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er of Maricopa county on that day. It was 505; U. S. v. City of Chicago, 7 How. 185; shown that the original map, after being in 5 Am, & Eng. Enc. Law, pp. 405–407, and the recorder's office some time, had become many cases cited. much worn, and “about to fall to pieces," and Purpose of the dedication: Appellant conabout the year 1889 or 1890 was copied into tends that, if there was any dedication of a book in the recorder's office, at the instance this land to the public, it was only for the of the city council of Phoenix, since which purpose of a site for capitol grounds when time the original became lost, and could not this territory should become a state, and inbe found. It is contended by appellant that troduced evidence that several times, begin. the evidence fails to show that the map re- ning in the year 1883, David Neahr offered lied on is a copy of a map made by David the land for that purpose in letters to the Neahr, or authorized to be made by him, of speaker of the house of the territorial assemhis addition to Phoenix; but we think the bly. But at that time, the deuication to the evidence on that point admits no other con- public having been complete, Neahr had nu clusions than that the map offered in evi- further control over it. Huber V. Gazley, dence was a copy of the original, and the 18 Ohio, 18; San Leandro v. Le Breton, 72 only map of Neabr's addition made by Pat- Cal. 170, 13 Pac. 405; Maywood Co. v. Vilrick. Patrick himself testifies that it was, lage of Maywood, 118 Ill. 61, 6 N. E. 860; and Osborn, the county recorder, testifies that Town of Lebanon v. Commissioners of War. it was a copy of the map which Patrick filed ren Co., 9 Ohio, 80. While a party may in the recorder's office, which he saw in 1883, sometimes testify as to his original intenand which remained there from that time un- tion in regard to the dedication to the public, til 1889. There is no evidence contradicting the dedication is generally proved by evithese two witnesses, or establishing any other dence of the owner's acts, together with the hypothesis than the fact that this map was surrounding circumstances. Bidinger V. the only one made by Patrick of Neahr's ad- Bishop, 76 Ind. 244; McKee v. Perchment, dition. The record discloses the fact that 69 Pa. St. 312; 24 Am. & Eng. Enc. Law, Patrick made the map at the instance of one p. 9, and cases cited. By reference to the De Forrest Porter, with whom David Neahr map of Neahr's addition in the record of made a contract during his lifetime, to wit, this case, it will be observed that the street May 3, 1879, placing in the hands of said Por- | which would run through this land if exter, for sale and disposal, the said N. E. 14 tended is marked on the map as “Park Ave. section of land comprising Neahr's addition, nue," on both sides of the tract, which furand agreeing that said Porter should have nishes some evidence that the donor intendfull control of said property “in negotiating ed that the tract should be a park, whatsales thereof, and in placing the same on the ever ideas he may have afterwards entermarket"; and, using the language of the con- tained of its becoming a site for the capitol tract, “it is further agreed that the last de building. scribed tract of land [said N. E. 44] is to be As to the acceptance by the city of Phoesubdivided into lots, the size and numbers as nix: “In order to dedicate property for pubshall be determined upon by the parties hereto lic use in cities and towns and other places, hereafter, and shall be sold according to subdi- it is not essential that the right to use the visions so made." Appellant claims that none same shall be vested in a corporate body. of the acts of Porter and Patrick amounted to It may exist in the public, and have no other a dedication by Neahr of the land in question; limitation than the wants of the community and, truly, they might not have, had no action at large." New Orleans v. U. S., 10 Pet. been taken by Neahr to ratify and indorse the 662. “And, where such lots and streets dedacts of them both by his making sales of di- icated by plat are afterwards included in an vers lots of land in Neahr's addition, refer- old and adjoining town by extending the ence being had to this map made by Patrick, corporate limits thereof, no proceedings by at the instance of Porter, for a more complete the corporate authority for the condemnadescription of the property sold, which the tion of any such streets are necessary. They stipulation shows he did. "His sanction, are already public streets by prior dedicawhen given, relates back to the original trans- tion." Fulton v. Town of Dover (Del. Ch.) action, and gave equal effect to it as if 6 Atl. 633. “The open square in a town may he, the principal, had been present." Bar- be dedicated to the public by its owner, and clay v. Howell, 6 Pet. 498. These acts of a formal acceptance by the town is not Neahr show an irrevocable dedication of the necessary to make the dedication complete. land in question to the publie, and the fact | Acceptance may be presumed if the gift is of recording or not recording the map makes beneficial, and user is evidence that it is no difference. “The mere act of surveying beneficial. No particular length of time is land into lots, streets, and squares by the necessary to make a dedication binding. Abowner will not amount to a dedication; yet bott v. Cottage City (Mass.) 10 N. E. 325. the sale of land with reference to such plat, “The public authorities must be allowed a map, or plan, whether recorded or not, will reasonable time for opening and improving amount to an immediate and irrevocable dedi- public streets, as their resources and pubcation of such streets, etc., so far as the own- lic necessity may allow and require. Town er is concerned." Dill. Mun. Corp. c. 17, 8 of Lake View v. Le Bahn, 120 Ill. 92, 9 N. E. 269; Meler v. Rallway Co., 16 Or. 500, A. E. Mead and Black & Leaming, for ap19 Pac. 610. This land did not become a pellant. No appearance for respondent part of the city of Phoenix until the year 1885, but certainly it had been accepted on the part of the public by those persons who HOYT, C. J. This action was brought to had bought lots in the addition. Archer v. recover the sum of $240, which, it was alSalinas City, 93 Cal. 43, 28 Pac. 839. And leged, had been received by the defendant on the 6th of February, 1888, the city coun- for the use and benefit of the plaintiff. The cil of Phoenix, upon the petition of several proofs disclosed the fact that it was claimed citizens that the plaza in Neahr's addition that the defendant had received the pro be cleared, plowed, and ditched, instructed ceeds of 150,000 shingles which belonged to the street and alley committee to “clear up plaintiff. Hence, the first question to be de the plaza." This, alone, we think, was a cided is as to the title to the sbingles, the sufficient and timely acceptance by the city, proceeds of which, it was alleged, bad been if, in fact, any acceptance by it was neces- appropriated by the defendant. If it does sary.

