*1 suрerior and hold that without merit petitioner’s correctly denied motion to the indictment.
dismiss part, part,
Affirmed in reversed proceeding
remanded for further in the su-
perior court. SAND,
FRONTIER ROCK &
INC., Appellant, VENTURES, INC., Coor,
HERITAGE D. Supply
d/b/a Dead Horse Petroleum Storage, Alaska, State Divi Aviation, Appellees.
sion of
No. 4000.
Supreme Court of Alaska.
Feb. arrested, time, (1) From the date the defendant is extend the unless the evidence on initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first. The arrest, arraignment, or service upon the defendant of a complaint, indictment, or information, relating to subsequent charges arising out of the same conduct, or the refiling of the original charge, shall not extend the time, unless the evidence on which the(1) From the datе the defendant is arrested, initially arraigned, charge or from the date the which the new able to the is based not avail indictment, charge (complaint, prosecution or informa at the time the de defendant, arrested, tion) upon initially served whichever fendant was either raigned, ar arrest, arraignment, original charge, is first. Thе or service or served with the upon ment, complaint, showing diligence securing the defendant of a indict of due information, subsequent relating original charges defendant for the the is made conduct, charges arising prosecutionf.] out of same refiling original charge, supra. shall not See note *2 Expediters,
Griswold Inc. Griswold held a proрerty on the of lease from State done, when the Alaska work was but state had terminated the lease before The in case question lien was recorded. is whether Frontier can recover the value of state, its work from the or from the subse- quent property lessees of the same from the state. dispute The
There is littlе over facts. Alaska, Department of of Public State Works, Aviation, proper- of Division leased Airport at the Dead Horse ty Griswold. agreement that required The lease Griswold employee construct warehouse on Frontier freight the site. OPINION Rock and Sand hired Liburd, Burr, R. Pease Bussey, Ann C. H. work re- provide excavation Kurtz, Inc., Anchorage, appellant. for & quired. completed It its work on or before 1975, 27, pay August but Griswold failed to Mills, Gen., An- Atty. Martha T. Asst. promised. as Gross, Gen., Ju-
chorage, Atty. Avrum M.
neau, appellees. comply for with a Griswold had also failed to liability requirement it obtain J., RABINOWTIZ, and CON- Before C. letters insurance to cover site. In five NOR, BOOCHEVER, and MAT- BURKE period, a four sent over month
THEWS, JJ. of аnd warned notified Griswold this failure that it would result in cancellation of
MATTHEWS, Justice. Finally, ample notice to lease. and with Sand, Griswold, Rock and Inc. recorded a
Frontier the lease as terminated 1, 1976, Horse against April Lot Block Dead 1976. January of On pursuant labor and furnished to recorded its claim of lien
Airport for materials Frontier 16, 1976, the A & P On June request at the to AS 34.35.070.1 every chapter, provided in relevant benefit of 50-120 of this §§ AS 34.35.070 part: original his claim of shall record contractor days than 90 the notice of contractor, lien no later after (a) original An after com- mechanic, completion contract, or within 90 recorded pletion of his arti- merchant, completion performed machinist, builder, days san, at from of work la- lumber owner, borer, request A person, claiming is later. whichever or other the benefit contractor, original chapter, person, file a claim than shall other §§ recording claiming district of this with the recorder of the the benefits of 50-120 §§ building improvement, chapter or or which a other record of lien no later shall his claim it, days completion is located. after than 90 the notice days (b) completion claim shall filed within be been recorded. The notice of has after provided be recorded for in this section shall (1) completion or the of his contract of the of the district in the officе recorder repair; situated, or alteration shall which the cause; (2) agent, it from he ceases to labor on signed his verified owner or following: or out the and shall set (3) building for it. materials (1) he ceases furnish of the the date particular por- improvement, other or of a or building improvement; (d) of the or other be sub- The owner land which owner; (2) ject of this the name and address of a lien created under (3) shall, comple- or estate the nature the interest within 10 after owner; building improvement, rec- tion of a other prop- legal description sufficient a notice of ord erty; to claim In order (d).2 argues a second lease for the section that because
state entered into timely, its lien was since its lien Heritage Ventures.
