Foster, J.
The principal question in this case is, whether the lien of the plaintiff shall attach to the described premises, prior or subsequent to two of the mortgages resting upon the same; one, to secure the payment of bonds to the amount of $3,000,000, dated May 1, 1869; the other to secure an amount of $1,500,000, dated June 5,1869.
The court below found the facts set forth in the petition true, so far as the claim for materials furnished and labor done was concerned, that the amount claimed was justly due and wholly unpaid, and that the lien was duly filed in all [464]*464respects conformably to the requirements of the statute. Judgment was rendered and a decree passed in favor of the plaintiff, but priority was given to the aforesaid mortgages, and the lien of the plaintiff made subject to those incumbrances; Whether or not there was error in that decree is the question now “raised on the motion in error. The motion for a new trial will not be considered, as we do not entertain that motion on a judgment or decree on a bill in equity.
We ought not perhaps to pass unnoticed the claim on the part of the defendants, that our statute regarding liens does not and can not apply to railroad corporations and other organizations of a public character.
The language of the statute is very broad and comprehensive ; apparently as applicable to corporations, public and private, as to individuals. The evils which the legislature intended to remedy arise as frequently -in connection with those corporations, if we may judge from all past experience and observation, as in any cases whatever. Contractors witlr railroad companies for the erection and construction of depots, station and freight houses, &c., are not so absolutely certain of being paid for their labor and materials, as to make the protection of the lien law unnecessary; and when it beconies necessary, we see no good reason why its protection should be withheld. If it be granted that the easement in the soil is taken for the railroad, in the exercise of the right of eminent domain, it by no means follows that the soil is so taken with an immunity from all liens and .incumbrances upon it. Such an exercise of the sovereign power would be . dishonest, and is effectually restrained by that' salutary provision in our organic law, which forbids the taking of private property for public use without just compensation.
But this lien, it is said, is attempted to be imposed after the land was taken, or after the title of the corporation to it accrued. Whether this be so or not, we propose to inquire presently. Assuming for the time that it is so, what apology has the public for interposing an impenetrable shield between the property of this corporation and its honest creditors ? The company is said to be but the trustee of the public, the [465]*465representative of the public, as to this easement in the soil, and the depot thereon, which is a necessary adjunct of the railroad. So the foreclosure of a lien, and the possession by a private individual, will be incompatible with the public interest.
By what rule of law, by what principle of public policy, by what right, can the public claim to possess and enjoy a depot, station, or freight house, on a railroad, and exclude him who built it from enforcing his lien for the materials furnished and labor performed in its construction? Is it among the prerogatives of the sovereign power, in a free government, to do a manifest wrong ?
There is certainly one case, possibly there may have been others, where the question we are considering would naturally have arisen in this court. It is the case of Benedict et al. v. The Danbury & Norwalk Railroad Company, 24 Conn., 320. That was a bill in equity brought to foreclose a mechanics’ lien on the passenger station house of the defendants, situated at Danbury. The bill was dismissed, but not for any such reason as is now suggested. No allusion whatever was made to it by the counsel engaged in it on either side, though the defendants’ counsel, as well as the plaintiff’s, were gentlemen among the most eminent in the profession. In the carefully prepared and somewhat extended opinion of the court, given by Judge Hinman, not an intimation is made but that the passenger station house of a railroad company was as much subject to the lien law as any building in any situation whatever.
There would seem to be no doubt but that the legislature, which certainly is that branch of the government that represents the sovereign power in taking property for public use, regard lands sequestered for railroad purposes as subject, equally with other lands, to the operation of the lien law for buildings erected on them. In the Acts of 1871, p. 727, is found an act entitled “ An Act in addition to an Act relating to Liens.” This act, as it will be.seen on examination, greatly extends the benefits of the lien law as against railroad companies. It secures a lien in favor of any person who has a [466]*466claim for materials furnished or services rendered by virtue of any contract, &c., in the construction, grading or building of every railroad, or any of its appurtenances, and the lien is to attach, not only to the real estate of the corporation, but to the right of way, material, equipment, rolling stock, and franchise.
