Giant Powder Co. v. San Diego Flume Co.

This action was brought against Joseph Johndrew, “an original contractor ” for the San Diego Flume Company, and that corporation, to recover a judgment for the value of materials furnished the contractor, which were used in his work upon the structure for the flume company, and to enforce a material-man’s lien upon the structure, under section 1183 of the Code of Civil Procedure.

The evidence and the findings indicate that after the sixth day of June, A. D. 1887, there existed a valid contract between the contractor and the owner; so that as to all materials furnished after that date the plaintiff could file its lien claim by virtue of the existence of the contract.

The court below seems to have proceeded under this impression, and to have based its decision, which was against the plaintiff, so far as the right to enforce its lien was concerned, or any other claim against the flume company, upon the theory that its claim of lien had been filed before the acceptance, completion, use, or occupation of the structure, according to the terms of section 1187 of the Code Of Civil Procedure as amended in 1887.

The plaintiff appeals from the judgment against it in favor of the flume…

I concur in the judgment of reversal solely upon the ground that, in my opinion, the main points in controversy were settled against respondent on the former appeal ( 78 Cal. 193 ), and the law of the case applies. Otherwise I would hold that the lien of appellant was premature. And where the question is open, I could not concur in the doctrine that there can be a lien for powder exploded in blasting for the foundation of a house or a flume. ‘‘Materials used in the construction,” as employed in the mechanic’s lien law, means, in my opinion, only such material things as go in and become part of the building or structure. In the eye of justice, a merchant who deals in lumber or hardware has no more right to a lien than a merchant who deals in pototoes or flour or sugar; and the former have a lien only as a legislative privilege. The language should not be strained for the purpose of enlarging the privileged class. The appellant has no powder in the structure, and never had. It merely exploded some there.

I concur in the judgment, and in the foregoing opinion of Commissioner Foote. The question whether powder exploded in the work of constructing a flume or tunnel may be regarded as a part of the “ materials used in the construction” is not involved in the disposition of this appeal.