Bringham v. Knox

One H. C. Bowen was the owner of certain narrow gauge railway property called the Sierra Valleys and Mohawk Railroad, which in different parts of the line was in various stages of advancement; the section on which rails had been laid began at the eastern terminus of the line, a place called Junction in Lassen county, and extended thence northwest and westerly a distance of fourteen miles; the roadbed had been graded something more than sixteen miles beyond the end of the laid track, and the right of way for the road had been obtained a few miles yet farther to the westerly terminus at Mohawk valley in Plumas county; the total distance from said Junction to Mohawk valley being about thirty-five miles. In October, 1894, the defendant H. L. W. Knox agreed in writing with said Bowen to construct additional track on said line, commencing at the end of the fourteen miles already laid and proceeding westward about nine miles to Rock Quarry, a point a few hundred feet west of a place called Kerby Mill. This contract was not, nor was any memorandum thereof, filed in the office of the recorder of either of said counties; so that it was void under the provisions of section 1183 of the Code of Civil Procedure. Nevertheless, Knox proceeded thereunder, and completed his work in accordance therewith on August 8, 1895. The plaintiff in this action, M. C. Bringham, furnished seventeen thousand timber ties to said Knox for use, and which Knox did use, in the construction of said extension of the track

1. Bespondents contend that plaintiff has sought to enforce his lien against a part only of a continuous railroad, whereas the law required, him to proceed against the whole property; and this is the question mainly discussed by counsel. Pending performance of Knox’s contract with Bowen, and before plaintiff filed his claim of lien, the title to the entire line of track, roadbed, and rights of way, from Junction to Mohawk valley, had passed from said Bowen to the defendant Sierra Valleys Bailway Company. In his claim of lien filed as aforesaid on September 6, 1895, Bringham stated that he “furnished materials actually used in the construction of that certain railway known as and called the Sierra Valleys and Mohawk Railway, and also such other property than the railroad as may be necessary for the operation and use of said railroad, which railroad is described as follows, to wit,” setting out a particular description, commencing at Junction and continuing to the town of Beckwith, from which point it is stated that the road “bears about due west to Kerby Mill, and to its present westerly terminus distant about nine hundred feet from Kerby Mill. That the entire distance from the point called Junction to the present westerly terminus of said Sierra Valleys and Mohawk Bailroad is about twenty-three and one-half miles.....That not less than twenty-five feet of ground on each side of said railroad, as constructed, is necessary for the use and operation of said road, together with the ground on which all freight and other houses are situated.” The instrument concluded with a statement that Bringham claims the benefit of the law relative to liens of mechanics and others upon real property. At the

It seems to be well settled that the proper construction of the statute allowing to materialmen and others a lien for materials or labor furnished for use in the construction of a railroad (Code Civ. Proc., sec. 1183) requires that the lien must, in general, be claimed and enforced against the entire road. (Cox v. Railroad Co., 44 Cal. 18 ; Boissot on Mechanics’ Liens, sec. 190, and cases cited.) In our opinion, the plaintiff here has brought his case within the rule; he distinctly stated in his filed claim that he furnished materials used in the construction—not of a part or section of the railroad—but “of that certain railway known as and called the Sierra Valleys and Mohawk Bail way”; it is true, he further says that the said railroad is described as commencing at Junction and continuing to its present westerly terminus about nine hundred feet from Kerby Mill; but it is to be noted that he says its present westerly terminus is at that point, carrying the implication that the railroad was projected beyond such point, and might be extended; the terminus of the road as an actual railroad—a way for traffic—was at the place stated in his claim; work was then in progress for its extension, and in the course of a few weeks the terminus was shifted seven miles farther westward. In view of the statement that the materials were actually used in the construction of a certain railway correctly described by name, it is a fair inference that the further particulars given in the claim of lien were intended by the claimant, and should be regarded merely as particulars for the identification of the road as an entirety, and not as exclusive of the westward extension then incomplete; such extension, although not within the descriptive particulars, yet was not excluded by them, and was within the descriptive designation “Sierra Valleys and Mo

2. Respondents also object that since the road lies in the two counties of Plumas and Lassen the claim of lien was void because filed in the office of the recorder of Plumas county only. As to this it is sufficient to say that the statute requires the party claiming the lien to file his claim “for record with the county recorder of the county in which such property, or some part thereof, is situated.” (Code Civ. Proc., sec. 1187.) The courts have no power to amend the statute by requiring the filing of the lien in every county where any part of the property is situated.

3. It is urged that since the contract between Knox and Bowen was void, and since for that reason the plaintiff could claim his lien only for the value of the materials furnished by him and not for the contract price agreed on with Knox (Code Civ. Proc., sec. 1183), therefore both the claim of lien and the complaint are insufficient in failing to allege the value of plaintiff's materials. It was, however, stated in the claim that the agreed price was eighteen cents apiece for the ties; this statement was a sufficient showing, prima facie, of their value. (Jewell v. McKay, 82 Cal. 144 , 150; Booth v. Pendola, 88 Cal. 36 ; Joost v. Sullivan, 111 Cal. 286 , 296.) And so in relation to the complaint; it contained no direct averment of the value of the ties, but it was alleged that plaintiff furnished them to Knox at the said agreed price. Since the agreed price was prima facie evidence of their value, it must be held that the pleader

The judgment is reversed and the cause remanded for a new trial.