may be enforced against street-car companies under the laws giving liens on railroads.2 232

§ 205. It has been held in Pennsylvania that the stable of a street horse-car company may be subjected to mechanics' liens,233 but that a street-railway power house, containing engines and machinery used in propelling electric cars, cannot be subjected to such liens.234 The distinction between these two cases is said to be that, while horses are necessary to propel horse cars, yet a horse-car company deprived of its stable might rent another, while the building and machinery containing the motive power of a trolley line is an integral and necessary part of the road and franchise.235 One who has furnished materials for the construction of the track and conduit of a cable railway can have no lien on the power house from which the cable is operated, or the land on which it stands, since the improvements for which he furnished materials are not situated on the land upon which he claims a lien.2

236

DIVISION V. DITCHES AND CANALS.

In General.

§ 206. A statute giving a lien on any "building, wharf, or other superstructure" does not include ditches.237 But under a statute which gives a lien for work done under contract with the owner of any land, to the extent of his interest, and provides that "any person having an assignable, transferable, or conveyable interest shall be

232 See the dissenting opinion in Front St. Cable Ry. Co. v. Johnson, 25 Pac. 1084, 2 Wash. St. 112. In two cases in Minnesota mechanics' liens were enforced against cable-car lines on city streets under statutes giving liens on railroads, without any discussion as to whether these statutes applied to street-car lines. Wood v. Railway Co., 44 N. W. 308, 42 Minn. 411; Thompson v. Railway Co., 47 N. W. 259, 45 Minn. 13.

233 McIlvain v. Railroad Co., 5 Phila. (Pa.) 13.

234 Oberholtzer v. Railway Co., 16 Pa. Co. Ct. R. 13. The reasoning of this case is to the effect that there can be no lien against the track either, though that point did not came up for decision.

235 Oberholtzer v. Railway Co., 16 Pa. Co. Ct. R. 13.

236 Pacific Rolling Mills Co. v. James St. Const. Co., 16 C. C. A. 68, 68 Fed. 966.

237 Ellison v. Water Co., 12 Cal. 542.

deemed an owner," and that the lien shall attach to another or greater interest acquired by the owner after the commencement of the work, one who contracts with an irrigation company to construct its ditch has a lien on the ditch, the right of way being obtained by the irrigation company as fast as the ditch was constructed.238 Under a stat

230

ute giving a lien on canals to persons who do work or furnish materials for their construction, extension, enlargement, alteration, or repair, a complaint which merely alleges an indebtedness "for work and labor performed by the plaintiff along the line of and upon the defendant's canal," without showing for what purpose the work was done, is insufficient, even on default, to sustain a decree for a lien.2 § 207. In a case in California a lien was claimed on an irrigating canal. The canal had been divided into two sections, which were constructed at different times, and by different contractors, the lower section being completed and in use before the upper section was begun. It was held, under a statute providing that persons "furnishing materials for or employed in the construction of any bridge, ditch, flume, or acqueduct shall have a lien upon the structure which they may have constructed or repaired," that the contractor who constructed the upper section had a lien only on that section of the canal.2 But the upper section of that canal having been sold on foreclosure to satisfy said lien, it was held that the purchaser of such section at foreclosure sale had the absolute right to all the water running through the ditch.24 It has been held in Idaho that one who performs labor in constructing a branch or section of a canal, under a contract with the owner, is entitled to a lien on such branch or section for any balance due him for such labor; 242 and in New Mexico that a contractor for the construction of an irrigation ditch was entitled to a lien on land appurtenant to the ditch, which was

240

238 Garland v. Irrigation Co., 34 Pac. 368, 9 Utah, 350. The ditch in question was constructed over the public domain, and Rev. St. U. S. §§ 2339, 2340, recognize the right to go on the public lands, and to construct ditches for mining, agricultural, and other purposes; and the right of way so taken and held is acknowledged, all patents being expressly made subject thereto.

239 Arkansas River Land, Reservoir & Canal Co. v. Nelson (Colo. App.) 36 Pac. 307.

240 South Fork Canal Co. v. Gordon, 6 Wall. 561.

241 Reynolds v. Hosmer, 51 Cal. 208.

242 Creer v. Canal Co. (Idaho) 38 Pac. 653.

increased in value by the ditch, where it appears that his employer, by contract with the owner of such land, was to receive a portion of the proceeds of such land when sold at an enhanced price after the construction of the ditch, and that the owner consented to the construction.243

DIVISION VI. PUBLIC PROPERTY.

Exempt from Lien.

