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Railroad Co. v. Johnson is not decisive of this question; that, although it was said in the opinion in that case that a street cable railway is not a railroad, and is not within the description of the structures for which a lien is provided, it does not necessarily appear that such was the view of the majority of the court, since but three of the five judges who composed the court concurred in the decision, and the assent of one of those so concurring was expressly limited to the conclusion arrived at, which was that no lien was given upon a street cable railway in the streets of a city. It is admitted that none of the material furnished by the lienor in this case has been used in the improvements upon that portion of the property of which the title is vested in the defendant in fee; but it is said that the road and the power house are one, and indissolubly connected; that the cable railway is incapable of operation except in connection with the power house wherein the cable is operated, and whereby all the movement of cars is accomplished; that the road without the power house, and the power house without the road, are equally impotent to accomplish results; and that, notwithstanding the fact that the appellant has furnished no material for the power house, it has a lien thereon from the fact that it has furnished material for the railway track, which is so intimately and necessarily connected therewith. Upon careful consideration of this question, and the language of the law applicable thereto, we are inclined to the view that, if the lien is denied upon the road whereon the material was used, for the reason, as held by the state authorities, that the railway company has no interest in the road sufficient to sustain such a lien, it is also true that no lien attaches to property upon which none of the materials have been placed, and which, although it is used in connection with the road, and as a part of the system thereof, rests upon a title entirely distinct from that whereon the road rests. Section 1665 provides that the land upon which any building, improvement, or structure is constructed shall be subject to the lien if the same belonged to the person who caused the building, improvement, or structure to be constructed, altered, or repaired, but that, if he owned less than a fee simple estate in such land, then only his interest therein is subject to such lien. The lots owned by the defendant are not the land upon which the improvement was constructed with the plaintiff's material. That improvement is in the public streets. In a certain sense it is true that the cable road in the street and the power house on the lots are so intimately connected that the one may be said to be appurtenant to the other. But by the terms of the statute no reference is made to appurtenances, and no lien is expressly created therefor, and there is nothing in its provisions, or in the interpretation given thereto by the state courts, to justify the court now in holding that it contemplates a lien upon a building, or upon the lot on which it stands, for materials furnished in the construction of appurtenances not included in the contract for the construction of the building, nor situate upon land in which the owner of the building has an interest. The cases relied upon by the appellant's counsel come short of sustaining the doctrine on which his contention rests.

In Beatty

v. Parker, 141 Mass. 526, 6 N. E. 754, a drain pipe, extending from the cellar of a house through the cellar wall and the yard and the street

. into a sewer, the construction of which was included in the contract for building the house, was held to be a part of the house, and it was held that a lien is provided therefor under the lien law, and that it

. was immaterial that the title to the street is not in the owner of the house. But the decision was based upon the fact that a portion of the drain pipe was in, and was a part of, the house on which the lien was attempted to be enforced, and was included in the contract for its construction. In this respect the facts differ materially from those in the case at bar. In Badger Lumber Co. v. Marion Water, etc., Co., 48 Kan. 182, 29 Pac. 476, it was shown that the defendant company owned land on which was a building and machinery for generating electricity to be used in connection with its electric wires and poles, which it had placed through the streets under a franchise therefor. The plaintiff furnished poles to support the wires in the streets. It was held that he had a lien on the lots on which the building and machinery were situated, but it was so expressly decided under the language of the Kansas statute, which provided liens for materials furnished to “any building, or to the appurtenance of any building”; and it was found by the court that the wires and poles were appurtenances to the building. But in Parmelee v. Hambleton, 19 Ill. 614, in a case where a house and a vault under the sidewalk of a street were constructed under a single contract, it was held that the vault, although an appurtenance to the house, was not subject to a mechanic's lien under a statute which conferred a lien upon any one who, under a contract with the owner of a lot, should furnish "labor or materials for erecting or repairing any building or. the appurtenances of any building on such land or lot.” The court said: “This certainly means that both the building and appurtenance shall be upon the lot.”

