Bishop v. Henry

Mr. Justice Bean delivered the opinion of the court. Crawford resists the liens sought to be foreclosed in this suit begun November 26, 1913. He consented to the removal.of the mill which has been sold for $500, and a portion of the proceeds are in the hands of the county clerk. The.question involved herein relates to the mining claims. The several liens were filed to secure payment for materials and supplies furnished and labor performed in the development of the mines. The lien notices were similar. In that of Hans C. Olson it is stated in part thus: “That the said mining claims are known as the Nor-wood group of mining claims and are situated about eight miles northeast of the city of Baker; that the same are contiguous and are worked through common shafts, tunnels, excavations and workings and by means of one mill or ore reduction works; that said labor so performed was upon said' Norwood group of mining claims above described, and upon that certain five-stamp mill situated upon said mining claims, all of which said mill, mill buildings, structures and machinery being situated upon the said Norwood group of mining claims and used in the working and miuiug of the same; that the said Susie Norwood Henry, Grace Carmalt and Steve Chaplin were the agents of the owners of said mining claims, mill, structures and machinery and hired this claimant to perform the work, labor and services aforesaid and the said Susie Nor-wood Henry, Grace Carmalt and Steve Chaplin are the owners and reputed owners of said mining claims hereinabove described and of said mill, structures and machinery, and caused said work and labor to be performed.” In one or two of the lien notices the name of A. W. Eastham, trustee, is included as owner. It is contended by defendant Crawford: (1) That the lien notices were not effective and do not support — 395 — the liens for the reason that the name of B. C. Crawford, who was. afterwards declared to he the sole owner, was not stated therein; and (2) that Crawford never authorized the expenditure upon the mines. Section 7444, L. O. L., provides in part as follows: “Every person who shall perform labor upon, or furnish material for the working or development of any mine, * * and any person who shall do work or furnish material for any road, tramway, train (trail), flume, ditch or pipe line, building, structure or superstructure used for, or in connection with the working or development of any such mine, * * and any person who shall perform labor or. service in freighting or packing any material or supplies for the use, working or development of any such mine, * * and any person who shall furnish any provisions, materials or supplies for the working or development of any such mine, * * structure or superstructure, shall have a lien on shell mine * # to secure to him the payment for the work or labor done, or material furnished, * * provided, that when two or more mines, lodes, mining claims or deposits are owned or claimed by the same person or persons, and worked through a common shaft or tunnel, * * then all the mines, * * shall, for the purpose of this act, be deemed one mine; * * and provided further, that this section shall not be deemed to apply to the owner or owners of any mine, * * when the same shall be worked by a lessee or lessees, or by any person or persons other than the owner; provided further, that the owner or owners * # post, or cause to be posted, * * a notice in writing, * # stating the name or names of the lessees, or other person or persons other than the owner operating said property, and that the owner or owners thereof will not be responsible for any debt or debts contracted by the lessee or lessees, or other person or persons other than the owner, in connection with the working, operation or development of such property. # * The failure of any owner or owners of such property to post the notices "above provided for, and secure the proper recording — 396 — thereof, shall be deemed conclusive proof of the consent of such owner or owners that his or their interest in such mine shall be subject to any lien filed under the provisions of this act.” Section 7445, L. O. L., provides in substance that it shall be the duty of every laborer or materialman claiming a lien, within sixty days after he has ceased to labor or furnish materials therefor, to file with the proper county clerk a claim containing a true statement of his demand, after deducting all just credits and offsets— “with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, and also a description of the property to be charged.” 