not appear from the proofs that such shinThe only remaining point to be noticed is gles were the property of the plaiutiff, it as to the estoppel of the city by reason of will be unnecessary to inquire further as to Its having assessed this land for municipal the rights of the parties. His claim of title taxes. On that point we are satisfied with grew out of a transaction substantially as the doctrine enunciated in the case of San follows: He made a loan of $200 to tbe Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405, proprietor of a mill eugaged in the manuwherein the court says: “When the block was facture of shingles, and took a note therefor, dedicated to the use of the public as a pub- and, as security for its payment, received an lic square, it became a part of the pub- instrument in the following form: "Inter lic grounds of the town, and could not be national Mill Co., Manufacturers of Cedar legally assessed or taxed for state, county, Shingles. J. B. Chown, Proprietor. Blaine, or municipal purposes; and the erroneous Wasb., Nov. 18, 1891. Received from J. B. action of officials in the respects named Chown 150,000 shingles, valued at $240, sub could not impair the rights of the public or ject to the order of T. G. Steaubli, uow in confer rights upon the defendant. The doc- dry house at mill. C. H. McKnight, Ware trine of estoppel has therefore no applica- houseman." At the time this receipt was tion."

given the shingles in question were in proc The judgment of the district court is al- ess of manufacture. The C. H. McKnighi firmed.

who signed it as warehouseman was the

manager of the mill, and the so-called ware ROUSE and HAWKINS, JJ., concur.

house was a place where the surplus product BAKER, C. J., having been of counsel for of the mill was stored until ready for sbip the appellee in the court below, took no part

ment. Did the title to the quantity of shin in the decision of said cause,

gles therein stated pass to the holder of such: receipt? It is clear that the title to no par ticular lot of shingles passed, for the reason

that there was no segregation and setting (11 Wash, 426)

aside of the particular shingles therein de STEAUBLI v. BLAINE NAT. BANK.