property with Coor and claim was filed “no later than 90 after against recover Frontier filed suit to the notice of has been recorded” state, Coor,. Heritage Ventures. After (d). prescribed by part partial summary Frontier’s motion (d) (f) through Parts 34.35.070were AS liability was de- judgment on the issue *3 by chapter added to our 89 of the lien law nied, stipulated judgment in parties 1974 session laws. Frontier contends that Frontier the defendants and that favor of (d) language augments of subsection $53,136if damages be entitled to would expands period provided and the time superior court prevailed appeal. on that, (b) provisions subsection and if the are appeal this approved stipulation this contradictory, (d) impliedly re- subsection followed. pealed portions of subsection inconsistent Three basic issues have been raised. hand, (b). The the other con- appellees, on Frontier maintains that it had a valid lien only reading tend that consistent against the leasehold. It contends (b) (d) (d) only ap- subsections is that extinguished by that this lien was not plies completion where a notice of lease, state’s termination of the Griswold days recorded within ten after subject and that the new lease is therefore of an Alternatively argues tо the lien. Frontier agree appellees’ interpreta- We lease with- that cancellation of Griswold’s Reading (d) tion. subsection as Frontier deprived out notification to Frontier it of suggests essentially would result in an un- property right the lien and therefore of a time, only by limited or a time limited stat- process finally without due of law. And laches, utes of limitations or within which a argues it should be able to might materialman’s or mechanic’s lien theory quasi-contract
recover on a neglected filed where the owner has to rec- unjust prevent enrichment of the state. a notice completion. ord a result Such The defendants’ first contention is clearly be inconsistent with the strict
that Frontier filed its lien too late. Resolu legislature deadlines which the has seen fit question requires a discussion of to observe in the elsewhere lien foreclosure
the terms of AS 34.35.070as it existed in Thus, ninety day statute. in addition to the
1975 and 1976. Frontier’s lien was filed 34.35.070(b) provided by deadline for AS ninety days completed filed,
morе than after it its lien, lien, filing a a once it is is not
contract and therefore too late under binding for more than six months unless was. (b) However, part notice of the statute. no suit is Or one month commenced unless six lessee, by was recorded extension six is recorded within the initial purpose period.3 Similarly,
who is the for of sub- month “owner” an оwner is free .the lien, contractor, (5) original (a) provided the name of the if Duration of A lien for in any. does not bind a (e) days recording structure, building, Within five after the no- improvement or for post completion, filed, tice of copy the owner shall a more than six months after the lien is question notice on the brought proper unless suit is before the copy point and send a of the notice to the to enforce the lien hire if known. time, (1) within that (f) provisions A violation of the recording within six months after of an places position section the violator in recording extension notice in the same office guarantor regarding person who suf- anothеr showing original period within the six-month damages proximately fers which are caused recording page date and the book and by the violation. claim, instrument number of the initial 89, 1, Ch. SLA 1974. § owing. the balance (b) No lien be continued in force for Co., Mortgage
2. See Miller v. Bankers’ filing year more than one from the date of the Kan. 287 P. original liеn notice. provides:
3. AS 34.35.080 Further, interpretation, under Frontier’s prime his full contract pay a contractor (d) to be elapsed from the subsection would have read ninety has
price after improvement applying ninety day without a deadline an event
completion of might which never This strikes us as payment of double if no occur.
