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to the actual and visible beginning of the , of cases in this state where liens have been improvement on the ground,” except when allowed for material furnished for but not a contractor files in the proper office a brief used in the construction, but in each case statement of the nature of his contract, there was an actual improvement. Howes such statement is notice of his lien for the v. Reliance Wireworks Co. 46 Minn. 44, 48 contract price or value "of all contributions N. W. 448; Hickey v. Collom, 47 Minn. 56.), to such improvement thereafter made by 50 N. W. 918; Burns v. Sewell, supra; him.” Section 7024 speaks of liens attach- Combination Steel & I. Co. v. St. Paul City ing “by reason of such improvements,” | R. Co. 52 Minn. 203, 53 N. W. 1144; John of "liens for improvements,” and provides Paul Lumber Co. v. Hormel, 61 Minn. 303, for a notice to be served by an owner upon 63 N. W. 718; Berger v. Turnblad, 98 Minn. persons doing work or "otherwise contrib- 163, 116 Am. St. Rep. 353, 107 N. W. 543; uting to such improvement,” when improve. Thompson-McDonald Lumber Co. v. Moraments are made upon his land without his wetz, Jinn. -, 149 N. W. 300. In the authority. Section 7026 requires the lien last case, it was decided that an actual de. statement to be filed in the county "in livery upon the premises of material sold which the improved premises are situated,” to a contractor for use in the construction and provides that it shall set forth, among of a building was not necessary to a right other things, "for what improvement” the to a lien, but that a good-faith delivery of labor, etc., was done or supplied. Section the material to the contractor is sufficient. 7027 provides that a lien holder who has This is an exception to the general rule contribuied to the erection, etc., of two or that, to entitle a mechanic or materialman more buildings or improvements situated to a lien for work performed or materials upon one lot or upon adjoining lots, under furnished at the request of the contractor, one contract with the owner, may file one the work must be done or the material destatement for his entire claim, embracing livered on the premises upon which the the entire area "so improved," or may building is. being erected, as are the cases apportion his demand between the several of Howes v. Reliance Wireworks Co. and "improvements,” and assert a lien for a Berger v. Turnblad, in which the material proportionate part upon each, and upon the required was specially prepared for the ground appurtenant to each. Section 7028 building at the shop of the contractor with requires an action to enforce the lien to be the consent of the owner, but was not in brought in the county in which the "im- fact delivered on the premises, the delivery proved premises” are situated. By § 7029, being prevented by the owner. Logically the summons is required to contain a brief it is perhaps a stretch to say that one description "of the improvement out of contributes to the improvement of real which the lien arose.”

estate" whose labor or material does not It must be conceded that the lien statute, go into the improvement or enhance the if construed literally, does not expressly value of the real estate. It should also be give a lien when no improvement is begun noted that the lien statute read, "Whoever on the ground. Can we, by liberality of performs labor or furnishes skill or mateconstruction, nevertheless say that a lien rial for the erection” of a building, instead may attach under such circumstances? To of as it does now, at the time the cases answer this question correctly, a review of above cited, except the Thompson-McDonald our past decisions is necessary. We have Case, were decided. But the last case is no case where a lien has been granted when ample authority for holding that the change there was no tangible improvement on the in the language of the statute does not ground. In Smith v. Barnes, 38 Minn. 240, change the settled rule in this state that 36 N. W. 346, the lien claimant supplied actual use in the building or actual delivmaterial for a building to be crected on lot cry to the premises is not essential to a 5. This material was diverted to lot 6, lien. If, in the case at bar, the building and no building was constructed on lot 5. had been actually constructed or its conIt was held that, as against a mortgagee, a struction begun, on the plans furnished lien could not be enforced against lot 5. therefor by plaintiffs, their right to lien The court said that the statute "seems to would be clear. The owner could not defeat contemplate that there must be or have the lien by abandoning the project after the been a building situated upon the land improvement was actually begun on the against which the decree is demanded.” In ground, nor would the destruction by fire Burns v. Sewell, 48 Minn. 425, 51 N. W. of a partially completed building destroy 224, lumber was furnished on the ground, the lien. but not used in the building. A lien was Nothing can be added to what has been allowed, and the case distinguished from said in our past decisions of our policy as Smith v. Barnes, in that there was no to the construction of lien laws. Emery v. building in that case. There are a number 'Hertig, 60 Minn. 57, 61 N. W, 830; John

son

V.

