, GIANT--POWDll:n Co.
(Oircuit Oourt, D. Oregon. June 16, 1890.)
.. ", Tl:ie gElneral phrase in the act of 1885, "any other structure," following, as it does, , a speCUlc li\numeration 'of works declared'to be subject to alien for labor and mate. for theirconstruc;:tion, such8lj a "building," "ditch," "flume," and '''tunpel, "hela to include a railway.
A·,pefson:etltitled to a lien on a railway for materials furnished for its construction mllY, hIs notice of lien, confine his claim to portion or section of the roM in the construction of which .his material was used. Giant-powder furnished by the manufacturer to a contractor for the construction of a railway, and used by the latter in· the progress of such work, is "material, II witliill the purview of the lien law of 1885, for the value of which, such manufactuTerisentitled to a lien on the railway, or luch portion thereof 81 the powder W81 us!l4 intjle ,C9nstruction of.
Oil' RAILROAD SUBJEOT TO LIBK.
,'bi1 the, Oourt.)
Mr. Geor[le H. Williama, for, plaintiff. Mr. L.Ftinn, for defendants.
DEADY, J.' This suit is brought by the Giant-Powder Company, a corporaticm of Cl'Ilifornia, against the Oregon Pacific Railway Company and the Wll)larnet Valley & Coast Railway Company, corporations of Oregon,amlJau}es Searle and.E. B. Deane, doing business under the firm name of Searle &. Deane, ;citizens of Oregon, to enforce a lien for mateof the Wallamet Valley & Coast Railway. rial on a It is alleged ,in the bill that the defendant, the Wallamet Valley & Coast Company, is the, owner of said railway, which extends from Yaquina bay, Or., eastward through Corvallis, into the Cascade mountains. Thatin 1888 and 1889 said company contracted with the defendantthe Oregon PaciiicRailway Company to COllstrtlCt said road eastward Jr.om Albany, Or. That On August 25, 1888, the Oregon Pacific Railway Company contracted with the defendants Searle & Deane to construct the portion of said road commencing at station numbered 2659, plus 78,inMarion county, and extending from there eastward for 15 miles along th,eestablishedroute of samej in which contract it was prc)Vided &. Deane should furnish all the material and labor for such construction. That Searle & Deane commenced work on the road on September 1, 1888, and completed said section thereof, accordand there remained due them ing to the contract, on January 15, and unpaid thereon the sum of $111,393.62. That the plaintiff, between September 26 and December 31, 1888, furnished Searle & Deane "electrical material, powder, fuse, and caps, necessary and proper materials to use in the prosecuiion of said work;" and the said defendants (Searle & Deane) agreed to pay the plaintiff the sum of 87,148.82 therefor; that said material was used by Searle &
CO. 17, OREGO:N pAc. RY. co.
Deane in the construction of said road; and the value thereof, namely, $7,148.82, is now due from them to the plaintiff. That on January 22, 1889, the plaintiff filed with the clerk of Marion county its claim for such material, under the lien law of Oregon, for the p'urpose of establishing a lien upon said section of said road, and the land' for 30 feet on either· side of the center line thereof, which claim was duly recorded; and that the plaintiff has obtained a judgment against Searle & Deane for said money, but nothing has been or can be made on the same. The prayer of the bill lsthat it be adjudged that the plaintiff lias a lien on said section of the road for the amount due it for said material and costs of suit, including the cost of preparing such lien and a reasonable at'tOrney fee, and that the property may be Bold to satisfy the same. The defendants the railway companies demur to the bill. 011 the argument the following points'were made in' support of the demurrer·: ' (l}:At and prior to the'filing of the alleged lien,the law of the statt' .did not ;give a lien on railways to material-men. , (2) A lien cannot be had on a part or section ola railway. , (3}Tha material in question did not enter into the construction of the. road, but was merely used by the contractors as a part of their plant or means in performing their contract. ,Section 1 of the act of February 11, 1885, (Comp. 1887, § 3669,) provides that every person" furnishing material of any kind to be used in the construction * * * ofany building, wharf, bridge. ditch, flume, tunnel, fence, machinery, or aqueduct, or any other structure or superstructure, shall have it lien upon the same for the * * * materials furnished * * * at the instance oftha owner of the building or other improvement, or his agent; and every contractor * * * shallbe held to be the agent of the owner for the purposes ofthis act." Section 5 of the act (Id.§ 3673) provides that any material-man desiring to claim the benefit of the act must, within a certain time, "file with the county clerk of the county in which such building or other improvement, or some part thereof, shall be situated, a claim containing a true statement of his demand,'" with the name of the owner of the property, and the person "to whom he furnished the materials; and also a description of the property to be charged with said lien, sufficient for identification. " Section 12 of the act (ld. § 3681) declares: "The words' building or other improvement,; wherever the Bame are used in this act, shall be held to include and apply to any wharf, bridge, ditch, tlume, tunnel, fence, machinery, aqueduct to create hydraulic power"or for mi,uing or other purposes;· other structures and superstructures, whensame can be made applicable thereto." ever By Section 1 of the act of February 25, 1889, (Sess. Laws, 75,) any SUbcontractor, material-man, or laborer who shall."furnish to any contractor, to any railroad corporation, any fuel, ties, materials, supplies, or other 'article or thing, or who shall do or perform 'any work or labor
FEDERAL REPOR'l;ER, ovol.
