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The J. B. Alfree Mfg. Co. vs. Henry.

judgment, the court directed the amendment of the claim for a lien, and the complaint as well, so as to assert a claim to a lien not only upon said leasehold interest of J. H. Reysen & Son, but upon the distinct and separate property and estate in fee of the defendant Henry, who had not theretofore even been mentioned in said petition or claim, and judgment was given against his fee-simple estate accordingly. The time within which a lien or claim could be filed, if one could be filed against his estate under the statute, had expired. The action of the court was not the correction of a mistake, or misdescription, or failure to properly describe the interest of J. H. Reysen & Son, or of any one claiming under them. It was an entirely new proceeding, taken after the time limited for it by the statute had expired. The claim, as originally filed, as against Henry's fee-simple estate, was wholly inoperative and a nullity. Knox v. Hilty, 118 Pa. St. 430; Bartley v. Smith, 43 N. J. Law, 321. There was nothing to amend by, and the ruling of the circuit court carried the doctrine of amendment to an extent entirely unwarranted. As was said in Fairchild v. Dean, 15 Wis. 210, “to supply the defect requires creation, not amendment."

2. The lease from the defendant Henry of the premises for fifty years created the relation of landlord and tenant between him and the Reysens, so that by ch. 466, Laws of 1887, amendatory of ch. 349, Laws of 1885, and ch. 442, Laws of 1887 (S. & B. Ann. Stats. secs. 3314, 3314a), the plaintiff could not have a lien upon the property in question. The object of the statute was to prevent the estate or interest of the landlord being incumbered by liens under this statute by the contract or action of the tenant. No contract relations existed between the plaintiff and the defendant llenry. The consent of the landlord to such improvement cannot countervail or overcome the manifest purpose and intent of the statute. Laws of 1887, ch. 466. The referee found that under the lease of February 4, 1890, the defend

The J. B. Alfree Mfg. Co. vs. Henry.

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ants Reysen had a leasehold interest in the premises therein described, but the court added to this finding that “such lease does not create the relation of landlord and tenant, 80 as to deprive the plaintiff of its lien against the interest of said defendant Henry.This is a conclusion of law, and we think it is an erroneous one. The lease created the relation of landlord and tenant between the parties. This relation “subsists by virtue of a contract, express or implied, between two or more persons, for the possession of lands or tenements, in consideration of a certain rent to be paid therefor.” Taylor, Landlord & T. § 14; Bentley v. Adams, 92 Wis. 392. The language of the statute is general, and no exception can be read into it. There was no agreement in the lease, or contemporaneous with it, binding the tenants to build a mill on the premises or make other improvements. The agreement for a loan or advance money to build on or improve the property was not made until more than a year after the lease, and did not, in any respect, relate to the same subject matter, so as to entitle these documents to be read or considered together, nor did the lease contemplate the construction of a mill or other improvement on the premises for the benefit of the lessor, Henry. The cases of Cook v. Goodyear, 79 Wis. 606, and Bentley v. Adams, 92 Wis. 386, are clearly distinguishable from the present case.

3. Tbe mill had been commenced and the contract entered into between the plaintiff and the Reysens for the furnishing of the mill machinery to be placed in the building before the defendant Henry agreed to loan the Reysens $8,000 to enable them to erect the building and to make the payments on the contract with the plaintiff. Within the case of Vilas v. McDonough Mfg. Co. 91 Wis. 607, the mortgage lien of the defendant Henry for $8,000 and interest is subordinate to the plaintiff's lien on the leasehold interest of the Reysens. As nothing was erer advanced under the sec

The J. B. Alfree Mfg. Co. vs. Henry.

ond mortgage for $2,000, the defendant Tlenry is in no position to complain of the judgment of the court in respect to it.

4. There was no privity of contract between the plaintiff and the defendant Henry, so as to enable him to insist that there could be no recovery on the contract between the plaintiff and the Reysens, for want of performance of its conditions, as in Forster L. Co. v. Atkinson, 94 Wis. 578, and the defendant Henry made no such defense in his answer. His mortgage interest in the leasehold was subject, therefore, to the amount that might be found due the plaintiff, and for which it was, or would be, entitled to a lien thereon.

