108 P. 634 | Or. | 1910
delivered the opinion of the court.
It has also been held that the rule does not apply to the property of a public corporation when a mechanic’s lien has attached to the property while it belongs to private individuals, and is afterwards conveyed to a city; but in such case the city takes the property subject to the lien: City of Salem v. Lane & Bodley Co., 90 Ill. App. 560, affirmed 189 Ill. 594 (60 N. E. 37: 82 Am. St. Rep. 481). In Briggs v. Lightboats, 11 Allen (Mass.) 157, three light-boats were being constructed by one Andrews, under an agreement with the United States government, to be constructed and equipped according to certain specifications and to the satisfaction of an officer of the government, and to be delivered for a gross sum, payable on delivery and presentation of a certificate of approval by the inspecting officer. After the boats had been received, and Andrews had been paid the contract price, without any knowledge by the government of plaintiff’s lien, the boats were seized under an action brought in the court of the State of Massachusetts for a materialman’s lien, it was held that the lien was valid, and that the boats were taken subject to the lien; but, as the government was npt subject to be sued in a state court, the plaintiff could not enforce the law in such court. And in The Siren, 7 Wall. 152 (19 L. Ed. 129), it was held that a prize ship, in charge of a prize master and crew, having collided with and done damage to the vessel of a private citizen, the latter had a valid lien upon the proceeds derived from the sale of the prize vessel, and that the claimants were entitled to have their damages assessed and paid there
It is not averred in the answer that, at the time plaintiff’s alleged lien attached, the boat was or had been in use as a ferryboat, under the franchise granted to the St. Johns Transportation Company, but that it was being built and completed in compliance with the ordinance granting the franchise, and was intended to be operated under the terms thereof; and that it was being so used at the time of filing the answer. The lien is created by the law, and attaches as soon as the labor or material is furnished, and is not dependent on any subsequent condition, expressed or implied: The Victorian, 24 Or. 121, 139 (32 Pac. 1040: 41 Am. St. Rep. 838); Dorr v. Waldron, 62 Ill. 221, 225. The answer, therefore, does not aver that the boat in question was in fact impressed with
First, it appears that the former action was dismissed
The judgment is, therefore, in all things reversed, and the cause remanded for a new trial, with directions to the lower court to sustain the demurrer. Reversed.