Creer v. Cache Valley Canal Co. , 4 Idaho 280 ( 1894 )

MORGAN, J.

(After Stating the Facts.) — This appeal exhibits a most extraordinary state of facts. It is stipulated that the defendants owe the plaintiffs the sum demanded in their complaint, with interest thereon. It further appears from the record that quite a large part of the property upon which this lien is claimed, and upon which the said James Thompson •claims to have a mortgage, which he wishes the court to declare to be a prior lien to that of the plaintiffs, had no existence whatever when this said mortgage was given. That 'the plaintiffs constructed the whole of the north and south branches of said canal after this mortgage was given, except •about four and one-half miles, which they had constructed before. The plaintiffs actually created this property which made the mortgage of the said Thompson, who is the appellant in this case, good; that is, the north and south branches of the canal were not built — had no existence — when the mortgage was .given. That they were built by said plaintiffs, for which eonstruction they have not been paid, except in part. And this suit is brought to secure the balance of the money that the defendants acknowledge is due plaintiffs for said work; and this court is asked to assist in preventing the plaintiffs securing their pay, on technical objections, that are themselves without, foundation. This appeal has no merit whátever.

The first assignment of error is that the court erred in holding that the notice of lien filed by plaintiffs, and made a part of the complaint, is insufficient, under the statutes of Idaho. We have carefully examined the notice of lien, and think it is entirely sufficient under the laws of this state. The notice-states that the Cache Valley Canal Company is the name of the owner, and is the reputed owner, of said premises, which were before described, and caused the said canals to be constructed and excavated. And this substantially states the contract by the terms of which the canal was constructed. This-disposes of the first .and second citations of error.

As to the third citation of error, the court below does not hold that the notice filed by plaintiffs charges or claims a lien upon land or right of way, and the notice does not so claim or charge, nor does the statute require that it should so charge or claim. Section 5130 of the Eevised Statutes of Idaho sets forth what the notice must contain. This, among other things, requires the notice to contain a description of the property to-be charged with the lien, and the statute gives the lien (section 5125); and section 5128 extends the lien to so much of the land around the structure as may be necessary for the convenient use and occupation thereof.

The fourth specification is that the court erred in holding-that the canal and right of way could or can be sold separate-from the franchise, etc. The court below did not so hold.

The attorney for the appellants practically abandoned all his specifications of error, except the seventh, which is that the court erred in holding that a detached portion or part of a structure can be sold under execution to enforce a mechanic’s lien. In other words, the appellants claim that if the plaintiffs had asked a lien upon the whole system of'canals they might have obtained it, complaining that the plaintiffs did not •ask of the court all they were entitled to and therefore they should not have a lien upon any part of the canal. The appellants demand that the case should be reversed because the plaintiffs did not claim all they should have. The appellants can hardly be heard in such a complaint. But is the position itself tenable? The north and south branches of the Cache Valley Company’s canal are, as appears by the record, separate and distinct pieces of property — each a number of miles in iength, partly supplied with water from reservoirs, and partly from the main canal above them. The contract was made by the company with the plaintiffs to construct these branches separate and apart from the main canal — the north branch wholly, and all of the south branch except about four and onelialf miles, which had been constructed before this contract was made. They are distinct pieces of property, although a part of the system of canals belonging to this company. All "the work for which plaintiffs claim this lien was done on these branches, and under a contract to construct these branches, . which does not mention the main canal. This had been theretofore constructed. We think this lien can be obtained upon "this part of the system. The Cache Valley "Canal Company, in its answer, alleges that the plaintiffs agreed to build and construct two certain branches or ditches, calls them “canals or ditches” throughout the answer, and gives no notice that it owns or did own any other canal. No other property than that •described in the notice is hinted at in the answer. The defendants themselves considered them independent pieces of prop•erty, as appears by the contract for their construction, and the answer to the complaint. But, if not entirely independent, this lien would attach to the property constructed by these plaintiffs, •and it is so held in Hill v. Railroad Co., 11 Wis. 225. (Phillips on Mechanics’ Liens, sec. 182.) These branches do not become part of the system until fully constructed, and the lien thereon for the work done discharged. A careful examination of the cases cited by both counsel for the defendants and for plaintiffs will disclose the fact that where a mechanic has asked for a lien upon the entire property for work upon a part his claim has been allowed, and where he asked for a lien upon-a distinct part that has been also allowed. In either case thu law has been construed liberally in favor of the party asking: the lien.

These are all the specifications deemed necessary to notice. Judgment of the court below is affirmed, with costs awarded to respondents.

Huston, C. J., and Sullivan, J., concur.