Big Blackfoot Milling Co. v. Blue Bird Mining Co.

Pemberton, C. J. The real question presented by this appeal is whether the complaint designates or specifies any particular acre or parcel of land with such certainty as would entitle it to a judgment enforcing a lien against it. The appellant contends that the complaint describes the land so that it can be identified. We do not doubt that an officer might find all the land from the description given in the complaint. As shown in the statement, there is a large amount of land described in the complaint, amounting to nearly 800 acres, some of which consists of quartz-mining claims, 160 acres not shown to be mining ground (and presumably not mineral), several town lots shown to be in different blocks, a water right, a right of way over certain lots, and other property. Now, then, the question is: Does the complaint show or designate any particular part of this large amount of land, of different kinds and character, upon which the building material was used, and which was improved or benefited thereby, against which a lien is sought, with such certainty'as to enable or authorize the court under the law to enter judgment enforcing the lien ? Appellant contends that it is sufficient to describe all the property owned by the defendant Blue Bird Mining Company at the time the materials were furnished. The complaint alleges that all of the land described constituted one mining claim and plant, and that credit was given on the faith of the defendant Blue Bird Mining Company owning all of the property as a unit in its mining operations. In support of the contention that all of the property described in the complaint constituted but one 'mining claim or plant, counsel cites Smelting Company v. Kemp, 104 U. S., opinion, page 648, in which the court, by Mr. Justice Field, says: ‘‘Indeed, his claim may include as many adjoining locations as he can purchase, and the ground covered by all will constitute his mining-claim, and be designated as such in the general understanding of miners, and the meaning they attach to the term. ” The learned judge was here speaking of the number of [457] claims or adjoining locations that might be included in the patent when owned, by one person or company. But this is a different question, we think, from the one at bar. Many authorities hold that, ‘'where labor and materials are furnished under a single contract for buildings to be erected on contiguous lots owned by the same person, the liens will attach to all the lots, irrespective of the amount of material used on each.” (Boisot on Mechanic’s Liens, § 173, and cases cited in note.) A large number of cases also hold that, where the lots are not contiguous, the lien is only on each lot for the value of the work or materials expended on that particular lot. (Id., and cases cited in note 55.) Another line of respectable authorities holds that the lien can only be claimed for material furnished for the particular lot or tract of land upon which they were used, regardless of the question whether the lots are contiguous, and the materials for all were furnished under one contract. (2 Jones, Liens, §§ 1425, 1426, and authorities cited in the notes.) But the complaint in this case does not show the different lots or tracts of land to be contiguous. The reverse is shown. There are 29 mining claims described in the complaint. None of them are alleged to be contiguous. One hundred and sixty acres of nonmineral land are described in the complaint.' This land is not alleged to be contiguous to any other land included in the complaint. There are town lots enumerated in the complaint, shown to be in different blocks in the town of Rocker, and none of them alleged to be adjoining any other ground mentioned in the complaint. Nor does the complaint locate the water right, or right of way, or leasehold estate mentioned therein with reference to any other property described. Nor is it anywhere alleged that the building materials and lumber mentioned in the complaint were sold under one contract. In fact, the inference from an inspection of the account sued on is that the materials were not, and of necessity could not have been, covered by one contract. The account shows the materials or timbers sued on to be principally min [458] ing timbers; that is, timbers used in developing mines. Now, it would be impossible for a mine operator ordinarily to tell in advance how much of such material he would need in developing a mine, or working it to any considerable extent. He would of necessity have to buy or contract for such materials from time to time as the necessities of the mine would require for the development thereof. So that we are unable to see how a contract in relation to furnishing timbers for developing a mine could be a long-continuing one. This case is widely distinguished from Steam Heating, etc. Company v. Wells, 16 Mont. 65, 40 Pac. 78. In that case there was a finding of fact that the contract under which all the materials were furnished was one continuing contract. The statement of the case at bar shows a different state of facts. Contracting for timbers to extensively develop a mine is a very different thing from contracting for materials to build a'house. In relation to the mine, the operator must ordinarily contract for his materials from time to time, as the necessities of the case demand; whereas in the case of a house the materials can readily be’contracted for in advance at one time, as what is needed is known from the beginning. So that, conceding that it is the law that a lien may be had on several adjoining lots and the buildings thereon, if owned by one person, and all the materials are contracted for under one contract, still we think the facts of this case do not bring it within this rule. Whatever may.be conceded to appellant as to what constitutes a claim, as announced in Smelting Company v. Kemp, supra, in that case the court did not hold that a party could unite, in his application for patent, quartz claims, nonmineral land, town lots, water rights, etc. Counsel contends that, under the rule announced by this court in Smith v. Mining Company, 12 Mont. 524, 31 Pac. 72, the appellant is entitled to a lien in this case against all the ground described in the complaint. In that case we held that the law limiting the operation of the mechanic’s lien to one acre of ground, when outside of any [459] town or city, did not apply to a lode mining claim, because the law gave the lien on a quartz lode. Smith v. Mining Company, supra, does not go to the extent, and is not authority for the contention, that any number of noncontiguous lode claims, large tracts of nonmineral lands, town lots, water rights, etc., can all be included in one statement or proceeding to secure and enforce a mechanic’s lien. We do not assent to the claim of appellant that it could not designate any particular part of the large body of ground described in the complaint upon which the materials sued for were used. With the slightest effort, it seems to us, the appellant could have obtained some knowledge or information as to. what particular lode claim, acre of ground, or town lot, the materials, or some part thereof, were used upon. But there is no attempt in the complaint to make such designation, or any excuse offered for not so doing. For this reason we think the complaint of plaintiff was bad for ambiguity and indefiniteness, as well as for not stating facts sufficient to entitle it to a lien, especially in this case, where the parties to the suit are not the same as those to the original contract. (2 Jones, Liens, § 1426, and authorities cited). To hold otherwise would be to ignore entirely the general rule that the lien attaches only to the particular lot or tract on which the labor has been performed, or the improvements made, or building erected. We see no error in the action of the district court in sustaining the demurrer to the complaint, for the reasons above stated. The judgment is affirmed. Affirmed. Hunt and Buck, JJ., concur.