St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1892-07-16
JUDGES DISAGREE
In Regard to the Interpretation
of the Lien Law.

of the Lien Law.
The supreme court yesterday handed
down decision in what is perilops the
most complicated of the several me-
chanics' lien cases that have come up
before that body. The decision was
written by Judge Dickinson, and. in al
dilion to the syllabus, the opinion coy
ers nearly ten pages Of typewriter
matter. Judge Mitchell files a dis
senting opinion in connection with
existing between the Judges arises d.
recty from the construction placed
upon sections and Of the mechanics
lien law. and consequently may be con-
Strued into being a dispute upon the
decision made in the rase as the decision
is arrived at through the Interpretation
of the two sections mentioned. Follow
ing Is the case and the syllibuS handed
down with it:
George A. Wheaton and Clinton E. Rey-
noids, partners as Whea on, Reynolds Il
Co., respondents,.ys. Sven Berg ct al. de-
fendents: Christian B. Nilsson. appellant
Order reversed on motion as to respond
ents, Mae and Pineville Lumber Company
affirmed as to the other respondents with
inodifica ton, making the sale in their be-
half absolute and not contingent upon any
Clner sale DICKINSON, j.
Order appealed from reversed on mo-
ton as to certain respondents, they not
appearing in opposition thereto. An
agreement for the sale of building ma.
Z teriai made prior to the 1st of October,
1889, Out which was within; the statute
of frauds because not i'm writing.
was. performed by the delivery
of the material subsequent to that
date. Held that the lien law of
1889 which went into, effect on that date
was applicable. In AIN action to enforce
mechanics liens the bringing in of a
proper party at the time of the trial held
not erroneous, no prejudice being
shown. A land, owner (appelIanD en-
tered into an executory contract for the
sale OF the property, which was
afterwards forfeited for the de-
t taalt ns OF the The purchaser ser In
into possession and erected a house on
the iaud, the respondents furnishing to
him materials anu labor therefor, on &C
count OF which they seek to subject the
estate of the land owner to liens. The
contract for the sale of the land made
no provision for the construction of
buildings except Tin Substance) that all
Improvements which might be made
should become the property Of the
vendor. Held that this added nothing
to the legal effect of the contract and
did not bring the case within section
of the lien law.
Section 5 of the lien law held applica-
BILE to such executory contracts. Mitch
ell. j., dissenting.
The provision in section 5 subjeeting
the; estate of land owner to liens for
improvements made by others with his
knowledge, unless he shall give the no.
tIce OF his want of consent as therein
prescribed, construed as creating rule
OF prima faeie evidence. and as casting
upon the land owner the burden of ex-
cusing his default to comply with the
law.
. Judge Mitchell's dissenting opinion is
annexed, and reads as follows:
II think that section 4 of the lien law was
Intended to cover all the cases where the in
terest of the vendor ON an executory contract
Of sale should be liable for buildings erected
peculiar language used, the last clause of
section was intended to. exclude from the
provisions of that section all vendors upon
executory contracts of sale, and not merely
or provided for the erection of buildings
by the yendee. This construction
is in harmony with general policy
of the section as indicated by the exception
of mortgages and lessons from the operation
of its provisions. 1t is also the only con-
struction that will lead to any reasonable
result, for there is no conceivable reason
why vendors whose contracts are Contingent
upon or provide for the erection of buildings
by the yendees should be exempted from the
provisions of section and other vendors
not, thus placing the former in SO much
more advantageous position than the latter.
If there is to be any discrimination between
them there is every reason why it should
be just the other way. While this
construction may require taking some
liberties with the literal language of the stat
ft,fv II fc iccrh 10
avoid an unreasonable and almost absurd re-
suit and to arrive at what think was evil
IDENTITY the legislative INTENT however imper-
feet expressed. Without expressing any
opinion as to the correctness i'll other re-
spects Of the construction placed by the
/ court on section 5, on. the ground above in
dicated must dissent
Street Grades.
Edward Vanish, appellant VS.. City of St
Paul, respondent. Order affirmed.
DICKINSON, J.
A city council, having general author
ity to establish the grades of streets,
may. under peculiar circumstances, fix
the grade for one side of street on a
materially different level or plane from
that of the other side; and if this rem
der it incidentally necessary to con-
struct retaining wall along the center
of the street to support the earth on the
higher grade that may be done. Such
an exercise of public rights is not an in
fringement of the rights of an adjacent
proprietor whose property may be in;
jured thereby.
A Preferential Payment.
Alexander M. Clerihew, assignee, etc., re-
spondent. VS.. The West Side Bank, appel
liant. Order reversed. DICKINSON. }.
In an action by the assignee of an in
solvent debtor against creditor to re-