Grimm v. Yates

Mr. Justice Gabbert delivered the opinion of the court: Section 1, of our lien act, session laws 1899, 261, being section 4025 E. S. 1908, provides, so far as material to consider, that: “Mechanics, material men, contractors, sub-contractors, builders, and all persons of every class performing labor upon or furnishing materials to be used in the construction, alteration, addition to, or repair, either in whole or in part, of any building*, * * * tunnel, * * * or any other structure or improvement, upon land, * * * shall have a lien upon the property upon which they have rendered service or bestowed labor * * * for the value of such services rendered or labor done * * * whether at the instance of the owner or of any other person acting by his authority or under him, as agent, contractor or otherwise; for the work or labor done or services rendered * * * by each respectively, whether done or furnished or rendered at the instance of the owner of the building or other improvement, or his agent; and every contractor, architect, engineer, sub-contractor, builder, agent or other person — 273 — having charge of the construction, alteration, addition to, or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purpose of this act.” Section 4 of the act, being section 4028, ibid, provides: “The provisions of this act shall apply to all persons who shall do work. * * * as provided in section 1 of this act, for the working, preservation, prospecting or development of any mine, lode or mining ■ claim or deposit yielding metals or minerals of any kind or for the working, preservation or development of any such mine lode or deposit, in search of any such metals or minerals; and to all persons who shall do work * * * upon, in or for any shaft, tunnel, mill or tunnel site, incline adit, drift or any draining or other improvement of or upon any such mine, lode, deposit or tunnel site; * * * and provided, further, That this section shall not be deemed to apply to the owner or owners of any mine, lode, deposit, shaft, tunnel, incline, adit, drift or other excavation, who shall lease the same in small blocks of ground in areas, whether of surface or beneath the surface, not to exceed 150 feet in length by the width of the claim and for a depth of 150 feet or less to one or more sets of lessees.” Liens of the character under consideration are purely creatures of statute. They neither exist nor can be enforced, except in cases falling within its purview and only those persons whom the statute plainly gives the right to a lien can acquire it. Such has been the uniform ruling of this court and the Court of Appeals. Section 8 of the lien act as it existed prior to the act of 1899, and as amended, session laws, 1895, 202, was substantially the same as section 4028, supra. Under that section it was held in Wilkins v. Abell, 26 Colo. 462, that the purpose of section 8, when read in connection — 274 — with other provisions of the lien act, or which it formed a part, was to give a lien on mining- property upon the same conditions that a lien attaches to other property, for services rendered the owner, or some one of the enumerated persons acting- for him, as his agent, but that the lessee of a mining claim was not one . of such persons, for the reason that the lessee is not employed by the lessor to do any work for him, as by the demise to the lessee he acquires a qualified interest in the property leased, which entitles him to work the same for his own benefit. This, ruling was followed in Antlers Park R. M. Co. v. Cunningham, 29 Colo. 284, 68 Pac. 226, and Williams v. Eldora Enterprise G. M. Co., 35 Colo. 127, 83 Pac. 780. In the latter case Maher v. Shull, 11 Colo. App. 322, 52 Pac. 1115; Schweizer v. Mansfield, 14 Colo. App. 236, 59 Pac. 843, and Little Valeria M. & M. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. 970, where substantially the- same ruling was announced, were cited with approval. In the Wilkins case, it was also contended that by virtue of the proviso included in section 8, passed in 1895, the owner of the fee was liable for work performed at the instance of the lessee unless the lessor leased the mine “in small blocks of ground to one or more sets of lessees.” Passing upon this question it was held that: ‘ ‘ The office of a proviso is not to enlarge or extend, but rather to put a limitation or restraint upon the language which the lawmaker has used in the body of the act. It excepts something from, but adds nothing to the act;” and therefore the proviso of itself could not be construed to give any lien that did not exist by virtue of the affirmative provisions of the act. Following the cases above cited, we think it is clear that under section 4028, a lien in favor of the plaintiff cannot be established, because the work he and his as — 275 — signors performed was done at the instance, and for the benefit, of the Herald Mines Company, whose relation to the defendant was that of lessee only, and that the proviso in.that section cannot be construed to give a right to a lien in such circumstances. Neither does the fact that the instrument, executed by the defendant, was a bond and lease change the situation. The Mines Company whs not in possession by virtue of the option to purchase, but under a contract of leasing and solely for the purpose of working the property under the