Starret, 127 Minn. 138, L.R.A. , heretofore come before this couurt there 1915B, 708, 149 N. W. 6. While it is per has been some actual improvement wholly haps difficult to see how the value of prop- or partly constructed or the construction erty is enhanced in any case by labor or begun. This would naturally be so in almaterial that does not go into the improve most every case where liens are asserted. ment, or how such labor or material "con- Clearly the right to a lien exists when an tributes to the improvement,” our liberal improvement has actually been begun, be policy has led to this result where there is the start no more than the beginning of an an actual improvement. Is it an unwar- excavation. If the owner of land contracts ranted extension of this doctrine to include for cut stone or woodwork for a building cases where no improvement is made, when thereon, and the material is prepared in the that is no fault of the laborer or material shops of the contractors and delivered to man? There is little light on this question the premises, should we say that the owner in the reported cases. The case of Smith v. may defeat the right to liens by then Barnes, 38 Minn. 240, 36 N. W. 346, would abandoning the construction of the proposed be authority for the position that there building? Though the question is not free must be an improvement on the land, except from doubt, we have reached the conclusion that the lien in that case was sought to be that the owner cannot, in this way, destroy enforced against a mortgagee, while here the right to a lien. This conclusion is the defendants were the contractors. The strengthened by the language of $ 7023 of case of Foster v. Tierney, 91 Iowa, 253, the lien statute, providing that “all such 51 Am. St. Rep. 343, 59 N. W. 56, is valu- liens, as against the owner of the land shall able for the reasoning of the opinion, but attach and take effect from the time the the Iowa statute reads somewhat differently first item of material or labor is furnished from ours, and Iowa is classed as a strict upon the premises for the beginning of the construction state. The case does hold, improvement.” however, that architects are not entitled The balance of the section, providing to a lien for plans and vecifications where that, as against bona tide purchasers and no improvement is made. In Freeman v. mortgagees without notice, no lien shall Rinaker, 185 Ill. 172, 56 N. E. 1055, the attach “prior to the actual and visible becourt said that an architect was entitled ginning of the improvement on the ground,” to a lien for preparing plans and specifica- seems to further justify the idea that, as tions for a building which was not erected, against the owner, an actual beginning of but the case was decided against plaintiff the improvement upon the ground is not on another point. The Illinois statute spe- necessary, providing the first item of labor cifically gives a lien to one who performs or material is furnished upon the premises, services as an architect for the purpose of or specially prepared for the building in building a house, etc. These cases are the the shop of the laborer or materialman, only ones cited that bear at all directly on or, as in this case, in the office of the archithe precise point involved here. We place tect. We, therefore, hold that plaintills our decision on the language of the lien ! had a right of lien on the land of destatute of this state, as it has been con- fendants. strued in the cases referred to, and hold 2. Was the lien statement filed in time? that there may be a lien without an actual In deciding this question we will assume "improvement,” and that we can fairly say that the last work on the plans, specificathat plaintiffs “constructively” contributed tions, and details was done March 27, 1913. to an improvement of defendants' land in If the ninety days run from this date the this case.

We must not overlook the fact, lien statement was clearly filed too late. as found by the trial court, that defend. But plaintiff's had no right to file a lien at ants prevented the improvement, thus of that ne, as they had not completed their their own volition and through their breach contract, which called for supervision of of contract preventing the work of plaintiff's the construction, as well as for plans and from actual contributing to the construc- specifications. It was an entire contract, tion of an actual improvement on the land. and had the building been constructed, We do not mean that the breach of con- plaintiff's could not have recovered their tract created the lien. Of course it could compensation or filed a lien therefor until not, but it is rather hard on those who have the construction was completed, as their performed labor or furnished material in contract would not be fully performed until reliance upon the lien statute, if the owner that time. Bentley V. Adams, 92 Wis. 386, can defeat their liens by refusing to go on 66 N. W. 505; Richardson v. Central Lumwith the building. It is tri th the stat.ber Co. 112 Ill. App. 160, following Freeute, in the various sections above noted, man v. Rinaker, 185 11l. 172, 56 N. E. 1055. speaks of an “improvement" as an accom. There can be no doubt that this is correct, prished fact, and in every case that has and it is claimed therefore, that the date

