city, at the expense of the adjacent property. It is conceded upon the part of the appellants that the street was so improved, but is denied that it was a full improvement,-is claimed that it was but a partial improvement, and that it was therefore subject to be again improved. It appears from the pleadings and statements of counsel. that on the eighth day of April, 1871, the city council passed an ordinance providing for the improvement of a part of said street, including that portion of it adjacent to and abutting upon the lots in question; that the improvement between Fourth and Fifth streets, as provided in said ordinance, consisted of grading the street to the established grade, and the laying of a plank roadway 16 feet wide and sidewalks and cross-walks and gutter; that the street is 60 feet wide, and the improvement as to the planking only extended over half the roadway; that it left on each side of the planking, and between it and the sidewalk, a space of eight feet, which was graded, but not planked. Upon this state of facts the court is called upon to determine whether the former improvement was a complete or partial one. But I do not understand that the question is of any impor tance whatever, in view of the provisions of other parts of the charter. Section 28 of article 6 of the charter authorizes the council to repair any street, or part thereof, whenever it deems expedient, and to declare by ordinance, before doing the same, whether the cost thereof shall be assessed upon the adjacent property, or paid out of the general fund of the city; and section 29, same article, provides that if the council declare that a proposed repair shall be made at the expense of the adjacent property thereafter, the proposed repair is to be deemed an improvement, and shall be made accordingly; but if the council declare that the cost of the same shall be paid out of the general fund, the repair may be made as the ordinance may provide, and be paid accordingly; and that whenever it becomes necessary to replace or rebuild any elevated roadway it shall be deemed an improvement. A part of these various provisions were in the original charter, and the other part has got in the charter by amendments. The result is the improvement of streets and repair of streets have become confounded. If the expense of the repair is to be charged upon the adjacent property, it is an improvement; the distinction, therefore, in such cases is only in name. The proceeding out of which this controversy has arisen may be termed either an "improvement" or "repair;" the test seems to be whether the expense is to be charged upon the adjacent lots. If the council should term an "improvement" a "repair," it would be immaterial, and I do not see why the work undertaken in regard to the improvement of L street, as shown in this case, could not have been termed a "repair" as well as an "improvement." When the council declared that it should be made at the cost of the adjacent property, it was then deemed an "improvement," and had to be made accordingly. Section 29, supra.

There are some other questions regarding the legality of the improvement in question, but they are not of a very serious character, nor is it necessary to determine them in this case.

The strong point in the defense made by the appellants' attorney is the delay upon the part of the respondents to commence the suit to enjoin the collection of the tax. That question addresses itself with great force to the equity side of the court. It is a fundamental principle of equity that a party who encourages an improvement of the character of the one in question to be made, and from which he derives a benefit, shall not be allowed thereafter to question its legality; that it will not afford him any remedy, under such circumstances. That doctrine is maintained by numerous authorities, but they all proceed upon the ground of an equitable estoppel. None of them go far enough to defeat the remedy of a party to have proceedings enjoined in such case upon the mere ground that the improvement has been beneficial to his property. They apply to cases where the party has, by some act, consented to the improvement resulting in the assessment. We cannot say in this case that the respondent gave her consent to the proceedings. She opposed them when she ascertained that a full improvement of the street was intended; and her failure to adopt some other remedy to avoid the enforcement of the assessment is not sufficient of itself to deprive her of the remedy invoked in the suit. I am conscious of the hardship imposed upon the tax-payers of a city in allowing parties to escape the payment of the part which they should in justice contribute, upon technical grounds, when they have received the benefit, but that can only be remedied by legislative provision. The courts are powerless to afford a remedy in such a case unless it comes within some acknowledged principle of jurisdiction. The decree appealed from must therefore be affirmed.

WALDO, C. J., concurs in the result; LORD, J., expresses no opinion.

(13 Or. 283)

PORTLAND LUMBERING & MANUF'G Co. v. SCHOOL-DISTRICT No. 1 of

MULTNOMAH Co.

Filed March 22, 1886.

MECHANIC'S LIEN-PUBLIC PROPERTY EXEMPT.