lease, at a stipulated rent in the nature of royalty. The portion of the instrument which may be denominated a bond or option to purchase did not require the vendee to make any improvements. The only condition imposed upon the lessee by the lease was that work should be commenced within a time specified, and thereafter work the property continuously, in a thorough and workmanlike manner, employing not- less than two men underground, working at least 25 shifts to. the man each calendar month, and that all shaft work done should be substantially timbered in a workmanlike manner, and all drifts timbered when reasonably necessary. According to the testimony, the work performed by the plaintiff and his assignors was of the character usually done in the ordinary course of mining. A lessee of a mine must at least do ordinary development work in order to extract the ore it contains and to extract it necessarily requires work to be done upon the mine. This character of work, when performed at the instance of the lessee does not under the sections of the lien act so far considered, give the parties performing such work any right to a lien upon the fee of the lessor. Such is the ruling in the Williams ease, where that question is fully discussed. This brings us to a consideration of the question of whether the failure of the defendant to give the notice — 276 — mentioned in section 4029, R. S. 1908, subjects his interest in the property to a lien in favor of the plaintiff. That section provides: “Any * * * tunnel, * * * and every structure or other improvement mentioned in the preceding sections of this act, constructed, altered, added to, * * # or repaired, either in whole or in part, upon or in any land, within the knowledge of the owner or reputed owner of such land, * * * shall be held to have been erected, constructed, altered, * * * repaired, or done at the instance and request of such owner or person, but so far only as to subject his interest to a lien therefor as in this section provided; * * * unless such owner or person, shall, within five days after he shall have obtained notice of the erection, construction, alteration, removal, addition, repair or other improvement, aforesaid, give notice that his interests shall not be subject to any lien for the same, by serving a written or printed notice to that effect, personally upon all persons performing labor or furnishing skill, materials, machinery or other fixtures therefor, or shall, within five days after he shall have obtained the notice aforesaid, or notice of the intended erection, construction, alteration, removal, addition, repair or other improvement aforesaid give such notice as aforesaid by posting and keeping posted a written or printed notice to the effect aforesaid, in some conspicuous place upon said land or upon the building or other improvement situate thereon. Provided, That this section shall not apply to co-owners of unincorporated canals, ditches, flumes, aqueducts, and reservoirs not (nor) to the enforcement of chapter 116 of the session laws of Colorado of 1893; And, provided, further, that the provisions of this section shall not be construed to apply to any owner or person claiming any interest in such prop — 277 — erty who shall have contracted for any erection, structure or improvement mentioned in this act.” The important question is in what circumstances must the owner of property give the notice required by this section in order to protect his fee from being subjected to a lien for the character of improvements therein mentioned. Clearly, if the owner has entered into a contract to have such improvements constructed, which under the provisions of the lien act would subject his fee to a lien therefor, he cannot prevent the lien attaching by giving notice that his interest in the property shall not be subject to a lien for such improvements. That would defeat the very purpose of the lien act, which by preceding provisions, care has been taken to prevent. Evidently the purpose of the section is to require an owner, where -another in possession of his property is making improvements, which by the terms of the agreement between the owner and the party in possession, the latter is without authority to make, to give notice to those performing labor, or furnishing materials for such , improvements, within five days after he shall have obtained knowledge that they are-being constructed, that his interest in the property, upon which such improvements are being placed, shall not be subject to any lien therefor, and that his failure to do so renders his interest subject to a lien for such improvements. That this is the manifest purpose of the section is plain from its provisos, which are to the effect, that it shall not apply to an owner who has contracted for such improvements, nor the owners of unincorporated canals, ditches, flumes and reservoirs, nor to the enforcement of chapter 116, session laws of 1893. Turning to that chapter we find it provides, that co-owners of unincorporated ditches, except as therein limited, shall pay for the necessary cleaning and repair of such ditches, in the proportion — 278 — that their respective interests bear to the total expenses incurred in doing that character of work, and that the owners performing such work shall have a lien upon the interest of a delinquent co-owner, for his proportion