§ 208. There can be no mechanic's lien on public property, unless the statute creating such lien expressly so provides, since such a lien would be contrary to public policy, and would also be incapable of enforcement, public property not being subject to forced sale. For this reason there can be no mechanic's lien on a courthouse, 245 nor on county buildings generally.246 Nor can there be such a lien on a

243 Ford v. Association (N. M.) 41 Pac. 541.

244

244 Griffith v. Happersberger, 25 Pac. 137, 487, 86 Cal. 606; Breneman v. Harvey, 30 N. W. 846, 70 Iowa, 479; Knapp v. Swaney, 23 N. W. 162, 56 Mich. 345; Board of Supervisors of Panola Co. v. Gillen, 59 Miss. 198; People v. Butler, 2 Neb. 5; Ripley v. Board of County Com'rs of Gage Co., 3 Neb. 397; Frank v. Chosen Freeholders of Hudson, 39 N. J. Law, 347; Leonard v. Brooklyn, 71 N. Y. 498; Portland Lumbering & Manuf'g Co. v. School Dist., 13 Or. 283, 10 Pac. 350; Wilson v. Commissioners, 7 Watts & S. 197; City of Dallas v. Loonie, 18 S. W. 726, 83 Tex. Sup. 291; Hall's Safe & Lock Co. v. Scites, 18 S. E. 895, 38 W. Va. 691; City of Platteville v. Bell, 28 N. W. 404, 66 Wis. 326. This rule does not prevail in Kansas. Board of Com'rs of Jewell Co. v. Snodgrass & Young Manuf'g Co., 34 Pac. 741, 52 Kan. 253; City of Topeka v. Thomas (Kan.) 40 Pac. 930. And in Louisiana there is a lien on the building, but none on the land. McKnight v. Parish of Grant, 30 La. Ann. 361; Schwartz v. Saiter, 4 South. 77, 40 La. Ann. 264.

245 Bouton v. Board of Supervisors of McDonough Co., 84 Ill. 384; Parke Co. Com'rs v. O'Conner, 86 Ind. 531, 44 Am. Rep. 338; Godson v. Story Co., 6 N. W. 137, 54 Iowa, 81; Whiting v. Story Co., 6 N. W. 137, 54 Iowa, 81; Knapp v. Swaney, 23 N. W. 162, 56 Mich. 345; Board of Supervisors of Panola Co. v. Gillen, 59 Miss. 198; Snow v. Board of Com'rs of Durham Co., 17 S. E. 176, 112 N. C. 335; Wilson v. Huntingdon Co. Com'rs, 7 Watts & S. (Pa.) 199; Atascosa Co. v. Angus, 18 S. W. 563, 83 Tex. 202. Contra, Board of Com'rs of Jewell Co. v. Snodgrass & Young Manuf'g Co., 34 Pac. 741, 52 Kan. 253.

246 Lewis v. Chickasaw Co., 50 Iowa, 234; Board of Supervisors of Panola Co. v. Gillen, 59 Miss. 198; Ripley v. Board of County Com'rs of Gage Co., 3 Neb. 397; Wilson v. Huntingdon Co. Com'rs, 7 Watts & S. 197; Williams v.

Public school

city hall 247 or on a fire tower owned by the city.248 buildings are also exempt from mechanics' liens.249 And there can be no mechanics' liens or such public institutions as the Illinois Industrial University,250 the Nebraska State Lunatic Asylum,251 the Pennsylvania Reform School, 252 and Girard College. 253 But normal schools established and managed by private corporations, though subject to visitation by the state, are not public or quasi public institutions, and therefore their property is subject to mechanics' liens. 25+ § 209. Public bridges are not subject to mechanics' liens,255 even under statutes that expressly give a lien on bridges.256 For similar reasons of public policy cemeteries have been declared exempt from

Controllers, 18 Pa. St. 275; Hall's Safe & Lock Co. v. Scites, 18 S. E. 895, 38 W. Va. 691.