On the ground of public policy, a mechanic's lien will not attach to a public building unless it appears by the law that such property was intended to be included in property subject to the operation of the lien law.1

D. Goodsell, for appellant.

H. H. Northup, for respondent.

LORD, J. This is a suit to foreclose a mechanic's lien, alleged to exist against the property of the defendant. A demurrer to the complaint was interposed, upon the ground that the facts stated were not sufficient to constitute a cause of suit. The court below sustained the demurrer, dismissed the complaint, and a decree was entered in accordance therewith, from which the plaintiff has appealed to this court. The point involved in this case, viz., that the mechanic's lien law is general, applying to all buildings alike, was considered by this court at its last term in the case of Portland Lumbering & Manuf'g Co. v. City of Portland, and determined adversely to the position of the plaintiff. The mode provided for the enforcement of a mechanic's lien is the sale, under execution, of the property against which the lien is asserted. But it is provided by another statute that all property owned by the state, or any county, incorporated city, town, or village therein, or of another public or municipal corporation of like character, shall be exempt from sale under execution. Here, then, there is a conflict, and it is clear that both of these laws cannot be enforced. What is the rule of law applicable to such a case ? Mr. Philipps states it thus:

"Property which is exempt from execution, upon the grounds of public necessity, must for the same reason be equally exempt from the operation of the mechanic's lien law, unless it appears by the law itself that property of this description was meant to be included; and to warrant this inference something more must appear than the ordinary provisions that the claim is to be a lien against a particular class of property, enforceable as judgments rendered in other civil actions. Phil. Mech. Liens, § 179.

To avoid the force of this objection it was contended that the language of the mechanic's lien law, in the use of the words "any building," was broad enough, and was intended to include this description of property. In Board, etc., v. O'Conner, 86 Ind. 536, the particular objection here urged was thus answered by the court:

"It is true that the statute of this state provides in terms for the acquisition and enforcement of a mechanic's lien upon and against any building;' but, broad and comprehensive as are the provisions of the statute, it must be construed in such manner as will not contravene settled principles of public policy."

1 See note at end of case.

Or.] PORTLAND LUMBERING & MANUF'G CO. v. SCHOOL-DISTRICT NO. 1. 351

Upon this ground, a building which otherwise would be subject to a lien may be exempt, unless the statute, by express terms or necessary implication, includes such property.

In Leonard v. City of Brooklyn, 71 N. Y. 498, it was held by the court of appeals that, in the absence of an express statutory provision authorizing it, a mechanic's lien cannot be enforced against the real estate of a municipal corporation held for public use. court said:

The

"If judgment in other actions cannot be enforced by the sale of public property, for the reason that public exigencies require that such property should be exempt from seizure and sale, certainly a judgment obtained under the lien law, which is the mere foreclosure of the notice which had been previously served and filed for work done for the benefit of the city, should stand in no better position. The act in question confers no special advantages, nor does it give a preference to a lien in any such case, and nothing is to be intended in favor of an enactment which interferes with a well-established principle, and changes a rule which has long been settled. To make such a material alteration, the law should be plain, explicit, and clear, and there is no ground for holding that it was the intention of the law-makers to confer upon a certain class of creditors the right to a lien upon property held for public use by a municipal government, unless there is an express provision to that effect. The statute does not include such a case, either in terms or by necessary implication." Darlington v. Mayor, etc., 31 N. Y. 164; City of Chicago v. Hasley, 25 Ill. 595; Foster v. Fowler, 60 Pa. St. 27; Loring v. Small, 50 Iowa, 271; Bouton v. McDonough Co., 84 Ill. 384; Wilson v. Huntingdon Co., 7 Watts & S. 197; Ripley v. Gage Co., 3 Neb, 397; Pike Co. v. Norrington, 82 Ind. 190; Lowe v. Board, etc., 94 Ind. 553; Dunn v. North Missouri R. Co., 24 Mo. 493; McPheeters v. Merimac Bridge Co., 28 Mo. 465; Poillon v. Mayor of New York, 47 N. Y. 666.

To apply as a test the principle declared by these authorities to our mechanic's lien law, and the conclusion which we must reach has been thus expressed by Houck, J.:

"In the mechanic's lien law of this state, there is no provision to the effect that such a lien may be acquired or enforced upon or against public property held for public use; and, in the absence of such a provision, we must hold, in conformity with the weight of authority elsewhere, that such a lien can neither be acquired nor enforced upon or against such property held for such use." Board, etc., v. O'Conner, supra.