V.

of defendants' repudiation of the contract, | (Del.) 265, 78 Atl. 920, is opposed to this May 27th, is the date from which the stat. conclusion, and the authorities in support utory ninety days begins to run. But our of it are not entirely satisfactory, but a statute is plain and explicit:

definite rule is better than one which leaves “The lien shall cease at the end of ninety i the question of what is a "reasonable time" days after doing the last of such work, or to be litigated in each case. furnishing the last item of such skill, mate- Deciding as we do that plaintiffs had a rial, or machinery, unless within such lien and that the statement was filed in period a statement,” etc., shall be filed. time, it is plainly unnecessary to determine Gen. Stat. 1913, § 7026.

the other question argued. The time for filing the statement does not Judgment aflirmed. run from the completion of the building, as it does in many states, but from the doing of the last work or furnishing the

NEW YORK COURT OF APPEALS. last item of skill or material by the lien claimant. Under statutes which do not

CITY OF ROCHESTER, Respt., permit a lien to be filed until the building is completed, and which give a stated time

EDWARD C. GUTBERLETT, Appt. thereafter in which it may be filed, it is manifestly logical to hold, as the authori

(211 N. Y. 309, 105 N. E. 548.) ties uniformly do, that the date of abandonment of the work is deemed the date Municipal corporation ordinance when it is completed. 27 Cyc. 139, and garbage collection reasonableness. cases cited. Otherwise lien claimants would 1. An ordinance limiting the collection of be out entirely. But under statutes like garbage in the city to one licensed collector

is not void for unreasonableness. ours, one who does work or furnishes skill or material may file a lien when his work

Constitutional law limiting garbage

collection. is done or contract performed; he need not

2. No constitutional property rights of wait until the building is completed, un

one desiring to procure garbage for stock less his contract is not performed until

are infringed by limiting the right to colthen. And in such cases, when the work is lect it in a particular city to one licensed abandoned or suspended without the fault collector. of the lien claimant, he may immediately Same exclusive privileges. tìle a lien for the work already done or the 3. An ordinance limiting the collection skill or material already furnished, though of garbage in a particular city to he has not fully performed his contract. licensed collector is not unconstitutional Knight v. Norris, 13 Minn. 473, Gil. 438.

as granting exclusive privileges. The present case clearly falls within this Jury suit to enjoin violation of ordi. rule, and the only matter of doubt is: Within what time after the abandonment

4. There is no right to a jury trial in a of the project by defendants could plaintiff's nicipal ordinance.

proceeding to enjoin the violation of a mufile their statement? Though in this particular case the ninety days from the date

(May 12, 1914.) of furnishing the details had not expired when defendants repudiated the contract,

PPEAL by defendant from a judgment there being some thirty days still to run, of the Appellate Division of the Suthere might well be cases where the nine- preme Court, Fourth Department, affirming ty days had already expired when the con- a judgment of a Special Term for Monroe tract was repudiated or work of construc- County in plaintiff's favor in an action tion abandoned. The manifest injustice in brought to enjoin defendant from collectsuch cases of holding the right to a lien

Note. Pouer of municipal corporation lost is apparent. Clearly plaintiffs had

to grant exclusive right or create some length of time after May 27th in

monopoly for removal of substances which to prepare and tile their lien state

inimical to health. ment. We cannot say that it must have been done within the thirty days remaining, This note is supplementary to the note to for such a rule would be, in many cases, an Landberg v. Chicago, 21 L.R.A. (N.S.) 830; impossible one to apply. We must either and for the earlier cases as to monoply in say that they had a reasonable time there- a contract for the removal of garbage, see after in which to file their lien, or say

also note to Smiley v. MacDonald, 27 L.R.A.

