McCormick v. Los Angeles City Water Co.

Mechanics’ Lien. — Under the Act of March 30th, 1868, for securing liens of mechanics and others, a person is not entitled to a lien on a reservoir for the value of his services "rendered in cooking for the men employed in constructing the reservoir, notwithstanding the cooking was done on the ground as the work progressed.

Appeal from the District Court of the Seventeenth District, Los Angeles County Judgment was for plaintiff. „ Defendants moved for a new trial, which was denied, and from the judgment and the order denying a new trial, defendants appealed. The other facts are stated in the opinion. The work performed by the plaintiff was not of a character to entitle him to a lien under the Act of March 30, 1868. This Act, being in derogation of the common law, and creating extraordinary rights and liabilities, is to be strictly construed. (Davis v. Livingston, 29 Cal. 283; Walker v. Hauss Hijo, 1 Id. 188; Bottomly v. Grace Church, 2 Id. 90; 3 E. D. Smith, 632.) The first section of tbe Act, (Stats. 1867-8, 689) declares for wbat services and materials a lien may be acquired. It recites as follows: every mechanic, artisan, machinist, builder, contractor, lumber merchant, miner, laborer, and other person performing labor upon, or furnishing materials of any kind to be used in the construction, alteration, repair, in whole, or in part of any mining claim, building, &c., “shall have a lien for the work or labor done, or materials furnished.” Can the plaintiff be said to have performed any “labor upon the construction of this reservoir?” For the construction of words almost identical, occurring in the mechanics’ lien law of New York, we refer to McDer-.mott v. Palmer, 4 Seld. 383; Qidmbyv. Sloaoi, 3 E. D. Smith, 611-12-13, and especially to note a on pages 611-13, where reference is made toNott’s Treatise on the Lien Laws, p. 97. “If a mechanic engage his hands at a certain sum per diem, and their board, he may include in his lien the wages and boarding of the men, for it is part of the compensation for his work and labor in the erection of the building.” (SybrancU-v. Eberly, 36 Penn. 347.) The case at bar is a much stronger one than the case cited. In this case the plaintiff was employed by the agent of the company to cook in the eating-house kept by the company for boarding the men working in the construction of their reservoir; keeping a regular eating-house within the reservoir enclosure to enable them the better to construct the same. The Act under which this action is brought, is broader than any heretofore, and includes “every laborer or other person,” includes any person performing labor. And can any one say that the cooking, as carried on in this case, was not a necessary part of the labor in carrying on the construction of said reservoir. As well might it be said that the laborer who labors a mile or more from the building, in loading carts with dirt or bricks or sand to be used in the construction of the house, has no lien thereon for his labor, as he performs in one sense, you might say, “no labor upon the construction.” But his labor is necessary to the construction, and in such cases,the Courts have always held that he performed labor upon the construction. So, in this case, the cooking was a necessary part of the work in constructing the reservoir. “ When a teamster who had hauled the lumber used in the erection of a building filed his claim under the mechanics’ lien law, it was held error in the Court below to strike off the lien.” (Hill v. Neioman, 38 Penn. 157.) Liens of mechanics are favored in law, because these parties have, in fact, created the very property on which the lien attaches. (Tattle v. Montforcl, 7 Cal. 358; McGrea v. Craig, 23 Id. 522; White v. Steam Tag “Mary Ann,” 462.)