of such cost and expenses. These provisos make it clear that by the section it was not intended to allow an owner, by posting notices, to relieve his property from a lien attaching for improvements, when by virtue of his contract with the person making them, his property' under the lien act, is subject to a lien therefor, and that its object was to estop the owner from asserting that unauthorized improvements were not made at his instance and request, if constructed with his knowledge, unless he gives the notice required by the section. In brief, the purpose of the section was to give a lien for improvements not authorized by any contract between the owner and the person at whose instance they are being constructed, when by his seeming acquiescence through silence, it would be inequitable to relieve his property from a lien for such improvements. Such, in effect, is the construction given the section under consideration by our Court of Appeals in Fisher v. McPhee-McGinty Company, 24 Colo. App. 420, 135 Pac. 132. In that case, one French, agent for the lessee, was in possession of property under a lease from Mrs. Fisher, and made improvements on the property which were not authorized by the lease. The lessor, however, through her agent had knowledge that such improvements were being made, and failed to give the notice required by section 4029. The parties making these improvements or furnishing materials therefor, sought to enforce liens against the premises upon two grounds, (1) because the owner, expressly or impliedly, through a tenant, contracted for the materials furnished and the labor performed and (2) that the improvements upon the premises for which liens were — 279 — claimed could be enforced upon the fee of the owner because they were made with her knowledge and she failed to notify the lien claimants that her interest would not be subject to the liens. Speaking to the first point, the court, through King, J. said. “Unless so provided by the terms of the lease, the lessee is in no sense the agent or superintendent of the lessor, nor is he a contractor for the lessor, within the contemplation of the lien statute. The owner of property cannot be bound, nor his property charged with a lien by the unauthorized act of the lessee in having improvements made on the leased property, ’ ’ and concluded by stating in substance that as the improvements were unauthorized, liens would not attach under the general provisions of the mechanic’s lien act. Speaking to the second point, which involved a construction of section 4029, it was said: “This section charges land with a lien for the cost of any building constructed thereon or altered, added to or improved, with the knowledge of the owner, if he shall not have contracted therefor, but from which lien so charged he may be relieved by compliance with the statutory requirements as to notice.” None of the work performed by plaintiff and his assignors was unauthorized by the instrument executed by the defendant under which the Mines Company was working the mines. Hence the defendant was not required to give the notice mentioned in section 4029, and his failure to do so did not subject his interests to the lien claimed. All work was performed at the instance of the Herald Mines Company, whose interest in the properties involved, and relation to the defendant, Grimm, was that of lessee only, and was of that character in fact, and by the terms of the lease, for which a lien will not attach to the fee of the owner. Conse — 280 — quently, it follows that plaintiff is not entitled to any lien upon the interest of Grimm in the mines. Counsel for plaintiff rely upon Pike v. Empfield, 21 Colo. App. 161, 120 Pac. 1054, and Clark Hardware Co. v. The Centennial T. M. Co., 22 Colo. App. 174, 123 Pac. 322. The former case is based upon the ground that as between the owner and the party at whose instance the work was performed, for which the lien was claimed, the relation of vendor and vendee esisted, as the latter bound himself to purchase the property, and hence, the case was ruled by Shapleigh v. Hull, 21 Colo. 419. In the Clark Hardware case the decision was based upon the allegations of the complaint, to the effect that the materials furnished the lessee were used for the working, preservation, prospecting and development of the property involved, thereby enhancing its value, with the knowledge of the owner, who failed to post the notice mentioned in section 4029. To this complaint a general demurrer had been interposed, and it was held that as against such demurrer the complaint stated a cause of action for a lien under the provisions of section 4029. The case is so construed by the same court in Milwaukee Gold Mining Company v. Tompkins-Cristy Hardware Company, 141 Pac. 527. Other questions are argued in the briefs of counsel for defendant, which it is not necessary to consider. Cross-errors, are also assigned on behalf of plaintiff, but as none of the questions thus presented are material to the grounds upon which our decision is (based, they need not be passed upon. The judgment of the District Court, in so far as it awards a lien upon the fee of the defendant, is reversed, and the cause remanded with directions to dismiss the action as to him. — 281 — Judgment reversed and cause remanded with directions. Decision en banc. Mr. Justice Hill dissents.