risking burden language. Beyond gen- an unnatural use are then filed.4
liens that, (d) requires we observe that lien statutes is consistent philosophy
eral mandatory language for lien owner in record system of distinct deadlines
with ten after open-ended notice of within
filings inconsistent with completion. (f) provides Part for what a material- philosophy That is that
ones. when owner fails tо do happen shall or workman reach
man placed “position guar- in the satisfy his claim this. He
which he has benefited to regarding person no another who suffers even when there is direct antor benefit damages proximately him are caused” relationship which
contractual between *4 liability on regardless Placing personal his failure.8 property,5 owner of the
the a However, the owner who fails to file notice might be.6 who the owner give lienor who does uncertainty completion does the extensive to ti- the
because relationship with the entails it has not have a contractual remedy broad
tles this so remedy, added and it does necessary to cоnstrue time owner an thought
been potentially clouding titles and thus narrowly.7 its exercise rather without
limitations for him, compliance provides: not with contracted strict
4. AS 34.35.090
necessary
lien).
is
for creation of
statute
Payment
payment by
A
the
to contractor.
building
prime
a
to
generally
owner of a
structure
Although lien
have
with-
statutеs
subcontractor, made before 90
contractor or
days
claim
stood constitutional
based on the
attacks
building,
the
is
from the
deprives
property
the lien
an owner
a
that
right
discharge
lien
not
by
to defeat or
a
created
law,
valid
process
due
courts have
without
in favor of other
§§ 50-120 of
heavy
frequently reсognized
lien
burden a
claimants,
payment is
unless the
distributed
See,
g.,
may place
title.
e.
on
owner’s
among
payment
If a
is
claimants.
Dev.,
Court,
Connolly
Superior
Inc. v.
17 Cal.3d
only,
payment
in
distributed
then
803,
477,
637,
Cal.Rptr.
642-44
132
553 P.2d
extent,
only
it
is distributed.
valid
Buckeye
(1976);
v.
Incubator
Borchers Bros.
76,
Hilliboe,
First
Bank v.
17 N.D.
114
See
Nat’l
Co.,
234,
697,
1,
Cal.Rptr.
28
379 P.2d
59 Cal.2d
1085,
(1908).
1087
N.W.
(1963).
Connolly,
Supreme
4
the California
Court,
hоlding
filing
lien
of a mechanics’
in
Contrs.,
Engin.
v. Hawaiian Pac.
Shelton
Ltd.
5.
significant deprivation
property
of a
a
242,
222,
Indus., Inc., 51 Haw.
456 P.2d
225-26
right, stated:
(1969).
[Although
imposition of a mechanics’
deprive
owner of the interim
lien does not
Dixon,
Co. v.
See Lenexa State Bank & Trust
may
hamper
property,
severely
his
use of
it
238,
776,
(Kan. 1977);
P.2d
780
221 Kan.
559
property.
ability to sell or encumber that
his
Hild,
970,
Metropolitan
Co.
415 P.2d
Water
v.
Subsequent purchasers
be
whose title will
(Okl.1966).
972-73
pur-
may
unwilling
subject
the lien
be
land;
may
Dwelle,
lawsuit with the
lenders
chase a
Corp.
164
7. Diamond Nat’l
v.
Conn.
subject
property
on
540,
259,
a loan
(1973);
tq
refuse
claims;
261
Jack Stilson &
325 A.2d
be
282,
in some cases
the owner
Bayview Corp.,
v.
278 So.2d
Co. Caloosa
pay
possibly
ordеr
Boeing
a
invalid lien in
(Fla. 1973);
Freitag Mfg.
forced to
v.
H.
Co.
283
R.
1074,
334,
in
for a
Co.,
title to his
time
Airplane
clear
P.2d
55 Wash.2d
347
pending
consummated.
transaction to be
v.
Cf.
Co. Electrical
1077-78
H.A.M.S.
(foot-
Inc.,
Cal.Rptr.