scribed; and in our opinion it is equall: (Supreme Court of Washington. March 18, clear that no title passed to the quantity o! 1895.)

shingles therein mentioned, for two reasons CONVEYANCE OF PersonALTY-IDENTITY OF PROP First, because there was no proof of any ERTY-WAREHOUSEMAN'S Receipt.

uniform character or value of all of the shin 1. A mill owner, to secure his note, gave gles that were stored in the warehouse; and the payee a receipt signed by the manager of his

second, there was no proof which would war mill, as "warehouseman," stating that 150,000 shingles, valued at $240, were in the dry house

rant us in holding that the receipt in ques of his mill, subject to the order of the payee. At

tion constituted what is known as a "ware the time the receipt was given the shingles were houseman's receipt." The only thing in the in the process of manufacture. The dry house

least tending to give it that character was was a place where the surplus shingles, the product of the mill, were stored until ready for

the addition of the word "warehouseman" shipment. Heid, that the title to the quantity to the signature of McKnight; and this was of shingles named did not pass to the holder of

entirely insufficient for that purpose, in view the receipt, so as to support an action by him against one who interfered therewith.

of the fact shown by the plaintiff's own tes2. The fact that a receipt given by a mill | timony, to the effect that the shingles were owner is signed by the manager of his mill, as held by the mill company under substantially "warehouseman," does not make it a warehouse

the same conditions as the product of mills man's receipt.

of the kind is generally held. The only way Appeal from superior court, Whatcom coun- that title to any specific portion of the prod. ty; John R. Winn, Judge.

uct of the mill could pass would have been Action by T. G. Steaubli against the Blaine by such a description as would enable the National Bank. From a judgment for plain- exact property intended to be conveyed to be tife, defendant appeals. Reversed.

identified, and selected from that with wbict it was surrounded, or by having it so set Strohl against the Jamieson-Dixon Mill Comaside and taken possession of by the one pany, a corporation, and others, to foreclose claiming title thereto as to constitute a seven material and labor liens. Judgment change of possession from the grantor to the for plaintiffs, and defendant J. M. Arthur & grantee, within the meaning of our statute Co., claiming as owner of the machinery and as to sales of property of the value of $50 mortgagee of the interest of the Jamiesonor more. What we have said in reference to Dixon Mill Company in the buildings and the acts necessary to pass title has, of course, land, appeals. Atfirmed.

of the circumstances of this

case, and it is not our intention tes here the Greene & Turner, for appellant. H. B.

Slauson, for respondents Hopkins and Strohl. Shank & Smith, for respondents McMaster & Potts. Jenner, Legg & Williams, for intervener Stimson Mill Company.

cide as to the acts necessary when the controversy is between the grantor and the gran. tee. Here the question was between the grantee and a stranger to the contract, who, it was claimed, had interfered with the property. At the time the plaintiff rested, a prima facie case had not been made out against the defendant, and the motion for a nonsuit should have been granted. The judg. ment will be reversed, and the cause remanded, with instructions to grant such motion and dismiss the action.

DUNBAR, SCOTT, ANDERS, and GORDON, JJ., concur.

(11 Wash. 308) HOPKINS et al. v. JAMIESON-DIXON MILL CO. et al. (GALT et al., Inter

veners). (Supreme Court of Washington. March 1,

1895.) MECHANICS' LIENS - CHANGE IN LAW.- EFFECTNOTICE OF CLAIM-NAME OF EMPLOYER

-OWNER OF PROPERTY. 1. The provision of the lien act of 1893, that all actions to enforce liens for labor and materials "pow pending shall be proceeded with under the law as it exists at the time this act takes effect," does not require actions subsequently brought, to enforce liens for labor and materials previously furnished, to be proceeded with under the previous law.

2. Under the provision of the lien act of 1893, allowing claimants to join in the enforcement of their liens, the joint notice of two persons claiming separate liens is valid.