.for su.ch. contractor, in conformity with any terms of any contract,express or implied, which such contractor may have made with any such railroad corporation, shall have a lien upon all property, real, personal, andxnixed, of said railroad corporation." This is a most extraordinary act. The lien of the material-man or laborer.is declared to exist against all the property of the corporation, including "personal," without limit as to situation or place of existence, on the furnishing of materials or the performance of labor, without any record being made of the same, or notice to anyone of the claim, except in PaSe 'of a laborer, when notice is required to be given to the corporation that he will hold its property for his "pay." It is: contended by counsel for the demurrer that the passage of the act of 1889, amounts to a legislative declaration that the act of 1885 did not include or apply to railways. . might have been passed out of abuI)dance of caution, and not upon any well-grounded or serious impression that the wanting or insufficient in this respect. Be this as it may, assembly of. 1889 as to the scope and purthe opinion of the pose of the ·Jl.Ct of 1885 is of very little moment, and can have no weight in the constrtlction 9f .the latter rights and transactions which were vested or transpired before its existence. The intention of the legislature of 1889 in passing Jhe act of that year i&a propedubject of judicial inquiry and determination; but its opiniouof:the scope and effect of the act of 1885, if it had any, is not material in, this case. Considering the peculiar provisions of the act of 1889, the lPost obvious reason for its passage is that the legislature thereby intended to take the/subject of claims against railway corporations for materials and labor furnished, out of the operation of the general lien law of 1885, and put it under this special act, which does not require any notice of the claim to be filed with any clerk or other officer, and provides a proceeding, in which allsuch claims must be enforced as in one suit. ., .It must be admitted that, if the legislature intended to include railways in .the act of 1885, it is not apparent why so important a subject was nQt mentioned ill the long list of those expressly named. StiU, thQ: lllnguage of the act is certainly broad and comprehensive enough to include a railway. It is certainly a "structure," if not a "superstructure." A lien can as conveniently be imposed upon it as upon a "ditch," "flume." or "tunnel." These instances of lienable property mentioned in the statute; and the scope and operation of are this gen.eral term, "structure," immediately following this specific enumeration, must be ascertained by reference to the latter. The doctrine of noscitur a sociis applies; and the significance of the word "structure," in this statute, is indicated by the company it is found in,-"ditch," "fltune," and "tuuneL" If the language of the act was, "building or other structure" only,then it might not be construed as including a tailway. But the words, a "ditch or any other structure," cannot, consist. entIy with thisestablisheq. rule of construction, be held to exclude a rail-
GIANT-POWDER 00. 'V. OREGON PAC. BY.