Nor do we think that the relation of Hamilton to the defendant was such that, under any view of the meaning of the lien law, a lien could be created in favor of the vendor of materials sold in the manner indicated in the record in this case. If we concede that Lowman was acting on behalf of the defendant, and that the defendant, through his agency, was to all intents the purchaser from Hamilton, still it cannot be said that the complainant, in selling the goods to Hamilton, and in looking to him for the payment of the same, sold the same "at the instance of the owner," within the meaning of those words as they were used in the statute. They sold rather at the instance of Hamilton. Nor was Hamilton a “contractor," such as is contemplated in the statute. It is true he had a contract with Lowman, but it was only a contract of sale and delivery. It involved no labor or supervision upon Hamilton's part. While the latter might have claimed a lien for his own benefit, because standing in the attitude of a vendor to the owner of the road, his own vendor, the complainant in this case, furnished the materials neither to the owner nor to the owner's agent, nor to a contractor in charge of the construction of any part of the improvement. Hamilton was in charge of nothing connected with the construction. The correspondence so advised the complainant. The statute does not contemplate a lien in favor of him who sells materials to one who in turn sells the same to the owner or his agent. It gives the lien only to him who deals with the owner or his agent, or with a contractor in charge, or with some other person in charge of some part of the improvement for which the materials are to be used. The decree is accordingly affirmed, with costs to the appellee.


REDWOOD CO., Limited.

(Circuit Court of Appeals, Ninth Circuit. July 15, 1895.)

No. 216.


A lumber company on the one part, and certain individuals on the other, owned together a large tract of inaccessible timber land, and the latter party also owned certain adjoining tracts. By agreement they joined in organizing a railroad company and building a road to reach the lands, each party taking half the stock therein. Afterwards the corporation sold to the individual party its interest in the timber. The purchasers exhausted all the timber within reach of the road, and, being in the majority in the directory of the railroad company, passed a resolution authorizing an extension of the road to reach timber lands owned by them alone, and appropriating the money in the treasury for that purpose. The rate agreed on for carrying lumber from the new tract was the same that was originally fixed by both parties. The road was useless, except for transporting the timber, and would be entirely worthless without the extension. Held, that the lumber company, as a stockholder in the railroad company, was not entitled to enjoin the proposed extension on the ground that it was solely in the interest of the individual party, as owner of the timber land, and

against the interest of the stockholders in the railroad company. 2. SAME-CONSTITUTIONAL LAW-CARRIERS.

The provision in the constitution of California (article 12, 8 18) forbidding an officer of a company to engage "in the business of transportation, as a common carrier of freight or passengers over the works owned, leased, controlled, or worked by the company," does not apply to the act of an officer of a railroad company in causing his own freight to be transported over the company's road.

Appeal from the Circuit Court of the United States for the Northern District of California.

This was a bill by the Edinburgh & San Francisco Redwood Company, Limited, against the Bucksport & Elk River Railroad Company and others to procure an injunction restraining defendant company from building an extension of its road. An injunction was granted by the circuit court, and the defendants appeal.

S. M. Buck and F. A. Cutler, for appellants.
Charles Page, for appellee.

Before GILBERT, Circuit Judge, and KNOWLES and BELLIN. GER, District Judges.

BELLINGER, District Judge. The complainant, the appellee company, is the successor to all the rights and interests of the Cali