3. An allegation in the notice of a claim that the labor was performed and materials furnished at the request of a person named, who was at the time the foreman or superintendent of the defendant, “and the person having charge of said work,” sufficiently complies with the statutory requirement that such notice shall state “the name of the person by whom the la. bor was employed."

4. A notice of lien claim, alleging that the name of the owner of the property is J., and that one S. is owner of the ground on which the property is located, and setting forth a leasehold interest in J., sufficiently complies with the statutory requirement that the notice shall give the name of the reputed owner of the premises, though S. is not the owner of the land.

5. A notice which states that the labor and materials were furnished "at the special instance and request of" the defendant company, "acting therein by A. J., its president,” sufficiently names the person with whom the contract was made, and proof that the employing was done by another member of the defendant company will not affect the lien.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by Paul Hopkins and William

DUNBAR, J. This is an action in equity to foreclose seven material and labor liens upon a shingle mill and dry house. The lien claimants are respondents Hopkins, Strohl, McMaster, Potts, Seattle Brick & Tile Company, Galt Bros. & Co., and Stimson Mill Company. Jamieson-Dixon Mill Company owned the building and a leasehold interest in the land, subject to the claims of appellant, J. M. Arthur & Co. This latter company claimed to own the machinery, and is also the holder of certain notes secured by a mortgage upon all the estate and interest of the Jamieson-Dixon Mill Company in the buildings, machinery, and land. Upon the trial, plaintiffs having introduced certain proofs and rested, appellant moved, by separate motions addressed to each claimant, to each cause of action, that said claims and causes of action, and each of them, be dismissed, and for a nonsuit against each, on certain specified grounds, each of which motions was denied. The work and materials for which these liens were claimed were performed and furnished prior to the time the lien act of 1893 went into effect, but the actions were brought subsequent to that time; so that the first question to be determined in the investigation of this case is, does the law of 1893 or do the prior acts control the procedure in the foreclosure of these liens? If it is concluded that the law of 1893 controls, then many of the objections raised by the appellant need not be discussed. The act of 1893, entitled "An act creating and providing for the enforcement of liens for labor and material," seems to be an independent code on the subject embraced in the title of the act, defining "liens" and making full provi. sion for their enforcement; but the last section of the act is as follows: "All rights acquired under any existing law of this state are hereby preserved and all actions now pending shall be proceeded with under the law as it exists at the time this act shall take effect. All acts or parts of acts in conflict with the provisions of this act are here. by repealed.” It is conceded, and must be under the ruling of this court in Garneau v. Mill Co., 8 Wash. 467, 36 Pac. 463, that the right to a lien, when the labor had been performed, was preserved by section 19 just quoted. It is, however, insisted by appel