247 City of Platteville v. Bell, 28 N. W. 404, 66 Wis. 326. Contra, City of Topeka v. Thomas (Kan. App.) 40 Pac. 930. In Pennsylvania, in counties where the mechanic's lien act of February 17, 1858, is in force, a mechanic's lien can be filed against a market house and public hall erected by a lessee on his leasehold. Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403. 248 Leonard v. Brooklyn, 71 N. Y. 498; Leonard v. Reynolds, 7 Hun, 73. 249 Mayrhofer v. Board of Education, 26 Pac. 646, 89 Cal. 110; Florman v. School Dist. (Colo. App.) 40 Pac. 469; Thomas v. Board of Education of Urbana School Dist., 71 Ill. 283; Board of Education v. Neidenberger, 78 Ill. 58; Quinn v. Allen, 85 Ill. 39; Fatout v. Board of School Com'rs, 1 N. E. 389, 102 Ind. 223 (overruling Shattell v. Woodward, 17 Ind. 225); Charnock v. District Tp. of Colfax, 50 N. W. 286, 51 Iowa, 70; Eaton v. City of Monroe, 29 N. W. 885, 63 Mich. 525; Jordan v. Board of Education, 39 N. W. 801, 39 Minn. 298; Abercrombie v. Ely, 60 Mo. 23; Hastings v. Woods, 2 Mo. App. 148; Poillon v. Mayor, etc., 47 N. Y. 666; Brinckerhoff v. Board of Education, 37 How. Prac. (N. Y.) 499; Id., 6 Abb. Prac. (N. S.) 428; Williams v. Controllers, 18 Pa. St. 275; Hovey v. Town of East Providence, 20 Atl. 205, 17 R. I. 80; State v. Tiedermann, 10 Fed. 20. Contra, Morse v. School Dist., 3 Allen (Mass.) 307; Wilson v. School Dist., 17 Kan. 104; School Dist. v. Conrad, Id. 522. 250 Thomas v. Industrial University, 71 Ill. 310.

251 People v. Butler, 2 Neb. 5.

252 Patterson v. Pennsylvania Reform School, 92 Pa. St. 229.

253 Hemberger v. Kohler, 1 Wkly. Notes Cas. 311.

254 McLeod v. Central Normal School Ass'n, 25 Atl. 1109, 152 Pa. St. 575, and 32 Wkly. Notes Cas. 37.

255 Commissioners of Pike Co. v. Norrington, 82 Ind. 190; Loring v. Small, 50 Iowa, 271.

256 McPheeters v. Merimac Bridge Co., 28 Mo. 465.

mechanics' liens.257 And a monument built by private subscription on a public park becomes the property of the public, and therefore exempt from mechanics' liens. 258 Public policy does not allow a mechanic's lien to attach to a building, or machinery placed therein, constituting a part of the waterworks belonging to a city.259 And the property of a water company organized under a legislative charter which gives it the right of eminent domain, protects it from competition, compels it to furnish water at reasonable rates, and provides for the ultimate purchase of its works by the municipality, is exempt from mechanics' liens, since such a company is a public corporation. 260 But where a private individual contracts with a town to operate a system of waterworks, and supply it with water, and acquires land for a reservoir, and a right of way for pipes, the waterworks and easements connected therewith, being private property, are subject to mechanics' liens.261

§ 210. A minister plenipotentiary of a foreign power is not exempt from the application of the mechanic's lien law, as to any house or building which is not used as a mansion for purposes connected with his representative character; and where exemption is claimed it must appear by the proof that he is entitled to a suspension of the rule. that the rex rei sitæ controls.262 Whether mechanics' liens can attach to land which is forfeited to the United States for violation of the revenue laws is an undecided question.203 A lien may be en

257 Beam v. First Methodist Episcopal Church, 3 Clark, 343, 3 Pa. Law J. 286. 238 Griffith v. Happersberger, 25 Pac. 137, 487, 86 Cal. 606.

259 Wilkinson v. Hoffman, 21 N. W. 816, 61 Wis. 637; McNeal Pipe & Foundry Co. v. Bullock, 38 Fed. 565. In the case of Harrison & H. Iron Co. v. Council Bluffs City Waterworks Co., 25 Fed. 170, the question whether mechanics could have liens on city waterworks was raised, but not decided.

200 Guest v. Merion Water Co., 21 Atl. 1001, 142 Pa. St. 610, and 28 Wkly. Notes Cas. 285; Foster v. Fowler, 60 Pa. St. 27. But in Wisconsin the entire plant of a water company, including piping laid in the streets of a city, and the interest of the company in the premises, and even the franchise of the company, are subject to the lien of the material man furnishing the piping. Oconto Water Co. v. National Foundry & Pipe Works, 7 C. C. A. 603, 59 Fed. 19. 261 McNeal Pipe & Foundry Co. v. Howland, 16 S. E. 857, 111 N. C. 615. 262 Byrne v. Herran, 1 Daly (N. Y.) 344.

263 U. S. v. Mackoy, Fed. Cas. No. 15,696, 2 Dill. 299; Heidritter v. Oil Cloth Co., 6 Fed. 142. Both cases expressly leave the point undecided.