540. that they had the full ninety days there

Generally, as to ordinances with respect after. A majority of the court favors the to the disposal of dead animals, including latter view. The case of Voightmann v. the right of a municipality to grant the Wilmington Trust Bldg. Corp. 7 Penn.'exclusive privilege of removing carcasses

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ing garbage without a license in violation right to enter upon his premises and take of an ordinance of the city. Affirmed. from him the materials in question.

The facts are stated in the opinion. 20 Am. & Eng. Enc. Law, 1140; People Messrs. Wile & Oviatt, for appellant: ex rel. Dunn v. Ham, 32 Misc. 517, 66 N. Y.

The ordinance, if held to apply to the Supp. 264; Independence v. Cleveland, 167 acts of the defendant, would be unreason- Mo. 384, 67 S. W. 216; State v, Butler, able and void as to such acts, even thongh 178 Mo. 272, 77 S. W. 560; State ex rel. it might be good as to other situations. Case v. Wilson, 151 Mo. App. 723, 132 S.

Ford v. Standard Oil Co. 32 App. Div. W. 625; Sargent v. Clark, 83 Vt. 523, 77 596, 53 N. Y. Supp. 48; Re Jacobs, 98 N. Y. Atl. 337; Chicago v. M. & M. Hotel Co. 98, 50 Am. Rep. 636; Underwood v. Green, 248 Ill. 264, 93 N. E. 753; Iowa City v. 42 N. Y. 140; New York Sanitary Utiliza- Glassman, 155 Iowa, 671, 40 L.R.A. (N.S.) tion Co. v. Health Dept. 61 App. Div. 106, 852, 136 N. W. 899; St. Louis v. Dreisoern70 N. Y. Supp. 510; Landberg v. Chicago, er, 243 Mo. 217, 41 L.R.A.(N.S.) 177, 147 237 Il. 112, 21 L.R.A. (N.S.) 830, 127 Am. S. W. 999; Peace v. McAdoo, 110 App. Div. St. Rep. 319, 86 N. E. 638; Gregory v. 13, 96 N. Y. Supp. 1039; Buffalo Fertilizer New York, 40 N. Y. 273; Knauer v. Louis Co. v. Cheektowaga, 61 Misc. 404, 113 N. Y. ville, 20 Ky. L. Rep. 193, 41 L.R.A. 219, Supp. 901; State v. Mott, 61 Md. 297, 48 45 S. W. 510, 46 S. W. 701; Meyer v. Jones, Am. Rep. 105; Chicago v. Ferris Wheel Co. 20 Ky. L. Rep. 1632, 49 S. W. 809; Iler v. 60 Ill. App. 384; Carrollton v. Bazzette, Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. 159 Ill. 284, 31 L.R.A. 522, 42 N. E. 837; St. Rep. 676, 90 N. W. 869; State v. Morris, Ex parte Patterson, 42 Tex. Crim. Rep. 256, 47 La. Ann. 1663, 18 So. 711; Schwartz 51 L.R.A. 654, 58 S. W. 1011; Wiggins v. Bros. Co. v. Board of Health, 83 N. J. L. Chicago, 68 Ill. 372; Chicago v. Hardy, 66 81, 83 Atl. 762; River Rendering Co. v. 111. App. 524; Morton v. Macon, 111 Ga. Behr, 77 Mo. 91, 46 Am. Rep. 6; State 162, 50 L.R.A. 485, 36 S. E. 627; Re Mcv, Payssan, 47 La. Ann. 1029, 49 Am. St. Monies, 75 Neb. 443, 702, 106 N. W. 454, Rep. 390, 17 So. 481.