kant that, while the right to the lien may be time provided by the old law. This rule does preserved, the mode of enforcing the lien is not go beyond the holding of this court in the the mode prescribed by the act repealed, or case of Garneau v. Mill Co., supra. the act which was in force at the time the This is substantially what is decided in labor was performed or the materials fur- the Minnesota cases cited by appellant. It nished; that the provisions of the law, so seems that according to the opinion in the far as the act of 1893 is concerned, were pro- case of Nelson v. Sykes, 44 Minn. 68, 46 spective, and, had it not been for the saving N. W. 207, section 19 of the new law (Laws provisions of section 19, these rights them- Minn. 1889, c. 200) provided that the new selves would have been lost; and that, con- act should not affect any rights existing or sequently, the provisions of the new act for suits pending when the new act should take enforcing the liens do not apply to any liens effect, and provided, further, that proceedthe right to which accrued before the pas- ings taken to enforce liens after the new sage of the act. It does not seem to us that act should take effect should conform, as this contention can be sustained. The new far as practicable, to the provisions of the act provides that “all actions now pending new act; and the court, in passing upon the shall be proceeded with under the law as it case, where the question involved was, as in exists at the time this act shall take effect"; the case at bar, a question of limitation, said, meaning, of course, the old law. Had it after quoting the statute as above noticed: been the intention that all liens which were "And so careful was the legislature to avoid in existence prior to the passage of the act touching prior liens that pending suits to enof 1893 should be enforced under the provi- force such liens are not to be affected, but sions of the old law, it doubtless would have are to go on, of course, according to the so expressed it; but it has seen fit to restrict procedure under the prior law; and even the cases which shall proceed under the old future suits to enforce such prior liens are law to actions which were already pending not required to conform, except so far as at the time the new law went into effect, - practicable, to the procedure established by not actions where the right of action had ac- the new law. In view of the exceeding care crued by reason of the furnishing of labor or shown by the legislature in these provisos material, but to cases where the enforcement to avoid affecting existing rights, it is imof those rights had already been commenced possible to conclude that it intended to cut by action. Under the ordinary rule of con- down the time allowed by the prior law to struction, that the expression of one excludes record the statement, for the purpose of the other, it cannot be held that the legisla- | preserving and continuing the lien from six ture intended that any actions should be pro- months to ninety days." It will be seen that ceeded with under the old law except actions our statute makes no provision, as did the already commenced, according to its express- Minnesota statute, that such prior liens are ed terms. The general proposition is laid not required to conform, except so far as down in section 24, Phil. Mech. Liens (2d practicable, to the procedure established by Ed.), that “the rights of parties under me- the new law, and that is really the provichanic's lien laws are to ascertained and sion upon which this case and the succeedfixed by the law in force when the contract ing cases from Minnesota cited by appellant was made; but such rights are to be estab- were based. The author, Phillips, however, lished and enforced by the law existing at after laying down the rule which we have the bringing of the suit.” This general prop- just mentioned, proceeds in conformity with -osition exactly meets the requirements of this the proposition first announced by him: “But case, and, while it is conceded by the appel- where a new law provided for a lien and its lant, it urges that the same author, in the enforcement, and repealed the previous law. same section, announces the further rule that providing that rights acquired and liabili“when, however, a new lien law is entirely ties incurred under the previous law shall prospective in its operation, prior cases must not be affected by the repeal thereof,' a lien be construed according to the acts in force growing out of a contract entered into bewhen the lens accrued." An investigation fore the passage of the later act, but not of the cases cited in support of this proposi- completed until after it took effect, should tion, however, convinces us that it in no way be prosecuted under the new act." This is conflicts with the proposition first announced, substantially the provision of the act of but that it has reference to rights, and not 1893, viz. that “all rights acquired under any remedies. In other words, that, where a existing law of this state are hereby preright existed under the old law,--and most served." This text is supported by Turney of the cases are with reference to questions V. Saunders, 5 Ill. 527. The author, continuof limitation,—the right would not be cur- ing, says: "A contract was made and matetailed by the provisions of the new law. rials furnished while the lien law was in Church v. Davis, 9 Watts, 304, was one of force, but notice of lien was not filed until a the cases cited to sustain the text. The repeal of this law by a later statute, which opinion is very brief, the court simply hold- provided a saving for all liens then existing that, where a time was given for en- ing. All subsequent acts and proceedings forcing the lien, a new statute, which was relating to the lien or its enforcement were prospective in its operation, did not affect the nevertheless held to be governed by the re

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pealing act.” This seems to be exactly on a claimants may join in the same claim. level with the case at bar, and in support of The provisions of the act are simple, viz.; the text is cited McCrea v. Craig, 23 Cal. 522. "The claim shall state as nearly as may be It is insisted by the appellant that, while this the time of commencement and cessation of case seems to sustain respondents' contention, performing the labor and furnishing the mathe probabilities are that it was based upon a terial." That is done in this lien notice. different statute from ours; but an examina- “The name of the person by whom the lar tion of the case itself convinces us that the borer was employed.” The allegation in this statutes were substantially the same. In notice of claim is "that the name of the fact, the statute cited by the court is, if person at whose request claimants performanything, stronger in favor of the theory ed and furnished labor and furnished matethat the lien should be prosecuted under rials was John McMaster, and he was at the old law than is our statute. The provi- the time thereof the foreman or superinsion of the new act in California was: tendent of said Janieson-Dixon Mill Com"Nothing contained in this act shall be pany, or person having charge of said deemed to apply to or affect any lien here- work"; and we think the statute is fully tofore acquired." St. 1862, p. 390. Refer- complied with, so far as this objection is ring to this provision, the court in that concerned. "A description of the property case said: “The evident intention of section to be charged” is another essential. There

