Ireland v. Atchison, Topeka & Santa Fe Railroad

Martin, C.

This was a suit to enforce against a railroad a claim for materials’ furnished to and used by the company in the construction and improvement of its road. The action was commenced December 11th, 1879, under and by virtue of sections 3200 to 3216 of the Revised Statutes relating to liens against railroads. The defendant interposed a demurrer, which was sustained on the ground that the petition failed to state a cause of action. Upon the plaintiffs’ refusal to plead further, final judgment was rendered in favor of defendant, from which the plaintiffs have appealed.

The decisions of the Supreme Court construing the *573 statute on liens in favor of material men against railroads have been rendered since the judgment in this ease.

It is intimated in the brief of appellants that the demurrer was sustained on account of the supposed impossibility of enforcing such liens against a railroad whose road-bed was not wholly within the State. This objection has been disposed of in the case of the St. Louis Bridge & Construction Co. v. M. C. & N. W. R. R. Co., 72 Mo. 664 , in which it was held that a lien could be adjudged and enforced against such part of the road-bed as lay within the State. It has also been decided that no lien under this law can be adjudged or enforced against only a part of the road-bed lying within the State. The lien must be adjudged against the whole of the road-bed, or against none of it, within the State. Knapp v. St. Louis, K. C. & N. R’y Co., 74 Mo. 374 ; Cranston v. Union Trust Co., 75 Mo. 29 .

It is argued by counsel for respondent that the suit in this case is against only a section or portion of the road in Missouri, viz : such portion as lies within Jackson county. If the petition disclosed with certainty that the defendant had a road-bed in Missouri outside of Jackson county, this position would have to be sustained. But I do not think it can be inferred satisfactorily that the defendant is possessed of any road-bed or depots in this State outside of Jackson county. The petition alleges that the defendant is a railroad corporation duly incorporated under and by virtue of the laws of the state of Kansas. This fact taken with the name of the road' as running between points outside of the State certainly affords a reasonable inference that it is possessed of a road-bed and depots outside of the State of Missouri. The plaintiffs allege that as sub-contractors under one E. D. Camman they “ did furnish to the said defendant a large lot of lumber and materials to be used, by the said defendant in constructing and improving the said road-bed, rolling stock, station houses, depots, bridges and culverts upon and along that part of said railroad built, constructed and located in Jackson county, State *574 of Missouri;" and it is against this portion of the road that the lien is asked to he adjudged and enforced. The inference is strong from this language that the company is possessed of a road-bed and stations outside of Jackson county, but not necessarily in the State of Missouri. When taken in connection with the facts recited by us relating to the incorporation and location of the road, it naturally points to its possession outside of the State. I am satisfied that the petition is not objectionable on its face as seeking to adjudge or enforce a lien against only a section or portion of the defendant’s road in this State. If such be the truth, it will have to be taken advantage of in some other manner than by demurrer to this petition. In our opinion the court erred in sustaining the demurrer. Accordingly the case is reversed and remanded for further proceedings.

All concur.