fornia Redwood Company, Limited, a Scotch company, by purchase, on the liquidation of that company for insolvency, at the suit of creditors. This Scotch company, at the time of its liquidation, was the owner of the entire capital stock of another California redwood company, a domestic corporation, which latter corporation owned sawmills and vessels and large bodies of redwood-timber lands on Elk' river and its branches, in Humboldt county, Cal., and was engaged in the lumber business on a large scale. The capital stock of the domestic redwood company so held by the Scotch redwood company constituted the property, rights, and interests to which the complainant succeeded on the liquidation of the Scotch company. The defendant W. H. Carson and one Dolbeer were also large owners of redwood-timber lands adjacent to the lands of the California Redwood Company, and had other interests in such lands in common with that company. To promote their common interests, it was agreed between the company, through its general manager, and Dolbeer and Carson, to build a railroad from Humboldt Bay to and up Elk river and its branches, to reach the redwood-timber lands of the parties, and of others in that vicinity. In pursuance of this agreement, the defendant the Bucksport & Elk River Railroad Company was organized, and its stock subscribed for and held in equal amounts by the two parties,-Dolbeer and Carson of the one part and the redwood company of the other. The enterprise contemplated was the building of about 30 miles of road, and the articles of incorporation of the company thus organized specify a line running from the forks of said Elk river, up and along the North Fork there. of, to the east line of township 4 N., of range 1 E., Humboldt base and meridian, as a part of the road which the company is incorporated to build. The board of directors of the railroad company consisted of five members. Of these, three were elected in the interest of the California Redwood Company, and two, including William Carson, in the interest of Dolbeer and Carson. This continued from the organization in July, 1884, up to February 9, 1886. In the meantime the company contracted with the Elk River Mill & Lumber Company to complete its road to a point where the latter company proposed to erect a large sawmill during 1884, transport the machinery therefor, and thereafter haul all the lumber manufactured at such mill to Humboldt Bay for $1.50 per 1,000 feet, board measure. The work was begun and carried forward under the management of the manager of the California Redwood Company, who was a director in the railroad company. Surveys were made for lines up the North Fork of Elk river, and up some tributary streams to the south of the main stream. In 1886, following the insolvency of the Scotch company, the work of building was stopped by the refusal of the managing directors of the railroad company, who were in the interest of, and presumably subject to, the direction of the California Redwood Company, to continue it. Thereupon, Dolbeer and Carson advanced $36,000, necessary to the completion of the line agreed to be built in the contract with the Elk River Lumber Company, which was subsequently repaid them out of earnings of the company. In consequence of the responsibility thus assumed by

Dolbeer and Carson, the membership of the board of directors of the Bucksport & Elk River Railroad Company was changed by the resignation of two members of the majority, whose places were filled in conformity with the wishes of Dolbeer and Carson. The road was completed to the mills of the Elk River Lumber Company, and the product of such mills carried to Humboldt Bay, but without making any profit on such freight. In October, 1886, Dolbeer and Carson entered into a contract with the California Redwood Company by which they purchased the entire one-half interest of the company in the redwood timber suitable for lumber upon the lands owned jointly by the parties, and all the timber on lands owned by the company, within the watershed of what is known as “Tom's Gulch," within the district tapped by the company's road. There were 800 acres of land owned jointly, and 400 acres exclusively owned by the company. The price agreed to be paid was $1.50 per 1,000 feet, board measure, for the logs taken from this land. Under this contract, Dolbeer and Carson, between 1887 and 1892, shipped 80,000,000 feet of logs, for which they paid freight to the railroad company at the rate of $2 per 1,000 feet,-a total of $160,000. Before the change in the directory of the company, some $20,000 had been expended towards an extension of a branch of the road up Tom's Gulch, which branch was completed under the new management. Having exhausted Tom's Gulch, Dolbeer and Carson, in 1892, made a second contract with the redwood company, in terms like the former, for the timber in Clapp's Gulch, and to reach this timber a branch road about one mile in length was built. This source of timber supply will be exhausted during this year. Anticipating this fact, the company, by a majority vote of its directors, on May 5, 1892, decided to apply the money on hand, amounting to about $24,000, to making extensions of the road to reach new sources of timber supply, and on the 12th of the following December, in pursuance of this policy, formally authorized the building of extensions up Clapp's Gulch and up the North Fork of Elk river. In view of this action, the complainant corporation, having in May, 1892, caused a transfer to itself of the shares of stock of the Bucksport & Elk River Company standing in the name of the California Redwood Company, began this suit to restrain the defendant company from building the extensions proposed, and particularly from building the extension up the North Fork of Elk river. Upon the hearing, the court granted the prayer of the complainant, subject to the right of Carson and the stockholders co-operating with him to build the extensions at their own expense.

From the decree so rendered, this appeal is taken.

The court below concluded, from the fact that Carson and Dolbeer own large bodies of timber land on the North Fork of Elk river, and are large manufacturers of lumber on Humboldt Bay, and that the extension up this fork will enable them to transport their logs to their mills, that Carson, through his control of a majority of the board of directors of the railroad company, proposes to use the road for his own private interests, regardless of the real interests of the road and of its stockholders, and that it is the duty of the court to restrain

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