was to save and preserve to the seems to be no objection to the description claimants all rights and liens acquired un

in this case. “The name of the owner or reder the pre-existing laws, which were then puted owner, if known; and, if not known, repealed, but which, but for such saving that fact should be mentioned." This notice clause, would have been liable to be lost by of claim alleges that “the name of the owner such repeal.

After the new stat- and reputed owner of such premises is, and ute went into effect, all subsequent acts at all times mentioned herein was, Jamieand proceedings relating to the lien or its son-Dixon Mill Company, and that one John enforcement were governed by, and must Smith is owner of the ground on which said have been in accordance with, its provi- plant is located"; setting forth a leasehold sions.” And this, it seems to us, is the rea

interest of the Jamieson-Dixon Mill Compasonable construction. Otherwise there would ny. It seems to us that this is a sensible be two procedures for the enforcement of compliance with the provisions of the statliens at the same time,-a portion of them ute. It will not destroy the lien claim beproceeding under the old act, and a portion cause the claimant was mistaken as to who under the new,-a condition in the practice the owner of the realty was, as it eventuated which cannot be justified by anything but in this case. It was not a mistake that misthe plain provisions of the law authorizing

led any one to his damage in any particular. it.

The signing and verification is the remainIn investigating these liens, then, with ref- ing requirement of the statute. Under the erence to the provisions of the new law, new statute, notice is not required to state viz. the law of 1893, we will briefly notice

the terms of the contract, and we are inclinthe special liens. It may be stated here that ed to think that, if it was, the terms of the the lien of the Stimson Mill Company has contract are sufficiently stated. This court by stipulation been conceded and a settle- has held that one cannot enforce a lien for ment arrived at, so that that case is not now the labor of hired men, but we think that before us. The liens of Paul Hopkins and the testimony in this case shows, in the case William Strohl are combined in one. The of Hopkins, that it was substantially for appellant objects to these liens: (1) That furnishing and for his own labor, and it is the notice is not such as is provided by law, reasonably shown by the proof that the labecause it is the joint notice of two persons bor performed and the materials furnished claiming separate liens; (2) that the relation were worth the amount claimed. The obof the person employing claimants is not jection to the Seattle Brick & Tile Compaaffirmatively charged; (3) that the lien con- ny's lien is that the name of the person by tained no statement of the terms of Hopkins' whom the Seattle Brick & Tile Company contract; (4) that Hopkins' claim is partly was employed, and to whom it furnished for labor furnished, as distinguished from material, is not set forth in the lien notice, labor performed,—that is, it is a claim for and that the terms and conditions of claimlabor of third persons who were enployés of ant's contract are not set forth, because the Hopkins; (5) that Strohl's claim is based time of payment is not shown; it appearing entirely upon the reasonable value of his by the proof that there was an arrangelabor, yet there is absolutely no proof of the ment as to the time of payment, and that the reasonable value of the labor; (6) that both proof shows that in fact Potts did the emHopkins' and Strohl's liens are bad, because ploying instead of Jamieson. The proof they fail to state the owner of the ground, would not affect the sufficiency of these lien and that they say John Smith, while it is claims, and the claim stating that "at the admitted that the Sandersons are the real special instance and request of the Jamieowners. In regard to the first objection, the son-Dixon Mill Company, acting therein by statute specially provides that any number of Andrew Jamieson, its president, it furnished

v.39p.no.7—52

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