Indiana Powder Co. v. St. Louis, Kansas City & Colorado Railroad

Missouri Court of Appeals

Indiana Powder Co. v. St. Louis, Kansas City & Colorado Railroad

92 S.W. 150, 116 Mo. App. 364, 1906 Mo. App. LEXIS 147

DecidedJanuary 2, 1906

StatusPublished

This text of 92 S.W. 150 (Indiana Powder Co. v. St. Louis, Kansas City & Colorado Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Indiana Powder Co. v. St. Louis, Kansas City & Colorado Railroad, 92 S.W. 150, 116 Mo. App. 364, 1906 Mo. App. LEXIS 147 (Mo. Ct. App. 1906).

Pincite

Opinion

BLAND, P. J.

(after stating the facts.) — 1. The Shutt Improvement had no contract to either construct or improve the railroad or any part of it. Its contract was to crush its own material (rock) and load it into the railroad company’s cars at fifty cents per cubic yard. The purpose for which and the place where the rock was to be used is nowhere stated in the contract between the railroad company and the Shutt Improvement Company; nor were the officers or agents of the improvement company informed whether the railroad company intended to use the crushed rock to ballast its own road, to sell it to some other road, or to sell it in the market, therefore, there is an utter failure of proof in the allegation of the petition and in the declaration of lien, that the Shutt Improvement Company was an original contractor for the construction of the road. Its contract was to furnish crashed rock aboard the railroad company’s cars, not to crush rock and distribute it as ballast upon the railroad track. It contracted to furnish material that might or, might not be used in the construction or repair of the road. But as the material was actually used as ballast on the railroad track, plaintiff claims it is entitled to a lien under the second clause of the Railroad Lien Law, [369]*369which gives a lien to “all persons who shall furnish ties, fuel, bridges or material” to any railroad, etc. [R. S. 1899, sec. 4239.] Under this clause of the statute a lien is given whether the material is furnished in the construction of a new road or in the improvement of an old roadbed, and whether the material is delivered to the railroad company direct or to1 an original or subcontractor, and attaches whether or not the material is actually used in the construction or improvement of the roadbed. [Andrews v. St. Louis Tunnel R. Co., 16 Mo. App. 299; Rapauno Chemical Co. v. Railway, 59 Mo. App. 6; Cross v. Railway, 77 Mo. 318; Central Trust Co. v. Railway, 54 Fed. 598-663.]

In Rapauno Chemical Co. v. Railway, supra, it was held that the plaintiff, who sold powder to the contractor for the construction of a road, was entitled to a lien for the powder furnished, the powder having been used in blasting out rock in the work of constructing the roadbed, and also held, in effect, that powder could not be classed along with picks, shovels, wheelbarrows, etc., as constituting a part of the contractor’s plant for doing the 'work.

In Sweem v. Railway, 85 Mo. pp. 87, the defendant company owned a lot of burnt clay in a pit near its tracks which it wished to use as ballast on its tracks. It built a switch into the pit and made a contract with one Pugh to load the burnt clay on its cars, at his own expense. Pugh hired men to load the clay into the defendant’s cars and it was hauled away by the railroad company and used as ballast on its track. Pugh failed to pay the laborers and his superintendent. It was held that both the laborers and the superintendent were entitled to a lien upon the road, the laborers for their work and the superintendent for his services. The lien in tin’s case was bottomed on the first paragraph or clause of the Railroad Lien Law (R. S. 1899, sec. 4239) and the labor was directly applied to the improvement of the roadbed, [370]*370as much so as if the laborers had shoveled the burnt clay from the loaded cars onto the track.

In St. Louis, I. M. & S. Ry. Co. v. Love, 86 S. W. (Ark.) 395, under a statute of Arkansas, providing that every person who furnishes any material, machinery, fixtures, or other things toward the construction or equipment of any railroad shall have a lien, did not include teams furnished the contractor but only such things and materials as entered into and formed a part of the railroad, and not merely material, teams and supplies furnished the contractor as a part of the equipment and plant to aid him in the performance of his contract. The court observes however, “We do not overlook the line of authorities where some articles, such as powder furnished for blasting, are held to be materials used in construction, for which a lien is given.”

The powder furnished by the plaintiff was not used or intended to be used in the construction or improvement of the roadbed, by the railroad company or the Shutt Improvement Company, but was intended to be used and was used by the latter in its quarries for the purpose of blasting rock to be crushed and loaded into the railroad company’s cars in fulfillment of the improvement company’s contract. There is, therefore, no privity or connection between the plaintiff and the railroad company, and for this reason the company was under no obligation to protect the plaintiff’s account against the Shutt Improvement Company for the powder. In respect to the railroad company, it seems to us, the relation between it and the plaintiff is not different from Avhat would be the relation of A to a railroad company if he should chop and hew ties in the woods for B, which ties B would take up and deliver to the railroad company in fulfillment of his contract with it to deliver ties. To appropriate an argument from the brief of able counsel, “If the plaintiff has a lien against the railroad for powder furnished to blast the Shutt Improvement Company’s stone, then on the same principle the hard[371]*371ware company which furnished the crowbars and drills would be entitled to a lien, and the laborers who did the drilling and run the machinery crushing the stone would likewise be entitled to a lien. Indeed, if the principle is correct it might be applied to the oil that' lubricated the crushing machinery for the Shutt Improvement Company, or to the machinery itself, or to the coal and water that made the-steam to run the machinery. Indeed, why should this be the limit, the men who actually furnished the saltpeter, and the men who compounded and manufactured the powder, etc., furnished by paintiff to the Shutt Improvement Company, might likewise claim a lien, if they could show that their saltpeter went into the blasting powder which was used by the quarry men to quarry stone to be manufactured' into crushed stone ballast, which the railroad company bought and paid for at a fixed price, all because the railroad company used it on its roadbed.”

