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VANE V. NEWCOMBE, 132 U. S. 220 (1889)

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U.S. Supreme Court

Vane v. Newcombe, 132 U.S. 220 (1889)

Vane v. Newcombe

No. 69

Argued and submitted November 6, 1889

Decided November 25, 1889

132 U.S. 220


In Indiana, a person who contracts with a telegraph corporation to do the specified work of putting up certain lines of wire on poles is not an "employee" of the corporation within the meaning of the Act of the Legislature of Indiana, approved March 13, 1877, Laws of Indiana 1877, Special Session, 27, c. 8; also, Rev.Stats. Indiana, §§ 5286-5291, giving a first and prior lien on the corporate property and earnings of a corporation to its employees for all work and labor done and performed by them for the corporation from the date of their employment by the corporation.

Such a lien is not given to him by virtue of the Mechanics' Lien Act of Indiana, of March 6, 1883, Laws of 1883. 140; Elliott's Supplement of 1889, §§ 1688 and 1690, unless he complies with that act in regard to describing, in his notice of lien, the lot or land on which the structure stands on which he claims a lien.

By perfecting a claim to his lien under the act of 1877, he waived the right, if any, which he had to a common law lien as to the personal property and earnings of the corporation.

The poles and wires were real estate on which he could have no lien at common law.

Moreover, he gave up any right he had to a common law lien as to the wires by giving up possession of them.

On the filing of a bill in equity in October, 1884, in the Circuit Court of the United States for the District of Indiana by the Bankers' & Merchants' Telegraph Company of Indiana, an Indiana corporation, against the Bankers" & Merchants" Telegraph Company of New York, a New York corporation, praying for an accounting between the defendant and the plaintiff as to moneys due by the former to the latter, and for a determination of the relative rights of the parties to certain telegraph lines and property in Indiana, and for the appointment of receivers pendente lite to take possession of the lines and property, an order was made by the court appointing Richard S. Newcombe and James G. Smith receivers of all the lines and property of the plaintiff and the defendant, or either of them, situated within the jurisdiction of the court. chanroblesvirtualawlibrary

Page 132 U. S. 221

The same persons had been appointed receivers of the defendant in a suit brought by one Day in the Supreme Court of the State of New York.

In March, 1885, James E. Vane filed in the suit in the circuit court an intervening petition. It set forth that in June, 1884, the defendant had employed Vane to put six additional wires on and along the telegraph poles then owned by the defendant, from Freeport, Ohio, to Hammond, Indiana, and to attach such wires to the proper fixtures and appendages to the poles so that the company might have six additional independent wires between those places, and agreed with Vane to pay him, as compensation for the work, $45 for every mile of wire put and strung upon the poles, the defendant agreeing to furnish all of the wire and other necessary material, which were to be delivered at the nearest distributive point along the route of the line, and to pay all freight for their shipment to the various points along the route, and to deliver them to Vane free of any charge at such points. The petition further alleged that in June, 1884, the defendant directed Vane to construct two lines westwardly from Hammond in the direction of Chicago, Illinois; that he proceeded to erect and construct such two lines to a point about ten miles east of the courthouse in Chicago; that the defendant had failed to pay the freights on the wire and materials; that Vane, at its request, had furnished money to pay such freights, and also money to purchase necessary materials used in making the line; that the defendant had committed other breaches of its agreement with Vane, and in consequence owed him a large sum of money; that he had executed the work in all things as directed by the defendant; that when he had completed the six lines to Lake Station, in Lake County, Indiana, the defendant owed him about $16,000; that he then disconnected the six wires from their westerly connections, and held physical possession of them for his own protection; that while he so held them in their disconnected condition, the receivers, Newcombe and Smith, entered into the following agreement with him in consideration that he would allow the lines to be connected with other lines running westerly into Chicago: chanroblesvirtualawlibrary

Page 132 U. S. 222

"Chicago, Ill., Nov. 19th, 1884"

"It is hereby agreed and understood that the telegraph wires on the poles of the Bankers' & Merchants' Telegraph Company in the State of Indiana, which were strung by J. E. Vane, and upon which he claims a lien, shall be connected up with the wires of the said company from Hammond, Indiana, to Chicago, Illinois, now constructed and to be constructed, and shall be used for telegraph business by the receivers of said company, but it is also expressly understood that such use of said wires shall not be construed in any way or to any extent as impairing or interfering with the lien of the said Vane thereon."


"JAS. G. SMITH, Receivers"

that in September, 1884, he caused notice to be given to the defendant of his intention to hold a lien upon its corporate property and earnings, for all work and labor done and performed and all moneys advanced by him to and for its benefit at its instance and request, and for that purpose filed notices, on the 18th and 19th of September, 1884, in the offices of the recorders of seven counties in Indiana through which the telegraph line runs, the notices being dated September 15, 1884; that the receivers also owed him $1,898.33 for work which he did for them after their appointment, in connecting said wires at Lake Station and Hammond with their westward connections, under which employment he erected and completed the wires to a distance of about four miles from the courthouse in Chicago, such indebtedness including also the purchase by him of a large amount of materials and the payment of freight bills and the doing of other work, and that the receivers also owed him other moneys, which he had paid for the wages and expenses of men who performed work for the receivers in respect of the telegraph line between December, 1884, and February, 1885. The petition prayed for the payment of the claim of Vane out of the first moneys coming into the hands of the receivers, as a superior lien to all claims except those of a like class. chanroblesvirtualawlibrary

Page 132 U. S. 223

The lien covered by the notices purported to be claimed under the Act of the Legislature of Indiana approved March 13, 1877. Laws of Indiana, 1877, Special Session, c. 8, 27; also Rev.Stat. Ind. 1881, §§ 5286-5291.

Sections 1 and 2 of the Act of 1877, being sections 5286 and 5287 of the Revised Statutes, provide as follows:

"SEC 1. Be it enacted by the General Assembly of the State of Indiana that the employees of any corporation doing business in this state, whether organized under the laws of this state or otherwise, shall be, and they are hereby, entitled to have and to hold a first and prior lien upon the corporate property of any corporation, and the earnings thereof, for all work and labor done and per