Wise v. Connell

10 Ohio App. 14, 1917 Ohio App. LEXIS 279

• Court: Ohio Court of Appeals
• Decided: July 1, 1917
• Status: Published

Opinion

By the Court.

The question to be determined in this error proceeding is whether or not one who has furnished a steam shovel to a sub-contractor of a head contractor employed to furnish gravel and dirt to a railroad company for the maintenance and repair of its roadbed is entitled to a lien upon the funds in the hands of the railroad company due to the head contractor, under the provisions of Sections 8343 to 8351, inclusive, General Code.

Section 8351 provides:

“The provisions of the next six preceding sections apply to and include any person who furnishes * * * tools or implements * * * on the order of any * * * sub-contractor, for their own use, or the use of persons employed by them * * * while furnishing materials or labor for or in construction of such railroad.”

We hold that the furnishing of gravel or dirt in the maintenance and repair of a railroad comes within the meaning of “construction” of a railroad, and that the defendant in error, William L. Connell, who furnished the steam shovel to the subcontractor of the plaintiff in error, is entitled to a lien upon the funds in the hands of the railroad ■company.

We think this conclusion is fully supported on the authority of M., K. & T. Ry. Co. v. Brown, 14 Kans., 447; The A., T. & S. F. Rd. Co. v. McConnell et al., 25 Kans., 370, and Bell et al. v. Maish, Treas., et al., 137 Ind., 226.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Jones, Gorman and Hamilton, JJ., concur.