Bringham v. Knox

THE COURT.

One H. C. Bowen was the owner of certain narrow gauge railway property called the Sierra Valleys and Mohawk Railroad, which in different parts of the line was in various stages of advancement; the section on which rails had been laid began at the eastern terminus of the line, a place called Junction in Lassen county, and extended thence northwest and westerly a distance of fourteen miles; the roadbed had been graded something more than sixteen miles beyond the end of the laid track, and the right of way for the road had been obtained a few miles yet farther to the westerly terminus at Mohawk valley in Plumas county; the total distance from said Junction to Mohawk valley being about thirty-five miles. In October, 1894, the defendant H. L. W. Knox agreed in writing with said Bowen to construct additional track on said line, commencing at the end of the fourteen miles already laid and proceeding westward about nine miles to Rock Quarry, a point a few hundred feet west of a place called Kerby Mill. This contract was not, nor was any memorandum thereof, filed in the office of the recorder of either of said counties; so that it was void under the provisions of section 1183 of the Code of Civil Procedure. Nevertheless, Knox proceeded thereunder, and completed his work in accordance therewith on August 8, 1895. The plaintiff in this action, M. C. Bringham, furnished seventeen thousand timber ties to said Knox for use, and which Knox did use, in the construction of said extension of the track

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to Bock Quarry; Knox agreed to pay plaintiff eighteen cents apiece for said ties, and yet owes him on account thereof a balance of eighteen hundred and fifty-five dollars. On September 6, 1895, plaintiff filed in the office of the recorder of Plumas county his claim of lien, presently to be described, for the amount of said balance. This is an action to recover said amount and enforce such lien. The court below rendered judgment against Knox—who had made default—for the money due plaintiff, but refused to enforce the asserted lien; from the judgment in favor of the defendants other than Knox plaintiff has appealed.

1. Bespondents contend that plaintiff has sought to enforce his lien against a part only of a continuous railroad, whereas the law required, him to proceed against the whole property; and this is the question mainly discussed by counsel. Pending performance of Knox’s contract with Bowen, and before plaintiff filed his claim of lien, the title to the entire line of track, roadbed, and rights of way, from Junction to Mohawk valley, had passed from said Bowen to the defendant Sierra Valleys Bailway Company. In his claim of lien filed as aforesaid on September 6, 1895, Bringham stated that he “furnished materials actually used in the construction of that certain railway known as and called the Sierra Valleys and Mohawk Railway, and also such other property than the railroad as may be necessary for the operation and use of said railroad, which railroad is described as follows, to wit,” setting out a particular description, commencing at Junction and continuing to the town of Beckwith, from which point it is stated that the road “bears about due west to Kerby Mill, and to its present westerly terminus distant about nine hundred feet from Kerby Mill. That the entire distance from the point called Junction to the present westerly terminus of said Sierra Valleys and Mohawk Bailroad is about twenty-three and one-half miles.....That not less than twenty-five feet of ground on each side of said railroad, as constructed, is necessary for the use and operation of said road, together with the ground on which all freight and other houses are situated.” The instrument concluded with a statement that Bringham claims the benefit of the law relative to liens of mechanics and others upon real property. At the