This brings the case under consideration within the principle of the case decided at the last term, in which it was held, on the ground of public policy, that a mechanic's lien will not attach to a public building unless it appears by the law that such property was intended to be included. Nor are authorities wanting to show, under statutes of similar import, that this principle has been directly applied to school buildings erected for public school purposes. Mr. Philipps says: "Under an ordinary statute, a lien cannot be acquired for work done or material furnished towards the erection of a public school-house, erected in accordance with public law." Phil. Mech. Liens, § 179; citing Brinckerhoff v. Board of Education, 37 How. Pr. 520; Williams v. Controllers, etc., 18 Pa. St. 275. And to these

may be added the further later authorities: Board of Education v. Neidenberger, 78 Ill. 58; Thomas v. Board of Education, 71 Ill. 283; Quinn v. Allen, 85 Ill. 39; Charnock v. Colfax Tp., 51 Iowa, 70; Falout v. School Com'rs, 1 N. E. Rep. 389.

In support of the position that a lien can be enforced against such a building, the counsel for the plaintiff has cited two authorities: Morse v. School-district No. 7 Newbery, 3 Allen, 307, and Shattell v. Woodward, 17 Ind. 225. In reply to this it is sufficient to say that in the state in which the first case was decided there was no statute exempting such property from execution, (Gaskill v. Dudley, 6 Metc. 546;) and in the last, it has been overruled by a later authority already cited. From these views it follows that there was no error, and the decree must be affirmed.

NOTE.

In Wilkinson v. Hoffman, (Wis.) 21 N. W. Rep. 816, it was held that Rev. St. Wis. 1878,3314, authorizing a mechanic's lien, did not extend to a building, or machinery placed in a building, constituting a part of the water-works of a city; and COLE, C. J., in delivering the opinion of the court, says: "It has never been understood that the statutes giving a mechanic's lien extended to or could be enforced against the building and real estate of a municipal corporation held for public use. The considerations founded on grounds of public policy and regard for the objects of municipal government forbid that this clause [Rev. St. 2 3314] should be held to apply to machinery placed in a building constituting a part of the city water-works as strongly as to exempt the building itself. The public inconvenience which would result from having such machinery removed is too obvious and grave to require any discussion. The comfort, health, safety, and property of the citizens would be greatly endangered by allowing the facilities for procuring water to be suspended, even for a short period. In view of the serious consequences which would result by allowing the lien to machinery thus used, and which more than countervail any private advantage, we are inclined to hold that the provision does not apply in the case before us. True, the city has paid into court the price of the boilers; but suppose it had not done so, if the lien is given, they might be removed. Consequently, on grounds of public necessity and convenience, we must hold that the lien did not attach. The case stands upon the same ground as where material is furnished for a county court-house, jail, public school building, or other public buildings, which are held to be exempt from the operation of mechanic's lien laws." A mechanic is not entitled to a lien upon a county court-house, for work done thereon, or material furnished therefor. Whiting v. Story Co., (Iowa,) 6 N. W. Rep. 137.

In Board, etc., Parke Co. v. O'Conner, 86 Ind. 531, it is said, overruling Shattell v. Woodward, 17 Ind. 225, that there is no provision in the mechanic's lien law of Indiana "to the effect that such a lien may be acquired or enforced upon or against public property held for public use; and in the absence of such a provision it must be held, in conformity with the weight of decision elsewhere, that such a lien can neither be acquired nor enforced upon or against such property held for public use." See, also, Board, etc., Pike Co. v. Norrington, 82 Ind. 190; Lowe v. Board, etc., Howard Co., 94 Ind. 553; and Falout v. Board of School Com'rs, (Ind.) 1 N. E. Rep. 389.

The principle laid down in the above cases is in accord with the law as decided in Pennsylvania, Foster v. Fowler, 60 Pa. St. 27; Wilson v. Commissioners, 7 Watts & S. 197; Williams v. Controllers, etc., 18 Pa. St. 275; New York, Brinckerhoff v. Board of Education, 37 How. Pr. 520; Poillon v. Mayor of New York, 47 N. Y. 666; Leonard v. City of Brooklyn, 71 N. Y. 498; Iowa, Charnock v. Colfax Tp., 51 Iowa, 70; Loring v. Small, 50 Iowa, 271; Lewis v. Chickasaw Co., Id. 235; Illinois, Board of Education v. Neidenberger, 78 111. 58; Bouton v. McDonough Co., 84 Ill. 396; and Missouri, State v. Tiedermann, 10 Fed. Rep. 20. See, also, Frank v. Chosen Freeholders, 39 N. J. Law, 347.