The present bill, it is true, is not brought under this act. It rests, as we think it well may, on the general lien law. But with this act before us, greatly extending, as we have seen, the benefits of the lien law in favor of contractors as against railroad corporations, we surely can give no countenance to the claim that the lien law was not intended to apply to and cannot be legitimately enforced against those corporations. There are additional reasons, abundant and satisfactory, to some of which we have alluded, why we regard that claim as altogether untenable.
The question as to the position of .this lien, whether prior or subsequent to the above mentioned mortgages, will now be considered.
The legal title to the land on which the building in question stands has never passed to the railroad company, but still remains in David Blakeslee, who was the owner when the road was laid out. The railroad company however have the equitable title, and may justly claim to have the legal title conveyed to them. Uow was this equitable title acquired, arid when did it become vested ?
In the year 1870, the railroad company were desirous of establishing a depot at or near the point in question. The directors of the company, prior to this timo, had conversations with the owner of land lying adjacent concerning the location of the depot upon his premises. Notice was at length given by the company, that they would meet the land owners in the vicinity, at a certain time and place, and hear them and be heard touching the location of the depot. At this meeting the said David Blakeslee offered to and agreed with the company, that in case they would establish the depot on the land described in the bill, they should have the same free of cost, and the neighbors would do the grading. This [467]*467proposition was accepted by the railroad company, and immediately after they went into possession of the land, using it as a place of deposit for freight and passengers, prior to the construction, and during the process of the construction, of the building.
The railroad company employed the plaintiff, a mason, to • build the chimneys, and do the plastering for the building ; a structure fifty feet long and twenty-six feet wide.
Free access — add to your briefcase to read the full text and ask questions with AI
Foster, J.
The principal question in this case is, whether the lien of the plaintiff shall attach to the described premises, prior or subsequent to two of the mortgages resting upon the same; one, to secure the payment of bonds to the amount of $3,000,000, dated May 1, 1869; the other to secure an amount of $1,500,000, dated June 5,1869.
The court below found the facts set forth in the petition true, so far as the claim for materials furnished and labor done was concerned, that the amount claimed was justly due and wholly unpaid, and that the lien was duly filed in all [464]*464respects conformably to the requirements of the statute. Judgment was rendered and a decree passed in favor of the plaintiff, but priority was given to the aforesaid mortgages, and the lien of the plaintiff made subject to those incumbrances; Whether or not there was error in that decree is the question now “raised on the motion in error. The motion for a new trial will not be considered, as we do not entertain that motion on a judgment or decree on a bill in equity.
We ought not perhaps to pass unnoticed the claim on the part of the defendants, that our statute regarding liens does not and can not apply to railroad corporations and other organizations of a public character.
The language of the statute is very broad and comprehensive ; apparently as applicable to corporations, public and private, as to individuals. The evils which the legislature intended to remedy arise as frequently -in connection with those corporations, if we may judge from all past experience and observation, as in any cases whatever. Contractors witlr railroad companies for the erection and construction of depots, station and freight houses, &c., are not so absolutely certain of being paid for their labor and materials, as to make the protection of the lien law unnecessary; and when it beconies necessary, we see no good reason why its protection should be withheld. If it be granted that the easement in the soil is taken for the railroad, in the exercise of the right of eminent domain, it by no means follows that the soil is so taken with an immunity from all liens and .incumbrances upon it. Such an exercise of the sovereign power would be . dishonest, and is effectually restrained by that' salutary provision in our organic law, which forbids the taking of private property for public use without just compensation.
