76 Ill. App. 387 | Ill. App. Ct. | 1898
after making the foregoing statement, delivered the opinion of the court.
Counsel for appellee contend that the demurrer to the intervening petition of appellant was properly sustained, because, they say:
1st. The general mechanic’s lien act does not apply to permit liens upon the property of railroad companies.
2d. If the general mechanic’s lien act could apply, its provisions have not been so complied with as to entitle appellant to a lien.
It is true that, as a general rule, the ordinary mechanic’s lien laws do not embrace railroads. In Wood on Railroads, Vol. 2, Sec. 288, the author says: “ Because of the character of railroads as quasi public highways, and the inconveniences and annoyances to which the public are apt to be subjected by the enforcement of liens against a railroad or its appurtenances, the ordinary mechanic’s lien laws are construed as not embracing railroads unless it is expressly provided otherwise.” To the same effect are 2 Jones on Liens, 1618; 3 Elliott on Railroads, 1066; Boisot on Mechanics’ Liens, 188; Buncombe County Com. v. Tommey, 115 U. S. 122; Graham v. Mt. Sterling C. R. Co., 14 Bush. (Ky.) 425.
It is, however, apparent from these decisions and from the language of the text writers, that the rule announced rests upon grounds of public policy and the inexpediency of permitting parts of the property of a railroad which are essential to its operation and maintenance, to be subjected to the enforcement of liens, and possibly severed from the railroad property as an entirety.
In Buncombe County Com. v. Tommey, supra, the court said :
“ Apart, however, from these considerations, we are of opinion that a law giving to mechanics and laborers a lien on buildings, including the lot or ground upon which they stand, or a lien upon a lot or farm or other property, for work done thereon, or for materials furnished in the construction or repair of buildings, should not be interpreted as giving a lien upon the roadway, bridges, or other property of a railroad company, not essential in thé operation and maintenance of its road.”
There is no reason why the rule should apply to protect property owned by a railroad, if such property be in no way essential to the operation and maintenance of the road, and if the severing of it from the road could not prevent the continuance of the business of the road as a carrier. BTor •would the mere fact that the building upon which the lien was to be enforced was of use to the railroad in its business as a carrier, operate to bring such building within the protection of the rule, if it could, nevertheless, be sold to satisfy the lien without interrupting the continued operation of the road. The enforcing of a lien by coercive sale of a part of the road-bed might well be held to be against the reason of the rule, while the sale of a depot building or storehouse would not be. Hill v. LaCrosse & Mil. R. R. Co., 11 Wis. 233; Botsford v. N. H., M. & W. R. R. Co., 41 Conn. 454; Mcllvane v. H. & M. R. R. Co., 5 Phila. 13.
It was held in Smith Bridge Co. v. Bowman, 41 Ohio St. 37, that a lien under a general mechanic’s lien law may be enforced even as against bridges of a railroad; but this would seem to be against the weight of authorities.
In King v. Alford, 9 Ontario, 643, the court noted the distinction between property which was, and such as was not, essential to the operation of the road. The court said:
“ It is a material ingredient of this case that it is found as a fact that the lands on which are the buildings in question, consisting of a turn-table and engine-shed, are essential for the proper working of the railway.”
The text writers generally agree that railroad depots, stables and like structures are not within the application of the rule exempting railroad property from mechanics’ liens. Boisot on Mechanics’ Liens, Sec. 179; 3 Elliott on Railroads, Sec. 1069; 2 Wood on Railroads, Sec. 288.
We are referred to no case, and find none, holding that such a building as the one here is within the reason and application of the rule, except Schulenberg v. R. R. Co., 67 Mo. 442, and we think that this decision is against the weight of authorities. Hor can it be maintained that our statute providing for liens upon railroads applies to the lien here to the exclusion of the general lien act. The statute is as follows:
“ All persons who may have furnished, or shall hereafter furnish, to any railroad corporation now existing or hereafter organized under the laws of this State, any fuel, ties, material, supplies, or any other article or thing necessary for the construction, maintenance, operation or repair of such road, by contract with such corporation, or shall have done or performed, or shall hereafter do or perform any work or labor in such construction, maintenance, operation, or repair by a like contract, shall be entitled to be paid for the same as a part of the current expenses of such road; and in order to secure the same shall have a lien upon all the property, real and personal and mixed, of such railroad corporation, as against said railroad, and as against all mechanics’ or other liens which shall accrue after the commencement of the delivery of such articles, or the commencement of such work or labor.”
It could hardly be maintained that the lien of appellant was for anything furnished which was “ necessary for the construction, maintenance, operation or repair of the road ” of appellee. And the provisions of this statute recognize the possible application of a mechanic’s lien other than the lien therein provided. This statute does not necessarily exclude any application of the general mechanic’s lien act to railroads. Botsford v. New Haven, M. & W. R. R. Co., supra.
The second contention of counsel is that appellant does not show by its petition any right to a lien under the general mechanic’s lien act. In this behalf it is argued that petition fails to show than any amount was due to the'original contractor, the Simpson & Bobinson Company, on June 5, 1896, the date of the notice by appellant of its lien. The petition does state that on or about April 30, 1896, there •was $10,000 due and owing to the Simpson & Bobinson Company from appellee, and the petition further states in effect, that no statement under oath was made by the original contractor and furnished to the appellee, as required by section 5 of the mechanic’s lien act. Section 33 of the same act provides, that “ no payment to the contractor or to his order shall be regarded as rightful^ made as against the sub-contractor, or parties furnishing materials, if made by the owner without exercising or enforcing the rights and powers conferred upon him in sections 5 and 23 of this act.”
We are of opinion, therefore, that the allegations of the petition are in effect that there was, as between appellant and appellee, due and owing by appellee to the original contractor on June 5, 1896, the sum of $10,000.
It is also urged that the concluding clause of section 5 excepts material men from its operation, and hence excepts appellant. The clause in question is, “ But this section shall not apply to * * * nor to merchants and dealers in materials only.”
If it could be maintained, as it can not, that Simpson & Robinson Company, the original contractor, was a “ merchant or dealer in materials only,” there might be some force in the contention. The clause could apply to the original contractor only and not to appellant.
Finally, counsel for appellee contend that the notice served by appellant upon appellee is defective and insufficient, in that it fails to state definitely when the amount due appellant became due.
The lien notice served on appellee upon June 5, 1896, by appellant, contained this statement: “ And that there was due to the undersigned on the 21st day of May, 1896, therefor, the sum of one thousand one hundred ninety-six and 10-100 dollars.” We are of opinion that this is sufficient in the particular in question.
The demurrer should have been overruled.
The decree is reversed and the cause remanded.