Baker v. Lake Land Canal & Irrigation Co.

BURNETT, J.

J.—The case represents the consolidation of two actions brought to foreclose liens for labor bestowed upon a certain canal and right of way belonging to defendants.

The appeal is from the judgment in favor of plaintiffs and an order denying a motion for a new trial.

About June 25, 1904, appellants entered into a contract with defendants W. B. Livermore and J. W. Livermore, who were doing business as partners under the firm name of Livermore Brothers, under which the latter agreed to construct a certain ditch or canal leading from Kings river in Kings county.

The amount agreed to he paid thereunder was in excess of one thousand dollars, but the contract was not recorded until some time after the work of construction was begun. It is conceded, therefore, that the work done by plaintiffs must bie deemed to have been bestowed upon the canal at the personal instance of the owners. (Code Civ. Proc., sec. 1183 ;

Kellogg

v.

Howes,

81 Cal. 170, [22 Pac. 509]

; Davis Henderson Lumber Co.

v.

Gottschalk,

81 Cal. 641, [22 Pac. 860] ;

Pierce

v.

Birkholm,

115 Cal. 657, [47 Pac. 681] ;

Smith

v.

Bradbury,

148 Cal. 41, [113 Am. St. Rep. 189, 82 Pac. 367].)

Appellants, however, assail the judgment upon various grounds, among which is, that the claims of lien were prematurely filed by plaintiffs.

The work was not completed by Livermore Brothers. In fact, a very small part of it was done by them. On the 24th of September they were notified by the owners that the contract under which the work was being done was canceled and the said Livermore Brothers were forbidden to do any further work on the canal. Consequently, on September 26th, they ceased their work and the owners took possession. On October 26th, the owners filed in the office of the county re