Giant Powder Co. v. San Diego Flume Co.

California Supreme Court Feb 12, 1891 No. No. 13906Published

Before: Foote, Haven, McFarland

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Holding. The court held that the defendant's actions in taking possession of, controlling, and using the contractor's uncompleted work after rescinding the contract constituted an acceptance, use, and occupation of the structure under the mechanic's lien statute, rendering the lien claim timely.

Issues

Does the evidence support the finding that the plaintiff filed its lien claim before the defendant accepted, used, or occupied the work?
Does an owner's assumption of control and use of an uncompleted structure after rescinding a contract constitute 'acceptance' or 'use' under section 1187 of the Code of Civil Procedure?

Disposition. reversed

Quotations verified verbatim against the opinion

“The defendant, having gotten rid of the contractor by this arrangement, dominated, controlled, and applied to its uses the uncompleted work of the contractor in the prosecution of which the materials of the plaintiff had been used.”

“The contractor’s connection with the defendant was completed and ended, the defendant accepted the work he had done, used and occupied it so far as it was capable of being so used or occupied.”

Synopsis

Mechanic’s Lien — Completion op Structure — Lien por Materials — Rescission op Contract — Occupation and Use—Acceptance by Owner. — A flume company which, after engaging a contractor to grade a flume-bed and surface-ditches, to excavate tunnels, and fully to prepare the foundation for the flume, consents to an abandonment and rescission of the contract by the contractor before its completion, and takes possession of the work and completes it, “ occupies and uses” and “accepts” it, within the meaning of section 1187 of the Code of Civil Procedure, and a lien for the materials used by the contractor, filed within thirty days after the company took possession and control of the work, is valid.

Id. — Construction op Code — Evidence oe Completion. — Section 11S7 of the Code of Civil Procedure, providing that the occupation, use, or acceptance of the building, improvement, or structure shall be deemed conclusive evidence of completion, has reference not only to the occupation, use, or acceptance of a dwelling or other house, but to any kind of structure, building, or improvement in which the materials of a lien claimant have been used.

Opinion — Foote

Foote, C. This action was brought against Joseph Johndrew, “an original contractor ” for the San Diego Flume Company, and that corporation, to recover a judgment for the value of materials furnished the contractor, which were used in his work upon the structure for the flume company, and to enforce a material-man’s lien upon the structure, under section 1183 of the Code of Civil Procedure.

The evidence and the findings indicate that after the sixth day of June, A. D. 1887, there existed a valid contract between the contractor and the owner; so that as to all materials furnished after that date the plaintiff could file its lien claim by virtue of the existence of the contract.

The court below seems to have proceeded under this impression, and to have based its decision, which was against the plaintiff, so far as the right to enforce its lien was concerned, or any other claim against the flume company, upon the theory that its claim of lien had been filed before the acceptance, completion, use, or occupation of the structure, according to the terms of section 1187 of the Code Of Civil Procedure as amended in 1887.

The plaintiff appeals from the judgment against it in favor of the flume company, and from an order refusing a new trial.

Does the evidence sustain the findings that the plaintiff filed its lien claim before the defendant had accepted, used, or occupied the work which the contractor had left in an uncompleted state ?

The work which the contractor was to perform was the grading of a flume-bed, surface-ditches, and tunnel approaches from the defendant’s diverting dam on the San Diego River to its proposed city reservoir, near San Diego, and the excavation of about three thousand linear feet of tunnels, and lining the same with masonry, and also timbering same in accordance with the plans and specifications.

[23]Thus it will be observed the contractor was not to complete the flume, or to make complete the proposed water-works of the defendant, but only to prepare the place upon which the flume was to be thereafter placed. He was to lay the foundation, as it were, on which the flume was to rest. In this respect, the work to be done was somewhat similar to the laying of a foundation on which to erect a house.

Giant Powder Co. v. San Diego Flume Co.

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Synopsis

Opinion — Foote

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Concurrence — McFarland

Concurrence — Haven

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