dissenting.
I am unable to concur in the views of the majority of the court, and will briefly state the reasons for my dissent.
This action was brought by the plaintiff against the defendant in the district court of Lancaster county to enforce an alleged lien against said defendant. The facts upon which the lien is claimed to exist are as follows: One Marcus Kavanaugh was a subcontractor in the construction of the Missouri Pacific Railroad in Lancaster county, and purchased from the plaintiff building material to the amount of $296.19, to be used by said Kavanaugh in the construction of shanties for the persons engaged by him upon said subcontract, and also for the construction of stables for the teams used by said persons in grading said road. The shanties were not erected on the right of way, and had no connection whatever with the railroad.
A claim for a lien against the railway was duly filed in the office of the county clerk, and the necessary steps taken to perfect said lien, if such is given by the statute. On the trial of the cause in the court below judgment was rendered in favor of the defendant.
Section 2, chap. 54, art. 2, of Compiled Statutes of 1887, provides that, “When material shall have been furnished, or labor performed in the construction, repair and equipment of any railroad, canal, bridge, viaduct, or other similar improvement, such labor [laborer] and material man, contractor or subcontractor, shall- have a lien therefor, and the said lien therefor shall extend and attach to the erec*53tions, excavations, embankments, bridges, road-bed, and all land upon which the same may be situated, including the rolling stock thereto appertaining and belonging, all of which, including the right of way, shall constitute the excavation, erection, or improvement provided for and mentioned in this act.”
It will be observed that the lien is given for material which “ shall have been furnished or labor performed in the'construction, repair and equipment of any railroad,” etc.
Do these words include lumber for the shanties and stables of contractors or subcontractors which is purchased for themselves and remains their own property? I think not. In no sense is such material used in the construction, repair or equipment of the road. If so, then the railway company might be subject to a lien for food and clothing furnished the employees of the contractors and subcontractors, and it would be difficult to determine where its liability would cease. The evident intention of the legislature was to limit the lien to such material or labor as was used in the “construction, repair, and equipment” of the railway, and the law does not apply to cases of this kind. The judgment of the district court is clearly right, and should be affirmed.