In the absence of fraud or unlawful combination, we do not perceive that the Reysens would be precluded from waiving strict performance of the plaintiff's contract, and adjusting its claim on fair and equitable terms. There is no evidence of fraud or injustice in the plaintiff's claim, and, if the contention of the defendant Henry is maintainable, the record contains no evidence to show what deduction, as against him, if any, ought to have been made from its claim. It is unnecessary, therefore, to give this point further consideration.

Our conclusion is that the part of the judgment appealed from which determines that the plaintiff's claim be a lien upon the estate of the defendant Henry, as owner in fee of the premises therein described, and directs the sale thereof, is erroneous and must be reversed, and that in all other respects the judgment should be affirmed.

By the Court.— Judgment is ordered accordingly.

Bartlett vs. Chicago & Northwestern R. Co.

BARTLETT, Appellant, vs. CAICAGO & NORTHWESTERN Rail

WAY COMPANY, Respondent.

May 5 May 21, 1897.

Railroads: Failure to operate spur track: Ownership: Pleading: Con

sideration.

1. A complaint in an action against a railway company for failure to

operate a spur track to a warehouse under sec. 1802, R. S., which fails to show that the plaintiff constructed or owns the track, does not state a cause of action, the duty of railroad companies to operate such tracks under that section being limited to those provided

by the person desiring the service. 2. Although a railroad company constructed a spur track in a public

street especially for the benefit of the owner of a warehouse, and such track had been improved and graded by him, a promise by the railroad company to continue to operate it for his benefit would be without consideration.

APPEAL from an order of the circuit court for Fond du Lac county: N. S. Gilson, Circuit Judge. Affirmed.

The action is to recover damages for the refusal of the defendant to operate a spur track for the plaintiff's benefit. The complaint alleges, in substance, that the plaintiff is the owner of a large warehouse, used for handling and shipping hay, situated on Brooke street, in the city of Fond du Lac. The main track of the defendant's railroad is in the same street near its center. Prior to November, 1874, when the plaintiff became the owner of the property on which bis warehouse stands, there was a spur track from the defendant's main track to the warehouse which then stood upon the grounds now owned by him, which had been constructed for the use and benefit of the owners of said property and said warehouse.” It is not alleged by whom this spur track was constructed or maintained. Soon after the plaintiff purchased the property, be improved and graded the spur track at his own expense; and it was put in repair, and used and

Bartlett vs. Chicago & Northwestern R. Co.

operated by the defendant for the convenience of plaintiff's business until June, 1893. Then the defendant moved its depot and made some changes in its tracks. This spur track was extended along the east side of Brooke street, past the plaintiff's property, and connected at that end with the main track by a switch. The plaintiff objected to this extension and union with the main track. It was agreed that the change would not interfere with the use of that part of the spur track which had theretofore been used for the convenience of plaintiff's business, and that it should continue to be operated for the use and benefit of the plaintiff, as it had been theretofore operated. The spur track was extended along Brooke street parallel to the main line, with which it was connected by a switch at either end. The defendant also constructed another track from its main track, which connected with the spur track. This track was so located that, when cars are passing over it, there is room on the spur track for no more than one car to stand, where formerly six cars could stand and be loaded. The defendant now runs its regular trains over this last-mentioned track and the extension of the spur track mentioned, which prevents the use of the spur track by the plaintiff for the purposes of his busi

The defendant also uses the spur track by switching passenger coaches thereon and running freight trains over it. The defendant has neglected and refused to operate the spur track for the plaintiff's benefit, and now refuses to so operate it. The defendant has also refused to furnish the plaintiff cars, and to permit him to use the spur track as he had been accustomed to do. The plaintiff has been all the while ready to pay for the maintenance and operating of the track, but the dofendant bas never made a demand therefor. The plaintiff's property, with the track maintained and operated as aforetime, would be worth $25,000. Without the track so operated, it is worth not to exceed $5,000. Judgment for $25,000 is demanded. There was a general demurrer to the

ness.

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