Year: 1868

Waiver.


The South Fork Company ct al, appellants, Us. |
George Gord0n.-Mr. Justice swayne delivered the
opinion of the court. This is an appeal from the
decree OF the Circuit Court OF the United States
for the Northern district Of California. Gordon
was the complainant and the appellants were
the defendants In that court The record is
very v0lumlnous, but the questions presented for
our determination are few in number, and
their proper solution is we think, attended with
no serious difficulty. We shall conine our opinion
to the objections to the decree taken in the argu.
ment for the appellants According to the rule OF
this court the appellee can ask nothing here but
what the decree gave him. 1t 10 the appellants VINO
complain. The questions which we are to examine
are such they present for our consideration The
position OF an appellee in this court is simply defen-
sve 1t is only where both parties appeal that case
is open here for examination as 1t was ID the court
below. The bill was fled to enforce particular lien
given by statute OF California. The Jurisdiction OF
the rested upon this basis and could extend no
further. The case was referred to a master. He re-


ported that the defendant was indebted to the COM


planant IN the sum OF $766S9 49, with interest from
the 18th OF June 1853 for work done upon the canal


OF the defendant, pursuant to the contract out OF
which this litigation has arisen; and in the further
liminary work." without which, he states, the con-


tract could not have been fulfilled The latter work
other roads, an inclined plane timber slides and
other apparatus. The particulars are given IN


Sa annexed 1ns 10 ne report e M res T
amounting IN the aggregate to $4,000. According to
the rules Of the Circuit COURT, the parties were al


lowed certain tine within which to file exceptions,
and failing 20 10 20, the amounts found by the master
were TO be taken as conclusive No exceptions were
amount found for the preliminary work, holding 1t
not 20 be aen. The amour. Of the credits was de-
Quoted from the amount .ound to be due for the
work done upon the canal and decree was rendered
for the ba.anse with interest The finding of the
master is as conclusive here az 1t was In the court
n
subject % not denied that the amount is correct
If the complainant had not forfeited his right TO any
legged to have been committed by Gordon and Kinyon.
This part Of the case has been argued very fully by
into the evidence. The result s that we entirely
satisfied with the report, and In this respect with
Wholly VIII % with the company Gordon and Kinyon ad
hered to the contract, and pursued the work longer
than they were bound to do: When they retired they
were fully justified. and had clear equity to be paid


fair compensation for the work they had performed.
The release, given by Kinyon to the company
dence fixes upon it, and sets In the strongest light,
this character. 1t would be waste OF time to dis
cuss the subject. Our minds rest upon the conclu
doubt. Yet the release Is not without effect. 1t
severed the connection OF Kinyon with the contract


wise have had to be heard In this litigation He
have no interest in the result whatever may be.
Complete justice can be done between the parties
before US and the whole case disposed Of without
lis presence in the record He 49, therefore, not





deny this proposition. His relation to the case is
not unlike that of an Obligee in title bond to suit
whom the obgee has parted with all his interest in
the bond. In that class OF cases 1t is held not to be
indispensable that the assignee should be party.
The court below held that Gordon had lien upon the
entire length OF the canal or fume, extending from
the grand reservoir near Placerville, to the south
| fork OF the American river, distance
Of about twenty-five miles. When the contract with
Gordon and Kinyon was entered into the hume was
completed from the reservoir to Long Canon, dis
tance Of eleven and two-thirds miles. Water flowing
through 1t was used by means OF several outlets for


e fork Contract ea with oren and
Kinyon was for the extension OF the canal by the
construction Of sections "iESm section seventeen to
where the existing canal ended and reached to the


south fork Of the American river The object was to
thus to increase the supply of water in the canal.


The two parts OF Ae w4rEntne one , % extending from
the south fork-were known respectively the


lower and the upper section. The two sections were
shown, at different times. The former COM
pleted and In use before the latter was begun. In
o nss
and ownership. The lien laws Of California provide
that all contractors laborers and other persons fur


nshng materials for or employed in the construction
Of any bridge, ditch, fume or aqueduct shall have


lien upon the structure" which they may have con.
structed or repaired, or for which xthey may have
furnished materials OF any description, ito the
tent Of the labor done and materials furnished, or
bind the structure for longer period than one year
after the work done or materials furnished unless
suit be brought to eniorce the lien within that time.
Several objections have been taken to the decree
touching the lien 1t Is not denied that 1t became fixed
by a regular compliance with the preliminary statu
tory condons but the appellants insist that 1t was
extinguished by the release given to them by Kin
yon. 1t would be a mockery OF justice TO allow an
instrument so stained with turpitude to have such


effect. The subject has already been sufficiently
considered. II Is said the lien was waived by the


ssat suit 's esn obTonsy % have no es
upon the rights OF the parties in this litigation


1t is insisted that this suit was pot brought in time
| to feed and preserve the lien. The evidence shows


that the work continued by the contractors down


to the 18th day of June 1852 inclusive. The bill


filed the 18th day of June, 1854 That was within


the time prescribed by the statute. It Is urged that


the decree is erroneous in holding that the lien ex-


ing 1t to the upper section, where all the work was
done. is this objection well takenS Liens OF this


jurisprudence both Of England and Of this country.
They were clearly defined and regulaed'in the civil


aw. Dourat sec. l,142, l,I44l Where they exist in


this country they the creatures of local egisla-
| ton. They are governed in everything by the sta
| tues under which they arise. These statutes vary
| adjudication in any other state which throws any
| light upon the question before us and there
| has been none IN California. We are, there
| fore, compelled to meet the case as one OF
| the first impression. We have already shown that


the upper and lower sections were distinct works IN
| again advert The lower one having been finished


and in before the upper one was contracted FOR,


If those having lien upon the former had insisted
| that 1t became extended over the latter soon


the latter was completed, no legal mind, we appre.
| hend, could have doubted that the claim could not
| be sustained II II could Gordon's line might have
| been rendered valueless We think the converse OF
| this proposition applies with equal force. If "a lien


upon the lower SECTION could not have been extended
| over the upper one, upon what principle can 1t be
| maintained that Gordons line embraced the lower
| sectonY lateral feeder constructed and intersect


ing the main line after IL was completed, would GER


tany not be subject to previous lien upon the main


lien II such lien existed We can see no substantial


difference between that case and the one before us.


The upper section was only an additional FEEDER That


1t elongation OF the main line, and not lateral


work. affect the principle involved. The control


ling circumstances and the object In both cases would
| be the some. We think the language OF the statute,


rightly interpreted IL decisive. The lien Is given TO
| contractors and laborers upon the ditch or hume,


(which they may have constructed or repaired, =
| ito the extend OF the labor done ana
| materials furnishedr The work of Gordon was all
| done upon the upper section He had nothing TO do


with the lower section. SO far as he was concerned,