1-3. A mechanic’s or miner’s lien is a creation of the statute to which we must look for the right to file any such lien: 2 Snyder on Mines, § 1705. The provision of the statute that the claim of lien shall state the name of the owner or reputed owner, if known, is complied with by a statement that the person against whom a lien is claimed is the owner and reputed owner. A statement in the alternative that a designated person is the owner or reputed owner is also sufficient under such a statute: 2 Jones on Liens (3 ed.), § 1401; Gordon v. Deal, 23 Or. 153 (31 Pac. 287); Haines Com. Co. v. Grabill, 78 Or. 375, 381 (152 Pac. 877); Arata v. Tellurium Gold & Silver Min. Co., 65 Cal. 340 (4 Pac. 195); Abelman v. Myre, 122 App. Div. 470 (106 N. Y. Supp. 978); McPhee v. Litchfield, 145 Mass. 565 (14 N. E. 923, 1 Am. St. Rep. 482); Minors. Marshall, 6 N. M. 194 (27 Pac. 481). Our statute contemplates that in certain cases the name of the owner may not be known, and in such event it is unnecessary that the notice contain the same: 2 Jones on Liens (3 ed.), § 1401. — 397 — 4, 5. There is no claim in this suit that Crawford posted any notice of nonliability within the purview of the statute. His main reliance is based upon the decree of August 31, 1904. As to the claimants who were not parties to that suit, the decree is analogous to a foreclosure of the former claims, other than his own, and took effect as of that date. It does not determine the rights of these lien claimants which were created before that time and were not foreclosed nor affected. At the commencement of their connection with the mines Susie Norwood Henry and Grace Carmalt went into possession thereof for the purpose of working the properties and representing the one-third interest supposed to belong to the Norwood estate. This was all done with the consent and acquiescence of defendant Crawford. In so far as these claimants are concerned the authority given by Crawford and his sanction for these parties to work the mine was of just as much force as though he had leased the property to Mrs. Henry and her associates and executed a written lease therefor. Had he desired not to become liable for any work done upon these mines by the parties whom he let into possession, he should have posted notices as provided by the statute: See Haines Com. Co. v. Grabill, 78 Or. 375 (152 Pac. 877). Crawford’s position is entirely different from what it would be had the parties incurring the indebtedness entered into possession of the mines without his sanction or authority: Loud v. Gold Ray Realty Co., 72 Or. 155 (142 Pac. 785); Post v. Fleming, 10 N. M. 476 (62 Pac. 1087); Hamilton v. Delhi Min. Co., 118 Cal. 148 (50 Pac. 378); 27 Cyc. 772. 6. In Bitter v. Mouat Lumber & Inv. Co., 10 Colo. App. 307 (51 Pac. 519), it was held that a lien claimant can be charged only with knowledge of the ownership of — 398 — property as apparent upon the public records. In equity and good conscience defendant Crawford should not now be allowed to claim that Mrs. Henry and Grace Carmalt were not the owners, rightfully in possession of, and working the claims in suit, when he permitted them to hold out to the world that they were the rightful owners thereof. He stood idly by from 1907, when he allowed them to take possession of the mines, until 1915, when most of the indebtedness for which liens are claimed was incurred. Then, as he states, in July, 1913, or somewhere along there, he concluded that he owned all the mines. Prior to that time he claimed only a one-third interest. As to these lien claimants the die was cast before Crawford brought his suit: See Bigelow on Estoppel (2 ed.), p. 453. By a tardy suit which-became effectual in August, 1914, he should not be allowed to defeat the claims of those who in good faith extended credit on account of the mines to which were charged merchandise and supplies furnished in the' development thereof. Our statute directing that a notice of lien shall state the name of the owner or reputed owner of the property sought to be charged, if known, seems to have been enacted for just such a case as this where the title in fee is in the United States government and neither party has much more than a possessory right to the claims. The lien notices, the complaint and the proof are in conformity with the statute and are sufficient to sustain the liens: 13 Enc. PI. & Pr., p. 969 et seq. . Objection is made to the amount of defendant Kings-bury’s claim. The work was done during the several years named, and accurate accounts do not appear to have been kept by him. With a little assistance he constructed a 90-foot tunnel, other work was done on the mines, and supplies and materials were transported — 399 — in the development thereof. After a careful consideration of all the evidence, $1,111.50 is found to be due Kingsbury and allowed him upon his own lien, and the further sum of $228.50, due upon the lien of his assignor, Hans C. Olson, making a total of $1,340, together with $125, attorney’s fees. The claims of plaintiff are approved as found by the trial court. 7. Objection is made to the form of the allowance of attorney’s fees for plaintiff. We see no merit in this claim nor any material difference in allowing reasonable attorney’s fees for all the claims in the aggregate or singly. The decree of the trial court is modified as herein indicated and the amounts allowed claimants will be declared to be a lien on the mines described in the complaint. Modified.