Garland v. Bear Lake & River Water Works & Irrigation Co.

Zane, C. J.: It appears from this record that in 1889 the Bear Lake — 357 — & River Water-Works & Irrigation Company undertook to construct a water ditcli or canal through the counties of Cache and Box Elder, and that on the 16th of the following August the plaintiff contracted with the company to construct the first 12 miles of' it; .that he immediately entered upon its performance, and completed the work on October 31, 1890; that during its progress he sublet parts of it to Annett & Thompson and their assignors, and to McMartin, who performed the work let to them. All of the contracts provided that payments should be made on measurements and estimates of the company’s engineer. It also appears that Corey Bros. & Co. did work on the canal under a contract bearing date May 1, 1890, with the company, and it further appears that on October 1, 1889, the company executed to the Jarvis-Conklin Mortgage Trust Company a deed of trust to all property it then owned or might acquire, to secure 2,000 of its bonds, of $1,000 each; that Annett & Thompson, in the summer of 1890, brought suit against Garland, alleging that the estimates of the company’s engineer were fraudulent and incorrect, and claiming a greater-sum. At the same time,- Garland ^brought suit against McMartin, and he pleaded a set-off for work alleged to have been done for the former. While these actions were pending, Garland finished his work, and filed his statement for a lien, and included in it the amount due, according to the measurement and estimate of the company’s engineer, and the excess claimed by his subcontractors. In these actions the waterworks and irrigation company was made a party, and the result of the trial was, the estimates of the company’s engineer were rejected, and the court, in its judgment against Garland, allowed the subcontractors the full amount of their claims, and rendered judgment against the waterworks and irrigation company, in favor of Garland, for the amount of the excess over the estimate of the company’s engineer. — 358 — Pending the suits, the plaintiff, William Garland, commenced this action against the Bear Lake & Biver Waterworks & Irrigation Company, the Jarvis-Conklin Mortgage Trust Company, as trustees, and Corey Bros. & Co. All of the defendants answered, setting up the foregoing facts, and Corey Bros. & Co. also filed a cross complaint, in which they alleged the amount of work done by them, and the recording of their lien, and asked for its enforcement. TJpon the hearing, the court entered a decree in favor of Garland against the waterworks and irrigation company for $89,551.33, — the amount due and unpaid, according to the estimate of the company’s engineer, and disallowed plaintiff’s claim for work in excess of that estimate, for which a decree had been rendered in his favor in the action by the subcontractors. The court also found for Corey Bros. & Co. $12,572.78, against the same defendant, and declared these two amounts to be first and equal liens upon the canal, and ordered a sale thereof for their satisfaction. From this decree, the plaintiff, the water and irrigation company, and the Jarvis-Conklin Mortgage Trust Company have appealed. • The plaintiff did not commence this suit to enforce his lien until nine months after he had filed the statement for a lien in' the recorder’s office. The law in force when plaintiff made his contract, and commenced work, required an action to enforce the lien to be commenced within 90 •days after filing the statement. The water and irrigation company insist that the plaintiff lost his lien because he did not commence suit within that time, while the plaintiff claims that his right to a lien, and to the remedy to enforce it, must be determined (as the court below held) by the law in force March 12, 1890, which permits the suit to be com-' menced within one year after the statement is filed. Section 32 of the latter act is as follows: “All acts and parts of acts inconsistent with the provisions of this act, — 359 — and sections 3806 to section 3820 both inclusive oí the Compiled Laws of TJtah 1888, are hereby repealed; provided that the repeal of said acts or part of acts, or any of them, shall not affect any right or remedy nor abate any .suit or action or proceeding existing, instituted or pending under the law hereby repealed.” The' right and remedy referred to in this provision are the lien, and the means the law furnishes to enforce it. The contract, of itself, does not give the lien, or the right to the remedy to enforce it. When the work under the contract is- done, and the statement is filed, the lien comes into existence, and relates to the time of commencing the work or furnishing the materials; and when the work is done or the materials are furnished, and the statement is filed, and a breach of the contract has occurred, the right to the remedy exists. If the party contracting for the labor or materials refuses to comply with the contract before the other party has done any work or furnished any materials, the latter has his right to damages, and the ordinary remedy to recover them, but in that case there is no mechanic's lien. If, after the latter commences work or furnishes some material, the former refuses to permit him to complete the work or furnish more material, the party who has done some of the work or furnished some material, upon filing the-statement required, has a lien to that extent, and may-avail himself of the remedy to enforce it. The obligation to perform the contract arises when it is signed by the-parties, and delivered. The lien arises when work is done- or materials are furnished under it, and the statement is filed, and it relates then to the time the work or delivery of the materials commenced. The lien does not arise until some of the work is done or some of the materials are-furnished, and the party for whom the work is done or to-whom the materials are furnished has refused or failed to360 ■comply with the contract, and the statement has been filed. So with respect to the remedy. If the party to the contract for whom the worlc is to be done, or the material is to be delivered, violates it before such work or delivery is ■commenced, the other party has a right to the ordinary remedy, but not the right to the lien, or to the remedy to ■enforce it, referred to in the mechanic's lien law. But if, after such work or delivery commences, the party for or to whom such work or delivery is due violates the contract, and the statement is duly filed, the right to the remedj^ to enforce the lien accrues. The plaintiff did not complete the contract to do the work and furnish the materials until after the law of March 12, 1890, took effect, and there was no breach on the part of the water and irrigation company until after such completion, and the statement required was not filed' till after that. It is plain that the court ■committed no error in applying the law of March 12, 1890, to the facts of the case. Turney v. Saunders, 4 Scam. 527; Ogden v. Saunders, 12 Wheat. 