But this lien, it is said, is attempted to be imposed after the land was taken, or after the title of the corporation to it accrued. Whether this be so or not, we propose to inquire presently. Assuming for the time that it is so, what apology has the public for interposing an impenetrable shield between the property of this corporation and its honest creditors ? The company is said to be but the trustee of the public, the [465]*465representative of the public, as to this easement in the soil, and the depot thereon, which is a necessary adjunct of the railroad. So the foreclosure of a lien, and the possession by a private individual, will be incompatible with the public interest.
By what rule of law, by what principle of public policy, by what right, can the public claim to possess and enjoy a depot, station, or freight house, on a railroad, and exclude him who built it from enforcing his lien for the materials furnished and labor performed in its construction? Is it among the prerogatives of the sovereign power, in a free government, to do a manifest wrong ?
There is certainly one case, possibly there may have been others, where the question we are considering would naturally have arisen in this court. It is the case of Benedict et al. v. The Danbury & Norwalk Railroad Company, 24 Conn., 320. That was a bill in equity brought to foreclose a mechanics’ lien on the passenger station house of the defendants, situated at Danbury. The bill was dismissed, but not for any such reason as is now suggested. No allusion whatever was made to it by the counsel engaged in it on either side, though the defendants’ counsel, as well as the plaintiff’s, were gentlemen among the most eminent in the profession. In the carefully prepared and somewhat extended opinion of the court, given by Judge Hinman, not an intimation is made but that the passenger station house of a railroad company was as much subject to the lien law as any building in any situation whatever.
There would seem to be no doubt but that the legislature, which certainly is that branch of the government that represents the sovereign power in taking property for public use, regard lands sequestered for railroad purposes as subject, equally with other lands, to the operation of the lien law for buildings erected on them. In the Acts of 1871, p. 727, is found an act entitled “ An Act in addition to an Act relating to Liens.” This act, as it will be.seen on examination, greatly extends the benefits of the lien law as against railroad companies. It secures a lien in favor of any person who has a [466]*466claim for materials furnished or services rendered by virtue of any contract, &c., in the construction, grading or building of every railroad, or any of its appurtenances, and the lien is to attach, not only to the real estate of the corporation, but to the right of way, material, equipment, rolling stock, and franchise.
The present bill, it is true, is not brought under this act. It rests, as we think it well may, on the general lien law. But with this act before us, greatly extending, as we have seen, the benefits of the lien law in favor of contractors as against railroad corporations, we surely can give no countenance to the claim that the lien law was not intended to apply to and cannot be legitimately enforced against those corporations. There are additional reasons, abundant and satisfactory, to some of which we have alluded, why we regard that claim as altogether untenable.
The question as to the position of .this lien, whether prior or subsequent to the above mentioned mortgages, will now be considered.
The legal title to the land on which the building in question stands has never passed to the railroad company, but still remains in David Blakeslee, who was the owner when the road was laid out. The railroad company however have the equitable title, and may justly claim to have the legal title conveyed to them. Uow was this equitable title acquired, arid when did it become vested ?
In the year 1870, the railroad company were desirous of establishing a depot at or near the point in question. The directors of the company, prior to this timo, had conversations with the owner of land lying adjacent concerning the location of the depot upon his premises. Notice was at length given by the company, that they would meet the land owners in the vicinity, at a certain time and place, and hear them and be heard touching the location of the depot. At this meeting the said David Blakeslee offered to and agreed with the company, that in case they would establish the depot on the land described in the bill, they should have the same free of cost, and the neighbors would do the grading. This [467]*467proposition was accepted by the railroad company, and immediately after they went into possession of the land, using it as a place of deposit for freight and passengers, prior to the construction, and during the process of the construction, of the building.
The railroad company employed the plaintiff, a mason, to • build the chimneys, and do the plastering for the building ; a structure fifty feet long and twenty-six feet wide. He commenced work, and the furnishing of materials, on the 23d of November, 1870, and continued until the 17th of January, 1871, when he fully completed the work he had been employed to do. On the 15th of February, 1871, he duly filed his lien for the amount, 1496.90, which then was and still is justly his due.