Alaska,,
at
working prejudice consequence only ultimately per- is the from the work parties.
third This bеnefits specified as flow- legislature has guarantor
which the is not a formed.9 A landlord failure to record a
ing an owner’s from entered into between his tenants contracts days, within ten notice of parties. and third that was only one we think it was Arguably,
intended. the state falls within exception parties for interested under legislature finally thаt We observe rule, general as the lease between provide (d) in 1977 to subsection
amended specifically required construc and Griswold follows: freight ware living quarters tion of subject of land which The owner laying gravel down of fill. house and the under to a lien created §§ gravel admits that the days after com- chapter may, within 10 fill be essential to construction improve- or other pletion of If the benefit had not been at the site. ment, completion of the record a notice of Frontier, would still conferred In order building or other purchased by someone before use have to be
to claim the benefit However, it shall record made оf the site.
chapter, every lien claimant could be than 90 claim of lien no later clear from the context of the
his seems seeking
after the notice the state was not provisions that last or within 90
recorded freight ware have *5 (b) of any event set out in
occurrence of it insert placed on the when house section, (Em- whichever is earlier. provision in the lease. ed the added.) рhasis Rather, provision prevent to it inserted the was (d), along speculation with subsec in state lands. The state
In 1978 subsection (e), entirely. While it is repealed actively seeking was the construction work not legislative debatable whether a
always merely will required by the lease. It was change in change clarification or а is a anyone who ing to lease the law, and Hod Car substantive see Laborers responsible, productive use of it. could make Groothuis, 494 Local 341 v. P.2d riers closely related to the The state was not so 1972), changes are con (Alaska these
811 an in project that it could be considered requiring def philosophy sistent between beneficiary of the contract tended material- deadlines in connection with inite and Frontier. men and laborers’ lien laws. judgment is AFFIRMED. The Having that Frontier concluded have had any rights lost it CONNOR, Justice, with whom BOO- lien,
failing timely file a we now turn to Justice, CHEVER, joins, dissenting. unjust We Frontier’s claim of enrichment. correctly decided that
think that the court disagree I with the result. could not collect from benefit from I think that the state did general rule is theory. under that placement gravel premises, on the anything to show clear: in the absence of relation and that the state has a sufficient authorized the that the landlord ordered or unjust will project to the that enrichment done, work, it wаs ratified the work after is disallowed in its occur if Frontier’s claim relationship to the was in such a close entirety. that the contract tenant that it can be said provision calling for benefit, appears It that the executed for the landlord’s
was employee construction of
plaintiff cannot collect from the landlord enrichment, fill to the state. unjust gravеl even and was beneficial
under a claim of Intermeddler, Minth, Serving 87 Harv.L.Rev.
9. Puttkammer v. 83 Wis.2d .Dawson, (1978); The Self- N.W.2d specific use that the it be true
While Alaska, that contem- Appellant, lease was
provided for in the STATE of Griswold, lessee, it is also true
plated by only authorize those state would that the Agnes Harold OSBORNE to the devel- be of benefit uses which would Osborne, Appellees. say that airport. Tо opment of prop- merely willing to lease
state “was No. 4385. responsible, could make erty anyone who Supreme of Alaska. Court it,” pic- whole is not the productive use of Rather, willing was
ture. 7, 1980. March prop- make use of the anyone who would Division of would benefit the
erty which
Aviation. actually was the work that work,
done, spe- gravel and excavation the bеnefit of the lly required for
cifics the lessee provides The lease
state. gravel feet of “place at least five
must without disturb- premises on the leased
fill land existing cover of the
ing the surface subject to grade shall be
. and fine The state of the Lessor.” approval would be essen- gravel that the fill
admits site, and so if at the
tial to construction by Fron- had not been conferred
the benefit still have to be
tier Rock the use could by someone before
purchased Thus, appears the site.
be made of was not provision this lease purpose *6 lessee, also to im- but
only to benefit existing land. the lessor’s
prove conclusion, type is the I believe this to fall that was intended within
situation by exception applied party
the interested Professor courts and referred
some Self-Serving In
Dawson in his article
termeddler, 87 Harv.L.Rev. ordered, was authorized The work in such a manner ratified that the contract fairly it can be said of the landlord executed for the benefit the lessee.
as well as record, I we should re- think
Given judgment entry
verse and direct plaintiff.