349. The Bear Lake & River Waterworks & Irrigation Company insists that the court erred in holding that the plaintiff and Corey Bros. & Co. had a lien on the irrigation ditch in question, because it found that the right of way was acquired after the lien attached. The ditch was constructed on the public lands of the United States, for irrigation purposes, and the right of way was obtained by going upon the land, and making the ditch. By so doing the water and irrigation company obtained a right to occupy ,so much of the land as was necessary for its canal. It acquired such a right to use or transfer the same as the law recognizes and protects. Sections 2339 and 2340 of the Revised Statutes of the United States are as follows: “Sec. .2339. Whenever, by priority of possession, rights to the — 361 — use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the-possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for 'the construction of • ditches and canals for the purpose herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the preceding section.” These sections recognized the right of individuals to go upon the public land of the United States, and to construct ditches and canals for mining, agricultural, manufacturing, and other useful-purposes, and the right of 'way so. taken and held the law acknowledges and confirms, and makes all patents granted, and pre-emptions and homesteads allowed, subject to such rights. Jennison v. Kirk, 98 U. S. 453; Broder v. Water Co., 101 U. S. 274. The law under which this suit was instituted, securing liens to mechanics and others, declares “that whoever shall do work or furnish materials by contract, express or implied with the owner of any land * * * shall have a lien upon such land, building, structure or other improvement for the amount and value of the work so done or materials so furnished to the extent of the interest or claim of such owner * * * any person having an assignable, transferable or conveyable interest or claim in or to any land, building, structure or other property mentioned in this act, shall be — 362 — deemed an owner.” Laws 1890, p. 24, § 1. The section also provides that the lien shall attach to another or greater interest in the property acquired by such owner subsequent to the commencement to do work or furnish materials, before the lien is established by process of law. The lien of the plaintiff and of Corey Bros. & Co. relates to the time they commenced work on the ditch, and as fast as it was constructed the right of way was obtained by the water and irrigation company. The contract was binding on both parties, and we must hold that the lien attached as the work progressed. The water and irrigation company will not be heard to say that the lien did not attach to the ditch which the parties who constructed it brought into existence. The law will not permit-the company to say ii_VVe have the property that your labor created and gave us, but we will not compensate you for it, or concede your lien to secure its payment.” We are of the opinion that the defendant was the owner of the ditch, within the meaning of the-law quoted, and that a lien -to secure the amount due the plaintiff and Corey Bros. & Co., respectively, relates to the time they commenced work. Turney v. Saunders, 4 Scam. 527. The Jarvis-Conklin Mortgage Trust Company insist that the court below erred in holding that the lien in favor of Corey Bros. & Co. on the canal was superior to the trust deed on the same property to secure its debt. It is true that the Jarvis-Conklin Mortgage Trust Company obtained their deed of trust before Corey Bros. & Co. commenced work, and that the deed, by its terms, included all the property the water and irrigation company then had, or might thereafter acquire. When mechanics, material men, or other persons make improvements on land on which there is a mortgage or trust deed, such mortgage or trust deed will be superior to the lien to secure the mechanics or other persons; but the water and irrigation company had — 363 — no ditch or canal which the deed of trust could transfer' to the trustee, until Corey Bi-os. & Co./ by their labor, brought it into existence, and as fast as they constructed the canal their lien attached to it. The trust deed could not transfer th’e canal from the water and irrigation company to the trustee until it was constructed; until the property came into existence. Under the mechanic’s lien law relied upon, we do not think a man can execute a deed of trust on a canal to be constructed on the public lands, and then employ men to build it, and after they have done so, and claim the security of the lien, turn upon them, and say he had transferred the property to a trustee before their labor had brought it into existence. We are of the opinion that the court below was correct in holding the lien of Corey Bros. & Co. superior to the trust deed. In the suit by the; subcontractors Annett & Thompson against William Garland, and the suit of the latter against the subcontractor McMartin, it was alléged that the measurements and estimates authorized by the contracts, and made by the engineer of the Bear Lake & Biver Waterworks & Irrigation Company, were fraudulent and incorrect; and on motion of Garland the latter company was made a party to those actions, and the issue as to the correctness of the measurements and estimates of the engineer was tried, and decided against the company, and the actual amount found due exceeded such estimate by $23,000, and a decree was rendered against Garland for the full amount of the subcontractors’ demand, including this excess,— $23,000. A decree was also rendered in favor of Garland against the water and irrigation company for this $23,000, but the amount due Garland, according to the estimates of the engineer, was not litigated between him and the company. In the suit in hand the plaintiff claims, not only the amount due according to the estimate, but the $23;000 ■ excess, as well. The trial court, in its decree, gave him — 364 — $89,551.33, the amount due according to the estimates of the engineer, but disallowed the excess, for the reason that plaintiff had a decree for that part of his claim against the water and irrigation company. He alleges this ruling as error. The decree against the water and irrigation company in favor of Garland, in the suit of the subcontractors against him, was reversed by this court on > appeal, and from the judgment of reversal an appeal is now pending in the supreme court of the United States. We must presume that the plaintiff will finally obtain whatever is due him in that case. We hold that the court below rightly excluded the amount in litigation in that case from the decree in this. Numerous other errors are alleged in this record, which, upon examination, we hold are not well assigned. The judgment of the court below is affirmed. Bartch, J., concurred.