Williams v. Lane, 87 Wis. 152

87 Wis. 152 | Wis. | 1894

Pinney, J.

1. The lot of land described in the pleadings and judgment lies upon and along the water frontage of Ashland bay, a part of the waters of Lake Superior, at Washburn, in Bayfield county, and the owner, by virtue of his riparian ownership, has, as appurtenant to the land, a right to construct, in shoa.1 water in front of his land, proper wharves, piers, or other structures in aid of navigation, and, at his peril of obstructing it, through the water far enough to reach actually navigable water. Such riparian rights proper rest upon title to the bank, and are the same whether the riparian owner owns the soil under the water or not; and, subject to the riparian rights of the riparian owner, the state owns the fee of the land under water, in trust for certain public uses and for the purposes of navigation. McLennan v. Prentice, 85 Wis. 427, and cases cited.

The statute relating to liens such as are claimed in this action is that “ every person who . . . performs any work or labor, furnishes any materials . . . for, in, or about the erection, construction, repairs, protection or removal of any dwelling house or other building, or any machinery erected or constructed so as to be or become a part of the freehold upon which it is to be situated, or of any bridge, or in the filling up of any water lot or the construction thereon of any wharf or permanent erection, or in the dredging of the channel in front of such water lot, . . . shall have a lien thereupon, and upon the interest of the. owner of such . . . building, machinery, . . . wharf, erection thereon, . . . and upon the water lot so filled, or in front of which such dredging is done, not exceeding forty acres; ” and no lien shall exist unless the claim therefor is filed “ within six months from the date of the last charge for performing such work 'and labor, and the furnishing of such materials,” nor unless such action (to foreclose it) “ be brought within one year from such date.” S. & B. Ann. Stats, secs. 8314, 3318.

We see no reason why the plaintiffs in these cases, for doing the work and furnishing the materials stated in the complaint, may not have liens upon docks, w’harves, and other structures built by a riparian owner out into the water in front of his lot, and for dredging, piling, etc., for that purpose, and also upon the right, title, and interest of such riparian owner in and to the land and to the riparian rights appurtenant thereto, subject to the paramount right of the public to make use of the waters in which such structures or improvements are made as may be lawful, and for purposes of navigation. The objection made to such liens sounds ill in the mouths of the defendants, so long as they are in the undisturbed exercise and enjoyment of their riparian rights, and are not excluded on account of the public use, paramount to all others, which may be made of the waters. The plaintiffs are not required to 'prove the title of the defendant Lane, as the lien is enforced only against his interest, and if he has no interest in the property the plaintiffs will take no interest in the premises by the judgment; but that is a matter of no concern to the defendants (Willer v. Bergenthal, 50 Wis. 479); and no issue is made as to any title paramount to that of the defendant Lane (Cook v. Goodyear, 79 Wis. 606).

2. It is objected to the claim of Williams, Upham & Co. that the proof does not show that the last item of it was rendered August 6, 1888, so as to maintain that the action commenced August 5, 1889, was brought within the prescribed year. There was abundant proof of the claim. While Williams, Upham & Co. were doing this work, an inspector and timekeeper selected by La/ne reported each day’s operations, and gave plaintiffs a statement of the date and amount of each day’s work, and from these statements they made up their account. There were sixteen of these statements, and the last bore date August 6, 1888. They were made at the time, in the ' regular course of business, by Lands agent, and were competent evidence on the point in question.

3. It is objected that the action was not commenced in time as to the claimants Bigelow & Co., the date of the last work performed by them being August 4, 1888, and the last material furnished — a large number of spiles — was Sunday, August 5, 1888. The proof shows that the last item of work charged was nine dollars for twelve hours’ labor, and, further, that the spiles were actually used in the work. It is probable that they were used after the Sunday upon which it is found that they were furnished. Under the finding of the referee, there can be no recovery for the materials so furnished. R. S. sec. 4595; Moore v. Kendall, 2 Pin. 99; Troewert v. Decker, 51 Wis. 46. A recovery might have been had if there had been a subsequent promise on a secular day to pay for the materials, or if there had been an account stated between the parties (Melchoir v. McCarty, 31 Wis. 256); but the proof shows merely that an account had been rendered for it, leaving the right to recover to depend upon an implied promise; and the case falls within the rule laid down in Frey v. Fond du Lac, 24 Wis. 204, to the effect that no promise, in such case, can be implied.

The last item of labor (August 4th) appears to have been disallowed by the court; but, if the evidence showed that it should have been allowed, it would then appear that the last day to bring an action to enforce a lien for the claim of Bigelow & Co. was August 4, 1889, and this was Sunday, and the action was not commenced until the nest day. We are of the opinion that the action, as to these plaintiffs, was not brought in time, and that by the great weight of authority, where the time for doing an act is one or more years, and the last day falls on Sunday, it cannot be lawfully performed on the next day. In such case the act should be performed on the preceding day. Sedg. Stat. & Const. Law, 358; Suth. Stat. Const. sec. 115; End. Interp. Stat. sec. 393; Haley v. Young, 134 Mass. 364; Ex parte Dodge, 7 Cow. 147; Taylor v. Palmer, 31 Cal. 244; Harrison v. Sager, 27 Mich. 476; Ex parte Simpkin, 105 Eng. C. L. 392. The case is not within the statute (S. & B. Ann. Stats, sec. 4971), which applies only to cases when the time in the statute “is expressed in days,” and is not controlled by Buckstaff v. Hanville, 14 Wis. 77.

The right of lien claimed by Bigelow & Co. for the amount of their claim therefore fails because the action was not commenced within the prescribed year. S. & B. Ann.. Stats, sec. 3318.

4. It is claimed that the evidence does not show that the goods sold to Lane by Leihy & Garnich were used in re-, pairing or completion of certain machinery which was attached to a building on the premises in question. Mr. Garnich testified to the sale of the goods, and that he had a conversation with Lane about it, and it was stated by Lane, as we understand it, that they were used at Wash-burn for the mill. The circuit court, it appears, examined the account with a view of excluding from it all non-lien-able articles, and reduced the amount considerably. It does not affirmatively appear that any error occurred by which any sum for non-lienable articles was retained and included in'the judgment. The evidence before the referee appears to be meager and fragmentary. The referee, no doubt, understood its force and effect much better than any one can by reading the somewhat imperfect report. We think that his findings, as amended and confirmed by the court, are warranted by the evidence, and that it sustains the judgment, except as to the claim of Bigelow & Co.

For computation of time wh'en last day falls on Sunday, see note to Brown v. Voiles, (Colo.) 14 L. E A. 120.— Rep.

There are no other questions requiring consideration, and it follows from these views that the judgment of the circuit court ought to be affirmed as to all the plaintiffs except Bigelow & Co., and that as to them it should be reversed and the case remanded with directions that the action as to them be dismissed.

By the OouH.— Judgment is ordered accordingly.