Now when did the equitable title to these premises accrue to, and become vested in, the railroad company ?
The answer obviously is, when the railroad company had performed the conditions agreed by them to be performed, and which the owner of the land had agreed to accept, as an equivalent for the premises. That is to say, when they had erected the depot building on the site designated, and completed the same, at least so far forth that it could be conveniently used for the ordinary purposes of such a structure.
No vote of the board of directors, nor any other agreement by the company that they would erect a depot there, no stopping of trains to discharge and receive freight and passengers at that point, can be regarded as a compliance by the company with the terms exacted by Blakeslee as the consideration for conveying the land. He offered in effect, and the company understood him to offer, that if they would build a depot there, and use it. as such, he would give them the land. It is true that the company took possession of the land immediately after the agreement was made, but it is stated explicity in the finding of facts that, “at the time the plaintiff commenced his work on the depot building, the railroad company had not commenced to use or occupy the building, or the land where it stood, nor had it any other possession of the same, than by its employees in the construction of the building.”
[468]*468Surely no court of equity would be justified in decreeing a specific performance of this contract as against Blakcslee, at the instance of the railroad company, until they showed a full and complete performance, on their part, by the erection and completion of this depot building. Then, and not till then, would their equitable title become perfect.
Now this was not earlier, in point of time, than when the plaintiff’s work on the building was finished, and that was January 17th, 1871. The mortgages in question were given respectively, May 1st, and June 5th, 1869. They certainly conveyed no interest in these premises at that time, for it was a year or more before any negotiation even had been had concerning them. Waiving the question, as it is unnecessary to decide it, as to whether these deeds will embrace lands subsequently acquired, when acquired, and granting that they do, they take effect on these premises not earlier than the 17th of January, 1871. And they must take effect subject to such legal incumbrances as then existed. The lien of this plaintiff was clearly such an incumbrance, and it was error therefore in the court below to postpone this lien to those mortgages. It is entitled to the priority.
The very recent case of Ryder v. Stryker, 4 N. York Sup. Ct. Rep., 399, illustrates the care that courts take that the owner of land shall not be divested of his title, even when the land is taken for public use, until all the requirements of the law authorizing the taking have been strictly performed. That was an action brought to recover the value of certain wood and timber cut down upon and carried away from lands belonging to the defendant, which it was claimed hadbeen taken for a public avenue. The plaintiff was the contractor for the construction of the avenue in question, under a contract with the commissioners, duly appointed for that purpose. By one of the specifications in the contract it was provided that the timber and the cord-wood within the limits of the road should belong to the contractor.
The defence was, that it had not been shown that the land had been taken at the time of the cutting of the wood. The act of the legislature, which authorized the proceeding, did [469]*469not specifically fix any time wlien tlie appropriation of the land should he deemed complete, or any moment when the title should be deemed to- pass from the former owner and vest in the public. It was provided that the commissioners should lay out the proposed avenue in conformity with their general plan of streets and roads, to be laid out in the execution of their general duties ; and that, the avenue should form a part of the plan, -and be laid down and designated on the map thereof, to be filed by them. The plaintiff offered no evidence of any such map. It was proved that the commissioners had adopted the base line of the proposed avenue, (it was to be one' hundred feet wide,) and directed the superintendent to prepare the final assessment in accordance with the same. The court held the act of appropriation to be incomplete ; and that the title of the private owner had not been divested, because it was not shown that the map had been filed. The order appealed from, denying a motion to set aside a non-suit and for a new trial, was therefore affirmed.
We think the owner of the premises, David Blakeslee, was not divested of his title, and that no equitable title accrued to the railroad company prior to January 17th, 1871, at which time the lien of the plaintiff attached, necessarily taking precedence of the mortgages in question.
In the decree of the court below there is therefore manifest error.
In this opinion the other judges concurred.