456. The city of Rochester possesses no char- The ordinance is unconstitutional because ter power to prohibit defendant's acts, and it is in conflict with the Constitution of the to grant to any contractor the exclusive 'state of New York, prohibiting the grantthereof, see notes to Fulton v. Norteman, 9 | animal matter detrimental to health, and L.R.A. (N.S.) 1197, and Whelan v. Daniels, making it "unlawful for any person, firm 48 L.R.A.(N.S.) 979.

or corporation, or any agent or employee All the recent cases in point, including thereof, other than the authorized officers, ROCHESTER V. GUTBERLETT, aflirming 151 agents, and employees of the crematory deApp. Div. 900, 135 N. Y. Supp. 1104, which partment, to haul, carry or convey, through, atlirmed without opinion 73 Nisc. 607, 133 along, or upon any public street, alley or N. Y. Supp. 541, are in accord with the sidewalk within the city, any garbage, ht earlier weight of authority, to the effect that soil, ashes, or any waste or refuse suba city, in the exercise of its police power, stances, except manure;” and that such may regulate the collection and disposal of ordinances were not unconstitutional as garbage and other substances inimical to denying to one previously engaged in haulhealth, and in so doing may, by ordinance or ing garbage and refuse in the city, the right contract, grant an exclusive right or create to engage in a lawful occupation to earn a monopoly for the removal of such sub- a livelihood for himself and his family, but stances. As stated in Smith v. Spokane, 55 were a proper exercise of the police power, Wash. 219, 104 Pac. 249, 19 Ann. Cas. 1220: as tending directly to promote the public “Ordinances conferring the exclusive right health, comfort, and welfare, and did not to collect garbage and refuse substances up- deny to such person any right or privilege on some department of the city government, guaranteed to him by either the Federal or or upon a contractor with the city, have the state Constitution. Ibid. almost universally been sustained."

Likewise, under provisions of a city So, in this case, it was held that a city charter that the city council shall elect, having authority, under its charter and the among other officers and employees, one or general laws of the state, to define and abate more city scavengers, that the city shall nuisances, regulate and prohibit the carry. have power to abate, in any manner it may ing on of occupations which were of such deem expedient, all nuisances which may a nature as to affect the public health, and injure or affect the public health or commake all needful rules and regulations for fort, to do all acts and make all regulations the health, comfort, and well-being of the which may be necessary or expedient for the city and its inhabitants, had power to pass promotion of health or the suppression of ordinances creating a crematory department disease, and to pass all constitutional ordiin the city government, and providing thatnances that may be necessary or proper to such department should collect and dispose carry into effect the powers vested in it,of all manure, garbage, ofľal, refuse, rub- the city has authority to pass and enforce bage, dead animals, or any vegetable or an ordinance creating the office of city scav. ing of a monopoly or an exclusive fran- , 119 Minn. 145, 41 L.R.A. (N.S.) 737, 137 chise.

N. W. 417; Lawton v. Steele, 119 N. Y. Quill v. New York, 36 App. Div. 476, 55 226, 7 L.R.A. 134, 16 Am. St. Rep. 813, N. Y. Supp. 889, 5 Am. Neg. Rep. 423; 23 N. E. 878; Wood, Nuisances, 3d ed. p. Bishop v. New York, 21 Misc. 598, 48 N. Y. 975; West v. New York, 10 Paige, 539; Supp. 141; Missano v. New York, 160 N. Mohawk Bridge Co. v. Utica & S. R. Co. Y. 123, 54 N. E. 744, 6 Am. Neg. Rep. 6 Paige, 554; Marvin Safe Co. v. New York, 652; Syracuse Water Co. v. Syracuse, 116 8 Hlun, 146; Wallack v. Society for RefN. Y. 167, 5 L.R.A. 546, 22 N. E. 381; Fox ormation of Juvenile Delinquents, 67 N. v. Mohawk & H. River Humane Soc. 165 Y. 23; Coykendall v. Hood, 36 App. Div. N. Y, 517, 51 L.R.A. 681, 80 Am. St. Rep. 558, 55 N. Y. Supp. 718. 767, 59 N. E. 353; Hallock v. Dominy, 7 Mr. John M. Stull, with Mr. W. W. Hun, 52; Conover v. Long Branch Commis- Webb, for respondent: sion, 65 N. J. L. 167, 47 Atl. 222; Kussel The provisions of the health ordinance in v. Erie, 8 Pa. Dist. Rep. 105.

question are reasonable, constitutional, and Equity will not interfere where the acts valid. of the defendant do not constitute a nui. Rochester v. West, 164 N. Y. 510, 53 sance in and of themselves, and where the L.R.A. 548, 79 Am. St. Rep. 659, 58 N. E. plaintiff is a municipal corporation which 673; Tenement House Dept. v. Moeschen, has been unsuccessful in an action at law. 179 N. Y. 325, 70 L.R.A. 704, 103 Am. St.