way. A railway is literallyimd technically a "stmcture." It consists of the bed or foundation, which may be of earth, stone, or trestle-work, on which are laid the ties and rails. These, taken together, constitute a. "structure," in the full sense of the word,-a something joined together, built, constructed. Freund. Lat. Lex. "Strudio," "Struo;" Worcest. Diet. "Stmcture." In 2 Jones on Liens, § 1618, it is said that statutes giving a lien for labor and materials furnished for the construction of "buildings" are not u.sually regarded as being applicable to railways. But the author says, (section 1624,) where the terms "structure," "erection,"" improvement" are used in the statute, it is possible to establish a lien for anything that can be attached to the realty; and cites NeilBOn v. Railroad Co., 44 Iowa, 71, where it appears to have been held, under such a statute, that a lien existed against a railway for ties used in its construction. In Forbes v. Electric Co., 23 Pac. Rep. 670, it was held by the supreme court of this state that poles set in the ground, and connected together by wire, in the usual way for the transmission of electricity, between Portland and Oregon City, constituted a "structure," within the meaning of that term as used in section 3669, (Comp. 1887;) 'and therefore alien attached thereto for work done thereon at the instance of a contractor. In delh'ering the opinion of the court, Mr. Justice STRAHAN said: "Do these poles planted in the ground, connected together with wires and insulators, constitute a structure, within the trne intent and meaning of the statute? In answering this question, but little aid can be had from the decisions of other states. for thereason that no general principle of law is Involved, and sllch decisions have generally turned UPOI! the special or peculiar phraseology of the particular statute. "
. A railway is certainly a "structure,"within the authority of this de-o cision. The railway and the wireway, notwithstanding the different uses to which they are subject, are both structures, upon which a liell may be hlld as security for the labor and materials that entered into their composition. The case of Buncombe Co. Com'rs v. Tommey, 115 U. S. 122, 5 Sup. Ct. Rep. 626, 1186, cited on behalf of the demurrer, is not in point. It turned on the construction of a statute of North Carolina that gave 8 lien on a "building, * * * lot, farm, or vessel, or any kind of property not therein enumerated," for "the payment of all debts contracted for work done on the same, or material furnished." Of the specific terms used in this statute, only two-"building" and "-include structuresjand they do not, in the nature of things, suggest or show that the following general phrase-"any kind of property"-was intended to include such a structure as a railway. On the contrary, it is manifest that the general term" property" has reference to, and is to be interpreted, as a mere expansion of the specific kinds of "property" or land just mentioned,-"lot" and "farm." The objection that a lien cannot be had on a part or section of a railway for labor or material furnished for its construction does not lltrike me favorably.
,In2 Jones on Liens, § 1619, decisions to that effect are referred to, but they. appear to have made on the laaguage of a statute giving a lien on "the road I, as a whole; and also on the ground of public policy, which it is said will not permit a sale of a portion of a road on execution. It is easy to say a thing is against public policy, Qui that does not make it so. Public policy is manifested by public acts, legislative and judicial, and not private opinion, however eminent.. I have no knowledge of any such pUblic policy prevailing in this state. A railway is. nothing but private.property devoted to public use, the same asa warehouse, and is so far,and no further, the subject of public policy. The owner, be he a natural person or a private corporation, can disuse or dispose of it, in whole otin part, at his ,or its pleasure. True" it was held in Brooka v. llailway Co., 101 U. S. 443, that a per· son who furnished labor and materials used in the construction of a certain portion of a railway had, a lien on the whole of it. This ruling was made in favor of the lienQr, and it does not follow from anythinK decided in that he might not have limited his lien to the portion on which he- bestowed his .Jabor and matel'ials, and enfor(\ed it accord ingly. But there is a public policy of this state, as shown by its legislation, that should be considered in this conllection, which is that persons who furnish labor or materials to be used in the construction ofrailways shall have alien thereon as fl., for the value of such labor and rials. To .promote this policy, and to produce the practical results intended by the legislature, the statute giving this lien should be construedso as in reason and right it may, and all mere doubts as to the exterlt and manner ofits application shOUld be so resolved. The statute (Comp. 1887, § 3673) only requires the notice of the lien to be' filed with the clerk of-onf! county,-thatin which the "building or other improvement, (strrjoture,) or some part thereof, shall be situated." That was,done in this case. ,If the effeot of the transaction is to give the plaintiff a lien on the whole road, it may sell the whole road. But my own judgment is that even if the plaintiff might claim a lien on the whole road. it may, nevertheless, limit its lien by its notice to the part or section of the road for the construction Qf which it furnished mate. rial. ,The notice also' contains the name of the owner of the road, and the persons to whom the plaintiff furnished the.material, as provided in said section, and also a description of the property "to be charged with sa.id lien,sufficientfor identification," in thesewords: , "The railroad known as bhe'Wallamet Valley and Coast Railroad,' being built by the Ortlgon Pacific Railroad Company, and being that portion of said railroad comIllencing atstatipn No. 2,659, plus 73, on the Une of said road in Marion state of Oregon. and extel1,ding from there in an easterly direction a liftetlri miles along the surveyed and located route of said road in said courltyand state, as shOwn by the maps * * * of the permanently 19cated line of said railroad- in the office of said company."
If there is no Wallamet· Valley & Coast Railway in the state of Oregon which passes through Marion county, then this alleged lien does not ex·
GIANT-POWDER 00. 11. OREGON PAC. BY.
