The statutes declare, in general terms, in effect, that the party performing such work and labor shall have a lien upon such building and the interest of the owner thereof therein upon complying with the provisions of such statutes. Id. It is virtually conceded that the facts alleged would entitle the plaintiff to such lien if the premises were owned by a private party, and used for private purposes. But it is claimed, and the trial court manifestly held, that such statutes are not applicable to property of a quasi public corporation engaged in operating a system of street railways and an electric light and power plant in the city of Milwaukee. In support of such claim counsel rely upon certain decisions of this court; and counsel for the plaintiff rely upon certain other decisions of this court in support of its claim for a lien herein. We shall not here undertake to harmonize or reconcile all of such decisions; much less all that has been said in the different opinions in support of such decisions; but we will attempt to decide this case in accordance with the principles of law applicable to the facts stated. The early case of Hill v. Railroad Co., 11 Wis. 214, 221, was an action to enforce a mechanic's lien for building a part of a brick block, which, had it been completed according to the contract, would have extended “along the whole front of the block, upon the street,” being 420 feet, and to the depth of 55 feet, and constituted the defendant's depot in Milwaukee. The “judgment was recovered by default, and was entered for a lien upon the interest of the company in the whole block 41.” On the application of the company for a modification of the judgment, it was made to appear “that the railroad track was laid across the east part of the block between the buildings and the river; that the whole block was not necessary or convenient for the use of the buildings erected, which were designed for stores and offices”; and thereupon the court modified the judgment “so as to confine the lien to the west 60 feet of the particular lots on which the building, as far as erected, actually stood.” On the appeal by the plaintiff from such modified judgment, the same was reversed by this court, which held that the plaintiff was entitled to a lien upon one acre in the block; and that, as the block exceeded an acre, it was necessary for the court to determine to what portion of the block the lien extended; and so this court came to the conclusion “that the lien of the appellants was equivalent to a mortgage by the company of an acre in the block, and that it should be adjudged to cover the south one acre of the block, extending from the river to the street, and that it should be so sold as to leave what remained to the company in a compact form, extending also from the river to the street.” The court reached that conclusion expressly because the premises were “at the very end of the road, and where, from the very nature of the premises, it would be more convenient to both parties” that they should be so divided, in order that each party should “have access both to the river and the street.” As the land was situated at the very end of the railway tracks, the lien could be thus enforced without destroying any of the corporate franchises of the company. The enforcement of the lien could at most only result in acquiring some of the property of the corporation not essential to the enjoyment of such corporate franchises. Upon that ground the decision may be sustained, although the reasoning of the...