Appeal of the Gibbs & Sterrett Manufacturing Co.

Mr. Justice Sterrett delivered the opinion of the court, October 2d 1882. The conclusions of the learned auditor in this case were correct, and the fund should have been decreed, in accordance therewith, to the appellants on whose execution it was raised. Prima faeie they were entitled to the money, and the appellees who claimed it as preferred lien creditors, under the Act of April 9th 1872, failed to bring themselves within the provisions of the act. The facts found by the auditor are briefly these. In the fall of 1881, before any of the labor embraced in the respective claims was performed, Lewis, the defendant in the execution, contracted with Smith to drill eight oil wells, on land owned in fee by the latter. Smith agreed to construct the necessary carpenter rigs, furnish all the machinery, tubing, easing and fittings for the wells at his own expense, and pay Lewis sixty-five cents per foot for drilling. Lewis was to furnish his own drilling tools, perform or cause to be performed all the labor, and pay all the expenses of drilling the wells. He had no interest in the land ■ on which they were located, nor in the oil to be produced therefrom; nor had Smith, the owner of the land, any interest in the drilling tools sold on the execution. Lewis was simply a contractor engaged in drilling wells for different persons, moving his tools from place to place, as occasion might require, and .using them there until the well was completed and connected with a tank. His work was then finished and his tools removed. The questions naturally suggested by these facts are : 1st. Did Lewis properly belong to either of the classes of employers designated by the Act? 2d. Was the property, sold on the execution, so connected with and used in carrying on any branch of business described in the Act as to subject it to the lien contemplated by the first section thereof ? A proper construction of the Act answers both these questions in the negative. The several classes of employers, from whom wages must be due in order to entitle their employees to a lien under the Act, are designated therein, “either as owners, lessees, contractors, or under-ownei’s of any works, [531] mines, manufactory, or outer business.” Lewis was clearly neither owner, under-owner nor lessee of the oil wells. He had no interest whatever therein, nor was he a contractor within the meaning of the Act. The word “ contractors ” as used therein is applicable only to persons employed by the owner or lessee of a mine to operate the same, produce the mineral, coal, iron, or whatever it may be, for an agreed compensation, and does not embrace those who undertake to perform some special service in the .construction of works, or the opening of mines preparatory to their being operated. The property also which is subject to the lien must be connected .with the works or mines and used in carrying on the particular business contemplated by the construction of the one and the' opening of the other ; and not such property as may be used, by one who has no interest in the operation of the works or mines, under a special .contract to do some special work in the preparation of either for active operation. The phrases, “or other property connected therewith, in carrying on said business,” and “ property in and about or used in carrying on the business or in connection therewith,” employed in the Act, clearly indicate that it was not intended to apply to the tools of an itinerant mechanic, such as Lewis evidently was in this case. The conclusions of the learned auditor are so fully sustained by his report that further comment is unnecessary. Decree reversed at the costs of appellees; and it is now ordered that the fund be distributed in accordance with the report of the auditor.