New Rochelle v. Lang, 75 Hun, 608, 27 Rep. 910, 72 N. E. 231, 1 Ann. Cas. 439; N. Y. Supp. 600; Brockport v. Johnston, Gardner v. Michigan, 199 U. S. 325, 50 13 Abb. N. C. 468; Hudson v. Thorne, 7 L. ed. 212, 26 Sup. Ct. Rep. 106; CaliforPaige, 261; Dill. Mun. Corp. 3d ed. SS 409- nia Reduction Co. v. Sanitary Reduction 412; St. Johns v. McFarlan, 33 Mich, 72, Works, 199 U. S. 306, 50 L. ed. 204, 26 20 Am. Rep. 671; High, Inj. § 1248; Wau. Sup. Ct. Rep. 100; Atlantic City v. Abbott, pun v. Moore, 34 Wis. 450, 17 Am. Rep. 73 N. J. L. 281, 62 Atl. 999; Passaic v. 446; Janesville v. Carpenter, 77 Wis. 288, Paterson Bill Posting, Advertising & Sign 8 L.R.A. 808, 20 Am. St. Rep. 123, 46 N. W. Painting Co. 71 N. J. L. 75, 58 Atl. 343; 128; Mt. Vernon v. Seeley, 74 App. Div. Dupont v. District of Columbia, 20 App. 50, 77 N. Y. Supp. 250; Higgins v. Lecroix, 'D. C. 479; Grand Rapids v. DeVries, 123 enger and providing that the scavenger, moval of all garbage, etc., and provided work within the city shall be done exclu- that such person should receive a license for sively by him, and that it shall be un- that purpose, and that no license should be lawful for any other person or corporation issued to any other person, firm, or corto do such work, etc.; and such an ordi- poration for the gathering of such garbage, nance is a valid exercise of the city's police and that no person, firm, or corporation, power, and is not unreasonable or oppressive excepting the city, should collect or convey in that it prohibits any other person save through the streets of the city any garbage, the city scavenger from doing the work in etc., or any other unsanitary matter, withquestion. Ex parte Howell, Tex. Crim. out having first received a license therefor, Rep. —, 158 S. W, 535.

-the court said: “The right of a city, in And under the provisions of a city charter the reasonable exercise its police power, that the city council shall have power to to enact an ordinance covering the collection take such lawful measures as they may deem and disposal of garbage, is not, as we undereffectual to prevent the entrance of any stand it, questioned by counsel for appellant pestilential, contagious, or infectious dis- [who contended that a court of equity was ease into the city, and to adopt any sani. without jurisdiction to entertain the bill]. tary measures whereby the health of the city Indeed, in view of the decisions of this and may be protected and improved, the city has other courts, such right could not well be power to pass an ordinance creating a questioned.” garbage department and the office of super- And under a charter giving a city the intendent thereof, and prohibiting any other right to exercise within its limits the full person engaging in the business of carting police power of the state, the city has the trash, slops, and night soil for others; and power to pass an ordinance providing that such an ordinarce is neither unreasonable no person except its employees engaged in nor violative of a constitutional provision public work, or persons under contract with against monopolies. Ex parte London, it engaged in public work, shall convey any Tex. Crim. Rep. – 163 S. W. 968.

garbage, house offal, or other refuse, animal In Board of Health v. Vink, · Mich. or vegetable matter, through any street or 151 N. W. 672, a suit by the board of health public way of the city without having first of a city to enjoin the defendant from en- obtained a permit so to do; and that the gaging in the business of a scavenger in the commissioner of health may revoke the percity and removing garbage therefrom, in mit at any time when, in his judgment, the violation of an ordinance which authorized public health will suffer by the continuance the board of health to contract with a thereof. Schultz v. State, 112 Md. 211, 76 suitable person for the collection and re- Atl. 592.

A. C. W.

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