McNeal Pipe & Foundry Co. v. Bullock

38 F. 565 | U.S. Circuit Court for the District of Southern Alabama | 1889

Toulmin, J.

It appears from the declaration that the Bienville Water Supply Company is a public corporation or quasi public corporation of such a nature, and the property sought to be condemned to the alleged lien is of such a nature, that it should not be subject to the lieii claimed by the plaintiff in his complaint, on grounds of public necessity and convenience. It appears that some of the pipes and connecting appliances which are sought to be subjectéd in this suit are laid along or under the public roads of the county and the public streets of the city of Mobile, or placed thereon. In the absence of an express statutory provision authorizing it, a mechanic’s lien cannot be enforced against property such as buildings, machinery, etc., designed for public use, and which are erected or placed upon land belonging to a municipal corporation. And considerations founded on grounds of public policy forbid that the law providing for liens of mechanics and material-men should be held to apply to buildings, machinery, pipes, and the like, constituting a part of the water-works erected for the purpose of supplying water to a municipal corporation and to its citizens, whether erected on lands of the municipality or not. See Phil. Mech. Liens, § 180; Foster v. Fowler, 60 Pa. St. 27; Leonard v. City of Brooklyn, 71 N. Y. 498; Wilkinson v. Hoffman, 25 Fed. Rep. 175, and authorities cited in note on page 175. I am therefore constrained to hold that the provisions of the mechanic’s lien law of this state do not apply in this case.

There are various other grounds of demurrer to the declaration assigned, and, among them, that the complaint and summons¡ with the indorsements thereon, show that the suit was not commenced within the time prescribed by law in such cases, and that the lien claimed has been lost, even if it could otherwise have been maintained. I am inclined to think that this point should be raised by plea. I therefore express no opinion on it as now presented. There are several other grounds of demurrer that I consider well taken, viz., that the complaint fails to show that the Bienville Water Supply Company is or was the owner or proprietor of the lands described therein against which a lien is sought to be enforced, or of any lands in Mobile county on which the buildings and improvements sought to be subjected to a lien are situated; that it fails to aver that there is, or was at the time the plaintiff gave notice to the Bienville Water Supply Company of the said alleged lien, any unpaid balance due by said Bienville Water Supply Company'to the defendant S. R. Bullock & Co.; and that it seeks to fasten a lien on certain personal property disconnected with any lands or buildings or improvements on land. The complaint, however, could be amended to meet these objections, if an amendment would avail the plaintiff anything. There are other grounds of demurrer that I do not think are well taken;- but it is unnecessary for me to notice them, particularly in view of my ruling on the demurrers already specifically mentioned. It is considered by the court that the demurrers to the complaint, so far as it claims a mechanics’ or material-men’s lien on the property of the Bienville Water Supply Company, be and the same are hereby sustained.I enter a judgment sustaining the demurrers generally, inasmuch as the ruling on the ground of demurrer first noticed is fatal to the plaintiff’s lien claim set up in"his declaration.