ist; but, if there is,-and I suppose of this fact there is no doubt. at Jeast on this demurrer,-then the description given of it, and the section on which the plaintiff claims a lien, sufficiently identified it. A conveyance of a farm, said to be situate in Marion county, Or., belonging to the Oregon Pacific Railway Company, and known as "Blackacre," would be good, so. far as description goes. Was this material "used" in the construction of this section of this road, within the meaning of this statute? In Baaahor v.Rp,ilway Co., 65 Md. 99, 3 At!. Rep. 285, cited by counsel fortha demurte:r,it was held, under a statute giving a lien on a bridge for all materials used "in or about" its construction, that a person furnishing a contractor with machinery wherewith to build a bridge could not have such lien. Admitting the correctness of this decision, as I do, the cases are not, in my judgment, parallel. The machinery and appliances furnished the contractor in that case, although" used" in the construction of the bridge, did not enter into the structure and become a part of it. They were the contractor's "plant," and retained their identity and fitness for further use, saving the limited and gradual wear and tear incident to such use. This powder was not only "used" in the construction of this road, but it was thereby necessarily consumed, and it was so intended. It was furnished to be so used in the construction of this road. Nice questions may arise as to whether material is "used" in the construction of a road as a tool or plant simply, or so used and consumed as to entitle the furnisher to a lien on the result for its value. The food furnished a contractor for his workmen may be said to be Hused" and "consumed" in the construction of the road on which they work; but this is only so in a remote and consequential way or sense. The food does not enter directly into the structure, and is not so used. Mason-work may be done on a road in a dry country or season, when large quantities of water must be hauled many miles for the preparation of the necessary mortar. Upon the completion of the structure and the hardening of the mortar, the water has as thoroughly disappeared as the powder after the blast. Again, lumber may be used in the construction of a building for the purpose of scaffolding. However, it does not thereby literally enter into the composition of the building, nor, so to speak, become a part of it. But, in my judgment, both it and the water have been" used" in the construction of the building and mason-work, within the meaning of the lien law, and !he purpose for which it was enacted. And so I think this powder was "used" in the construction of this section of the road, whereby it was consumed, not gradually and incidentally, as a tool or part -of a contractor's plant, but wholly and at once, in aiding to clear and fit the road-way for the reception of the ties and rails. . The demurrer is overruled.
(C1rC'l.l4t Court. D. Mf,nnesota. June 16, 1890,>
!'BINOIPAL A.ND AGENT-NoTICE TO AGENT.
; In a suit for dower it appeared that complainant's son Induoed his mother, who .was not familiar with builiness affairs, to sign a quitclaim deed for her dower interest in land to which he was entitled as heir, by misrepresentations as to the nature of the instrumeI\t. TJ;i.e son borrowed money, and mortgaged the land without reservation of his mother's! interest. The money loaned belonged to defendant, but the now ana mortgage, \vel'll made to her husband, acting as her agent, and were immedfately transfered to her, Her husband knew of complainant's interest in the land," 'Held, tbat complainant was entitled to recover the value of her dower interest defendant, who was bound biV the notice her husband had of such interest.
Squire8, for complainant.
J. M. Gilman, for defendant.
NELSON, J. This is a suit in equity, brought by the complainant, Sarah M; Jones, a citizen of Pennsylvania, against Matilda M. A. Van Doren, a citizen of Indiana, and SamuelJ. Jones al1dSamuel G. Glover, citizens of Illinois. The relief prayed for in the bill is for permission to redeem from a mortgage, should she be entitled to redemption, and that.the defendant Mrs. Van Doren might be ordered to reconvey the land still held by her, on the payment of such sums as might appear from ,aI;l.l\ccount taken, and also for. such other or different relief as the nature of the case might require, and might be agreeable to equity. The:only .reliefwhioh the complainant is entitled to, in my opinion, is her right of dower in the premises covered by the mortgage foreclosed by Mrs; VanDoren, and I shall confine myself to that view of the case. The bill charged fraud by Samuel J.Jones in procuring a deed to beexecuted to himself by his mother, the complainant, of her dower interest in the premises covered by the Van Doren mortgage, which descended to her son, Samuel J. Jones, on the death of·Robert H. Jones, intestate; and notice of this fraud by Mrs. Van Doren, who took the mortgage through her husband, and foreclosed it by sale of all the land. Mrs. Van Doren is the only defendant answering the bill, and she denies all knowledge of the fraud of Samuel J. Jones, and denies that the dower interest is of any value, and, in fact, puts in issue by her answer the nlateria,l allegations in the bill of complaint. A replication is filed, the case is heard upon the testimony taken. The defendant Samuel J. Jones is the only witness introduced .by the complainant to sustain the allegations of the bill, and Mrs. Van Doren is the only witness for the defense. There is no effort made to contradict Samuel J. Jones, or impeach his veracity, and full effect ill.uat be given to; his evidence. The facts are these: Robert H. Jones died in April, 1803, intestate, and, at the time of his death, was seised in fee of .an.undivided one-fourth of certain lands in Minnesota. He left surviving him the complainant, his widow, and the defendant Samuel J. Jones, his son and only heir at.