18 Kan. 53 | Kan. | 1877
The opinion of the court was delivered by
Plaintiff sued for work done in constructing defendant’s road-bed, and to foreclose a mechanic’s lien thereon. A demurrer to the petition was filed by defendant. Before any hearing was had, this agreement was entered into:
“It is hereby agreed, that a judgment may be entered in the above-stated case in favor of the plaintiff for the sum of seventy-three thousand six hundred and sixty-one dollars. And it is also hereby agreed, that the judgment so entered will be entitled to a credit of the amount which has been paid to sub-contractors and laborers of the said plaintiff (Edward Burgess) by the defendant on that part of the Memphis, Carthage & Northwestern railroad between Minersville, Missouri, and Oswego, Kansas, when the exact amount therefor has been ascertained, and proper vouchers therefor furnished. This agreement is not to authorize the establishment of the lien prayed for in the petition.”
In pursuance of this agreement a money-judgment was entered against the defendant. At a subsequent term, plaintiff appeared, and moved for a decree of foreclosure of the mechanic’s lien. This motion was overruled, and this ruling is the alleged error. Two questions are presented. Did the
“The statute of 1865, pp. 105, 106, Laws of Kansas, gives an express lien upon railroads to the parties who construct them, do work upon them, or furnish materials to construct them. If this law of 1865 is not repealed by the revised laws of 1868, then the lien of plaintiff upon the road-bed of said railroad constructed by him, is perfect, and judgment on the lien should have been entered for him at the spring term of 1875, May 21st, when the motion was made by plaintiff for a decree foreclosing the lien upon the road-bed.”
“And any person who shall perform any labor, or furnish any material for the construction, repairing, or altering of any railroad, shall have a lien for the same, in the same manner as though the same were a building, and such lien shall extend to the whole railroad, together with all the real property connected with the road.”
The validity of this portion of the act is challenged by
We see no error in the ruling of the district court, and the judgment will be affirmed.