I dissent. Section 1191 of the Code of Civil Procedure is a part of the chapter of that code relating to mechanics' liens. The provisions conferring a lien upon a lot for work done in connection therewith in the adjoining street were first incorporated into this section by the amendment made in 1885. There is much ground for the contention that there was no intention by this amendment to give a lien upon the lot for any work except for private improvements made for the benefit of the particular lot. It is a great stretch of construction to hold it applicable to public improvements such as a public sewer composing part of a general system for the town or city. But for the purposes of this case it may be conceded that in a proper case, where the owner of a lot requests the construction of a public sewer in the street abutting upon the lot, the lot would, under this section, be subject to a lien for its proportional part, according to frontage, of the total cost of the sewer constructed at the owner's request. If by the complaint in this action it had been made to appear either that all of the owners of lots fronting upon the proposed system of public sewers had joined in the contract employing the plaintiffs to construct *Page 264 the sewer, each agreeing to pay his proportion of the cost of the entire work, or that the defendant and the other property-owners who did join in the contract had each agreed to pay only that portion of the entire cost of the system which would be properly chargeable to his particular lot upon an apportionment of the total cost according to frontage, then it would follow, under this construction of the section, that each lot would be subject to a lien for such proportional amount of the cost. But that is not this case. It is alleged that the defendant and other property-owners employed the plaintiffs to construct the sewer according to the plans and specifications adopted by the town trustees, and to the satisfaction of the town engineer and board of supervisors, but it does not appear that the property-owners thus employing the plaintiffs comprised all the owners of lots abutting upon the proposed system of sewers. It further appears that each agreed to pay for the construction of the proposed system a sum equal to forty-five cents per front foot upon his particular frontage, but it is not alleged that this sum was the proportional part of the entire cost which would be chargeable to the particular lot if an apportionment were made according to frontage.
There can be no presumption that such was the case. It must be conceded that if these facts are necessary to give the plaintiffs a lien for the amount they claim, it was incumbent upon them to show them by proper allegations in the complaint. The result is, that, so far as appears from the case made by the complaint, the lien is imposed upon the lot of the defendant for a portion of the total cost of the system of sewers, which bears no relation whatever to the cost of the portion of the sewer in front of the lot, or to its proportional part of the entire cost estimated according to frontage. The mere fact that the contract provided for a certain amount per front foot is of no consequence to the proposition. The sum agreed to be paid by each was entirely arbitrary, and, so far as it has any bearing upon the merits of the question, it could as well have been determined by any other method or by stating the exact sum which each agreed to pay, without regard either to frontage or to the total cost In any system of sewers for a town there would usually be numerous branch sewers entering into the main sewer at different points along *Page 265 the line and intended to serve the purpose of drainage for lots fronting upon the side streets. It does not appear from this complaint whether the defendant's lot abutted upon the street in which the main sewer was laid or upon some side street upon which only a branch was laid. But in either case branch sewers which did not abut upon this lot would be of no benefit whatever to the lot. As there is nothing to show that such was not the case, and as under ordinary circumstances there would be such branch sewers, it must be presumed in this case that such were in existence. A lien is therefore charged against the defendant's lot for a sum, of which a part at least is for that part of the sewer made for the benefit of other lots, and for the city in general. The effect of the decision is, that in a case where a few lotowners contract for the construction of a public sewer or system of sewers for the town, and agree to pay some part of the contract price, there will be a lien imposed by this section, in favor of the contractor, upon the lots owned by each contracting owner, for the amount which he has agreed to pay upon the contract price, regardless of whether such amount is or is not the ratable proportion of the total cost chargeable to his lots, and regardless of whether it really goes in part to pay for portions of the sewer beneficial solely to other lots than his own. It would thus practically impose upon his lot a mortgage for a benefit conferred upon another. In my opinion, section 1191 was not intended to have such effect.
In so far as the majority opinion assumes that the amount each owner agreed to pay in this case was his ratable share of the whole expense, apportioned by frontage, it is without support from the facts alleged.
Angellotti, J., concurred. *Page 266