We think it would be an unreasonable stretch of the statute to hold that plaintiff comes within its provisions.

The judgment against the railroad company is reversed.

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BLAND, P. J.

(after stating the facts.) — 1. The Shutt Improvement had no contract to either construct or improve the railroad or any part of it. Its contract was to crush its own material (rock) and load it into the railroad company’s cars at fifty cents per cubic yard. The purpose for which and the place where the rock was to be used is nowhere stated in the contract between the railroad company and the Shutt Improvement Company; nor were the officers or agents of the improvement company informed whether the railroad company intended to use the crushed rock to ballast its own road, to sell it to some other road, or to sell it in the market, therefore, there is an utter failure of proof in the allegation of the petition and in the declaration of lien, that the Shutt Improvement Company was an original contractor for the construction of the road. Its contract was to furnish crashed rock aboard the railroad company’s cars, not to crush rock and distribute it as ballast upon the railroad track. It contracted to furnish material that might or, might not be used in the construction or repair of the road. But as the material was actually used as ballast on the railroad track, plaintiff claims it is entitled to a lien under the second clause of the Railroad Lien Law, [369]*369which gives a lien to “all persons who shall furnish ties, fuel, bridges or material” to any railroad, etc. [R. S. 1899, sec. 4239.] Under this clause of the statute a lien is given whether the material is furnished in the construction of a new road or in the improvement of an old roadbed, and whether the material is delivered to the railroad company direct or to1 an original or subcontractor, and attaches whether or not the material is actually used in the construction or improvement of the roadbed. [Andrews v. St. Louis Tunnel R. Co., 16 Mo. App. 299; Rapauno Chemical Co. v. Railway, 59 Mo. App. 6; Cross v. Railway, 77 Mo. 318; Central Trust Co. v. Railway, 54 Fed. 598-663.]

In Rapauno Chemical Co. v. Railway, supra, it was held that the plaintiff, who sold powder to the contractor for the construction of a road, was entitled to a lien for the powder furnished, the powder having been used in blasting out rock in the work of constructing the roadbed, and also held, in effect, that powder could not be classed along with picks, shovels, wheelbarrows, etc., as constituting a part of the contractor’s plant for doing the 'work.

In Sweem v. Railway, 85 Mo. pp. 87, the defendant company owned a lot of burnt clay in a pit near its tracks which it wished to use as ballast on its tracks. It built a switch into the pit and made a contract with one Pugh to load the burnt clay on its cars, at his own expense. Pugh hired men to load the clay into the defendant’s cars and it was hauled away by the railroad company and used as ballast on its track. Pugh failed to pay the laborers and his superintendent. It was held that both the laborers and the superintendent were entitled to a lien upon the road, the laborers for their work and the superintendent for his services. The lien in tin’s case was bottomed on the first paragraph or clause of the Railroad Lien Law (R. S. 1899, sec. 4239) and the labor was directly applied to the improvement of the roadbed, [370]*370as much so as if the laborers had shoveled the burnt clay from the loaded cars onto the track.

In St. Louis, I. M. & S. Ry. Co. v. Love, 86 S. W. (Ark.) 395, under a statute of Arkansas, providing that every person who furnishes any material, machinery, fixtures, or other things toward the construction or equipment of any railroad shall have a lien, did not include teams furnished the contractor but only such things and materials as entered into and formed a part of the railroad, and not merely material, teams and supplies furnished the contractor as a part of the equipment and plant to aid him in the performance of his contract. The court observes however, “We do not overlook the line of authorities where some articles, such as powder furnished for blasting, are held to be materials used in construction, for which a lien is given.”

The powder furnished by the plaintiff was not used or intended to be used in the construction or improvement of the roadbed, by the railroad company or the Shutt Improvement Company, but was intended to be used and was used by the latter in its quarries for the purpose of blasting rock to be crushed and loaded into the railroad company’s cars in fulfillment of the improvement company’s contract. There is, therefore, no privity or connection between the plaintiff and the railroad company, and for this reason the company was under no obligation to protect the plaintiff’s account against the Shutt Improvement Company for the powder. In respect to the railroad company, it seems to us, the relation between it and the plaintiff is not different from Avhat would be the relation of A to a railroad company if he should chop and hew ties in the woods for B, which ties B would take up and deliver to the railroad company in fulfillment of his contract with it to deliver ties. To appropriate an argument from the brief of able counsel, “If the plaintiff has a lien against the railroad for powder furnished to blast the Shutt Improvement Company’s stone, then on the same principle the hard[371]*371ware company which furnished the crowbars and drills would be entitled to a lien, and the laborers who did the drilling and run the machinery crushing the stone would likewise be entitled to a lien. Indeed, if the principle is correct it might be applied to the oil that' lubricated the crushing machinery for the Shutt Improvement Company, or to the machinery itself, or to the coal and water that made the-steam to run the machinery. Indeed, why should this be the limit, the men who actually furnished the saltpeter, and the men who compounded and manufactured the powder, etc., furnished by paintiff to the Shutt Improvement Company, might likewise claim a lien, if they could show that their saltpeter went into the blasting powder which was used by the quarry men to quarry stone to be manufactured' into crushed stone ballast, which the railroad company bought and paid for at a fixed price, all because the railroad company used it on its roadbed.”

We think it would be an unreasonable stretch of the statute to hold that plaintiff comes within its provisions.

The judgment against the railroad company is reversed.

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92 S.W. 150, 116 Mo. App. 364, 1906 Mo. App. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indiana-powder-co-v-st-louis-kansas-city-colorado-railroad-moctapp-1906.

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