Orchard Homes Ditch Co. v. Snavely , 117 Mont. 484 ( 1945 )

The plaintiff ditch company supplied irrigation water to the successive owners of lot 25 of Cobban and Dinsmore's Orchard Homes in Missoula county. In 1935 the lot was owned by the defendant Snavely and in 1936 and 1937 it was owned by the defendants Noland. The charges for the water so supplied by the ditch company for such years were not paid. In 1938 the lot was conveyed to the defendant Martha Saulter, the present owner, and thereafter the ditch company brought this action to foreclose a lien which it claims against the lot for the amount of the unpaid water charges including those for the years 1935, 1936 and 1937. Mrs. Saulter recognizes her liability for the payment of the water charges for the water supplied since she became the owner of the land but she denies that the ditch company has any lien against her land for the unpaid charges for water supplied to the defendants Snavely and Noland in 1935, 1936 and 1937, being prior to the time that she purchased the property.

A lien can only be created by contract of the parties or by operation of law (Section 8225, Revised Codes) and it is never an incident of a contract or money obligation unless made so by the contract or by some rule of law. Goldthwaite v. Janney, 102 Ala. 431,15 So. 560, 28 L.R.A. 161, 48 Am. St. Rep. 56. In this case there is no statute or rule of law creating any lien on the land in favor of the ditch company. "In the absence of a lien given by law, neither party can create one without the consent or agreement of the other." 33 Am. Jur. sec. 6, pp. 421, 422. In the record here I find no contract of the parties that creates any lien on lot 25 for the unpaid water charges which the ditch company failed to collect from the owners of the lot who preceded Mrs. Saulter. Without a lien there is nothing to foreclose. "It is not one of the functions of the courts to create a lien." 33 Am. Jur. sec. 6, p. 422. The imposition of affirmative duties upon an owner of land should result only from a clear expression of the intent of the parties and should not be implied in the absence of such an expression. Coulter v. Sausalito Bay Water Co., 122 Cal. App. 480, 10 P.2d 780. To create a lien on the land the language of the contract must be definite and specific and must be a direct declaration that such a lien is created by its terms. While the ditch company has the power to enter into a contract with those to whom it supplies water to the effect that the contract amount to be paid the company by the consumers for the water supplied them shall be a first lien upon the lands on which the water is delivered and used yet, in the absence of such definite and specific contract, there is no lien and the consumer's right is simply a right of service, — a right to be furnished water upon the payment of the charge or price therefor. There being no contract entered into by the parties creating a lien on lot 25 the ditch company must look for payment to the individual consumers to whom the water was furnished.

The parties having failed to create a lien on the land by their contract the courts may not properly supply this deficiency and create a lien for them. No lien having been created there is no lien to foreclose and, in my opinion, it was error for the trial court to decree the foreclosure and sale of Mrs. Saulter's lot to satisfy the indebtedness contracted by previous owners of the lot for water supplied them during their occupancy of the premises and long before Mrs. Saulter had acquired any interest therein.